Justice Committee on Feb. 9th, 2012

[Eric Gottardi]

With respect, I disagree.

I think what you actually see in the draft of the proposed new section 34 is a real emphasis on the objective standard. In fact, I point to the use of the reasonable person. The reasonable person is, by definition, the objective standard.

We have pointed out that in proposed paragraphs 34(1)(a) and 34(1)(c), and, indeed, moving on to proposed subsection 34(2), with its reliance on the concept of proportionality, in proposed paragraph 34(2)(g), there's real emphasis on the reasonable person and on the objective standard. It's a subtle view, but the use of that objective language is pervasive throughout the draft. Our concern is that there really needs to be a balancing between the subjective and the objective. It's well accepted in our case law that a reasonable person, acting reasonably in the circumstances of the accused, can have honest but mistaken beliefs about a set of facts. So someone might think that they're about to be attacked or they're about to be threatened, and they may act in self-defence. That, in fact, might not be the case. But as long as they honestly believed, and that belief was reasonable, then they are justified in using force to defend themselves, even in advance of an attack or in advance of a threat.

You particularly see this type of example in cases where you're dealing with violence against women and battered spouse syndrome, where there's a perception of a threat that the woman knows is coming and will often act in advance of that threat to defend herself.

We're strongly against violence against women, and we support a law and an amendment to the law of self-defence that protects those women in their subjective belief that they are under imminent threat. It's our concern that subjective belief isn't adequately protected as the law is currently drafted, so in our submission we have two or three specific suggestions for ways to strike a better balance.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I'll take that under advisement, because of course we're all strongly opposed to violence against women and all Canadians.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

We're way over the time, but Madam Pate, I think, wanted to say something there.

[Kim Pate]

If you don't mind, I'd like to add to those comments.

Similarly, we are happy to see some changes to the law of self-defence. We are concerned in particular because we're dealing with the self-defence review of which we were a part and which the Department of Justice co-sponsored in 1996-97. That review made some recommendations with regard to the notion of reasonableness. It's not necessarily what's objectively reasonable and proportionate that needs to be taken into account; it's the subjective interpretation of the person involved.

Because my co-panellist from the Canadian Bar Association just raised this, I'd like to add that oftentimes the risk that is perceived or understood is very real to the woman. Objectively it may not look real or it may look avoidable when someone says to them, “If you ever try to leave or if you try to do something tonight, I will hunt you down, and I will hunt down all your family”. As we've seen in far too many instances, those are threats that have in fact been carried out, so the systemic issue is very real.

The objective test, if you understand violence against women and the subjective interpretation, is in fact that the risk is real. Yet it may not be seen as imminent or proportionate if the woman then grabs the man's gun and uses it when he's sleeping, even though it's clear that he's indicated...as in the case of Jane Stafford. There is a whole group of cases we have our students study in the course we teach on defending battered women on trial. In fact the real risk is very subjectively and objectively present when you look at it. We have Kim Kondejewski's case. There are a number of cases for which juries have heard that information, but unless it's contextualized, unless there is some direction or somebody who understands that and puts it forth, it may not be put forth at all.

So I think it's important to have reflected in this that much clearer language around the fact that it's reasonable in the circumstances as understood by the individual. We've suggested charter analysis so that it can't be used in a way that would be seen as subjectively discriminatory, as in the cases of homosexual panic or those sorts of things.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

These are very interesting discussions, and they give an idea of what is going to happen before the courts. I'll continue sort of along the same lines.

As for establishing criteria, the question was asked of Minister Nicholson last Tuesday. We wanted to know whether this wouldn't cause some confusion in the minds of lawyers and whether legal arguments would be raised. Although we know that it's specific and that it isn't a comprehensive list, we can wonder whether by enacting these rules, the legislator—us—wouldn't create what I would call "an impact of factor prioritization".

In this context, I'd like to ask another question. I'm concerned about the battered woman syndrome defence. The bill states:

b) the extent to which the use of force was imminent and whether there were no other means available to respond to the potential use of force;

This is a new provision, and it's a little bit of a concern to me. I'm wondering if we are going to attach primary importance to this. If a woman tells us about all the violence she has experienced in her surroundings, are we going to tell her that, since she lives in a city, she has access to shelters for battered women and that, therefore, she could have taken other measures to deal with the situation?

I'm also wondering whether the Canadian Bar Association would recommend that we replace the words "the size, age and gender of the parties to the incident" with "the physical capabilities of the parties". I'm curious to know why you think it is restrictive to say "the size, age and gender of the parties to the incident" and to replace that with "the physical capabilities of the parties". I don't find it clearer necessarily.

Lastly, I'd like to ask Ms. Pate and the representative of the Canadian Bar Association what they think about the battered woman syndrome defence as part of the government's proposed amendments.

[The Chair, Conservative, Dave MacKenzie]

Mr. Gottardi, did you want to respond?

[Eric Gottardi]

We had some of the same concerns you have expressed with some of the language used in some of the factors, and we set those out on page 4 of our submission. You've touched upon one of them, proposed paragraph 34(2)(e), regarding the size, age, and gender of the parties. We were just concerned that language was problematic and kind of leaned in a particular direction. That's why we went with the physical capabilities of the parties. I'm sure others could come up with a better or more elegant suggestion. There needs to be something broader and more descriptive to say those are factors.

In some ways, that's a factor that's going to be apparent to everyone in the courtroom. If someone is six foot nine and hulking over the person who was defending themselves at five foot two, it's going to be evident to everyone in the jury box and to the judge that it was an issue in terms of the threat that was perceived and that kind of thing. So it's really just a codification of some of the observations that the trier of fact is going to make in a trial anyway.

I think in the list of factors under proposed paragraph 34(2)(f), there has been some effort to preserve the defence in particular in the context of women who are in abusive relationships. But again, rather than focusing on the relationship as the key factor, we had suggested focusing on their familiarity or their interactions or communication.

Ultimately I think the most important suggestion that the Canadian Bar Association is making, which has also been touched on by Ms. Pate, is the one at the top of page 3 of our submission. The subjective belief of the person who's defending themselves really does have to be taken into account, and the language in this act really needs to be clear about that. The concept we suggested by adding to proposed paragraph 34(1)(c) the “circumstances as perceived by the accused”, or as understood by the individual—however you choose to frame it—needs to be put across, and allowances need to be made for mistaken perceptions.

Some of the other language and factors need to be balanced out. Factors include such things as imminence or whether or not the person could have retreated and those kinds of things, which on the face of them might be used to defeat defences such as the battered woman syndrome example that we heard about and that we all know, from our familiarity with the courts and cases, is a real problem and is a real defence.

[The Chair, Conservative, Dave MacKenzie]

Ms. Pate, please go ahead fairly briefly, because we're way over.

[Kim Pate]

First, we would underscore that battered woman syndrome is not a defence. It's self-defence, and it's supposed to be taking into account the battering impact. Actually the syndrome has, I would suggest, contributed to some of the confusion, because it requires a pathologizing of the woman's behaviour as unreasonable. We're suggesting that a subjective understanding of reasonableness would see the woman's response as a reasonable response to an unreasonable situation of violence. So we need to have in here some indication of the nature of the course of control and violence against women. I don't see any reason why you couldn't even add in duration and history of relationship and include such matters as histories of course of control and violence against women. I wouldn't say “domestic violence”. It is a gendered notion. Occasionally, you'll have another situation, but very occasionally. This is something we certainly see predominantly with women, along with perhaps some of the systemic discriminatory notions for racialized women in particular.

[The Chair, Conservative, Dave MacKenzie]

Thank you very much.

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Chair.

Thank you to the witnesses for appearing today.

I think a lot of questions have been exhausted by my colleagues, but I do have a couple.

First of all, I wanted to say congratulations to Ms. Pate for receiving the Governor General's award last year. I think that's a good recognition. It was in regard to international advocacy for marginalized victims and criminalized women. I bet that was a bit of a surprise in that it was during the reign of a Conservative government, especially after your negative comments about Bill C-10 and our law-and-order agenda. I do congratulate you for that.

I was a lawyer in Fort McMurray for a period of time, and I did have the opportunity to defend somebody regarding the battered wife syndrome, although I was not successful with the defence of self-defence. I noticed—and I just want to make a point of this—that the justice in that case did give a conditional sentence of two years less a day, to be served in the community. So he did recognize that in the sentencing, notwithstanding that he didn't recognize it in the defence itself. I think that seems to be more and more utilized by the courts today in regard to battered wife syndrome.

I was just curious, Ms. Pate. Do you believe that women have to or should ever be incarcerated?

[Kim Pate]

In terms of this issue?

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

In terms of any issue.

[Kim Pate]

Certainly in the years I've been doing this work, I haven't seen much benefit in keeping women in prison. There are certainly women who need to be separated from the community for periods of time. Certainly, we support people being held accountable.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I was just curious because I looked at your profile, and I saw that one of your YouTube videos was entitled, Crime is a Theory. I know you have been executive director of the Elizabeth Fry since 1992, and you have done some excellent work. I have written letters to you, myself, in relation to some of the prison conditions in Fort McMurray back in the 1990s. You also published some things about how women don't belong in cages.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

A point of order.

We're here to study Bill C-26 and determine how we can improve it. I don't see how discussing the witness's personal background is relevant.

[The Chair, Conservative, Dave MacKenzie]

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you.

One of the particular sentences that you wrote was, “We think that current international realities demand that we form an international coalition to end the imprisonment of women and girls.” I'm just curious if that's what you believe.

[Kim Pate]

Certainly, our vision is of women and girls in the community, contributing and being supported within the community. It's obviously not something we're likely to see happen, but it's something that we work towards. One of our basic principles is, if at all possible, particularly where it's safe for the community and safe for the individuals involved, that women be kept in the community, whether it's on conditional sentences, punitive probation, or those sorts of things. We think the cost—the overall social and human costs, as well as the fiscal costs of jailing predominantly non-violent individuals who are going to rejoin the community at some point—is better served by having resources in the community.

That coalition was actually developed at a time when we started to see the global development of more marginalized women ending up being criminalized rather than getting the support of social services. It's really about focusing in that direction.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

That's especially the case in Canada, where I think about 1.5% or 2% of women are aboriginal, and yet 25% are in our prison system.

[Kim Pate]

It's even higher in our federal system. It's more than a third.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Yes, I understand that.

I do admire your work. I just wanted to let you know that. I understand where you come from with regard to where you are going.

I really don't have any other questions for any of the witnesses. I think my colleagues might. Mr. Woodworth is always ready to go.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'll pass, thank you.

[The Chair, Conservative, Dave MacKenzie]

Mr. Albas is next on our list.