Justice Committee on Feb. 4th, 2021

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

I don't have much time left. In 30 seconds, can you give me your personal opinion as to which behaviours should be allowed and which ones should not? I'm not talking about assault, which is clearly a criminal act.

[Prof. Jennifer Koshan]

May I turn it over to Professor Benedet for this? I know she has something to say on this.

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

I don't think we have a lot of time.

Madam Chair, I may ask you, at some point, to extend the speaking time in French by one minute to allow for—

[The Chair, Liberal, Iqra Khalid]

You have a whole minute, Monsieur Fortin.

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

The reality is that we lose a certain amount of time for the interpretation of what is being said. I leave that to your discretion.

Thank you very much.

[The Chair, Liberal, Iqra Khalid]

Thank you.

Ms. Benedet, just be very brief, please.

[Prof. Janine Benedet]

Right.

What I would say is that, of course, assault requires physical contact. The offence of criminal harassment requires that the victims fear for their safety.

If we are thinking about a coercive control offence—and it's distinct from those two kinds of offences—it needs to focus on behaviour, on a course of conduct that has the effect of maybe making somebody fear for his or her safety, as well as create a substantial interference with that person's freedom and ability to carry out his or her day-to-day life. I think that's really where the focus has to be, and that's the wording that we're looking for, possibly as part of a larger offence.

[The Chair, Liberal, Iqra Khalid]

Thanks very much. I appreciate that.

We'll now go on to Mr. Garrison for six minutes.

Go ahead, sir.

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

Thank you very much, Madam Chair.

Good morning to the witnesses. I thank you for being with us this morning.

I want to start with a couple of questions for Ms. Isshak, but first of all let me thank her for the front-line work her organization does, and of course that's common to all the front-line organizations across the country that work in difficult circumstances and are always under-resourced.

I also thank her for the kind remarks that she made at the beginning. I do want to stress that, while there is a specific bill, we're also looking in this study at other things that can be done to address the problem of intimate partner violence.

In your discussion, Ms. Isshak, could you tell us how often you run across the pattern of controlling and coercive behaviour in those clients who seek your services?

[Genevieve Isshak]

Very often. In fact, the common denominator is the controlling behaviours, the psychological abuse, the isolation. Especially with COVID, that has just amplified it.

Pre-COVID and in the years that I've worked with women in abusive relationships, that is very common right from the stalking to the.... What we're seeing now—I didn't mention this because of time—is the legal bullying. They're using the family court system. I can talk all day about the cases, but it's the psychological, the verbal, and it's over and over. Their intent is to instill that fear and to try to gain control over the woman's thoughts. It's the incessant calling and texting. We see that very often, and we see that more than the physical violence.

We know from the women. They tell us that those psychological effects, the controlling, are much more long-lasting. The psychological consequences, as we all know, are difficult to measure, but we know, and the research does support, all the consequences that result from that—walking on eggshells and not being able to live their lives fully and now being trapped because of the stay-at-home orders, which hopefully will get lifted soon, once COVID passes.

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

Ms. Isshak, how often in those cases that involve physical violence would you say it's preceded by coercive and controlling behaviour?

[Genevieve Isshak]

It's definitely the majority. We get about 3,000 calls a year. We see on average about 300 women and 250 kids in the shelter. Again, with limited capacity we've had to turn some women away because we are underserviced in our area. However, I would say it's the majority and our data would support that, and I think the research probably supports that too.

The researchers on this panel I'm sure could respond to that.

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

Thank you very much.

Professor Koshan, I would ask that you step in on that point at this time.

[Prof. Jennifer Koshan]

I'll try to be brief on this. From the judicial decisions I have read, I think a real problem is that judges don't recognize coercive control, especially in the family law realm. They tend to see violence very much as an incident-based scenario, and they tend to rely much more on physical violence. That's why I think the Criminal Code has a role to play in helping judges to be able to see coercive control.

That's what my research can contribute here.

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

Thank you very much.

Professor Benedet, on the same question, is there really a continuum that we're dealing with here of coercive, controlling behaviour and physical violence?

[Prof. Janine Benedet]

There's certainly a connection and the two overlap.

I think Ms. Isshak's comments were in this direction. I would discourage you from thinking that somehow coercive control is less, that it's just a step en route to physical violence, which is invariably more serious. Sometimes this behaviour is so enormously degrading and harmful that it eclipses the physical violence in the woman's experience.

But, yes, there's absolutely a connection between the two. It's there. It's omnipresent as the backup to any resistance to the controlling behaviour.

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

Thanks very much.

Ms. Isshak, certainly the private member's bill I proposed is one suggested tool for dealing with this problem of coercive, controlling behaviour. You talked about an integrated legal response. Very quickly, can you give me some idea of the other measures that you had in mind?

[Genevieve Isshak]

As you know, the national action plan of violence against women is currently in development, so I think somehow...because all the systems have to work together. We know there's a disconnect between the criminal court system, the family court system and the community-based agencies. Unfortunately we still work in silos, but I think if we have everybody working together, it's complex but it can be done.

I look at the U.S. They have a violence against women act. There aren't enough legal consequences, but it has to be done in an integrated, collaborative fashion because we have to worry about the unintended consequences.

[The Chair, Liberal, Iqra Khalid]

I'm so sorry, Ms. Isshak. We're completely out of time.

We will go now to our second round of questions starting with Madam Findlay, for five minutes.

Go ahead.

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

Thank you, Madam Chair.

Thank you, witnesses, for sharing your expertise here today. It's very much appreciated.

I have a daughter at UBC Law and one at U of C in law, so I ask you, professors, to be kind.

With that, I will say that over the course of my legal career doing a lot of family law, I dealt with all of these issues. I found the hardest thing in advising was to help women walk through their fear and find their voices again. This is a slow process. It's not a quick process, because often it has been lost for a very long time.

I have only five minutes, so I'm going to open with a couple of questions, which I hope we can get through, and then maybe I will have a chance to ask another one.

Starting with Professor Benedet, I understand you're a leading scholar on this topic and also active in pro bono work representing victims of sexual violence. I thank you for that work. I understand that some of your more recent research has focused on barriers to the criminal justice system for victims of sexual assault.

Can you tell us about how these existing barriers have been affected by the pandemic, and what changes you would like to see to increase confidence in the justice system, in the public's mind, to address under-reporting.

[Prof. Janine Benedet]

Thank you. That's a really good and complicated question in a short amount of time.

The barriers my work looks at include the unwillingness of those in the first line of response—the police and later Crown counsel—to actually see and to recognize the experiences of women. This is my concern. I think it's very useful to look at legislation and to think about strengthening the Criminal Code, but sometimes it gives us a bit of a false sense of security because, in fact, if you have women who won't even bother to report because they feel they are going to be treated with contempt by the police and that their cases will not be properly investigated, there becomes a privatization of violence against women, the idea that it's meant to be solved by women alone, perhaps in conjunction with some community supports but that there's no state responsibility to interfere with male violence.

What needs to be underpinning all of this—these new offences and action plans—is the idea that this isn't for women to navigate on their own but that there's a state responsibility to step in and to interfere with that violence.

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

Thank you, Professor.

To Professor Koshan, I know you have an article coming out, “COVID-19, the Shadow Pandemic, and Access to Justice for Survivors of Domestic Violence”. In that article you talk about increases in domestic violence cases being traced to the impact of the virus itself, as well as to societal responses to contain the virus such as stay-at-home orders that lock women and children in homes. Listening to the testimony, I would also say it's a matter of increased perpetrator access when they are at home in one place.

What services ought to be more accessible? Is it a matter of a true lack of availability of services or a lack of awareness of the services that are available, or both?

[Prof. Jennifer Koshan]

Our research does show several barriers that have arisen for victims during COVID-19. One barrier we haven't talked about is the one that the courts themselves have created through hearing only urgent cases, and especially in the family law area that has really made it difficult for women to even get into court.

To echo Professor Benedet's point, that results in the privatization of violence because women don't even have access to a judge who will hear their concerns about custody and access issues and how they are being impacted by COVID, for example.

Something else I think we should be looking at is increased access to legal aid and other funded legal representation for victims. In the context of the bill specifically, I think it's really important to think about supports for victims, including independent legal advice, because they are going to have to testify about very terrible traumas that have happened to them, and they will need supports to assist them in being able to do that.

[The Chair, Liberal, Iqra Khalid]

Thank you.

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

Thank you.

I'm out of time already, and I had so much to talk about.