Justice Committee on Sept. 24th, 2018

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Ms. Smithen, you indicated that you would propose an amendment that instead of a previous conviction being necessary to qualify under the reverse onus, it should be somebody who is charged with intimate partner violence. Can you describe what you think the impact of that would be? Do you think it's overbroad, or just right in terms of protecting women from intimate partner violence?

[Kathryn Smithen]

Again, evidence and statistics show that women are usually in the most danger when they're separating or when some sort of intervention from any part of the justice system, including family law, is involved in their lives. I would not call it a cooling-off period, but I would think that if they had a period of time when they didn't have that offender literally breathing down their neck and trying to push them to recant, it would give them that opportunity to avail themselves of resources.

Again, I'm not talking about every offender, but as I indicated earlier in my answer to the other member, where it's established or where there's evidence of a pattern, I'm suggesting there be a reverse onus.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

Ms. Sheehy, you spoke a little bit about the definition of “intimate partner” and perhaps expanding that definition to cover people who are not generally covered in it. You gave the example of a stalker as somebody who should be covered under that definition. We've also heard testimony that the term “dating partner”, which is included under the intimate partner definition, is vague.

[Prof. Elizabeth Sheehy]

It's vague?

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Yes. The definition of who qualifies as a dating partner is vague. Do you think that the definition of “intimate partner” could be tightened up to be more applicable or more clear in who it applies to, or should it be broad so that it is discretionary, based on each situation?

[Prof. Elizabeth Sheehy]

This is our problem with using gender-neutral language to talk about a very sex-specific problem, which is men's violence against women.

I think that having broader language is probably important, because what we actually want the judge to focus on is this male violence against women. Is this the kind of dangerous situation where other people are going to be targeted and brought into it, like parents or the new boyfriend, or is this guy fixated on her? Is he actually presenting danger of male violence against women? I don't want narrower language unless it's sex-specific to identify.... This is the core of the problem that we're talking about and that we're trying to target with this legislation.

I'm not sure that's a really great answer. I'm asking for a broader definition, which is the opposite of what you were referring to in terms of narrowing the meaning of “dating partner”. I would broaden that to say “men who want to date, who are rejected, who then won't leave the woman alone, and who fixate on them”.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

That's a very interesting perspective.

Thank you for that. Those are the only questions I have.

[The Chair, Liberal, Anthony Housefather]

That's good, because you just hit six minutes.

Go ahead, Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you to all the witnesses.

Ms. Smithen, thank you in particular for your courage in putting your personal situation in context before you began. I appreciate that.

I'm not sure I understand all this reverse-onus stuff. I'm going to try a little bit further.

My first question is for the lawyers. Is there not a concern that a reverse onus writ large would not meet charter compliance? I understand if some of you are saying that we would do that if and only if there's evidence of a pattern of behaviour. I thought I heard some say that even if there's a prior conviction or a conditional discharge.... I'm just a little confused where you land on this reverse onus. Could you perhaps enlighten me? Would you always wish to have a reverse onus in situations of intimate partner violence, or would it only be if there's an established pattern of behaviour in the past for which a person has received a conditional discharge, or been convicted, or writ large? I'm not clear where you land.

[Kathryn Smithen]

My concern is that the system the way that is now does what I call back-ending. It saves all the tough penalties in terms of sentencing and reverse onus for the end of the criminal justice system.

Frankly, in intimate partner violence cases, a lot of cases don't make it that far. It's very routine in my jurisdiction—I can't speak for any other places—that nine times out of 10 in the cases I've seen, the offender is offered a peace bond if he doesn't have a criminal record and does counselling. Counselling is good; there's value in it. In a typical situation, he'll go off to 16 weeks of PARS program where, in the context of the program, he's required to make an admission of guilt and participate in counselling. Then when he provides the Crown attorney with a certificate saying he completed the program, he is given a peace bond. There's no criminal conviction. It stops there.

Then in many cases, he comes back or goes to the family law system and says, “Oh, that wasn't really a serious offence—look, the Crown withdrew the charge.” What he said to get that peace bond is very different from what he says in the future, both in the family cases and if he comes before the criminal courts again.

[Murray Rankin, NDP, Victoria, BC]

Excellent.

[Kathryn Smithen]

My concern is about putting the resources up at the front, when the complainant witness is at the most danger and where the provisions we're putting in place—safety provisions for her and for her children—will make the most difference.

[Murray Rankin, NDP, Victoria, BC]

Thank you. That's really helpful. I appreciate the clarification.

We had a witness here named Jonathan Rudin who was from Aboriginal Legal Services. I invite any of you to comment on his views. He claims that the reverse-onus provision on bail applications for those charged with domestic violence is misguided. In his submission he said that it particularly affects indigenous women and girls. He said that often what happens is that there's this phenomenon of dual charging, as he calls it, in which a man is charged with domestic assault and insists that his partner started it and should also be charged. That has led to more women becoming enmeshed in the criminal justice system and women ending up with convictions for assault that they should never have had.

He says:

If these provisions go through and their partner once again alleges abuse then they may have trouble meeting the reverse onus. This means they'll be detained, and they will likely plead guilty, and the cycle will continue.

He says that's going to have a disproportionate impact on indigenous women because, as you know, they're grossly overrepresented in our prison population, over 40%

I wonder if any of you have comments regarding this phenomenon that he brought to our attention. How would you react to that?

Go ahead, Ms. Kler.

[Daisy Kler]

First I think we do have to acknowledge that even in the male population in prison, people of colour and aboriginal men are overrepresented. The institution of racism gets reinforced within the prison system. We do see in our transition house women getting charged. Often a man calls police on a woman, and she is racialized and he is not. He's a white man. She is more likely going to be charged. That is a phenomenon.

The problem is that whenever we neutralize the gender, even in this bill, there's no analysis showing that this is male violence against women. Let's say the police wanted a pro-arrest policy; the interpretation was supposed to be pro-arrest in favour of the woman who is battered. What we see is a pro-arrest policy that has no gender analysis and arrests the woman often, and sometimes not even the man but just the woman.

He's right in saying that does happen. The answer is not to argue against reverse onus; the answer is to correct this idea of gender neutrality within the law and to recognize within the law that there is a phenomenon of male violence against women. It happens that the majority are women and the perpetrators are men. Unless we start to infuse all these bills with that, there are going to be consequences.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

Am I done?

[The Chair, Liberal, Anthony Housefather]

Mr. Rankin, your time is up.

I'm very conscious of the fact that Ms. Smithen has to catch a flight.

Mr. Virani and Mr. Fraser are sharing the next six minutes.

[Arif Virani]

I'll have one comment and one question.

To Ms. Smithen, I want to say a distinct thank you from me and I'm sure from many members here at this committee for being so honest and for sharing so candidly and vividly and cogently about your own personal life experience. That's the kind of testimony we want to hear, and I applaud you for giving.

To Ms. Kler, I want to ask you about your own testimony and then invite your two colleagues here to comment on that.

You mentioned the potentially traumatizing effect of a PI, a preliminary inquiry, on a complainant in a sexual misconduct or sexual assault trial and how that can result in reliving the events, and going through difficult cross-examination over very minor matters which would effectively re-victimize the complainant. Could you just elaborate on that?

Then I would ask Professor Sheehy and Ms. Smithen to comment on whether they share Ms. Kler's view.

Thank you.

[Daisy Kler]

Certainly, historically how preliminary inquiries have worked—or not worked—for women is that the defence uses any minute difference between, say, the police statement, the pretrial hearings, and then the trial hearings. Any difference between those three gets examined, to the extent that the woman is having to, in this case, talk about whether or not she was sure she was wearing a cardigan. This went on for about 10 minutes. This particular witness was very confident and very articulate, yet she was shaken about why this difference that seemed so small kept getting relived. That's just an example—what she was wearing—but if you think about preliminary inquiries and all of the questions and everything you say, or if you stumble being questioned.... It was retraumatizing for her.

In her victim impact statement, she talked about having to be the perfect witness and having her whole life scrutinized, not just what she said. At one point, she said that she was young and a little bit insecure. That was used in the trial to say that she was really vindictive because she was just really insecure and that's why she was bringing this man forward on a charge.

Certainly in the case of women who experience sexual assault, I think the misuse of preliminary trials has been very obvious to us.

[Arif Virani]

Thank you.

Can I ask Professor Sheehy or Ms. Smithen if they have a comment?

[Kathryn Smithen]

If you wouldn't mind, Professor, I'm going to have to leave in about two minutes.

[Prof. Elizabeth Sheehy]

You should go ahead.

[Kathryn Smithen]

I can't speak for everybody. I can say from my own perspective that I actually...I wouldn't say “liked”, but having a judge listen to what I went through and acknowledge it as serious was very liberating for me, at both the preliminary hearing and the trial.

I found it very helpful to me in learning to stand up for myself, which I hadn't done for a number of years. I am smart enough to know that I don't know it all, and particularly in my work I constantly remind myself that everybody reacts to trauma differently. For my clients, I always remind myself that it's their life, not my life, and a lot of women do get re-victimized by it.

Defence counsel are there to do their job, and some of them are better at it than others. I'm sure my two colleagues will disagree with me, but I don't think preliminary hearings should be scrapped. I think they're an important part of the judicial system and should remain. I think I'd better leave before I get my head chopped off.

[The Chair, Liberal, Anthony Housefather]

We have about two minutes left in this round.

Go ahead, Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thanks very much to all you for being here.

Ms. Smithen, I know you have to leave, but thanks for being here.

[Kathryn Smithen]

Thank you so much.