Evidence of meeting #107 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was inquiries.
A recording is available from Parliament.
Assistant Professor, Faculty of Law, University of Calgary, As an Individual
Perhaps I can answer that. Some of the arguments have been well about prosecutorial discretion. The Crown does a review. It does a triage. It looks and withdraws those cases that are on the border. It's fairly clear.
I believe the last panel referred to it. In R. v. Nur, which was a Supreme Court of Canada case, then Chief Justice McLachlin made it very clear that you cannot substitute prosecutorial discretion for judicial oversight. That's what this is.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you.
I think my colleague Mr. Fragiskatos has a question.
Liberal
Peter Fragiskatos Liberal London North Centre, ON
I do.
I'm not a regular member of this committee, but I do have the good fortune of sitting in today to study a very important bill.
My question relates to preliminary inquiries. It's been said by some observers that in cases of, say, violent assault, having a victim testify at a prelim, then having that same victim relive that experience at the regular trial actually serves to re-victimize the experience.
Could you speak to that? I ask this as someone who is genuinely interested in the issue. I don't have a law degree like my friend to my right here, but I worry about victims and the trauma of their experience being relived in both settings.
Lawyer, Daniel Brown Law, As an Individual
One of the things I spoke about before is that there are already tools on a case-by-case basis to avail yourselves of at a preliminary inquiry. A direct indictment, with the consent of the Attorney General, sends a case directly to trial.
In cases where there's a particularly vulnerable complainant, there already exist tools to skip over a preliminary inquiry. Again, we want to shelter complainants, but we also want to protect and shelter the presumption of innocence. There needs to be an appropriate balance struck between the two. Perhaps the answer isn't to eliminate preliminary inquiries in all cases.
If we're particularly talking about vulnerable victims, because we've maintained this threshold of a life sentence, it means that, okay, now we've protected the sexual assault complainant, who won't have to testify twice, but the victims of an aggregated sexual assault, because it carries a life sentence, or the victims of an aggregated assault or an attempted murder will still have to testify.
Bill C-75 is just an imperfect solution to that problem of protecting vulnerable victims in any event.
Liberal
The Chair Liberal Anthony Housefather
Before we end, I just want to come back to one issue.
Mr. Fragiskatos reminded us of something we heard in the first panel for the very first time, that if the trial keeps getting broken up because motions are filed, for example, for the subpoena of third party documents or information, the complainant may then be subjected to cross-examination, which then stops, and then more cross-examination, and have to come back on multiple days. This could be sometimes alleviated by the preliminary inquiry, which was an interesting point that Mr. Fragiskatos raised, pursuant to what you had said.
It was a great, fascinating panel again. I want to thank you so much for coming from all across the country. It is much appreciated.
We're going to again ask the next panel to come as quickly as possible as we take a brief recess.
Liberal
The Chair Liberal Anthony Housefather
Folks, ladies and gentlemen, we're reconvening. My goal is to make sure all three witnesses can get their testimony in before we have a vote. Then we'll do our questions after the vote, if the panellists can remain. It's up to the panellists, of course.
We're joined by Ms. Elizabeth Sheehy, professor, faculty of law, University of Ottawa. It's a pleasure to have you again.
We have Ms. Kathryn Smithen, who is a barrister and solicitor, Smithen Law, Child and Family Advocacy Services. Welcome.
By video conference from Vancouver, we are joined by Ms. Daisy Kler from the Vancouver Rape Relief and Women's Shelter, and she's a transition house worker. Welcome.
Liberal
The Chair Liberal Anthony Housefather
We'll follow this order. Ms. Smithen has a flight, so I'm going to put her first. I'm going to do Ms. Kler second; and then I'm going to do Dr. Sheehy, because she's a local here in Ottawa.
The goal is if you can each stick to eight minutes we can get all three of you done before we leave for the vote.
Ms. Smithen, the floor is yours.
Kathryn Smithen Barrister and Solicitor, Child and Family Advocacy Services, Smithen Law, As an Individual
Thank you.
I thank the committee for the kind invitation I got a mere four days ago. I'm happy to be here and happy to speak about the provisions of Bill C-75 that deal with the justice system's response to intimate partner violence.
I'd like to say straight up front that I appear with two fundamental biases, both as an individual and a legal professional. I think I should bring those biases to the committee's attention in advance of my submission.
The first one is that I was a victim of severe domestic violence over 25 years ago. My ex-spouse was charged and tried with 17 criminal offences, including strangulation and sexual assault. This led to my appearing as a complainant witness in a Superior Court criminal case against my former spouse several years after the offences took place, and it sadly led me also to become the mother of a Crown witness. My now 30-year-old daughter testified when she was nine years old about violence she saw when she was four years old.
My second bias is that in my professional life I was an articling student for a criminal defence counsel, but chose very deliberately to focus on family law after my call to the bar of Ontario seven years ago, when I was 49 years old. In that current work I represent many women who have suffered through domestic and/or sexual violence and whose children have been affected by it too.
As I said earlier, the focus of my professional work is a deliberate choice that I made. Criminal defence work, although I recognize it as important and vital to any society that values the rule of law, was not a very good fit for me, probably because of my own experiences.
I made it a professional priority, consciously, when I became a lawyer to try to represent women and their children in ways that hopefully addressed the violence in their domestic lives in the justice system, and I always make it a goal to try to effect change where possible to make their lives safer.
There are many intersections between family and criminal law that one could argue might help me to do that, but I can truthfully express frustration before the committee on trying to achieve those goals daily.
I'm choosing today to focus on the issue of judicial interim release, which I believe needs to be amended in a way that makes victims more safe.
My view is that if Bill C-75 were amended in a way that provides for a reverse onus on persons charged with two or more acts of intimate partner violence, it would serve victims better than focusing on what I call the back end, which is waiting for a conviction.
Making this a condition only in cases where there's an actual previous conviction, which I understand is the current proposed amendment, is problematic for the following reasons. One is that intimate partner violence is often under-reported. Whether they're before the courts for the first time or not, it is not unusual, as we all know, for there to be a long history of violence before an alleged offender is actually identified by the police. Intimate partner violence, as we know, is highly secretive. It's not unusual for that historical record to be hidden not only from authorities but also from family members, friends, and co-workers, until an incident brings the family to the attention of authorities. The secrecy inherent in domestic violence often imposed on the complainant through the cycle of violence or through her own shame makes it very difficult for the victim to seek help.
Also, women are in more danger once the secret is out. The public shame and the effort to pressure her into backing off or testifying differently is a new source of pressure, as well as a new source of real danger. The high rate of complainants being pressured to recant or not appear at trial makes this a unique offence, in that obtaining a conviction for it, as opposed to other offences, is far more difficult.
In the time that I worked for a criminal defence counsel as an articling student between 2008 and 2009, my principal, who will remain nameless and did not appear today, was consistently telling his clients charged with domestic violence offences to refuse any offer by Crowns to resolve cases. The advice given was constantly that you can count on the complainant not to appear, which would result in the complete withdrawal of charges.
Sadly, he was mostly successful.
In intimate partner violence cases, conditions to bail are commonly breached or outright ignored. I believe this makes a mockery of the judicial system. This is a known and undisputed fact in criminal courts. Making the bar for a reverse onus only if there's an actual conviction raises the bar far too high and far too late.
As legislators and lawyers, we don't need convictions to know that this offence presents a higher likelihood of danger to the victim than others. I believe that releasing an alleged offender back into society is short-sighted, and if he or she is charged with two or more offences, it's a recipe for danger.
In my work as a family lawyer, I see clients after they've gone through the criminal justice system. I've heard Crowns offering peace bonds in intimate partner violence cases many times. This means there will never be convictions.
A variety of reasons are offered for this position. These are a smattering of the ones I've heard in my very short career.
“Domestic violence is a social problem; it's better addressed outside the justice system.”
I've heard some Crowns rationalize that victims are better served with partner-abuse counselling—which I would agree with, and would be great, if there was an admission of responsibility and a change in behaviour outside the counselling room. This sadly doesn't happen very often.
I have also heard the argument that putting the offender out of work—which is argued will happen if there is a criminal conviction—will have a negative impact on the offender's ability to pay support, as if a victim's safety should take priority over support.
I've heard even more jaded remarks, such as “She's going back to him anyway”, as if that's an acceptable justification for not pursuing a conviction.
While obviously there's merit in some of these arguments, they don't treat the complainants with the respect that any person in the justice system is entitled to. They defeat the very purposes of this well-thought-out legislation. They're not keeping complainants or their children safe. Often what I see in the family court system is that when the criminal course disappears through the peace bond process, the offenders carry on in the family cases as though the offence has never officially happened in the justice system, and they return to the cycle of terror against their victims.
In the family law system, where many family lawyers like me are trying to bridge the gap to create safety plans for our clients, we are then undermined by the Crown's position taken in the criminal case.
In short, the bill is sending a message that the justice system treats domestic violence as a less serious crime than stranger-on-stranger crime, which I'm confident to say is not the goal we're trying to achieve.
I realize that much of what I have submitted today is contrary to much of the case law and the submissions of my esteemed colleagues in the criminal defence bar. I have long been criticized in legal circles for the views I have told you today and for my ideas about reform. In law school I was teased relentlessly by a fellow student, who acted as though I were a three-headed lizard for suggesting these things. I stand by them.
Sadly, I've heard people in the criminal defence bar ridicule victims' rights bills and efforts. I was very bewildered last year to hear an esteemed member of that bar criticize her Crown colleagues at a continuing professional development program for calling complainants “survivors”, as if that term was somehow offensive.
Nothing I have proposed today would diminish the right to make fair answer in defence or reduce an accused person's charter rights, but it would offer the victims of violence in intimate relationships the recognition that their charter rights—specifically the right to safety, liberty, and security of the person—are valued and protected by Canadian institutions such as this House.
I thank you very kindly for the opportunity to make these submissions.
September 24th, 2018 / 6:10 p.m.
Transition House Worker, Vancouver Rape Relief and Women's Shelter
I would like to thank the committee for inviting me to speak. I thought I had 10 minutes, so I will have to be faster than I'd like.
First of all, the Vancouver Rape Relief and Women's Shelter is Canada's first rape crisis line. We opened in 1973, and we operate a transition house for battered women and their children. We receive about 1,300 new calls per year and house about 100 women and their children who are escaping violent men. We offer advocacy and accompaniment to police, court, and hospital, as well as oftentimes to immigration and welfare.
In the course of their stay, we assist women with finding housing, obtaining a lawyer for family law matters such as custody and access, making a police statement, finding day care, and almost everything they need on a daily basis. Also, if needed we find translation and assist with immigration and refugee issues.
Vancouver Rape Relief is a collective of paid and volunteer members. Our membership includes former battered women, women who have exited prostitution, and sexual assault survivors. Our members vary in age, race, and class.
Our 40 years of front-line work informs our understanding of all forms of male violence against women, including wife assault, incest, rape, sexual harassment, and prostitution.
We have been widely consulted for our expertise and our understanding of male violence against women, locally, nationally and internationally. For example, we've also been contributing our expertise on violence against women in provincial and federal consultations, most recently to this committee on trafficking and prostitution, and for Bill C-51.
We also participate widely in the women's movement. Since 1997, we have held an annual all-day event in the form of a public conference in memory of the Montreal massacre. Rape Relief has led in-depth facilitated discussions on key issues regarding male violence against women. The participants include local, national, and international equality-seeking women's groups and feminist front-line women's service workers, and the event is highly attended by members of the public and other feminists in the city.
In 2011 we were part of the global Women's Worlds conference in Ottawa, and with CLES—Concertation des luttes contre l'exploitation sexuelle—we organized an international trilingual discussion among women experts who discussed prostitution as male violence against women. We hosted discussants from first nations and from 15 countries around the world.
We also work in coalition with other anti-violence workers and organizations, such as the Canadian Association of Sexual Assault Centres, the Canadian Network of Women's Shelters and the BC Society of Transition Houses.
Vancouver Rape Relief has advanced and pursued public cases where there is a women's equality interest. For example, Rape Relief was a party with standing in the institutional and expert hearings for the National Inquiry into Missing and Murdered Indigenous Women and Girls. We're part of a national coalition of front-line workers that has been granted intervenor status in the appeal of Bradley Barton, who was found not guilty for the murder of Cindy Gladue. Our oral submission will be heard in the Supreme Court of Canada on October 11.
What does our front-line experience tell us? Most women who have experienced male violence do not engage with the criminal justice system. Roughly 30% of the women who call us have done so. That is high, because most rape crisis centres are only dealing with sexual assault, for which the numbers are lower. However, because we're dealing with battered women as well, sometimes the police are called for them by neighbours and other people. They're not the only ones calling, so that makes our numbers a bit high.
Oftentimes the women we work with in the transition house have the police called on them, but if they themselves call, they don't see their cases get to court, and even fewer of those cases result in criminal convictions. Our work shows that most of the women who've stayed in our house and who have tried to use the police don't get more than a police file number. It's uncommon for there to be any arrest or charges. It's extremely unlikely that there will be a conviction.
Women don't have faith in the criminal justice system. They don't have faith that it'll work in their favour because history has shown that it doesn't. Although we welcome some of the changes in the bill, it must be acknowledged that these changes will affect a small portion of women who have experienced male violence.
I'm hopeful that some of the measures will have a positive impact. We believe that protecting women's equality rights does not have to come at the expense or violation of men's charter rights. We do take the position that it's battered and sexually assaulted women who rarely find justice or have their charter rights upheld. We argue that the existing laws must be applied as they relate to battered and raped women.
We recognize that it's poor, racialized, and indigenous men who fill the prisons, not because they commit more crimes against women but because the criminal justice system unfairly criminalizes these populations and lets rich white men off the hook. It's a poor, racialized, and indigenous woman who is most likely to be arrested if the violent man calls the police on her.
We don't believe that prisons successfully reform men, and we don't call for longer jail sentences. However, communities do not hold men accountable for the violence men commit. Therefore, women will continue to need the criminal justice system for protection, and we feminists must fight for women's access to the rule of law.
We welcome some of the changes in the language, such as the change from “spousal” to “intimate partner” and the expansion of the definition to include former partners and dating partners because it better reflects the range of relations women are in outside of marriage. This change also allows for a broader and deeper interpretation of the continuing power that abusive men exert over women after the relationship has ended since a woman is most at risk in the first 18 months after leaving an abusive man. We see that men use violence towards women at all different stages of a relationship, including after it ends, so the change to “intimate partner” violence is good because it could mean a higher chance of him being held responsible for his behaviour.
However, this language change does nothing to correct the fundamental flaw in this bill. Nowhere in this bill is male violence against women acknowledged. It is understood worldwide that male violence against women is a social reality that cannot be denied. This bill does nothing to reflect or acknowledge the fact that the perpetrators of violence are overwhelmingly men and that the victims of that violence are women.
The change to the reverse-onus bail in cases of male violence is an encouraging step to help reduce the number of men who immediately reoffend and attack their female intimate partners. It's a positive step because the onus is on him to prove why he should be let out if he has a history of domestic violence. It sends a message that violence against women is a serious crime.
It is, however, unfortunate that this reverse onus will not apply to those men without a criminal record for domestic violence. This includes convicted persons who have received an absolute or conditional discharge. In a case in which I was working with a battered woman, her abuser was a lawyer. He argued to the judge that he needed to go to the States to visit family. Even though he admitted that he was guilty, she granted him a conditional discharge. If he batters again, which he likely will, he won't be held on this reverse onus.
We think that eliminating the mandatory use of preliminary inquiries is a positive step. We know from our own experience of accompanying women to court that preliminary inquiries are used by the defence as an attempt to discredit the women's testimonies by pointing out minute discrepancies between their police statements, their preliminary inquiry evidence and their trial testimonies. As a recent example, in a trial I attended last month, the woman was testifying, and she said in her pretrial, “I think I wore a cardigan,” in one statement, and in another statement she said, “I was wearing a cardigan.” The defence cross-examined her gratuitously on the difference, implying that because she didn't use the exact same wording, she was lying. This misuse of preliminary hearings in sexual assault trials is common, and we're glad to see its use limited.
Bill C-75 makes strangulation a more serious level of assault, equal to assault causing bodily harm. Since strangulation is an indicator of the likelihood of increased and more severe violence, including wife murder, this change better reflects the seriousness of the crime—
Liberal
The Chair Liberal Anthony Housefather
Ms. Kler, I'm sorry to interrupt. We're at 10 minutes now, and I have to give Ms. Sheehy the chance to intervene.
Transition House Worker, Vancouver Rape Relief and Women's Shelter
Okay. I have one more point.
With regard to strangulation, we think the change is good, but it doesn't reflect the potential lethality of strangulation.
In terms of sentencing, the shift to include former partners and dating partners is significant, because women who have left abusive men are at increased risk of violence. Although Bill C-75 would allow the court to raise the maximum sentence for a repeat offender who has a record of domestic violence offences, most judges don't apply maximum sentences to domestic violence, so this is unlikely to have an impact.
I note, however, that summary conviction offences that include most forms of male violence have their sentencing maximum increased from six months to two years, except for sexual assault. This is an odd omission. It suggests that sexual assault doesn't happen to battered women. I think this reflects a common myth that somehow women who experience intimate partner violence are different from the women who experience sex assault. In fact, abusive men's physical assault often includes sexual assault.
I'll stop there. I have a few more points, but hopefully I'll get to them in the questions.
Thank you.
Professor Elizabeth Sheehy Professor, Faculty of Law, University of Ottawa, As an Individual
How many minutes do I have?
Liberal
Prof. Elizabeth Sheehy
Okay.
Thank you for inviting me to address Bill C-75. As you know, I'm professor emerita at the University of Ottawa faculty of law, where I've taught criminal law and procedure for 34 years. My life's work is focused on law's response to violence against women.
I don't speak on behalf of any group, but whenever I have the opportunity to work with the feminist advocates of the independent women's movement, I take that opportunity. That's because the leadership and analysis of front-line women like Daisy is based on decades of front-line experience and strategy in confronting violence against women, as well as on their unwavering political commitment to the liberation and equality rights of all women—so I say what she said, but I'll say a few more things.
I agree with Daisy that without attention to the specific experience and conditions of women's lives and men's violence, it's really hard to develop sound criminal law policy and legislation. When we use these vague and generic terms like “spousal assault” and “domestic violence” and we don't name it as men's violence against women, I think we lend the misleading appearance of parity between men and women when it comes to violence, and we are incapacitated from developing effective legal strategies that target the massive threat that men's violence presents to women's lives, freedoms, and equality rights.
I agree with Daisy. There's a problem here. It makes it hard for us to get the right language and the right strategy. The good intentions behind the provisions in this bill are to some extent undermined by the fact that the bill is not anchored in a national violence against women strategy or informed by front-line feminist expertise.
I had four points to make, but Daisy has made several of them.
I was going to talk about the issue around the disparity in sentencing. We have all the summary conviction violence offences being raised to a maximum of two years, except for sexual assault. That's odd. It's anomalous. It I think reflects bifurcated thinking, putting domestic violence over here and then sexual assault over there.
Like Daisy, I am not a proponent of longer jail sentences. I'm not sure that's where we should be focusing our energy, but there is a message in this bill that probably needs to be corrected. We should be using the two-year maximum for all the summary conviction offences here that involve violence against women.
The other point I wanted to make is that the bill is now going to aggravate sentences for crimes of threat or violence based on commission by a former or current intimate partner, including a dating partner. This amendment does not include those men who obsess about and stalk women who've refused them access to even a dating relationship. These men are motivated by the same ideas that infect other men who assault intimate partners: ideas that women belong to them, owe them something or must be punished for failing to love them or obey them. They can be as dangerous as men who batter their wives or ex-partners. The threat they pose to the women they harass should be recorded in the criminal justice system's records to help assess the risks they pose to those women and to other women in the future.
The new definition also fails to respond to the targeting of others by the perpetrator, whether that's new boyfriends, family members, mothers, fathers, sisters or friends. Perpetrators may harm or threaten others as a strategy to intimidate and control the woman, and they might also strike out against those who intervene to try to protect her. These forms of violence are part of the dynamic of wife-battering and should be similarly treated for the purposes of these amendments.
Let me just say that for each of my suggestions I do have legislative language that I would propose. I'm not going to read that now. It's in my submission, which the clerk has in hand.
I've already mentioned the sentencing issue, and the third thing I want to address is the strangulation point that Daisy has mentioned. I agree that this is a good amendment. We ought to be exaggerating or raising the offence of either assault or sexual assault to tier two, to that second level, if strangulation, choking or suffocation is involved. We know from the research that strangulation poses heightened risks of brain damage and death. It's a significant risk factor for lethality and intimate femicide, and it's used by men to terrify and subjugate women, whereby the offender communicates the message literally that her life is in his hands.
It's critically important as well that a conviction under this offence will show up on an offender's record as assault by strangulation or sexual assault by strangulation. I've checked that out. It appears that it will in fact appear on the record in that manner, which is really important in allowing police officers, prosecutors, and judges to understand the risk that this particular individual poses.
This addition to the code follows reforms in U.S. states as well as other jurisdictions that specifically recognize men's use of strangulation as requiring denunciation, tracking, and alleviation of the burden of proof for the Crown. However, other Criminal Code amendments are absolutely necessary to breathe life into this amendment. This is because the law is seemingly unsettled as to whether women can consent to the infliction of bodily harm that's neither trivial nor transitory once we introduce the context of sexual relations.
I can say a lot more about the legal problem here. There's a legal problem, but there's also a practical problem. The practical problem is the society in which we live. We're willing to suspend our disbelief and we're prepared to acquit someone on the possibility that even on a first date, as in the Ghomeshi case, women can somehow agree to strangulation before they even exchange a greeting and without any discussion of what's involved or at risk with strangulation.
There's simply no doubt that consent will be raised by those men charged with this new form of assault or sexual assault. I don't think there's any justification in criminal law policy to carve out an exception to the general rule that people can't consent to the infliction of bodily harm that's serious and non-transitory. I think an exemption would have sex-discriminatory impacts for women, particularly women who experience male violence and those subjected to the violence inherent in prostitution. I think Bill C-75 needs a section that anticipates and closes this avenue of defence if we are to succeed in condemning strangulation as a specific form of criminal offending.
The fourth point, on reverse-onus clauses, has been ably covered by Kathryn Smithen. It doesn't often happen to me that a lawyer says something more radical than a law professor, but she did. I was going to make the point Daisy made, that we need the reverse onus to apply to those men who are found guilty but for whom there is no conviction. However, I actually agree with Kathryn: I think we have the evidence to support a reverse onus for men charged with domestic violence offences, regardless of whether they've previously been found guilty or convicted. That's because there was a study by the Department of Justice a few years ago that specifically examined domestic violence offenders and found that they breached their conditions 50% of the time, and of those, another 50% were actually violent breaches, so this is demonstrably a high-risk category of offenders who deserve a reverse onus in order to give women some measure of safety to escape or hide while the case is adjudicated.
I will conclude there. Thank you very much.
Liberal
The Chair Liberal Anthony Housefather
Yes, thank you. We have to get to the chamber.
Ladies, we will be back as soon as the votes are over. If you are able to stay and take questions, that is great. If not, we fully understand and we'll send you questions in writing by email.
Liberal
The Chair Liberal Anthony Housefather
We have two votes. It'll be about 30 to 40 minutes. We'll be back as soon as we can.
Thank you again. We're sorry.
The meeting is suspended.
Liberal
The Chair Liberal Anthony Housefather
We are resuming. I would like to thank our witnesses for being so patient. We're so sorry. Votes are beyond our control.
For the first question, we have Mr. Cooper.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Mr. Chair.
Thank you to the witnesses.
Ms. Smithen, you indicated that you would support establishing a reverse onus in the case of two intimate partner charges being laid, as opposed to an actual conviction. Professor Sheehy, I believe you indicated you would be satisfied that a reverse onus would apply on a first charge. I take it, Ms. Kler, that you would also be in favour of a reverse onus, simply on a charge being laid.
Do I understand your testimony correctly?