Justice Committee on Feb. 2nd, 2021

[The Chair, Liberal, Iqra Khalid]

I call this meeting to order.

Welcome to meeting number 17 of the House of Commons Standing Committee on Justice and Human Rights.

Welcome to our two new members, Ms. Élizabeth Brière and Mr. Randeep Sarai. We're very excited to have you here on this committee.

Good morning and welcome.

Today’s meeting is hybrid, but I understand that there are no members in the room, which is excellent. We will be enforcing strict measures if you do choose to go into the committee room at a later time. I'm glad that nobody is there today. We're all virtual, expect for Mr. Clerk. I will be keeping an eye on your physical distancing measures.

In order to ensure an orderly meeting, I would like to outline a few rules which I'm sure most of you know already. Interpretation is available to you via the interpretation selection at the bottom of your screen.

You will see the mute button and the stop video. Members should have their cameras on at all times. Only have your microphone open when you are speaking. Before speaking, please do wait until I recognize you by name to maintain order. When you're not speaking, please make sure your microphone is on mute.

A reminder to all members and witnesses that all comments should be addressed through the chair. With regard to the speaking list, Mr. Clerk and I will do our best to ensure we maintain an orderly speaking list.

You will notice the “raise hand” function, and I see Mr. Fortin has used it already, on the bottom of your screen. That will create a speaking list for me to follow. Please do use that button.

Before we begin, we need to adopt our minutes for the meeting we had last week.

Mr. Fortin, is this a point of order?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

No, it's not a point of order, Madam Chair.

Before we hear from the witnesses, I wanted to move my motion, which I put on notice on December 2. I'm not sure whether you'd like to do it now or after we adopt the minutes. It's up to you.

[The Chair, Liberal, Iqra Khalid]

We have a full agenda at this time. If it's okay with you, can we adopt the meeting minutes of the subcommittee agenda? Are there any comments regarding the minutes that were circulated to all members? Can I see a show of thumbs for approval of the subcommittee agenda?

[Some hon. members]

Agreed.

[The Chair, Liberal, Iqra Khalid]

Mr. Fortin, would you be okay if we go to the witnesses? I don't want to keep them waiting with this study.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

It won't take very long.

Everyone received the notice of motion on December 2. Everyone has read it. It merely involves having the committee report to the House the recommendation that it establish a special committee on the judicial appointment process.

I can read the whole motion, but it will take a few minutes, and I think everyone read it. It's up to you, Madam Chair, but I would like the committee to adopt it this morning.

Ideally, we would deal with it right away and hear from the witnesses afterwards.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Fortin.

Mr. Virani, do you wish to speak on the same point?

[Arif Virani, Liberal, Parkdale—High Park, ON]

Yes, Madam Chair.

We had extensive discussions about the next steps at the steering committee meeting, and this is an important study. It's a subject that also dovetails with a private member's bill that was tabled by Mr. Garrison. We have the witnesses before us. We should hear from those witnesses, commence the study, and not keep them waiting.

I would move to adjourn debate.

[The Chair, Liberal, Iqra Khalid]

That is a dilatory motion.

Mr. Virani, I will call the vote immediately.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Madam Chair, can I respond to Mr. Virani's comment? You are disposing of my motion before I've even had a chance to speak to it.

[The Chair, Liberal, Iqra Khalid]

I understand that, but Mr. Virani has moved to adjourn debate on that motion. It's a dilatory motion, so that means there is no debate after the motion has been moved and I, as chair, must call the vote right away. If the motion is defeated, then obviously we'll continue to debate your motion.

(Motion agreed to: yeas 6; nays 5)

The motion carries, and debate on Monsieur Fortin's motion is adjourned until a later time.

It is now my pleasure to introduce our witnesses from the Department of Justice and the Department for Women and Gender Equality. From the Department of Justice we have Nathalie Levman, who is senior counsel in the criminal law policy section of the policy sector; Stéphanie Bouchard, senior legal counsel and director; and Claire Farid, director and general counsel.

From the Department for Women and Gender Equality we have Lisa Smylie, who is director general of the research, results and delivery branch.

Welcome to the witnesses.

We will have two opening statements of five minutes each and then we'll go into our round of questions.

We'll start with the Department of Justice.

[Claire Farid, Director and General Counsel, Department of Justice]

I am the director of the family and children's law team at Justice Canada. Thank you for the opportunity to say a few words about the inclusion of the concept of coercive and controlling behaviour within federal family law.

Changes to the Divorce Act that will come into effect on March 1, 2021, include a broad, evidence-based definition of family violence that specifically identifies coercive and controlling behaviour.

For the purposes of the Divorce Act, family violence will be defined as conduct that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes a family member to fear for their own safety or for the safety of another person.

Behaviour does not have to be a criminal offence to be considered family violence under the Divorce Act. In contrast to the criminal law's focus on determining guilt or innocence, the purpose of the definition of family violence in the Divorce Act is to assist in the determination of the best interests of the child with respect to parenting arrangements, that is parenting time and decision-making responsibilities.

The amended act sets out a list of factors that judges must take into account when considering the impact of family violence on parenting arrangements. It specifically requires judges to consider whether there is a pattern of coercive and controlling behaviour in relation to a family member. Courts must take into account all factors that are relevant to the best interests of the child, and must give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

Coercive controlling violence is more likely than other forms of intimate partner violence to continue and to escalate after separation. Risk often increases after separation because the abuser feels a loss of control. Perpetrators of coercive and controlling violence may be unable to differentiate their role as a spouse from their role as a parent. They may use the children as a way to maintain control over their former spouse. As a result, based on an overall analysis of the best interests of the child, courts may order remedies such as supervised parenting time to protect family members.

Thank you. I would be happy to take any questions.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Ms. Farid.

We will go to Ms. Bouchard, for five minutes.

[Stéphanie Bouchard, Senior Legal Counsel and Director, Department of Justice]

Bonjour, I'm going to give my remarks that my colleague, Nathalie Levman, was supposed to provide. They're still trying to connect her to the committee. We apologize for the inconvenience.

I am the director of the policy centre for victim issues within the criminal law section at Justice.

Thank you for welcoming us to your study of controlling or coercive conduct within intimate relationships.

Coercive control in the context of intimate partner violence refers to a pattern of controlling behaviour that takes place over time and serves to entrap victims, eliminating their sense of freedom in the relationship.

A broad range of controlling conduct may be employed but the focus is on how a pattern of such conduct serves to subjugate, not the individual incidents wherein abusers exercise control.

Specifically, coercive control is concerned with the cumulative impact of the abusive conduct on the victim.

Legal systems have been struggling with responding to intimate partner violence, and other forms of family violence, for decades.

Criminal law has traditionally responded to incidents of violence and other forms of abuse, not patterns of behaviour. A broad range of offences apply in the intimate partner violence context, depending upon the conduct at issue, including assault, sexual assault, uttering threats, intimidation, forceable confinement, fraud, making harassing phone calls, trespassing at night and mischief.

The Criminal Code also requires sentencing courts to treat abuse of the spouse or a child in the commission of an offence as an aggravating factor for sentencing purposes.

Additionally, as of 2015, non-consensual distribution of intimate images is also a criminal offence. Abusive spouses may also engage in this type of conduct to exercise control.

Criminal Code amendments enacted through former Bill C-75 in 2019 strengthened the criminal law's response to intimate partner violence by imposing a reverse onus on bail for repeat offenders, clarifying that abusing a current or former spouse, common-law partners and dating partners in the commission of an offence is an aggravating factor for sentencing purposes, and allowing a higher maximum penalty in cases involving repeat intimate partner violence offences.

In recognition of the fact that abusive conduct may involve a series of behaviours that can literally have an impact on victims' sense of physical or psychological safety, Parliament enacted the criminal harassment offence in 1993. This offence is designed to respond to the impact of a series of interrelated incidents on victims, in particular in the context of family violence, so the offence applies more broadly. It criminalizes engaging in specified conduct that causes a person reasonably, in all the circumstances, to fear for their physical or psychological safety, or that of a person known to them.

The focus of this offence is on the cumulative impact the conduct has on the victim, not individual incidents of abuse.

Criminal harassment may be charged alongside incident-based offences depending on the facts of the case.

Criminal Code peace bonds are also available to protect victims, including victims of intimate partner violence. Peace bonds may be imposed prior to the commission of an offence where any person fears, on reasonable grounds, that another person will cause personal injury including to their spouse or child, or will damage their property.

A wide range of conditions may be imposed, including no-contact orders, the breach of which is a criminal offence with the maximum penalty of four years imprisonment.

Ten provinces and all three territories have in place family violence legislation that complements these criminal law measures.

For example, this legislation authorizes emergency intervention orders, which can grant the victim the right to remain in the home and use the family vehicle. Conditions may also be imposed to restrain the abuser from communicating with, or contacting, the victim or members of the victim's family.

In terms of victim support, the federal victim strategy seeks to give a more effective voice in the criminal justice system to victims and survivors of crime in Canada. A key component of this strategy is the program development and delivery through the Justice Canada victims fund. A range of supports are available through this fund to victims of intimate partner violence. In particular, since 2016, the Government of Canada has made funding available through the victims fund to the provinces and territories in support of pilot projects to provide independent legal advice to victims of sexual violence.

[The Chair, Liberal, Iqra Khalid]

I'm sorry. We're completely past the five minutes. We're a little bit over now.

We're hoping that the rest of your testimony comes out through questions.

The first round of questions will be six minutes each starting with Madam Findlay.

Madam Findlay, please go ahead.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Thank you, Madam Chair, and thank you to all of the witnesses for being here with us today on this very important topic.

As part of my law practice, I practised family law for many years, so I'm well aware of these issues. We should all know that physical and verbal violence in intimate partnerships negatively effects all genders and all children whether they are the victims or witnesses.

I'm glad to see that the best interest of the child test remains. We know through medical procedures like brain scans—things we never had available when I was first practising law—that being victimized or witnessing violence can be detrimental throughout one's life. This is something that the courts did not really recognize when I first started practising in this area. They thought once the separation happened between couples it just all went away, which is not the case at all.

One of my concerns with COVID-19 and the lockdowns and from what I'm hearing within my own riding is that people—and I'm thinking specifically of a couple of women at the moment—who are caught in these relationships are not really aware of what is available to them. In other words, they're not sure what is locked down. Are safe houses locked down? Are women's centres locked down? Can they go? Are they safe?

I'm not sure that between our federal and provincial governments there's been enough done to let them know that there are options. I'm wondering if the witnesses can comment on how COVID may be being used by abusers to exploit the inability of women to call for help or to escape their situation due to lockdown. Can they comment on what they feel the awareness is generally among those who are victims, as to what supports are available?

[The Chair, Liberal, Iqra Khalid]

Thank you, Madam Findlay.

Ms. Smylie, would you like to answer that?

[Lisa Smylie, Director General, Communications and Public Affairs Branch, Research, Results and Delivery Branch, Department for Women and Gender Equality]

Thank you for raising a really important issue. It's something that's been talked about quite extensively in terms of the impact of COVID-19 on gender-based violence more broadly, and in particular, as you pointed out, intimate partner violence.

The research and data that we do have from the COVID-19 [Technical difficulty—Editor] shows that, much like crises more broadly, the pandemic is increasing rates of intimate partner violence and gender-based violence. A study by Statistics Canada early in the pandemic found that one in 10 women was either very concerned or extremely concerned about violence in the home during the pandemic. Since the beginning of the pandemic, according to Statistics Canada's [Inaudible—Editor] from police services, there's been about a 10% increase in calls related to domestic disturbances. We know that's only the tip of the iceberg because about 64% of domestic violence does not get reported to police.

Community organizations across the country are reporting increases in domestic violence and intimate partner violence. For example, a study by Women's Shelters Canada in November 2020 found that 52% of their shelters across the country were seeing more severe, more frequent forms of violence than before the pandemic.

In another example, the Assaulted Women's Helpline in Ontario has seen substantial increases in calls since the beginning of the pandemic. We're talking about a magnitude of a 72% increase as of May 2020, compared to May 2019.

Canada is not alone in those trends. These have been reported globally in terms of indices in intimate partner violence, and we can imagine why. Women are isolated with their abusers, who, for example, are engaging in controlling behaviour, withholding technology, phones, controlling who they can speak to, cutting them off from friends, family and community organizers.

Perhaps I'll leave it there.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Ms. Smylie, what you're saying is very important, and we know that one of the hallmarks of abuse is isolation of the victim. We don't have a lot of time here, though, and I have another quick question.

Bill C-75, which was an act to amend the Youth Criminal Justice Act, was introduced in July 2019. It created a reverse onus at bail for persons accused of violent offences involving intimate partner violence. I'm wondering if there's any evidence that leading up to and during the pandemic this reverse onus burden shift has decreased the number of reoffenders of intimate partner violence. Has that helped?

[The Chair, Liberal, Iqra Khalid]

Very briefly.

[Lisa Smylie]

I will have to defer to my justice colleagues on this. It's outside of the scope of my expertise and knowledge.

[The Chair, Liberal, Iqra Khalid]

Go ahead, Ms. Bouchard.

[Stéphanie Bouchard]

Thank you. This would be a question for my colleague, Nathalie Levman, who I believe is still trying to connect to the committee. All questions relating to Criminal Code amendments have to wait for her expertise.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Madam Chair, perhaps because it's a technical issue, we could get a written response if we don't manage to get the witness through.

[The Chair, Liberal, Iqra Khalid]

Absolutely. I was thinking the same thing, Madam Findlay. To the department officials, if we can receive a written response to that question, I think members would like to know.

Thank you very much. We'll now go on to Mrs. Brière.

Welcome to our committee. You have six minutes. Go ahead.