Evidence of meeting #115 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 move.
A recording is available from Parliament.
5:15 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Can I ask one quick question of Ms. May?
The balance of probabilities test that's being stated is already the standard that's used. That seems unnecessary to me.
Can you help me understand that?
5:15 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
It was strongly argued particularly by Dr. Nicole Myers and others who appeared before this committee that by directing the mind of the justice to satisfy himself or herself on the balance of probabilities, that maybe the test that's being used...but by strengthening it.... De facto perhaps is that the test is being used, but we don't know because it's not explicit, so if you say explicitly, “satisfied, on the balance of probabilities,” that this condition is necessary....
There is no place on Vancouver Island for women to be held awaiting trial so women from indigenous communities are not just held in detention, they are held in detention a substantial distance from their families, and they can be held in detention for a very long time. What kinds of conditions do you need to put on people to ensure that they are able to stay in their community, that there's not a surety that's overly onerous, that's very restrictive?
I think injecting the test on the balance of probabilities in these circumstances directs the mind of the decision-maker to all the factors and to the notion of whether it is actually necessary.
5:20 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you.
I respect my colleague, of course, but I respectfully disagree with that point because I think it's well known to the courts that it is the standard of balance of probabilities that is used, and this would just add unnecessary language to a section that's already well known.
5:20 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much. I really appreciate that.
We will move to a vote on PV-22.
(Amendment negatived [See Minutes of Proceedings])
Ms. May, Green Party-23 and Green Party-24 have line conflicts. Would you decide which one you want to move forward with?
5:20 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
I think under the circumstances I will withdraw.... I can't withdraw anything because these are deemed to have been moved by the committee.
My preference would be to move to PV-28, which is the strongest. In the circumstances, it is the one that doesn't have line conflicts and isn't unclear. It's my strongest.
5:20 p.m.
Liberal
The Chair Liberal Anthony Housefather
Okay, so let me suggest that I will allow you to not move anything you don't want to move.
5:20 p.m.
Liberal
The Chair Liberal Anthony Housefather
No, but I will allow you to tell the committee that these are not deemed moved, and we will withdraw the ones you want to withdraw.
5:20 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
You have to do it by unanimous consent. I have no role in it. I'm merely suggesting a way forward.
5:20 p.m.
Liberal
The Chair Liberal Anthony Housefather
I understand, but I'm just asking you which ones. You want to withdraw PV-23, PV-24—
5:20 p.m.
Green
5:20 p.m.
Liberal
The Chair Liberal Anthony Housefather
We'll move to PV-28.
Is everyone okay with doing that? Does the committee unanimously agree?
5:20 p.m.
Some hon. members
Agreed.
5:20 p.m.
Liberal
The Chair Liberal Anthony Housefather
We will do NDP-6, NDP-7, and we'll move to Green Party-28 at that point.
5:20 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
Thank you very much, Ms. May. We'll come back to you for Green Party-28.
In the meantime, we'll move to Mr. Rankin for NDP-6.
5:20 p.m.
NDP
Murray Rankin NDP Victoria, BC
Thanks, Chair. These next two are essentially the same as I moved before, but rather to first court appearance bail, if you will, rather than the undertaking in which the context was different before.
Again, the interviews that Professor Sylvestre and her team undertook with legal stakeholders showed that the conditions that are often imposed just don't work. They're arbitrary. They're unreasonable. They're excessive. For example, the one about the condition prohibiting a person being found in a designated area is often too wide and exaggerated. Others are too restrictive on freedoms, like when you have a curfew imposed on someone in the context of vandalism, or unrealistic like the one I talked about earlier, consuming alcohol when you're alcoholic or the like.
Imposing unreasonable and potentially disruptive conditions is just another way of denying bail. The purpose of these amendments would be to try to reasonably limit the geographic location and reasonably ensure security and safety, but taking into account the issues of abstinence that I talked about earlier.
5:20 p.m.
Liberal
5:20 p.m.
NDP
Murray Rankin NDP Victoria, BC
I did. I won't need to talk about NDP-7 when the time comes. NDP-6 is on the floor.
5:20 p.m.
Liberal
The Chair Liberal Anthony Housefather
Yes, given that you lumped them together, does anybody wish to speak to either NDP-6 or NDP-7?
Then we'll move to a vote on NDP-6.
(Amendment negatived [See Minutes of Proceedings])
We'll vote now on NDP-7.
(Amendment negatived [See Minutes of Proceedings])
Green Party-28 and NDP-8 are essentially identical, so I'll leave both Mr. Rankin and Ms. May to speak to it in whatever order they prefer.
October 29th, 2018 / 5:25 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Okay.
Green Party-28 would remove the reverse onus on the accused with prior records of intimate partner violence. This received a lot of testimony, from the association of legal aid lawyers, from the Canadian Bar Association, etc. The concern was that subsection 515(3) already requires the consideration of factors related to intimate partner violence in consideration of release.
The concern was the proposed change in Bill C-75 would likely lead to litigation. Previous court decisions upholding the constitutionality of reverse onus do not offer features that could be held in common with these.... The intention is clearly a good one: that there would be a reverse onus. But in testimony from women's advocacy groups, Aboriginal Legal Services, the Society of United Professionals, which is the legal aid lawyers group, practising lawyers spoke of this phenomenon of dual charging, where a partner in intimate partner violence, usually the man, is accused of domestic assaults and insists that the partner who has been assaulted is also charged and should be charged because they started or are implicated in the offence.
The Canadian Civil Liberties Association in particular said, and I'll just read this because it makes it quite clear:
Mandatory or pro-charging and prosecution policies, while effective in increasing the number of abusive partners brought before the criminal justice system, can also have the effect of criminalizing victims who are caught in an abusive relationship.
The effect of the bill before us—and we have a lot of expert evidence—is that as much as it might initially seem counterintuitive, abusive partners can use the reverse onus provisions to discourage the victim from reporting and the reverse onus might also discourage victims from coming forward if they are trapped in a relationship where they are financially dependent on their abuser.
Again, there's a lot of evidence and testimony on this point. I agree it's a very difficult one. You've already had a prior record of abuse of your partner, and a reverse onus would increase the burden on the accused to defend their actions. However, the threat that can be used, and in real life can happen, to criminalize the victim, and thus discourage reporting and increase the risk of mostly women being trapped in an abusive relationship, is a very serious one. Obviously, that's why Mr. Rankin brought forward a similar amendment. Even if it takes time to struggle with this one, I hope the committee will find a way to remove the reverse onus in the interests of protecting women at risk.