Justice Committee on March 8th, 2012

[Joanne Klineberg]

Yes. I think I would agree with Mr. Goguen's comments.

This particular factor was deliberately drafted to focus attention on.... It doesn't use the terminology “battered spouse” and so on and so forth, but the concept that emerges from jurisprudence in relation to those issues definitely speaks to the relationship between the parties. This factor is there to draw the courts' attention to that jurisprudence, to that history, and to that factor. I think the concern would be that if you brought in the language somewhat, it's absolutely true that it won't mean that it won't apply or won't refer to the battered spouse situation, but it won't as clearly speak to that situation.

I think our concern would be that you might actually be undermining what I think everyone agrees the objective is, which is to ensure the court.... This is in fact a signal to the courts that they should continue to apply the jurisprudence that already exists. The more you take account situations that bear no relation at all to the battered spouse situation, the greater the risk that you may undermine that signal from Parliament to the courts.

[The Chair, Conservative, Dave MacKenzie]

Go ahead, Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I find the two comments I just heard fascinating. But if you read the French text, you will see that it talks about “rapports” between the parties. That may be the source of the confusion. The French word “rapports” and the English word “relationship” do not in fact mean the same thing. The French word “rapport” is broader in meaning. I am glad to see that it was designed with the idea in mind of....

I will apply this to another situation that concerns us all, bullying. Imagine a little boy who is picked on every day in the schoolyard. There is no true “relationship”. That is why I think the Canadian Bar Association took both meanings into account when making its recommendation. I am telling you that “rapport” in French refers to interaction between people. That is why they made the recommendation to us. That was my understanding.

When they made their presentation, I understood that it affected not only battered woman syndrome, but also bullying, which are specific cases referred to in clause 34(2)(f). We must consider the type of connection that existed between the accused who is trying to argue self-defence and the person who was battered, struck or whatever.

We are not trying to weaken self-defence, far from it. That is not what we are trying to do; we want to be sure we are targeting the same thing, that is all.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Madame.

Do the officials have something they wish to add there?

[Françoise Boivin, NDP, Gatineau, QC]

It makes sense. Just admit it.

[Joanne Klineberg]

I only want to say that the committee may wish to add other types of relationships, interactions, or knowledge that the parties have with each other, but I would urge the committee to be cautious about changing the language that's presently there, just because I think it was deliberately formulated to signal to the courts that they should continue to bear in mind this one particular situation.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

It certainly points a direction to the court about the issue of spousal abuse. The actual section says “any relationship”. Because the legislation is using words to broadly describe relationships and saying “any relationship”, courts are going to very broadly construe what the term “relationship” means. When a person is being bullied by somebody else in school, that is some form of a relationship. It's obviously not a healthy one, and one that we would not want to encourage.

I think the section is fine the way it is because it sends the signal and it can be construed broadly enough to realistically encompass any type of interaction between people that will be constituted as some form of a relationship under the section.

[The Chair, Conservative, Dave MacKenzie]

Go ahead, Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

I thank the members opposite for packaging this notion of a type of relationship that constitutes the circumstances of a battered spouse syndrome. I don't see it as an either-or matter, though.

I'm wondering, Ms. Klineberg, if you could help us here. I'm not married to this particular substitute. I've been persuaded that keeping “relationship” there.... We may have to change the French to accommodate it. Do you have any suggestions on how we could ensure the purpose behind this amendment on “interaction or communication between the parties”?

I don't see where else it's covered, other than among other factors. I would like to see that notion there somewhere. I'm not convinced by Mr. Seeback's argument that any relationship is broad enough to cover the bullying. There may be a history of one or two incidents of somebody making threats, and this could be important in someone's reaction at a later time. Can you help us with that? Do you have any suggestions?

[Joanne Klineberg]

My first suggestion would be that if it was something the committee wanted to do, it should be formulated as a new subparagraph and not attached to this one. This would keep this idea distinct and undiluted.

The Canadian Bar Association mentioned situations in which there was no interaction between the parties, but one had knowledge of the other—for instance, one party knew of a reputation for violence. My understanding from their submissions was that this was a situation they were also interested in, so you might want to consider that as well.

It might be something that could be used to formulate a separate factor, if it were linked with the ideas you have proposed here.

[The Chair, Conservative, Dave MacKenzie]

Go ahead, Ms. Kane.

[Catherine Kane]

I would remind the committee that this is a non-exhaustive list of factors. I'm sure that everybody can conceive of countless situations that they'd like to see covered in the factors. At the same time, we're quite confident that when those factors are relevant, they will be presented to the court and taken into consideration. For instance, bullying would be covered by the nature of the unhealthy relationship.

Mr. Seeback summed it up quite well. It says the “nature...of any relationship”, so even if it was a relationship that we wouldn't consider to be an ongoing one—say, a schoolyard relationship, an unhealthy relationship, an acquaintance type of relationship—it would still constitute a relationship. It's a broad concept that would not take away from the wording we've seen time and again in case law about the nature and history of a relationship and the spouse acting in self-defence knowing exactly what she is going to face if she doesn't take action.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahea, Mr. Jean.

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

I was going to say the same. The courts have already interpreted the issue of relationships and what it means. It doesn't even have to mean they have a relationship, just a reputation of a relationship or an expectation of one. I think to add something in this case might run counter to what we actually want to do. I think being too specific might be restrictive in the future and might cause problems for the court.

“Relationship” is good; the courts have interpreted it time and time again. I remember a case I had of a battered wife killing her husband. I defended her, and the court went through a litany of examples of what the expectation was and what “relationship” actually meant. I think it's already trite law. It's already there.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

I'm prepared to look at withdrawing this in light of our discussion.

I would like the officials to address the French version and the term “des rapports” as opposed to “relationship”.

I'm not familiar with the nuances of the French language, but Madame Boivin has raised that point. Are you able to comment on it now?

[Catherine Kane]

We would want to consult with the drafters to make sure that they had strong reasons for using the word rapports. If you had other suggestions, we could take that back to them for their reaction, but this would not permit you to deal with the issue now.

[Jack Harris, NDP, St. John's East, NL]

Well, do you have any suggestions, Chair? I'd obviously like to hear back from the officials on that point and consider whether we would want to have another point.

I'm prepared to withdraw this amendment at this time rather than have it voted on.

[The Chair, Conservative, Dave MacKenzie]

How about if we deal with the committee, if there is consent to withdraw it?

I don't think we're going to get through this today. We have 45 minutes. If we don't get through it today—

[Jack Harris, NDP, St. John's East, NL]

It'll be another time.

[The Chair, Conservative, Dave MacKenzie]

—and it's withdrawn, then when it comes back....

[An hon. member]

Could it be a report stage amendment?

[The Chair, Conservative, Dave MacKenzie]

No, it has to be done here.

[An hon. member]

Then it's withdrawn and—