Bill C-233

An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner)

This enactment amends the Criminal Code to require a justice, before making a release order in respect of an accused who is charged with an offence against their intimate partner, to consider whether it is desirable, in the interests of the safety and security of any person, to include as a condition of the order that the accused wear an electronic monitoring device.
The enactment also amends the Judges Act to provide for continuing education seminars for judges on matters related to intimate partner violence and coercive control in intimate partner and family relationships.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

No.

Chair, we are opposed to clause 11, because it would repeal changes that we saw in Bill C-233, which this committee studied. That was Keira's law. It would mean that the coordinating amendments to the clause would not apply. That is why we would vote down this clause.

[The Chair, Conservative, Karen Vecchio]

Amendment G-3 does not have an impact on Bill C-233.

[Leslyn Lewis, Conservative, Haldimand—Norfolk, ON]

I'm just not content with that.

I would like the record to show the objections that we had to the other clauses, because I think that should be on the record. There are a number of clauses that impact Bill C-21 and also Bill C-233. There are a number of clauses that impact other bills.

[Michelle Ferreri, Conservative, Peterborough—Kawartha, ON]

I guess my question is, why are we amending this bill so heavily and pulling out critical terms that consult victims and protect victims? We've had victim testimony that specifically asked for this to be passed unamended.

We also had Keira's law, Bill C-233, for which we did some pretty amazing work in this committee. Keira's stepfather, who's a lawyer, testified in this committee and said to leave the bill as is.

Diane Tremblay, who testified here at meeting 86, said the following:

If my abuser had been required to wear an electronic bracelet under a recognizance order pursuant to section 810 of the Criminal Code, as proposed in Senator Boisvenu's bill, my children and I would have been safer and I wouldn't have had to go through these attempted murders. Believe me, you don't emerge unhurt from an attempted murder. You suffer the after-effects for life.

She went on to say, along with the other—

[Marci Ien, Liberal, Toronto Centre, ON]

Michelle, it's good to see you.

First and foremost, our government under Minister Virani has declared intimate partner violence an epidemic. My home province of Ontario, under the leadership of Premier Doug Ford, has not, so I will start there.

With respect to Bill S-205, it's my understanding, Michelle, that it's being studied by a committee and that clause-by-clause is still in progress. As a guest of this committee, I will not speak to the decisions of committee members and the decisions they are making here. However, I will say, with regard to intimate partner violence, that just this year Keira's law was passed.

[Chelsea Moore, Acting Senior Counsel, Criminal Law Policy Section, Department of Justice]

Just to clarify, the motion G-1 would actually remove two proposals from this bill. I believe that might be a source of some of the confusion.

The first proposal that would be removed is the proposal to ask the prosecutor if the victim has been consulted, and the second proposal that would be removed is the proposal regarding electronic monitoring. They both fall under the first clause. The one motion deals with both proposals at the same time.

On electronic monitoring, as the committee is certainly aware, there was a specific condition added to the Criminal Code that, at bail, judges must consider imposing a condition of electronic monitoring in cases of intimate partner violence and other cases—other serious charges. That did receive royal assent in former Bill C-233. That's with respect to the second proposal.

The first proposal, with respect to the obligation to ask the prosecutor if they've consulted the victim about their safety and security, is not currently in the Criminal Code; however, there are a few related provisions, which have a similar intent to this proposal and would be added by Bill C-48, which was adopted by both Houses last week.

Hopefully that clarifies a little. I think there's been some discussion about both proposals, maybe mixing the discussion together, so I just wanted to clarify that there are two different ones.

[Sonia Sidhu, Liberal, Brampton South, ON]

Madam Chair, I think we already dealt with this in Bill C-233. I already spoke on that. That is, I think, on the first part.

We talked about the bail hearing, which elevated intimate partner violence as a crime for which electronic monitoring should be specially considered. We did this with Bill C-233.

[Sonia Sidhu, Liberal, Brampton South, ON]

Victims are already consulted. Why I am saying that is that it impacts more disproportionately Black and racialized people.

The other point, Madam Chair, is that Bill C-233 considers intimate partner violence as a crime for which electronic monitoring should be especially considered, if we consider it for all crimes.

Judges do not get the nudge to treat IPV with extreme care. That was the other point I wanted to add.

[Dominique Vien, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Thank you, Madam Chair.

I would just like to respond to the argument that this bill duplicates what was done by Bill C‑233, if memory serves. These two bills affect two completely different parts of a process. This is a bill that comes into play upstream, when women experience spousal violence and are completely without resources. I say women, because it is much more often women.

We heard some pretty poignant testimony on Monday, probably among the worst I have ever heard. You heard me react. At one point, it became unbearable to hear. So I have trouble imagining how these women can continue to survive as they do, with so much strength, after experiencing that violence.

I would also like to point out that the Quebec Native Women association supported the Quebec initiative to use electronic bracelets, about which Ms. Larouche and I have said a lot today, which is a beacon in this area. It is a positive experience. In this field, as in others, we can take inspiration from Quebec, and I do not hesitate to say it.

This is what we are trying to do with this bill, which was introduced and sponsored by Senator Boisvenu, with all his passion and heart. I would remind us that he has experienced a major tragedy, the loss of his daughter, who was murdered. He has devoted his life to this cause: to protecting women.

At the beginning of the week, we heard testimony from two witnesses: Diane Tremblay and Martine Jeanson. They came to tell us, bluntly and unequivocally, how important it is to support this bill. I do not think that anyone here intends to play petty politics with this issue. I do not sense that, in any case. We are trying to identify the best possible elements of this bill, but we all heard these women's testimony on Monday. They told us not to waste time, and that we had to support this bill, with no amendments. They spoke to us from the heart.

I would like to read you a short passage from Ms. Tremblay's testimony: "I can't tell you just how important the electronic bracelet will be once the bill is adopted."

No one said that this bill was the only solution. In fact, it provides for other tools, including therapy and revision of section 810 of the Criminal Code, which serves virtually no purpose. Quoting Ms. Tremblay again: "We have our reasons for requesting that there be no amendments to the bill. We are here before you to tell you what actually happens. We are the ones who really know. We want to be protected and we want to protect our children."

Ladies, I hear what you are saying today and I thank you. You have taken the time to prepare your briefs. However, it is apparent that we do not agree with you, and we want to say so for the record. We want this bill to go through all the steps. We thank you for coming to meet with us, but evidently we will not find common ground, because to us, the bill is fundamental. It is a major tool that will offer concrete help for women everywhere in Canada who are afraid for themselves, but also for their children.

Madam Chair, I therefore urge all parliamentarians, the witnesses who are here and the associations they represent to reconsider their position on this bill and join us. Nothing is perfect. No one is saying it is perfect, but everyone is saying it is better than nothing. From that perspective, I believe we have to move forward.

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[Roxana Parsa, Staff Lawyer, Women's Legal Education and Action Fund]

Thank you.

Good morning. My name is Roxana Parsa. I am a staff lawyer at the Women’s Legal Education and Action Fund, also known as LEAF.

I’m grateful to appear today from what is now known as Toronto, which is on the traditional land of the Mississaugas of the Credit, Wendat, Anishinabe and Haudenosaunee nations.

LEAF is a national charitable organization that works to advance the equality rights of women, girls, trans and non-binary people through litigation, law reform and public education. For the past 38 years, LEAF has advocated for the need to improve the justice system’s response to gender-based violence. We are grateful for the opportunity to be here today to share our views on this bill.

I’d like to start by expressing appreciation for Senator Boisvenu’s efforts to address intimate partner violence. Intimate partner violence accounts for 45% of all violence reported by women. These risks are greater for women who are indigenous, Black and racialized, as well as for women with disabilities and migrant women. These risks are also greatly increased for people who are 2-spirit, non-binary, trans and gender non-conforming.

Responding to intimate partner violence requires an immense systemic approach that considers the needs of diverse survivors of violence. However, we encourage committee members and all parliamentarians to resist focusing on the criminal law as the sole response. Taking a carceral approach and expanding provisions in the Criminal Code do not address the systemic issues that underlie violence. We are concerned today that the focus on electronic monitoring in this bill diverts resources that could instead be spent on preventive measures and direct support of survivors, while also increasing surveillance and promoting a false sense of security.

Before sharing our concerns, we would like to first commend this bill for its provisions on sharing information with survivors during the legal process. As we have all heard numerous times, for many survivors of violence, the process of reporting an incident and engaging the legal system is retraumatizing. It often does not offer what they need to move forward with justice and safety. Survivors are often left in the dark, unaware of their own rights during the process. Requiring judges to ask prosecutors whether the intimate partner of the accused has been consulted, as well as providing them with a copy of the bail order, can have a positive impact by providing survivors with much-needed information. This is a positive step towards an approach that considers survivors to be integral parts of the criminal legal system.

However, we remain very concerned about this bill’s focus on electronic monitoring. We understand the desire and the intent behind exploring more paths to safety for survivors. However, in our opinion, electronic monitoring serves as a band-aid. Electronic monitoring does not necessarily function as an effective means to increase safety. Reliance on this technology can lead to malfunctions, such as false alarms and delayed notifications. This risk is heightened in remote and geographically isolated communities, where a lack of connectivity and sometimes extreme weather conditions can also cause monitoring systems to fail. These failures lead to the inability of law enforcement to effectively respond. In effect, while some survivors may feel an increased sense of safety, this does not translate into reality.

Electronic monitoring was also already available to judges as an option when, through Bill C-233, it was recently introduced into the law, specifically in the context of intimate partner violence. This proposed legislation is redundant and serves to increase surveillance of offenders and their families, many of whom may already be from oversurveilled and marginalized communities. As Senator Pate pointed out, studies in the U.S. show a disproportionate use of electronic monitoring on racialized and low-income families.

Finally, electronic monitoring devices are expensive, costing hundreds of dollars a month. When we are thinking about how to best spend resources, we need to think about what will have the most meaningful impact. We urge the government to reconsider spending valuable resources on criminal legal solutions that have not proved to protect women. These are resources that could be allocated to services that provide direct support for survivors and the mechanisms to seek safety.

While new laws can give the illusion of concrete action, the criminal law is not the solution. Repeated legislative amendments and expansions have not reduced the number of deaths. Moreover, when policing is seen as the primary solution to intimate partner violence, it inadvertently excludes survivors from marginalized communities, who may not seek the support, and only deepens the existing inequities in seeking safety.

The answer, we suggest, is properly supporting and funding education, prevention and frontline services that respond to the needs of survivors while working to end gender-based violence. It is time we look beyond the criminal legal system and focus our resources on developing the social systems that are necessary for violence prevention.

Thank you for your time.

[Philip Viater, Lawyer, As an Individual]

Thank you for having me here.

Senator Boisvenu, thank you for bringing forward this bill.

For those who don't know me, I am a lawyer. I practise predominantly family law, with some criminal law, and I've been doing that for about 15 years.

I bring a bit of a unique element to my experience because, as was alluded to before, I am the stepfather of Keira Kagan, who was involved in a murder-suicide that ended up resulting in Keira's law being passed through Bill C-233, along with provisions for ankle monitoring.

When I reviewed this bill, I was quite optimistic. Because of my unique experience as both a survivor of domestic violence through my stepdaughter and a lawyer who deals with a lot of victims of domestic violence as part of my work, people from all across Canada reach out to me quite regularly—and I mean literally every province and territory—and I hear all the stories, in addition to my own practice. I think this bill is quite important to implement.

As a matter of first priorities, a lot of people have trouble coming forward. They fear they may be disbelieved and, even worse, they fear that if they are disbelieved and no charges are laid, they may get it even worse once their intimate partner finds out that they have gone to a police officer to make a complaint. The stakes can be quite high.

What we also find is that, once a police officer does agree or finds grounds to lay a charge, victims oftentimes feel silenced. They feel that they don't have much control over the process and that things are just done without their input.

One of the very first provisions that struck me was something so easy and something that should be done regularly, which is to get the victim's input on their safety and security needs. That could be done so easily in the stages where the police officer takes their statement. They could, just at the very end, ask about their security and safety needs. They could be taken through victim witness services. It is a really easy thing to do, and it's really important.

By way of a very quick example, I was involved in a case where the husband was charged—they were pretty bad charges—and, of course, we had the regular no-contact provisions. They didn't consult with the wife on this one, and the unique aspect of this particular case, for example, was that these people were very religious and went to their temple a lot—multiple times per week. Police didn't know this and the Crown didn't know this, because nobody had asked the wife. What the husband was doing was going to that temple a lot more than usual in the hopes of continuing to see the wife. Now, when the wife reported this to the police, the husband had plausible deniability—“I'm here just to go to my temple”—even though he was going at times and on dates so much more often than he used to go.

That became a problem, because nothing was really getting enforced. At a minimum, it could have been considered.

Similarly, even informing people of the conditions to get the order—it's part of this bill—is really important, because most victims don't even know that. If they don't have a lawyer, sometimes they don't even receive it.

Finally, I want to talk about the peace bond process, because it is really important and is really well done, in my opinion, in what this bill accomplishes.

First of all, a peace bond is a separate process to a criminal proceeding. In a criminal proceeding, you have to be found guilty beyond a reasonable doubt for there to be a conviction. With a peace bond proceeding, number one, the standard of proof is a balance of probabilities—just what is more likely than not—and, number two, the other key difference is that somebody could lay a peace bond information just based on having reasonable grounds for fear for their safety or of violence, which is a really important distinction. A criminal offence does not even have to have taken place, but if intuitively a victim knows that something bad may happen, they could lay an information.

In addition, and what is also really important and is perhaps an unintended consequence, because the courts are really concerned with unreasonable delay due to the charter, and because the criminal burden is so high, oftentimes prosecutors make deals. Right now, they're very limited in terms of the deals they can make when there's a peace bond, but Senator Boisvenu's bill has provided them further opportunity to make a much better resolution, which would still, hopefully, protect the victim, if they really need to go that route.

[Pierre-Hugues Boisvenu]

You are absolutely right.

A judge must show extreme sensitivity in cases of domestic violence, violence against children and sexual assaults. A bully, when in the presence of the victim in court, continues to bully. The perpetrator establishes a power relationship through which he exercises control over his victim, and that continues, even in the courthouse. That's when the judge's role becomes important. The judge must establish a relationship with the victim and give the victim as much discretion as possible if she wishes to talk about the conditions she wants to include in the recognizance to keep the peace, because she is the person who knows her abuser best.

It is therefore important to listen to the victim to know what conditions she wants to be safe and to feel safe. It's very important for the judge to be sensitive to the victim's needs. That's also why Bill C‑233 raises the matter of training for judges. You no doubt remember Bill C‑3, which was about training judges in matters of sexual assault. I had put forward an amendment to include domestic violence, but it was not accepted. Now, Bill C‑233 acknowledges that judges need training in this area.

[Pierre-Hugues Boisvenu]

That's the advantage of Senator Dalphond's amendment. If Bill S‑205 is adopted, there will be a correlation between the two bills. Combining the two would expand the use of electronic bracelets. However, it must never be forgotten that only a justice can order the wearing of an electronic bracelet. The justice's decision must be based on the victim's safety, in terms of protecting both her life and her health. I don't believe the bill would be contradictory, but rather complementary. The scope of the act would simply be broadened for justices when they have a victim before them. Bill C‑233 limits the number of victims who might be affected and the number of criminal circumstances, while Bill S‑205 broadens the scope. However, decision authority will always rest with the justices.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you so much, Senator, and thank you for being a good ally, participating in an end to gender-based violence. Thank you for your work.

I know this is your last bill, so I commend you and thank you for that.

We passed Bill C-233, which provides for electronic monitoring in cases of intimate partner violence. I know in your bill, the current wording of Bill S-205 would allow the Attorney General to request electronic monitoring for any release order under subsection 515(2). Do you think that subclause 1(2) of the bill is redundant?

[Pierre-Hugues Boisvenu]

I'd like to thank the member who sponsored Bill C‑233, which has already been adopted. However, its scope within the Criminal Code is relatively narrow.

I'll give you an example: subsection(4.2) of section 515 of the Criminal code, which has been in force since the adoption of Bill C‑233, focuses on specific offences, but does not include things like intimidation, breaking and entering and being unlawfully in a dwelling house. And yet most complaints from women are in connection with their ex‑spouse unlawfully entering and being in the house. It's often under circumstances like these that a murder is committed, but Bill C‑233 doesn't cover these offences.

Bill S‑205 does include them. Senator Pierre Dalphond—whom many of you know, I believe—worked closely with me on this bill. He introduced a section which, if it is adopted, would broaden the scope of Bill C‑233 without lessening its importance.