Justice Committee on Feb. 2nd, 2021

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Garrison. That concludes your time.

We'll now go into our second round of questions, for five minutes each, starting with Mr. Cooper.

Go ahead, Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you very much, Madam Chair. I want to thank the officials for being here as we commence this most timely study

I will direct my first question to Ms. Levman, picking up from where Ms. Findlay left off before Ms. Levman had an opportunity to come online. Ms. Findlay asked a question about Bill C-75, and in particular the reverse onus provisions for bail in the case of persons who are charged with intimate partner violence and who had been previously convicted of similar such offences.

Would you be able to speak on any impact those reverse onus measures have had?

[Nathalie Levman]

Unfortunately, it came into force so recently that we don't have any kind of statistical or other evidence yet, but we are watching its implementation, of course, which is part of our job.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I presume your answer will be the same to my next question, but I will ask it nonetheless. Another aspect of Bill C-75 is that it provides for an increase in maximum penalties for intimate partner violence. Are you able to speak to any statistics or data there, or is your answer the same as your previous answer?

[Nathalie Levman]

I can't yet speak to any data. We're really just about a year out, which is not sufficient time to be able to do any kind of assessment or evaluation, unfortunately.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you.

I want to ask whichever official can answer a general question about access to courts.

During COVID, courts have not been sitting in their regular capacity. They were sitting often in a very limited capacity at the start of COVID for several months dealing with EPOs and so on.

Can any of the officials speak to the impact that COVID has had upon women and others who are suffering domestic violence in terms of their ability to get remedies through the courts?

[Nathalie Levman]

I can just provide a few comments, noting that there is a jurisdictional issue: we're at arm's length from courts. We do, however, monitor what they're doing and are aware that there have been impacts from COVID.

In fact, that information, I understand, is publicly available on the court websites and can be found there, if that's helpful to the committee.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you for that. Where would I be able to find the data that you spoke of?

[Nathalie Levman]

I believe it's on the website. That's what a colleague of mine has communicated to me, but we can look for it, if you like.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

That would be helpful.

I would just ask whichever official wishes to answer, if you're able to speak in general terms to what you're hearing from organizations across Canada, how they are functioning through this pandemic—organizations that are supporting women in domestic violence situations, women's shelters, and so on.

[Lisa Smylie]

The Government of Canada has since March invested over $100 million in more than 1,000 shelters, sexual assault centres and organizations providing supports to women and children experiencing gender-based violence. We've been working with these organizations very closely.

What we're hearing from them is that they are extremely appreciative of this critical support, which has allowed them to keep their doors open and to provide safe, critical supports and services to those who are experiencing violence during the pandemic. In fact, our funding has helped more than 700,000 women and children during the pandemic.

What we're also hearing from shelters and sexual assault centres is that they are seeing more frequent and more severe forms of violence during the pandemic than they were seeing prior to it. I think that's consistent with what we're hearing from police services across the country as well.

[The Chair, Liberal, Iqra Khalid]

Thank you.

We will now move on to Mr. Virani, for five minutes.

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

Thank you to all of the witnesses from the two departments for being here. We appreciate your time.

I want to pick up where Ms. Smylie left off. I think there's the pre-pandemic phase and then there's the pandemic phase. I'm struck by the lack of funding that was in place under the previous federal government and then how things turned from 2015 to 2019.

My understanding is that the funding increased from between $20 million per year for women and gender equality-seeking organizations to about $65 million per year. That's the first important point.

The second important point is that, I understand, the statistics show that in 2019-20, we invested nearly $66 million in 533 women's and equality-seeking organizations, which is critical. As Ms. Smylie reiterated, in this year alone that number will increase to $110 million.

The pandemic then enters. For a person like me, a lot of it is anecdotal, but I appreciate the statistics we're being provided now, which are very helpful in terms of the rise in claims and the rise in incidents of violence that are occurring. Funding is increased to the tune of an additional $40 million during the pandemic to address this present concern.

Ms. Levman, can you tell us whether the criminal tools we currently have are sufficient? We have heard a lot about the various different heads that are provided—harassment, mischief, trespassing, etc. Is a new criminal offence required that is more along the lines of a pattern of behaviour rather than in a specific incident from your perspective? If so, why is that?

[Nathalie Levman]

I would rather speak to the scholarship I have reviewed rather than my own personal opinions. I think that the scholarship might help the committee in terms of evaluating the advisability of a broad offence that would capture this type of conduct.

I would bring your attention to sociologists who have supported the enactment of these types of laws, such as Evan Stark in particular. We also have a Canadian sociologist. An article published by the Federal Ombudsman for Victims of Crime called “Understanding coercive control in the context of intimate partner violence in Canada” recommends the creation of that offence. In particular, it recommends consultation and study before such an offence is brought into effect for a lot of different reasons including difficulties with operationalization, training and evidentiary issues, etc.

Then there's another—

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

Ms. Levman, on that point, it also strikes me that we're dealing not with an incident, but with a pattern. Could you dwell on your experience with the criminal harassment charge you mentioned to identify for us what hurdles you might see in terms of women coming forward with testimony to evidentiate this type of pattern and how onerous that would be on women?

Ms. Smylie, you can jump in on this as well, but Ms. Levman first.

I'm taken by the fact that we know it's not a very welcoming environment in criminal justice circles when women are testifying—usually against a man—about a single incident. They are having to testify about a full pattern.

What kind of toll would that take on the women as witnesses in those types of proceedings? How could we support them better in that regard?

[Nathalie Levman]

The scholarship does address that. There are other articles as well that look at the implementation of the offence in the U.K. and talk about difficulties with gathering the evidence, including difficulties with law enforcement even being able to recognize that this is, in fact, what's going on, particularly, for example, when the incident comes to the law enforcement's attention because of one violent episode. They have to be able to situate that in a pattern of conduct that may have taken place over months or years. That can be a struggle. Of course, the evidence would come, as you're pointing out, from the victim herself. I will use gendered language because the statistics support me on that.

Before I turn it over to my colleague from WAGE, if I could move quickly to the other side, which is that there are also criminologists who are recommending some caution with respect to enacting and developing these types of offences, in particular from the U.K. and Australia. You may know that New South Wales is considering a private member's bill very similar to C-247.

I would bring the committee's attention to an article called “The Criminalisation of Coercive Control: The Power of Law?”, which is in the International Journal for Crime, Justice and Social Democracy. I found that very informative and you may, too.

[The Chair, Liberal, Iqra Khalid]

Ms. Levman, you referred to a number of documents and articles in that question. In the interest of the committee's deliberations, could you send that over to us? We'd really appreciate it.

[Nathalie Levman]

I would be very pleased to do so.

[The Chair, Liberal, Iqra Khalid]

Please call the IT people about headphones.

Mr. Fortin, it's your turn for five minutes.

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

Thank you, Madam Chair.

You're always the one having to answer my questions, so I wouldn't want you to take it as harassment. The fact of the matter is you have insightful expertise.

On this issue, I think the challenge revolves around distinguishing between behaviours that the Criminal Code already covers and those that it does not. Take, for example, a conversation between spouses, although they may not be spouses, I realize. One or both sides are being stubborn, shall we say, and the conversation becomes fairly intense but does not rise to the level of a criminal offence. The discussion gets more heated, both sides dig in their heels and the situation turns into what could be called harassment. If things escalate, verbal or physical abuse could come into play.

I'm having a hard time figuring out at what point in that progression the behaviour would be considered coercive and controlling. I know you've been asked the question a lot, but I think it's hugely important. How is the line drawn between behaviour that is acceptable under the law, behaviour that is coercive and controlling, behaviour that is considered harassment and violence? That is my first question.

Before you answer, I'll ask my second question because the clock is ticking. I'd like to know your view on how each of the three situations—harassment, violence and controlling or coercive conduct—would be dealt with. If the behaviour were deemed a criminal offence, how would the sentencing differ in each of the three cases? How should each be defined so that the differences are clear and distinctive enough for a judge to navigate these types of matters easily?

If you don't think you'll have enough time to answer my questions now, with the chair's permission, I would ask, like my fellow members, that you get back to me in writing.

Please go ahead, Ms. Levman.

[Nathalie Levman]

You're absolutely right. Coercive control, if it were an offence in Canada, we would see significant overlap. Even turning to—and I'll provide this to the committee as well—the U.K. Home Office's statutory guidance framework, it gives you a list of a variety of different conducts that should be considered risk factors or indicative of coercive control.

You'll note in that list that some of them are certainly criminal offences, uttering threats, violence and sexual-type offending. Even in Canada, we have the offence of non-consensual distribution of intimate images. That can be used to control other people. There are other types of conduct that really aren't criminal offences in and of themselves, but speak to an overall pattern of behaviour.

What we often see in the context of offences, which capture patterns of behaviour in terms of an individual case, is a variety of different charges being laid under different offences. That is quite common, and I would assume that would happen here. For example, depriving someone of their basic needs, isolating a person from friends or family, monitoring another person's time, a partner's time, all of this is considered by the U.K. to be coercive and controlling behaviour. If you were to couple that with uttering threats, with violent-type offences, then likely in a case like this, you would see a variety of different charges being laid.

I don't think there are necessarily clearly defined lines between offences. Certainly, we try to keep the conduct separate, conceptually, but there are overlaps among offences, and I would think there would be significant overlap with a case like coercive control. If we had that as an offence, and it were charged, I could see criminal harassment charges being laid, including assault, sexual assault and uttering threats, depending on the facts of the case.

I'm not sure if that answers your question, Mr. Fortin. You had three in there.

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

Yes.

In your view, how much latitude should we allow for behaviours that, despite having some similarities, are acceptable under the law?

If I come back to my earlier example, it might be a couple having a somewhat heated discussion with raised voices, but both sides still see it as a discussion.

[The Chair, Liberal, Iqra Khalid]

Mr. Fortin—

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

How much latitude should there be for that type of interaction, characterized as a bit heated, versus a behaviour that would be considered controlling. Say a woman tells her husband that she doesn't want him to go hunting with his buddies, or a man tells his wife that he doesn't want her to go out dancing with the girls.

I don't think anyone wants to prohibit that, but I think it's a real challenge that—

[The Chair, Liberal, Iqra Khalid]

Thank you.

Mr. Fortin—