Justice Committee on Feb. 4th, 2021

[The Chair, Liberal, Iqra Khalid]

I understand that.

We'll now go to Ms. Damoff for five minutes.

Go ahead, Ms. Damoff.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Chair.

I want to thank all of our witnesses for being here.

Mr. Garrison, I really want to thank you for bringing this forward and highlighting such an important issue.

On January 28, 2020, Dr. Jennifer Kagan went to court with an urgent motion to suspend access by her ex-husband to her daughter. On February 9, 2020, little Keira Kagan was taken by her dad to Rattlesnake Point. He jumped off the cliff, killing them both.

I've had numerous meetings with Dr. Kagan and her husband, who is a lawyer in family court, and we've had several conversations about exactly this: coercive control and the lack of knowledge by the judicial system about intimate partner violence, particularly coercive control. She had been trying for three years to convince judges what this ex-husband was like and was continually denied. That resulted in the death of this wonderful little four-year-old girl.

Having laws in place is one thing, but one of the things that Keira's stepdad has expressed concerns about, because he's a lawyer in the Ontario family court, is that putting it in law does not solve the problem if we don't have the education.

I see Ms. Koshan shaking her head and also Professor Benedet.

I wonder if you could comment—not just on judges but on the police and the Crown—on how critical that is so that we can protect little girls like Keira and women like Jennifer.

[Prof. Jennifer Koshan]

Thanks very much for that question.

Yes, I absolutely agree that there needs to be judicial education around coercive control. I would say that we should be educating lawyers about coercive control as well, because one of the issues right now is that lawyers don't screen for domestic violence in family law cases, and if their client has been subject to coercive control, that can completely affect the way the family law matter unfolds.

I think there needs to be—even starting in law schools—education around coercive control. There also needs to be training for police and Crown prosecutors and, to go back to what I said in my opening statement, there needs to be policies so that the police and the Crown are appropriately applying whatever law comes out of these consultations.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Professor Benedet, did you want to comment on that? I know that you train lawyers.

[Prof. Janine Benedet]

Yes, as does Professor Koshan, and I do a lot of judicial education as well.

Sometimes that's right. It is about awareness and understanding that behaviours on their own might look either not like offences or like minor offences: things like destroying joint property that's owned by them or the spouse driving erratically and at high speed when the wife and children are in the car. There are recognized risk factors and patterns of behaviour here. We're not starting from zero, and we need to be able to recognize that.

We also have to name and reject the persistent stereotype that women engage in these family court processes only in order to punish dads and to keep them away from their kids as some kind of vindictive move for having been scorned. That's a pernicious stereotype. It's a myth, frankly. Women don't engage themselves in the family court system generally unless they absolutely have to. That's part of what feeds into the denial about just how serious this behaviour is.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thanks, both of you.

Ms. Isshak, thank you for the work you're doing. I know it's not easy.

I have a question for you. In speaking with women's shelters, I often hear about the prevalence of how firearms are used, not just in intimate partner violence but for coercive control. I wondered if you could maybe speak about your experience with that, and if there's time, maybe some others want to pipe in as well.

[Genevieve Isshak]

Yes, we do see it. We don't see it often, actually. We see the other weapons more: knives and, really, any weapon. I would say we that see more of the knives, the bats and sometimes boots. It could be anything and everything, which is surprising. We don't see a lot of guns, but certainly it does happen.

For the guns that they do use, though, a lot of times it's for threats. It could be a hunting gun. They have a gun and they threaten to kill them if they leave, or they're going to kill the horses or the dogs—whatever the pets are. That's what we see more of.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you.

I think that's my time.

[The Chair, Liberal, Iqra Khalid]

Thanks very much, Ms. Damoff.

We'll now go to Mr. Fortin for two and a half minutes.

Sir, go ahead.

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

Thank you, Madam Chair.

I will continue along the lines of the last question.

Ms. Isshak, I think you were talking about the husband who tells his wife that he has a gun and that, if she leaves, he will kill her. Are those not threats that are already criminalized, just like forcible confinement? What's your view on that?

Would you like me to ask another witness?

[The Chair, Liberal, Iqra Khalid]

Who was the question for, Mr. Fortin?

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

I'm going to drop it, because one minute will have gone by without receiving a single answer.

My concern is to define what is allowed. The Criminal Code already has many prohibitions. I am not against adding prohibitions on what is unacceptable, but I am concerned about what is considered unacceptable and is not already criminal.

Confining a person and detaining them against their will is a criminal act under section 279 of the Criminal Code. It is an indictable offence to threaten someone; it is an indictable offence to harass someone; it is an indictable offence to assault someone. It is even a crime to spit on someone. I won't go over all the prohibitions, but I'm explaining this to you to express my concern. I'm looking for the limit. What do you want to prohibit? Perhaps we should look at it in a different way.

Perhaps my question should be: what do you consider to be acceptable in a relationship, other than “bear hugs”? What would be acceptable? Where is the line between acceptable and unacceptable?

Clearly, I will need more than five minutes to get answers. I hope I make a good witness.

[Prof. Janine Benedet]

What I can say is that we are talking here about behaviours that aren't necessarily covered by any other provision. Threatening to destroy someone's property or keeping them away from their friends doesn't really amount to the offence of unlawful confinement, which requires physical restraint of the person. It's a kind of psychological terror and punishment that has the effect of restricting people's day-to-day lives in a way that doesn't necessarily involve overt threats of violence or overt physical force. That's the line we're attempting to draw. I recognize it needs careful drafting to—

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

Isn't it more a matter of educating young people than of new criminal prohibitions?

[The Chair, Liberal, Iqra Khalid]

Thank you.

I'm sorry, Mr. Fortin.

You're out of time and we are also running a little bit behind.

We'll now turn to Mr. Garrison for two and a half minutes.

Go ahead, sir.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Madam Chair.

I'd like to give each of the witnesses maybe 30 seconds to respond very directly to this question: Do you think an initiative like criminalizing coercive and controlling behaviour is a useful contribution to a strategy of confronting the very high levels of physical violence between intimate partners in this country?

Maybe we'll start in the order they testified.

[The Chair, Liberal, Iqra Khalid]

Ms. Isshak, we'll go to you first for that.

[Genevieve Isshak]

Absolutely. At the end of the day, for me it's an opportunity to criminalize behaviour, and it's behaviour that is obviously unacceptable. It's abusive. We believe that any learned abusive behaviour can be unlearned, but this is one way to hold the abusive person accountable. Coupled with that there needs to be training and counselling services for all family members who are impacted by domestic violence, including the abusive person, because we know that if you provide help to him, that behaviour can change and that will make a difference, so it's all of it.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

If we can just interrupt, I'd like to give 30 seconds to each of the other witnesses to respond to this.

Professor Benedet.

[Prof. Janine Benedet]

I would say there are two big benefits. The first is that it permits early intervention because it allows people such as neighbours and friends to go to the police with information, and it's a basis for the police to actually do something. He has taken the tires off of the car and won't let her go anywhere. It's that sort of thing.

The other thing is that it names and makes visible a behaviour that sometimes is treated as not really anything because it hasn't escalated to violence.

It has those two benefits.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

With the indulgence of the chair, perhaps we can hear from Ms. Koshan very briefly.

[The Chair, Liberal, Iqra Khalid]

Yes, very briefly.

[Prof. Jennifer Koshan]

Thank you.

I agree that criminalization of coercive control can have the kinds of benefits that my colleagues have mentioned, but I would really urge the committee to ensure that it's done correctly so that the offence doesn't have unintended consequences or impacts on members of marginalized groups and that it fits within the overall scheme of laws that we have in Canada.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that.

With the consent of members, we have Mr. Moore and Mr. Sarai for five minutes each on the list. Is it okay if we finish this round before we go to our second panel?

Ms. Findlay.

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

Madam Chair, I just want to know whether I could ask that Professor Koshan's article, “COVID-19, the Shadow Pandemic, and Access to Justice for Survivors of Domestic Violence”, be tabled with the committee. It's squarely on point to what we're studying and I did bring it up in my questions.