Justice Committee on Feb. 4th, 2021

[The Chair, Liberal, Iqra Khalid]

I call this meeting to order.

Welcome to meeting number 18 of the House of Commons Standing Committee on Justice and Human Rights.

Welcome, Ms. Damoff, who will be replacing Mr. Kelloway today. Thank you for being here.

To ensure an orderly meeting as we continue our study into domestic violence, I will outline a couple of rules. For all witnesses and members, understand that there is an interpretation button at the bottom of your Zoom screen that allows you to select the language that you would like for interpretation through your headset. You don't need to change the language if you are speaking in a language other than what is being interpreted.

Before speaking, please wait until I recognize you by name. As you are on video conference, please make sure that you unmute yourself before you start speaking. If you are not speaking, I'd ask that you please keep yourself on mute.

As a reminder, all comments by members and witnesses should be addressed through the chair. We have a platform for respectful dialogue, and we'll be maintaining that as well.

We're very happy to have the witnesses here today.

With the speaking list, the clerk and I will do our best to ensure that we maintain an orderly list. You can raise your hand if you would like to speak. Please note where that “raise hand” function is at the bottom of your Zoom screen. Again, if you'd like to speak, unmute yourself before starting to speak and mute yourself once you're finished. I have this one-minute card and this 30-second card, which allow you to judge how much time you have left for speaking.

At this time I'd like to welcome our witnesses. As an individual, we have Janine Benedet, dean pro tem and professor of law at Peter A. Allard school of law at the University of British Columbia. We have Jennifer Koshan, who is a professor, faculty of law, at the University of Calgary. We also have a representative from Hiatus House, Genevieve Isshak, who is the clinical director of residential and community services. Welcome to the witnesses.

You will have five minutes each for your opening remarks. We'll be keeping time. We'll start with Janine Benedet.

Your time starts now. Please go ahead. Thank you.

[Professor Janine Benedet, Dean pro tem and Professor of Law, Peter A. Allard School of Law, University of British Columbia, As an Individual]

Thank you very much, Madam Chair.

Thank you to the members of the committee for inviting me to participate in this hearing.

As you heard, I'm a professor of law at the University of British Columbia and my research focuses on legal responses to violence against women, with a particular focus in recent years on sexual violence. I'm pleased to see that this committee is seriously considering how to address the problem of coercive control in intimate relationships, which is inflicted in most cases by men against women and girls.

I think it is important to note that while addressing this problem may serve to prevent further serious violence, and certainly the private member's bill in question speaks to the terrible mass killings in Nova Scotia, it's also important to understand that this coercive and controlling behaviour causes great harm to victims, affecting their sense of self-worth and throwing up real barriers to accessing the resources they need to get away from an abuser.

It's also important, and I would say this based on my own work, to recognize that coercive control may be a precursor to sexual violence in addition to or instead of physical violence. I agree with the aims of the bill, and in general I think such an offence could be useful for police and Crown counsel. I can see that this offence forms a useful middle step between an assault charge and a peace bond in some cases.

Having said that, I think it does bear saying as well that there is a history of some police and Crowns failing to use the tools they already have at their disposal, and creating one more offence will not solve the troubling tendency to disbelieve women when they report violence or the lack of other supports in the community to address the violence that they experience.

In the time remaining to me in my opening remarks, I would like to address some of the relationships and behaviour that may be overlooked when we speak of coercive control and mention a couple of features of the text of the offence that could raise concerns about whether it will achieve its important aims.

For the past several years my colleague, Isabel Grant, and I have been researching sexual violence across women's lifespans, focusing on the particular challenges that arise when prosecuting sexual assault against older women and against teenage girls, for example.

In our research we saw numerous examples of coercive control against these victims that were age-specific. For example, in our study of cases involving teenage girls we saw that the single-largest group of perpetrators were male family members, most often fathers but sometimes brothers, uncles and grandfathers. Most of these men lived with the girl in question but some did not. Controlling behaviours included controlling what a girl could wear, taking away any privacy she might have, isolating her from other family members and friends, and refusing to let her go to school or ride the bus. In one case we reviewed, a father refused to let his daughter speak to her brother, going so far as to separate them at meals so that they couldn't have contact with each other.

In the cases of older women, our primary conclusion was that the barriers to detection and prosecution when the abuser is a family member are significant. In the cases we could find we saw coercive behaviour by husbands but also sons, nephews, and grandsons. These sometimes took age-specific forms such as controlling access to necessary medication or doctor's visits or cutting the woman off from transportation so that she wasn't able to get around on her own. It also included cases of making the woman believe that she was forgetful and incompetent, that she was in the early stages of dementia and, therefore, couldn't manage her own affairs.

I want to say that while it is spousal or dating relationships that may come to mind first when we think about coercive control, I would urge the committee not to overlook these other kinds of relationships in which this behaviour also occurs and is often a precursor to other violence.

I'll conclude by saying there's a lot to discuss here in terms of the offence itself, in particular, the mental element. Fundamentally, what I would say is that it's important not to create an offence that replicates some of the problems we've had with the criminal harassment or stalking offence, and I see some of those challenges here.

I'm looking forward to discussing that more with the members of the committee.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Ms. Benedet, for being right on time.

We'll now go to Jennifer Koshan, who is a professor, faculty of law, at the University of Calgary.

Go ahead, Ms. Koshan.

[Professor Jennifer Koshan, Professor, Faculty of Law, University of Calgary, As an Individual]

Thank you, Madam Chair, and good morning.

I am grateful to be joining you today from Treaty No. 7 territory, and I appreciate this opportunity to speak with members of the committee about the criminalization of coercive control.

I'm part of a research team that's reviewing domestic violence laws across the country. Our focus is on how different laws and policies intersect both within and between Canadian jurisdictions in ways that can create barriers, injustices and safety issues for survivors and their children. Our research is informed by the recognition that the harms of domestic violence are gendered and can be intensified and unique for persons experiencing intersecting inequality, such as indigenous, racialized and migrant women.

I have four key points to make today about the criminalization of coercive control.

First, we should consider criminalization in the context of other laws in Canada. We now have recognition of coercive control in the Divorce Act and some provincial family law and civil protection order legislation, but it's not yet recognized across all Canadian laws.

The criminal law could, in theory, help to increase recognition amongst members of the public and legal actors that coercive control is a significant form of abuse. This recognition might help move us away from the current incident-based approach to domestic violence, which focuses on discrete physical acts rather than the ongoing and cumulative effects of coercive control.

A new criminal law could also lead to validation of survivors' experiences and protection of survivors and their children from the harms of coercive control, and we know that these harms include death, because coercive control is a risk factor for femicide. A criminal law could, in theory, also have positive impacts on other areas of law, both in legislative definitions of domestic violence and in how judges and other legal system actors understand and apply those definitions.

However, I think we also need to look at how law on the books translates into law on the ground. We do have some experiences in Canada to draw upon here. British Columbia was the first province to include coercive control in its family legislation, and case law shows that the reform has had mixed impacts on judicial decisions. Judges sometimes have difficulty seeing coercive control and, conversely, some survivors have been accused of coercive control when they were trying to protect their children from abuse, with negative consequences for their cases.

I also think it's important to think about how criminalization of coercive control would impact family law and child protection cases.

My second point is that we should examine whether the criminalization of coercive control and its implementation will have unintended consequences and take steps to avoid those consequences if criminalization does occur. I worked as a Crown prosecutor in the 1990s and witnessed first-hand how mandatory charging and prosecution policies led to mutual charges in domestic violence cases, where police would charge both parties and leave it up to the judge to sort it out.

Based on this and other experiences with criminalization, we must ensure that survivors of violence are not caught by new laws on coercive control. As Professor Benedet mentioned, we know that women continue to be subjected to myths and stereotypes about their credibility when they make allegations of domestic violence, and we need to ensure that isn't used against them, either by abusers or by the legal system itself.

It's also crucial that we think about how criminalization disproportionately affects indigenous and racialized people. Criminalization of coercive control may also affect the willingness of survivors to call the police for immediate safety needs, which we already know to be an issue for these and other groups, such as migrant women and LGBTQ+ folks. We cannot call these consequences unintended or unanticipated anymore and must think about them in the context of criminalizing coercive control.

My third point—and I'll be brief here—is that we should fully consider the experiences of other jurisdictions with the criminalization of coercive control, again looking not just at law on the books but also at how their laws have worked on the ground. I also think it's important to look at those jurisdictions that have decided not to criminalize coercive control. Experience from those other jurisdictions shows that if a new criminal law is passed, it must be accompanied by specific police and Crown policies, along with training, not just for police and Crowns but for judges and lawyers more broadly, as well as supports for survivors.

My overarching recommendation is that whether to criminalize coercive control should be examined in the context of a national action plan on violence against women. We know that WAGE is moving forward with this sort of action plan. Consultations will be happening across the country. I believe it's important to think about how the criminalization of coercive control will intersect with the other kinds of recommendations that WAGE will be bringing forward and justice has an important role to play here.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.

We'll now go to Hiatus House, which is represented by Genevieve Isshak.

Please go ahead for five minutes.

[Genevieve Isshak, Clinical Director of Residential and Community Services, Hiatus House]

Thank you, everyone.

As the clinical director of residential and community services at Hiatus House in Windsor-Essex, Ontario, I really appreciate the opportunity to speak with all of you with respect to Bill C-247.

Our mission at Hiatus House is to break the cycle of domestic violence, one family at a time, by providing 24-hour crisis help and emergency shelter to abused women and their children. This is combined with public education, research and specialized counselling services for all family members impacted by domestic violence.

We know that one in four women have reported that they have experienced domestic violence. Because this does not include the unreported instances, we believe this number is closer to one in three, which is similar to what the World Health Organization reports worldwide. Keeping these numbers in mind, I would like to ask you to just consider how many of you know or have known of a family member, neighbour, co-worker or friend who has experienced domestic violence. Should one of these women in your life ever need assistance, Hiatus House is the only shelter for women experiencing domestic violence in Windsor-Essex.

Amidst the current pandemic, we know that survivors of gender-based violence are most at risk of violence in their own homes. We know that the most common location of abuse for women and their children is in their homes. We hear the necessary pandemic messaging that staying home is staying safe, but what happens when home isn’t a safe place to begin with? Being coerced to stay home results in people feeling even more isolated and leaves little opportunity for escaping their abuser and finding safety.

Abusive partners use isolation—both physical and psychological—as a means to control their partner’s contact with friends and family to emotionally bind the partner to them with the shackles of fear, dependency and coercive tactics of control.

We know that the risk to women in abusive relationships is dynamic and that these women are subject to isolation, emotional and psychological abuse and controlling acts of violence. This abuse invariably escalates over time. These abusive behaviours are intended to cause fear and gain power and control over a woman’s thoughts, beliefs and actions. Controlling another person’s thoughts, beliefs and actions does not require specific overt acts of violence, although those acts certainly may be occurring as well.

As such, the bill will help keep women safe and hold abusive partners accountable for their violence, whether that is an overt act of violence or the type of emotional and psychological abuse that is most common in the intimate abusive relationships that I have just detailed.

Our interest in the bill is focused on the safety of women who are subjected to gender-based violence including intimate partner abuse, and the eradication of all forms of gender-based violence. We are grateful for the possibilities that the bill offers and commend MP Garrison for his initiative in bringing this critical piece of legislation forward.

As you are all well aware, the question of finding the most appropriate criminal response to intimate partner abuse has challenged the violence against women movement, politicians, policy-makers and shelters for decades. While we think Bill C-247 offers important ideas, we believe it is imperative to also take the time for a fulsome and inclusive discussion about integrated legal responses before committing to just one approach.

We believe that the national action plan on violence against women currently in development is important to consider. Such an inclusive discussion would ensure that unintended negative consequences as well as possible benefits—of any law or policy reform—are carefully considered and appropriate and adequate resources are put into place to support those reforms. We urge you to create space for these diverse voices when the Standing Committee on Justice and Human Rights examines this bill.

We also offer our input at any time it may be helpful. Our expertise and experience over many decades of working with women with diverse experiences of violence has taught us much in the implementation. We concur with the intent of the bill and value its genesis in the context of COVID-19-related surges in intimate partner violence.

With that, I thank this committee for inviting my opinion on behalf of Hiatus House today. I hope that you will consider providing careful study and adequate resources to effectively and appropriately implement the bill and allow it to accomplish its well-intended goals.

An end to violence against women and their children in Windsor and Essex County and across all of Canada—creating a life where all family members are empowered to live violence-free—is our vision for the future.

Thank you,

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Ms. Isshak.

We'll go into our first round of questions, which will consist of six minutes. We'll start with Mr. Lewis.

[Chris Lewis, Conservative, Essex, ON]

Thank you, Madam Chair.

Thank you to all the witnesses for this very important testimony. I certainly appreciate all the information and dialogue.

Specifically, I want to thank Ms. Isshak for coming on this today. Thank you for all you do for Windsor-Essex. It's very important. As you mentioned in your opening remarks, there is probably not many of us, unfortunately, who don't know somebody who has reached out for those types of services. Thank you very much to all of you.

Ms. Isshak, can you comment on the impact of COVID-19 on instances of domestic violence over the past year, and do you have recommendations on how the government can ensure better support is provided to survivors?

[Genevieve Isshak]

In terms of what we saw initially in Windsor-Essex during the first phase of COVID, it was quiet. Our crisis calls from women who were reaching out and wanting to access shelter were quiet—to the point where it was scary that they weren't reaching out. I think this was because there were so many unknowns and fear and the fact that they are being told to stay home, not knowing what was happening with COVID and the mixed messaging.

Once the restrictions started to lift, we did see a surge in calls and a surge in women accessing our shelter but also all of our outreach services. Obviously we had to suspend some of our outreach services in person, but we continue to provide them virtually. Our shelter has been open, and we continue.

The problem we're encountering is capacity. As you know, population-wise, we do not have enough beds to adequately accommodate women and children. We have 42 beds for all of Windsor-Essex County. The provincial government did help us access a hotel. At one point pre-COVID, we were turning women away because we didn't have beds.

This is where you can help me. Together in Windsor-Essex County, our population is over 400,000. When you look at the stats we are so underserviced. I know we're not the only community. I urge, in every community, all politicians and the government to provide more resources, not just for shelters and community-based services but for all services because there just isn't enough to meet the demand. We do everything. We safety plan with every women, but we cannot always provide adequate shelter space for them.

I hope I've answered your questions.

[Chris Lewis, Conservative, Essex, ON]

You certainly have. Thank you. That was a very good answer.

You mentioned in your opening remarks one in four women, but you believe it to be closer to one in three. On that same tone, because I was wondering before this meeting.... You answered my question but it takes me down another path, because if we indeed have a lot of couples at home now, would you suggest that perhaps that number could even be closer to one in two?

Have you seen a change in the type of domestic violence during COVID-19, be it mental or physical? I'm very curious on that front.

Thank you.

[Genevieve Isshak]

From our experience, we know that initially the violence starts off very subtly. We see the isolation and the psychological abuse, and over time it does escalate. I've been working in this field and with women for 22 years, and I learn from the women with lived experiences. I used to work in London and now I work in Windsor and Essex Country.

I can tell you that COVID-19 has, in some situations, escalated the severity. For some of our clients, we are seeing the severity of risk increase. We are seeing many more threats to kill, threats to harm. I don't know what the criminal statistics are in terms of convictions and charges, but we have seen an increase in the last little while in terms of the severity.

Violence against women and those severe cases and the complexity have always been there, but we are seeing much more, certainly, in Windsor and Essex County in terms of the dangers also with being across the border. Being close to the border, we are also seeing many more cases of human trafficking. That's something that we never used to see.

[Chris Lewis, Conservative, Essex, ON]

Thank you so much. I know that my time is up, so I want to say thanks very much for coming and thanks for all the hard work you continue to do.

[The Chair, Liberal, Iqra Khalid]

Thanks you, Mr. Lewis.

[Genevieve Isshak]

It's my privilege. Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you.

We'll now go to Ms. Brière for six minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair.

My thanks to all three of you for all your work on this important issue.

My question is for Ms. Koshan or Ms. Benedet.

In fact, Ms. Koshan, congratulations on the Ramon John Hnatyshyn award that you received last year.

Domestic violence today is taking increasingly varied forms. Power and control over an intimate partner are central to the dynamics of violence. Just think of cyberviolence where the partner may be monitoring, controlling or harassing the spouse. This could even mean publishing personal or intimate content about the partner as a means of revenge or control.

In your opinion, does the Criminal Code adequately cover this aspect of domestic violence?

Would this bill help to fight against this phenomenon?

[Prof. Jennifer Koshan]

Thank you for that recognition of my award, Madam Brière.

I agree that cyber-violence is increasingly an issue that we as a society need to grapple with. I don't have specific expertise on cyber-violence. For the most part, I've been looking at provincial laws that now prevent the disclosure of intimate images and allow courts to grant injunctions and then create a tort if those images have been disclosed without the consent of the victim.

I think that we have room to improve the way that our criminal law is addressing cyber-violence as well. I wonder if I can turn it over to Professor Benedet, who's more of a criminal law expert than I am, for her thoughts on this one.

[Prof. Janine Benedet]

Thank you.

It's a very good question, and of course one of the realities of this kind of cyber-violence is that it makes it very difficult for the woman to truly separate from her abuser. The idea of starting over in a new place or having a fresh start becomes very difficult when there are these continued ties electronically.

In terms of the way the bill is currently drafted, there's certainly no reason why coercive and controlling behaviour done through electronic means couldn't be covered. It certainly could be part of the controlling or coercive conduct, but there might be value in signalling that by including the phrase “including by electronic means”, which we see for some other offences in the Criminal Code. That might be a useful signal that it's not just necessarily....

It also brings me back to the point I was alluding to in my opening remarks. I'm a little concerned. I understand the need to try to define this in terms of certain relationships, but the idea that people necessarily have to be part of the same household doesn't really always speak to relationships that could involve someone being quite controlling through electronic means, even when people are not resident together. Those are two things to think about in that arena.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

Professor Benedet, specifically on this issue, the term “relationship” is used in the bill, whereas the Criminal Code has already defined “intimate partners.” In your opening remarks, you pointed out that this can indeed occur between spouses, but it can also be much broader than that.

Here's my question. The use of the term “relationship” in the bill may be too restrictive; should it be broadened?

[Prof. Janine Benedet]

Yes. That was an immediate concern I had when looking at the draft legislation.

I don't want to detract from the fact that most of the time that is what we're talking about, intimate partners, and the way this is drafted it's not required that spouses, common-law or dating partners live together. However, once we get beyond that to former spouses and other kinds of relatives, it seems to be, as I read this, that it's required that they be members of the same household. That seems odd to me and not really in keeping with the way that coercive control can work, even as a woman is trying to extricate herself from a relationship or for very vulnerable victims, children and older adults, who have no ability to extricate themselves or really to control someone's access, even if they're not living together.

Therefore, I would encourage taking a look at that definition and maybe thinking a bit more broadly about the kinds of relationships and situations where this behaviour can occur.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

My first question can also apply to former spouses who continue to use cyberviolence.

[Prof. Janine Benedet]

Yes. That's exactly right. If we limit it, then, to former spouses who are members of the same household, that seems strange to me when you think about the ways in which cyber-violence can be inflicted.

[The Chair, Liberal, Iqra Khalid]

Thank you, Ms. Brière. You're out of time.

We'll now go to Mr. Fortin.

Mr. Fortin, you have six minutes.

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

Good morning, Madam Chair.

Good morning, everyone.

Ladies, thank you for joining us today as witnesses.

We are dealing with an important subject. Your insights are invaluable for making informed decisions on these matters. I think mistakes can easily happen, both in good faith and in bad faith. Hearing from people like you, who are out in the field every day, will probably prevent the most damaging mistakes and allow us to be truly precise and effective.

This morning, I have heard a great deal about domestic violence in your testimony. I am sure you can imagine that no one here will say that it is not serious. We all consider it to be a serious issue that needs to be addressed. There are already provisions in the Criminal Code or elsewhere that condemn violence, domestic or otherwise. Domestic violence has a pernicious side since most of the time the victim lives with the abuser on a daily basis. This is all terrible and we agree on that.

I would like to hear more from you about the purpose of the committee. We are working on issues related to controlling and coercive conduct. The concept is somewhere between violence and non-criminal behaviour. Violent acts such as assault are criminal, there is no need to add new criminal provisions, because they are already there. Harassment is also a criminal act that is already recognized and for which there is a penalty.

At the other end of the spectrum of difficult relationships, discussions between couples may sometimes be a little tough. The woman may tell her partner that she is not happy with something or other, that it seems to her that the woman next door is looking at him strangely and that it is not right; or the man may tell his wife that he is fed up with her going out dancing with her friends. Spouses have discussions that are often not pleasant, but are legal. We don't want to punish them because we think it's okay in relationships to have discussions, even if sometimes they are more difficult.

Coercive and controlling behaviour is somewhere between heated discussions on the one hand and the criminal acts of harassment, assault, and so on, on the other hand. In that respect, I for one am having difficulty grasping the parameters. Could you help me understand? I would like you to clarify what you consider to be controlling and criminal behaviour versus controlling but not criminal behaviour.

Ms. Koshan, I would like to hear from you first, and if any of the other two witnesses want to add anything, I would be happy to hear what they have to say.

[Prof. Jennifer Koshan]

Thank you very much.

I agree. This is an important opportunity for us to ensure that we get this right.

As I raised in my opening remarks, one of my concerns, if the offence isn't drafted properly, is that actual survivors might be caught up in the criminal offence, and they may be criminalized simply for trying to protect their children. That could be seen, I suppose, on a certain level, as being controlling behaviour, even if they're doing it for very good reasons, so I agree that we absolutely need to get the language in the Criminal Code right.

This is also where, in my opening remarks, I talked about the importance of looking at what other jurisdictions have done. We have, in this bill, adopted the model that England and Wales have put forward. One of the other models that I think is really interesting and important for the committee to look at is what Scotland has done. It passed a law creating an offence for domestic abuse more generally, which includes coercive controlling behaviour but also includes things like physical violence, sexual violence and harassment. Everything is encompassed within the same offence.

One of my concerns with the bill the way it's currently presented is that it may continue to result in police laying multiple charges in cases. They may charge an accused with coercive control, with physical assault, with sexual assault. If we think about a more encompassing offence that includes all of those different kinds of behaviour, that might be a model to take a look at. I'd really encourage the committee to look at how laws in other jurisdictions that have grappled with this issue have ended up being interpreted and applied by the courts, and how they have worked on the ground, because I think that will help decide what is best for Canada.