Bill S-205

An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders)

This enactment amends the Criminal Code in respect of interim release and other orders related to intimate partner violence offences. The enactment also provides for recognizance orders to be made when there is a reasonable fear of domestic violence.

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

It seems to me that the testimony we have heard and the experience we have had in Quebec with anti-approach bracelets compel us to act and to adopt Bill S-205. Sincerely, I find it hard to see how technical effects can try to persuade us not to adopt this bill.

I am going to stop here, because I do not have much time, Ms. Latimer. It would have been interesting to continue the discussion.

Ms. Mattoo, you are in virtual mode, is that right? Are you there?

[Catherine Latimer]

Well, I think there are technical reasons as well as substantive reasons for not proceeding now with Bill S-205. The primary one is that Parliament has already looked at almost the exact wording of the provision in the judicial interim release reverse onus provision, so it will already have made a determination. That bill, Bill C-48, includes a review provision so that the effect of those particular provisions can be looked at and changed more if need be.

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

Thank you, Madam Chair.

Ms. Latimer, thank you for travelling today to appear before our committee.

We have the transcripts of the testimony that was heard on Monday, and I am going to read you a short excerpt from Diane Tremblay's testimony:

An electronic bracelet establishes a safety perimeter between victims and their abusers and can prove any failure to comply with conditions. ... Even though I frequently reported my abuser, he always got off scot-free, unlike me. So I'm begging you to seriously consider requiring the wearing of an electronic bracelet. I believe it's a no‑brainer. We deserve to be heard, and for our rights and essential needs to be respected.

I am a bit surprised that you have told us today not to adopt Bill S-205, at least not right now. I think you were in the room earlier. I am really very surprised, and even speechless, given the...

[Catherine Latimer]

In conclusion, the John Howard Society of Canada urges the committee not to pass Bill S-205 at this time, as the House has unanimously passed Bill C-48 and the bill is now in the Senate, which gave attention to the issue of intimate partner violence during the bail process and already includes a key measure that is proposed in this bill. Further, the range of section 810 recognizance orders is already adequate to deal with the fear of intimate partner violence, and the proposals in Bill S-205 are disproportionately harsh.

I agree with what the witnesses had to say before. The criminal justice system has a very limited range of tools that it can use to assist with intimate partner violence. The better answers lie outside the criminal justice system.

[Catherine Latimer, Executive Director, John Howard Society of Canada]

Thank you, Madam Chair, and thank you, committee members. It's a great pleasure to be here. I want to thank you very much for seeking the views of the John Howard Society on Bill S-205.

As a charity, we're committed to effective, just and humane responses to the causes and consequences of crime. The John Howard Society is concerned about preventing crime, and about appropriate and effective consequences for having committed crimes.

Preventing intimate partner violence is a shared goal, but our assessment is that there's very little in Bill S-205 that would make a difference in preventing violence.

Bill S-205 amendments really pertain to two areas. One is the judicial interim release provisions, or bail provisions, and the other is the new category of recognizance orders relating to the fear of domestic violence.

In terms of the judicial interim release provisions, there is a heavy reliance, as the other witnesses have mentioned, on electronic monitoring as a condition of pretrial release if it is sought by the Attorney General.

We would first point out that the research on electronic monitoring has been inconclusive in terms of its effectiveness in preventing crime.

Second, the technology is very expensive, and it is important to note who would be paying for the device and for its monitoring. Given that it is the AG who is seeking it, can we safely assume that it would be the AG who is paying for it? That's not always the case; often, individuals who are released on bail or on community sentences are being asked to pay for the monitoring. This actually worsens a class bias in the criminal justice system through which the affluent are more likely to benefit and the marginalized and impoverished, including members of the indigenous and Black communities, are more likely to be denied.

The reverse onus provisions that are being proposed in paragraph 515(6)(b.1) mirror the contentious provisions that were included in Bill C-48, which make prior discharges equivalent to convictions, triggering the reverse onus provision for bail for prior intimate partner violence offences. Many witnesses appearing before the Senate on Bill C-48 cautioned that including discharges would raise charter concerns.

There is almost a retroactive application to this provision, which is troubling. Many accused, including women who are also often charged when it is unclear who initiated the domestic conflict, might have agreed to plead guilty to an offence that might otherwise have been successfully contested at trial on the understanding that the discharge would have no future negative criminal justice implications for them. Now it would.

In any event, the equivalent of this section will have already been accepted or dropped in Bill C-48, making this section duplicative or possibly inconsistent with the will of Parliament.

The second major area is the recognizance orders. Our view is that the proliferation of section 810 orders to reflect the fear of certain types of future crimes is unnecessary and bad policy. Existing sections 810 and 810.2, which specifically refer to intimate partner violence, are adequate to cover those fearing domestic violent offences.

It should be noted that the proposed intimate personal violence recognizance in this bill is triggered by a fear of a personal injury offence, yet section 810.2 recognizance is triggered by a fear of a “serious personal injury offence”. This indicates that the latter category applies to persons who pose more of a threat of serious harm, yet Bill S-205 proposes much harsher treatment of the former for the 810 order than for the 810.2 orders, and this will create a sense of a disproportionate, unfair response based on the severity of the risk posed.

There are also some amendments to the Youth Criminal Justice Act, but I won't get into those for fear of running overtime.

[Deepa Mattoo, Executive Director, Barbra Schlifer Commemorative Clinic]

Good afternoon, everyone.

Thank you, honourable chair and committee members. I am Deepa Mattoo, lawyer and executive director of the Barbra Schlifer Commemorative Clinic in Toronto.

I truly appreciate this opportunity to address you today and to present the submissions on behalf of the clinic.

The clinic offers trauma-informed legal services and representation, counselling, multilingual interpretation, and system transformation support to women and gender-diverse people who have experienced violence. Our efforts are rooted in the foundational principles of intersectionality, trauma-informed care, and a resolute dedication to a client-centred approach.

In my submissions today I want to focus on the voice of our clients. I will articulate four key points in response to the proposed amendments. I will talk about how these changes relate to the experiences of survivors of gender-based violence, the implications for the marginalized communities, an assessment of the current conditions of our system and finally a recommendation for evidence-based law reform.

Starting with the voice of survivors, I would like to begin by expressing my support for proposed subsection 515(3.1). We think it's a step in the right direction to require the justice overseeing a bail hearing to inquire with the prosecutor about whether the accused's intimate partner has been consulted regarding their safety and security needs.

This underscores the importance of taking into account the well-being and concerns of the intimate partner and provides an opportunity for survivors to explain what they are afraid of and what court orders might help them. We question, however, whether the provision goes far enough. Is there a way to ensure not only that survivors are consulted but that their concerns are actually presented to the court to assess how the conditions address them?

With a similar view, proposed subsection 515(14.1) helpfully requires the judge to ask if the survivor has been informed of their right to a copy of the court’s order. We submit that the amendment could also require that a copy be provided to the survivor. In the clinic’s experience, survivors can wait for a week to obtain a copy of the bail conditions, which are usually very general in nature, rather than tailored to the specific safety concerns during the ongoing legal proceeding.

With respect to the amendment to proposed section 810.03, which creates a recognizance order specifically for situations of intimate partner violence, we recommend an additional survivor-centred approach. Protection should be available for both current and previous intimate partners, as our experience shows that violence can persist after partners have separated and in many cases actually escalates to lethality at the time of the separation. In addition, informants seeking the recognizance order should be given the option to attend court on a different day than the defendant.

I wish to emphasize that many of the amendments in Bill S-205 are a step toward empowering individuals who fear potential harm from their intimate partners and reflect your commitment to creating a safer and more responsive legal environment. However, I want to submit that there are inadvertent repercussions for historically marginalized communities from indigenous backgrounds, Black backgrounds, non-status people, migrant communities and disabled people. From our observations, these consequences may include the following.

The first is misuse or false accusations against the survivors themselves. You have heard in detail from Elizabeth Fry Societies how the system is sometimes challenging for the survivors themselves when they have this complex relationship and they get charged.

The second is the chilling effect on reporting. That's another fear that we have: The legal repercussions may unintentionally deter people who are genuinely in need from reporting their concerns. It is vital to address any barriers that might discourage individuals from seeking the protections they require.

The third is the strain on already limited legal resources. I'm sure this committee has heard from other people on this aspect too. There is already a very stretched legal resources issue in this country. Adequate measures should be implemented to manage potential backlogs and maintain the efficiency of the legal system if these amendments go forward.

The fourth is the stigmatization of accused individuals. We must be vigilant about the unintended societal stigma that accused individuals may face, even if later proven innocent. Public perceptions can have lasting impacts on people's personal and professional lives. It can also lead to increased criminalization of marginalized communities—survivors who don't speak English, survivors who are from the migrant communities, and indigenous and Black survivors.

I submit that changes to the legal landscape like this need to go hand in hand with additional legal aid support for survivors and options—

[Sarah Niman]

In terms of education, one thing I want to raise that hasn't been raised today—I think it answers your question—is how proceedings in the criminal court are “R. v.”—it's “the Crown versus”, not “the victim versus”. One thing this bill does that we haven't seen frequently enough is give victims a voice in those proceedings. Previous to this bill, they have not enjoyed that.

NWAC honours and celebrates the fact that if Bill S-205 passes, there will be legislated opportunities that require those who hold all the power to consult with the otherwise powerless victims and ensure they're at least made aware and consulted throughout processes that are typically stacked against them.

[Sarah Niman]

Thank you.

I'm going to lean on two truths that we hold to be true: One is that disproportionately, indigenous women are victims of domestic and intimate partner violence, and that indigenous women are overincarcerated in our federal prisons.

NWAC's position on Bill S-205, to respond to your question about whether there are unintended harms, is to ask that this committee, in its study, be alive to some of those unintended consequence vis-à-vis overincarceration of indigenous women.

[Andréanne Larouche, Bloc, Shefford, QC]

Thank you, Madam Chair.

Ms. Niman, Ms. Coyle and Ms. Parsa, thank you for your testimony.

The committee held its first meeting on Bill S-205 on Monday. We heard victims testify and explain the importance of this bill, to protect them. As victims, they asked us, as legislators, to move forward. We also heard the testimony of Senator Boisvenu.

I spoke with Senator Dalphond, who collaborated on this bill. He has had serious discussions, in particular with representatives of associations of shelters for victims of spousal violence in Quebec, who asked him to work to have this bill enacted.

The Government of Quebec worked conscientiously to produce the “Rebâtir la confiance” report, which contains hundreds of pages and is the result of non-partisan collaboration. All political parties in Quebec worked on the report, taking a feminist approach, and perhaps a less partisan approach than elsewhere. It is great to see how they were able to produce this report and how they gave it a very meaningful title, one that means rebuilding confidence. The loss of confidence is at the heart of the problem in the system at present. Victims have no confidence. They need tools, they need concrete action that shows them we are acting and we want to restore their confidence in the system, we want to hear them and listen to them.

This summer, I met with a member of the provincial legislature of Quebec who told me that the ball was now in the federal government's court. The Government of Quebec has done its share of the work. It has enacted a bill concerning electronic bracelets and launched a pilot project of courts specializing in sexual violence. Listening to victims and having better trained judges can happen in tandem with using anti-approach bracelets. At present, this system is operating in various places in Quebec.

Some hesitation has been expressed, particularly as regards connectivity, but Senator Dalphond told me yesterday that this was not a valid objection since cellphone coverage will continue to expand in Quebec and elsewhere, in rural areas. In Quebec, as elsewhere in Canada, there is still work to be done in certain rural areas, but it is being done and it is moving ahead. The senator is confident that coverage is going to expand.

Ms. Parsa, as I explained, electronic monitoring has therefore been one of the options that judges can consider for some time now, particularly in provinces like Quebec, which has launched its pilot project, its anti-approach bracelet program. Have you started to examine that project and look into the results? Although it is a pilot project, have you studied what is being done in Quebec? Could you explain a bit of what you have learned?

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

I was on a roll when I was interrupted, but I know where I was.

I am going to read an excerpt from the testimony given by Martine Jeanson, who said:

If my former spouse had been wearing an electronic bracelet, I would have been shielded from his attempted murder and all his other victims would have been informed.

And others had said it before her.

The way things stand, it's impossible to protect ourselves properly from a violent ex‑spouse, because we have no warning that he is coming. The group of 100 women we worked with on the project consists exclusively of spousal violence victims, at least half of whom endured an attempted murder. We all agree that the only thing that might protect us is an electronic bracelet, because there is nothing to protect us right now. Over the past 20 years, I've worked with hundreds of women who needed help. There is no way to hide them. Men can track them down at their place of work or through their family. They can follow children to school or to their friends' homes. The man will never stop stalking them, following them, harassing them and harming them. Until wearing an electronic bracelet is required, women and their children will never be protected.

The two witnesses who spoke to us are women who were stalked by their spouses for years. What they told us is not just that we have to adopt Bill S-205, but that we have to adopt it as it stands, with no amendments.

I will conclude by saying that Senator Boisvenu is not a hothead; he is a poised, calm, very moderate and very progressive person. He experienced the murder of his daughter and he came, with evidence and statistics, to beg us to support this bill.

How can it be argued today that it is not a good idea to support Bill S-205, when it also includes everything that has been mentioned, including therapy and revision of section 810 of the Criminal Code?

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

Thank you, Madam Chair.

I thank the three witnesses who have made themselves available today.

I am going to come back to the testimony of the two victims of spousal violence who addressed the committee at the start of the week.

I am a bit amazed at what I heard this morning. I have the feeling that tools that could be put in place if Bill S-205 was adopted are being treated as an either‑or situation. This morning, a lot has been said about therapy, but also about the revision of section 810 of the Criminal Code, with which we are familiar and which really needs a good crank, as they say in Quebec. There was also discussion of the possibility of adopting electronic bracelets, an experiment that is being conducted in Quebec at present.

I think Bill S-205 will not in any way eliminate the right to rehabilitation. That is absolutely not its objective. Similarly, it will also not infringe the rights of accused persons or anyone else in civil society.

Where I come from, in Quebec, we say you cannot be too careful. If we can go for both belt and braces, we should do it, particularly when there are victims involved.

Before giving the floor back to the witnesses, and to Ms. Coyle in particular, I would like to read—if you will permit me, Madam Chair—an excerpt from the testimony we heard from Martine Jeanson at the start of the week, who had—

[Sarah Niman, Senior Director, Legal Services, Native Women's Association of Canada]

Hello. Bonjour. Boozhoo.

Honourable committee members and Chair, thank you for inviting NWAC to bring indigenous women's voices into your study on Bill S-205 here on unceded Algonquin territory.

The indigenous women, girls, two-spirit, trans and gender-diverse people NWAC represents remind us that it is one thing to be heard in these hallowed halls, but it's another to see change in their communities.

Indigenous women are much more vulnerable to domestic violence than other women in Canada. They face the highest, most disproportionate rates of domestic violence and are targeted in an ongoing MMIWG genocide.

In this committee's study of Bill S-205, I want to talk about power. Bill S-205 gives victims more power, but it does not account for indigenous women's systemic disempowerment. Here is what I mean.

Bill S-205 would not have helped the Inuk woman and domestic violence survivor in R. v. L.P. at the Quebec Court of Appeal in 2020. She was displaced from her community by colonial policies. She was unhealthy because she lived in poverty and without supports to get well. She was dependent on her abusive partner and was vulnerable to his repeated and increasingly aggressive physical and sexual assaults.

If Bill S-205 had been enacted at the time, she would not have gone to the police for help or would not have asked a court to lay an information to protect her.

Violence is one of the key means through which abusers control women's agency and power. This Inuk woman was not empowered to ask for help, because in her lived experience, and in that of most indigenous women, the police are not there to protect them, and the trust is broken.

Indigenous women recently told NWAC that on the one hand, police are always watching them and are ready to catch them violating a condition or to alert social workers to remove their children from their care. On the other hand, when they are being abused within their homes, the police don't seem to be watching closely enough to be able to step in. This distrust poses a significant barrier that will prevent indigenous women from accessing the victim supports intended by Bill S-205.

This bill must incorporate indigenous justice principles. Many indigenous legal orders hold specific laws against gender-based violence. They hold offenders responsible and they aim to repair relationships between the victim and the community.

Victims also have a role in determining the abuser's punishment while receiving healing services of their own. Indigenous communities need indigenous-led approaches to resolving gender-based violence, and they need resources and supports to do this work. Much of this need is reflected in the findings of the MMIWG calls for justice.

NWAC recommends that this committee amend Bill S-205 by adding conditions under subsection 515(4) that are recommended by indigenous governing bodies with the authority to govern the accused. Where this bill allows a provincial court judge to lay an information before any physical family violence occurs, it could go further and could mandate judges to consider the available indigenous support services.

The UN Declaration on the Rights of Indigenous Peoples directs legislators, including this committee, to work with indigenous people to protect indigenous women from all forms of violence.

Before I conclude, I want to raise the point that it is very important for this committee to study Bill S-205 in a way that does not worsen indigenous women's mass incarceration. Canada's correctional investigator's recent update noted that indigenous women make up more than half the adult prison population. In some prisons this is as high as 75%.

We heard in the other place that indigenous women often face double charging when police attend a domestic violence call. That means the police charge both the aggressor and the victim. At bail hearings for those charges, courts are still using unnecessary and unreasonable bail conditions against indigenous people at disproportionate rates.

NWAC agrees with the amendments to Bill S-205 that remove some reliance on electronic monitoring bracelets but presses this committee to remove all references to them.

As a grassroots organization, NWAC walks with indigenous women who seek help. We can provide resources, tool kits and supports, but there are systemic forces at play that are much too powerful for our organization to remedy on its own.

Bill S-205 must go further to account for indigenous women's lived realities if it is going to help reduce violence for all victims, especially the marginalized and vulnerable within this group.

Thank you, and NWAC remains available for further questions.

Meegwetch.

[Emilie Coyle, Executive Director, Canadian Association of Elizabeth Fry Societies]

Thank you, honourable members and Chair. It is such a pleasure to be with you today, although, as you said, this is a very difficult topic.

I work as the executive director of the Canadian Association of Elizabeth Fry Societies. Our work is situated predominantly here on the territory of the Algonquin nation, although our work takes place across Turtle Island.

We work primarily to address the persistent ways that criminalized women and gender-diverse people are denied their humanity and excluded from community.

To begin, I wish to delve into the recommendations emanating from two recent inquiries that relate to intimate partner violence: the Renfrew inquiry, which happened not too far from here, and the Mass Casualty Commission from Nova Scotia.

Both inquiries advocate treating intimate partner violence as an epidemic, emphasizing the necessity for a comprehensive, all-government effort to eradicate this pervasive form of violence. They also underscore the urgency of epidemic-level funding for gender-based violence prevention and interventions and urge a society-wide response.

The Mass Casualty Commission report, at recommendation 16, specifically highlights the vital need to shift funding away from carceral responses and towards primary prevention, including by addressing poverty and promoting healthy masculinities.

My focus today, then, is on the carceral response to intimate partner violence— that is, the electronic monitoring piece contained in Bill S-205.

Obviously, we share the goal of addressing and preventing intimate partner violence, or IPV. Women and gender-diverse people disproportionately experience IPV due to the ongoing patriarchy and misogyny that we all experience, and this is even more pronounced for the indigenous women and gender-diverse people we work with who are contending with colonial oppression and also experiencing higher rates of intimate partner violence.

Many of the people we work with and alongside have experienced such violence. Data from the Correctional Service of Canada indicates a higher prevalence of physical and/or sexual abuse among the women and gender-diverse people we work with in prisons. These people represent some of the most vulnerable members of our society.

Despite these stark realities, those we work with are not considered ideal victims, and that circumstance can lead to insufficient contemplation of the consequences of implementing carceral solutions, such as electronic monitoring, in their lives.

Legislative changes aimed at protecting vulnerable populations necessitate a critical examination of potential unintended consequences. In pursuing our goals of eradicating intimate partner violence, we must ask whether our efforts could inadvertently render already vulnerable individuals more susceptible.

With regard to this legislation, I question whether it will effectively curtail intimate partner violence in Canada or divert necessary resources that could be invested in prevention. Will it genuinely address the root causes of intimate partner violence, namely misogyny and patriarchy? I'll leave you to answer these questions for yourself.

Historically, well-intended legislation rooted in carceral responses has backfired, causing more harm than good. For instance, I'm sure you've heard of mandatory charging policies in intimate partner violence cases, which were obviously initially lauded by the sector advocating against violence against women. However, these policies resulted in dual charging—punishing both parties due to the perceived inability to determine the instigator, even though the “weapon” that may have been used by one party could have been a child's toy thrown as they were fleeing.

Similarly, there's a tangible risk that if this bill passes, the most vulnerable individuals may be the ones who end up wearing the electronic monitoring bracelets, further exacerbating their marginalization. The stigma associated with wearing these bracelets could intensify the challenges faced by individuals who are already overly surveilled and overly punished.

You are all very aware of the statistics regarding the overincarceration—or what some refer to as the mass incarceration—of indigenous women and gender-diverse people in this country. It is a crisis and it is shameful.

Electronic monitoring, as a reactive carceral response, falls short in addressing the deeper issues surrounding this violence. Tackling gender-based and intimate partner violence requires a multi-faceted approach that delves into the root causes of harm. Our focus should shift from a carceral response to a more sustainable, long-term approach.

Survivors have emphasized the need for social workers, financial assistance, housing, culturally specific—

[The Chair, Conservative, Karen Vecchio]

I call this meeting to order.

Welcome to meeting number 87 of the House of Commons Standing Committee on the Status of Women.

I would like to make a few comments for the benefit of members.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike, and please mute yourself when you are not speaking.

For interpretation for those on Zoom, you have the choice at the bottom of your screen of floor, English, or French. For those in the room, please use your earpiece. You will find—you may already see this—your English, French and floor options as well.

Although this room is equipped with a powerful audio system, feedback events can occur. These can be extremely harmful to our interpreters, so I'm going to remind everybody to be careful with their mikes and be careful with their earpieces. Take all of those things into consideration on their behalf.

This is a reminder that all comments should come through the chair.

For members in the room, if you wish to speak, just raise your hand. For those on Zoom, use the “raise hand” function.

Today we're going to be continuing with Bill S-205. I am going to give a trigger warning, because after my husband watched our meeting the other day, he said it is mandatory that we give a trigger warning.

Before we welcome our witnesses, I would like to provide this trigger warning. We will be discussing experiences related to violence and assault. This may be triggering to viewers with similar experiences. If you feel distressed or if you need help, please advise the clerk or look at me and we will do whatever we can to help. Let's get through all of this.

Now I would like to welcome our witnesses. It is wonderful to have our witnesses here today.

I would like to welcome Emilie Coyle in the room. She is executive director for the Canadian Association of Elizabeth Fry Societies. We have Sarah Niman, the senior director of legal services at the Native Women’s Association of Canada, who is also right here. We also have Roxana Parsa, who is a staff lawyer with the Women's Legal Education and Action Fund, and we welcome her online.

What we will be doing is providing everybody with five minutes for their opening statements. I ask that you keep them to those five minutes so that we can have as much time for questions and answers as possible. When you see me start to move my arms, please bring your remarks to a close within about 15 seconds.

Today, as we continue with Bill S-205, I would like to invite Emilie for the first five minutes.

Go ahead, Emilie.

[The Chair, Conservative, Karen Vecchio]

Perfect. We are spending that money. If we need to discuss further, we can schedule committee business, but I would be looking for any amendments that you would want for Bill S-205 to be in by next Wednesday, November 29 at noon. That's where we were going. Does that sound good, everybody?