Justice Committee on Feb. 16th, 2021

[The Chair, Liberal, Iqra Khalid]

As we have quorum, I'll go ahead and call this meeting to order.

Welcome to meeting number 19 of the House of Commons Standing Committee on Justice and Human Rights. To ensure an orderly meeting, I'll go over a couple of rules to follow. For all members and witnesses, please note that there is interpretation at the bottom of your screen on Zoom. Just select the language you would like to listen to, whether English, French or the floor, in order to ensure that you can hear what everybody is saying.

Before speaking, please wait until I recognize you by name. If you're on the video conference, as all of you are, please click on the microphone icon to unmute yourself before you start speaking. When you are done speaking, please make sure you're on mute.

As a reminder to all members, all comments by members and witnesses should be addressed through the chair to ensure an orderly meeting.

With regard to the speakers list, Mr. Clerk and I will do our best to maintain a consolidated order of speaking for all members and witnesses, whether they're participating virtually or in person.

Before we start our meeting, there are two points I'd like to raise. First, I would like to get the committee’s approval for the operational budget that was distributed to all members yesterday. The budget is in the amount of $2,875. It will serve to pay for the expenses for our current study.

Do I have everybody’s approval?

I do see a thumbs-up from everybody. Okay. It is so approved.

Thank you very much, everybody.

The second thing is a reminder about your witness submissions for the upcoming study on the impact of COVID-19 on the justice system. Your witness lists are due today. Please ensure that you get your witness lists in to the clerk and me by the end of the day today. Thanks, everyone.

At this point, I'd like to welcome our witnesses. We have three witnesses today. We have the Alliance des maisons d’hébergement de 2e étape pour femmes et enfants victimes de violence conjugale, represented by Gaëlle Fedida and Maud Pontel; Québec contre les violences sexuelles, represented by Mélanie Lemay and Simon Lapierre; and the Women's Legal Education & Action Fund, represented by Megan Stephens.

We'll start with Gaëlle Fedida and Maud Pontel.

You have five minutes to make your submission. Please go ahead.

[Gaëlle Fedida, Provincial Co-coordinator, Alliance des maisons d’hébergement de 2e étape pour femmes et enfants victimes de violence conjugale]

Hello. My name is Gaëlle. I'm a lawyer. I've been working at the alliance for five years. My colleague Maud has been working in the field of domestic violence in Quebec for 20 years.

The Alliance des maisons d'hébergement de 2^e étape pour femmes et enfants victimes de violence conjugale has 26 members in Quebec.

Eight per cent of women leaving emergency shelters will require second-stage housing because of the dangerousness of their spouse. In Quebec alone, this concerns approximately 500 women per year, as well as their children, of course.

Following a recent self-assessment survey, we were dismayed to learn that 88% of respondents, including over 350 women, experienced several forms of serious post-separation violence, that is criminal offences. In Quebec, a woman is a victim of attempted murder by her ex-partner every 10 days.

Quebec's chief coroner analyzed 10 incidents of domestic violence that resulted in the death of 19 people. His report indicates that eight of those incidents occurred after a separation.

Domestic violence, which is defined in Quebec law as coercive control, unfortunately does not stop after physical separation, quite the contrary. This is why this bill is so important for victims and all those who work with them.

I'll now turn things over to my colleague Ms. Pontel.

[Maud Pontel, Provincial Co-coordinator, Alliance des maisons d’hébergement de 2e étape pour femmes et enfants victimes de violence conjugale]

Thank you very much.

Good morning, everyone.

Violence is multidimensional and affects all aspects of the lives of women and children who are victims, whether physically, psychologically or emotionally. Living in constant fear and insecurity will have greater long-term repercussions than physical injury.

Recently in Quebec, there have been many expert reports highlighting the absolute necessity to better understand the issues surrounding domestic violence. At present, acting to better support victims and better supervise aggressors is therefore a government priority.

This is why we believe it is essential to bring coercive control to the forefront of public debate and to see it as a criminal act in its own right, and not merely as a context within which wrongdoing would be committed in the eyes of the law. This would allow women and children living in such a context to be recognized by the justice system as victims with rights under the Canadian Victims Bill of Rights.

When women arrive at the shelter, they are often disoriented by the violence, terrified about fleeing with a few belongings for themselves and their children, panicked about being found by their abuser, and often in shock. As a result, they have often not reported the abuse to the police. Fear of reprisals, lack of knowledge of the system, and fear of not being believed are some of the reasons cited by women.

A report by our sisters in the Fédération des maisons d'hébergement pour femmes indicated that only 19% of the approximately 3,000 women housed in 2018-19 had filed a complaint with the police. Yet all of these women have in common that they have lived under the yoke of an abuser, some for a few months and others for decades.

Realizing that you are experiencing domestic violence can take time. We aren't talking about an episode of violence at the beginning of the relationship, but about an insidious dynamic that can take time to establish. In some situations, the violence will never be physical. It can be a variety of acts of control and manipulation, which will gradually isolate women and children, imprison them psychologically and feed their fear of retaliation if the submission is not total.

Many women are ashamed to speak up, to reveal their experiences, because, in their eyes, what they are experiencing is close to madness. Often, when women tell their stories for the first time, they're afraid that they won't be believed. As a result, the context surrounding these first revelations is crucial. Unfortunately, although we insist on ongoing training throughout the justice system, it's still too often the case that the women we work with encounter a lack of understanding of their experience as a whole, since the preferred approach is one based on offences recognized in the Canadian Criminal Code. Not recognizing coercive control as a criminal act in itself is to minimize the violence of control they have experienced and to erase their suffering as well as that of their children.

Our context of intervention in second-stage housing allows us to see how the aggressor's control techniques diversify in order to maintain a hold despite physical distance. If this control is only partially recognized by the authorities, then our actions to support these women will only be partial.

Working with women and children who have experienced violence is not a trivial task. We do it with the will and purpose to help improve the lives of vulnerable people. We advocate feminist intervention, based on the potential of each woman to regain power over her life.

While we want violence to be recognized, without an integration of coercive control in the Canadian Criminal Code, once again, this recognition will only be partial.

Freedom from violence is no easy task. It's all the more difficult when, in fact, the ex-spouse is only partially guilty of the violence he's caused, or even if he's in no way guilty, and has full freedom to be and to act.

As long as coercive control isn't recognized as an offence, we will certainly talk about a context, but not about actual assaults. The recognition of the aggressor will not be based on the victim's experience or on the multiple traumas resulting from these aggressions and the devastating effects on her life.

It is unacceptable that in Canada, in 2021, a woman fleeing her partner's violence can be told by the authorities that her experiences or history are not sufficient elements to file a complaint, when all the elements of control and domination are present.

As Carmen Gill noted in her research report to the Office of the Federal Ombudsman for Victims of Crime, we are well aware that this is a change—

[The Chair, Liberal, Iqra Khalid]

Thank you.

[Maud Pontel]

I just want to finish my last thought.

[The Chair, Liberal, Iqra Khalid]

We are completely out of time. My apologies. We only had the five minutes, but thank you. I'm hoping that a lot of what you had to say comes out in the testimony.

We'll now move on to Québec contre les violences sexuelles.

Please go ahead, you have five minutes.

[Mélanie Lemay, Art Therapist and Co-founder, Québec contre les violences sexuelles]

Good morning, dear members.

It's with great pleasure that I appear before you.

My name is Mélanie Lemay. I'm the co-founder of Québec contre les violences sexuelles, a movement I launched with Ariane Litalien and Kimberley Marin. We have succeeded in getting framework legislation passed in CEGEPs and universities throughout Quebec.

Since the wave of #MeToo, we have been very involved in changing awareness about sexual violence.

Given our many experiences, it seems obvious to us that it is necessary to improve at all costs the tools available to victim-survivors to flee violence or denounce it. It is essential to expand the models. Although we are testifying today in favour of adding the notion of coercive control to the Criminal Code, the fact remains that, in its very essence, criminal law too often challenges our experience and our reality. Since it is essentially focused on the rights of the accused, we are only witnesses. By dispossessing us of our histories, the criminal law reproduces power relations that already exist in our society.

In the position I find myself in today, I salute your courage and willingness to dwell on this difficult issue. However, I invite you to look further, to think about ways to innovate, beyond a rigid box that locks us up and forces us into compartments that don't fit our real needs.

This summer, we organized a march in Montreal. This event encouraged many people to unite their voices to demand concrete changes. We must stop the continuation of violence from one generation to the next. This truth is widely accepted in a society that claims to be egalitarian. Yet, in reality, we have been the target of several groups of violent men who wanted to silence us with the possibility of an attack. A battering ram car actually arrived on the scene threatening to attack the crowd. Throughout the day, we had to face men who came to shout their anger in our faces, under the amused gaze of the policemen. We had received online threats, but because they weren't in a form recognized in the Criminal Code, the police abandoned us. Luckily, we had taken care of ourselves and our own safety, and there were no tragedies that day, unlike at other events in the past.

However, we have remained marked by society's indifference to the personal sacrifices we make since we must continually advocate for this cause.

Today, I am speaking to you, but thousands of others did so yesterday and, if nothing changes, there will be just as many tomorrow. So I'm speaking to you with the sincere hope that this will be the beginning of a long dialogue on best practices. Here, in these unceded lands, ideas, expertise and proposals abound and are the stuff of international dreams.

I hope to see you unite as the various political parties in Quebec have done, by creating a transparent committee of experts who bring the realities on the ground to the decision-making table. From this committee, a report was born. I have the honour of being accompanied by Simon Lapierre, full professor at the University of Ottawa's School of Social Work, who was a member of this committee of experts.

This ability to unite and see beyond partisanship is a model and an inspiration. What we, as survivors of domestic and sexual violence, most sincerely wish for is a system that focuses on our rights and needs, in order to develop a real sense of justice free of victimization.

There is even a need to create a whole new area of law focusing on gender-based violence. In this regard, we could draw on the knowledge of First Nations and Black communities, who have long reflected on these issues. They have expertise that deserves to be heard within these walls. This would certainly create a more just and equitable world for all. In addition to being adapted to the realities of our gender, a form of law like this would allow for the inclusion of the violence suffered by LGBTQ+ communities.

I'll now turn things over to my colleague, who will return to the main topic on the agenda.

[Prof. Simon Lapierre, Professor, School of Social Work, University of Ottawa, Québec contre les violences sexuelles]

Good morning, everyone.

As a result of numerous studies over the past 20 years with women and children who are victims of domestic violence, it's now clear that the perpetrators of this domestic violence use all sorts of strategies to maintain control over the victims and to deprive them of their freedom. Unfortunately, at present, many of these strategies commonly used by perpetrators are not offences under the Criminal Code. So they go unpunished and deprive the victims of resources, support and protection they need and are entitled to.

The criminalization of coercive control or controlling and coercive behaviour would therefore, as a first step, allow for a better validation of the experience of victims of domestic violence, whether women or children. It would also give additional tools to police, prosecutors and the various actors in the system to better protect victims. In addition, I believe that the criminalization of controlling and coercive conduct could pave the way for better training of the various actors in the criminal justice system, for new initiatives in prevention and intervention, and for changes in family law and child protection.

Lastly, I would like to draw your attention to three elements.

First, in this context, it seems extremely important to criminalize controlling and coercive conduct, and not isolated behaviours. The issue here is the accumulation of behaviours in a context of deprivation of freedom.

In addition, it seems extremely important to ensure that these offences cover incidents of violence that occur after separation and that they also apply even when spouses no longer live together.

Finally, I would like to draw your attention to the importance of carefully considering the situation of children in a context of controlling and coercive conduct. Children are very often at the heart of the strategies used by perpetrators of domestic violence to control their spouse or ex-spouse and deprive her of her freedom. The numerous studies we've conducted with children living in a context of domestic violence have shown that their experience is marked not only by exposure to specific incidents or acts, but even more so by daily exposure to a climate of tension and terror caused by controlling and coercive conduct. In this regard, I invite you to consider an approach similar to that taken in Scotland, for example, where offences involving controlling and coercive conduct are considered even more serious when they target children or when children are exposed to them.

[The Chair, Liberal, Iqra Khalid]

Thank you so much.

Now we will go to the Women’s Legal Education & Action Fund.

You have five minutes. Go ahead.

[Megan Stephens, Acting Executive Director and General Counsel, Women's Legal Education and Action Fund]

Thank you so much.

My name is Megan Stephens. I'm the acting executive director and general counsel at the Women's Legal Education & Action Fund, LEAF. I am grateful for the opportunity to appear here today from Tkaronto, The Dish With One Spoon Territory, as part of your study on coercive and controlling behaviour.

For 36 years, LEAF has worked to advance the equality rights of women and girls through litigation, law reform and public education. LEAF has long advocated for the need to improve the justice system’s response to gender-based violence, including intimate partner violence or domestic violence.

I want to start by thanking you for taking the time to study coercive control. This work is really important, because intimate partner violence remains a pervasive and widespread problem in this country.

We know the status quo is not working. One in three women in Canada experience domestic violence and other forms of gender-based violence. The risks of such violence are greater for women who live with multiple intersecting inequalities, including indigenous, Black and racialized women, women with disabilities and migrant women.

We also know that over the course of the last year, as much of the world's attention has been focused on the COVID-19 pandemic, there has been another shadow pandemic playing out as lockdowns have isolated women with their abusive partners. Frontline workers in shelters and transition homes across the country have reported increases in physical violence, as well as a dramatic rise in reports of coercive control being used by partners.

Coercive control may be a relatively new concept to many of you, but it has long been recognized by both frontline service providers and academics as lying at the core of intimate partner violence. While there are many different working definitions of coercive control, it's generally understood as a course of intimidating, degrading and regulatory practices used by abusers to instill fear and threat into the everyday lives of their victims. Importantly, it's a highly gendered practice that often seeks to maintain or expand the gender-based privilege of a male partner.

While I commend you for this study, I also want to underscore the importance of proceeding carefully in your work. In my submission, it would be a mistake to rush to criminalize coercive control without thinking through the potential unintended consequences of criminalization. While such a move might be symbolically powerful, we have unfortunately seen too often how the criminal justice system can be weaponized, revictimizing those it seeks to protect.

There are, in my respectful submission, important operational, policing and prosecutorial challenges associated with the proposed criminalization of coercive control, all of which require careful consideration.

In terms of the operational challenges, it will not be easy to transplant the concept of coercive control from clinical and academic contexts into the criminal law. The concept covers a broad range of conduct and is the subject of multiple definitions—as many as 22 by one academic’s recent count. If coercive control is to be criminalized, the elements of the offence should be clear and draw on terminology and language used elsewhere in Canadian criminal law. Adding an overly complicated new offence to the Criminal Code won’t help survivors.

I am concerned that Bill C-247, which draws heavily on the British legislation, is in its current iteration unduly complex and would require some modification.

Assuming you could operationalize an offence of coercive control, there will also be challenges in ensuring that police officers are able to understand and identify reports of coercive control. Extensive training would be essential for police across the country. Even with the training, the U.K. experience suggests that many police are still struggling to see coercive control as worthy of criminal charges.

Another more significant policing challenge is that many survivors, particularly those from marginalized or vulnerable communities, face real barriers to reporting, including a distrust of police. Real work is needed to restore the trust of survivors in police and the justice system more generally.

Finally, as someone who spent more than a decade working as a Crown prosecutor before joining LEAF, I think there would be significant challenges associated with the prosecution of coercive control.

I am especially concerned about the potential impact of prosecutions on complainants. As drafted, the offence requires proof both that the accused’s actions could reasonably be expected to have a significant impact on the victim, meaning that it was objectively reasonable to have that impact, and that they have in fact had such an impact, meaning that complainants will need to give evidence about how they have been affected by the conduct.

This could lead to the revictimization of women as they navigate the criminal justice system, having to testify about their experiences, having their credibility impugned, and opening them up to invasive requests for access to their medical or therapeutic records to call into question whether and how they have been impacted.

[The Chair, Liberal, Iqra Khalid]

Thanks very much, Ms. Stephens.

We'll now go to rounds of questions, hoping that all the testimony our witnesses have been able to provide today gets further explored during these questions.

We'll now go to Mr. Cooper for six minutes.

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

Thank you, Madam Chair.

Thank you to the witnesses.

Ms. Stephens, you have noted operational challenges in incorporating coercive and controlling behaviour into the Criminal Code.

You spoke of the English experience. In England, we have seen the law now on the books for about six years, relatively few charges, but not that great in the number of convictions, which would perhaps speak to some of the operational challenges you mentioned.

Mr. Garrison has tabled a bill, C-247, which you referenced. You said in your view it would be unduly complicated. You spoke of the fact that there could be amendments to the bill that could perhaps improve it.

Could you elaborate on what could be done to perhaps strengthen this bill or is your broader point that we shouldn't be going down this road?

[Megan Stephens]

I think it's really important that you are looking into this, because as I've said, the status quo is not working. I don't think it's the kind of thing that can be pushed through without a lot of careful contemplation and thinking through some of these operational, policing and prosecutorial challenges.

I think one of the difficulties is that currently as drafted there's a lot of good thinking in Bill C-247. It's very much a British law. It is taken from the British context and doesn't necessarily use the same language that we see in the Canadian Criminal Code.

I think what's important about the idea of criminalizing this is that it is looking more broadly at the course of conduct, not isolated incidents. Right now the criminal justice system prosecutes specific isolated incidents and typically violent incidents. That's not really how intimate partner violence or domestic violence happens.

There are other places in the Criminal Code where we already look at courses of conduct over time that happen in relation to people, the ability to exercise control over people. If you look at criminal harassment, there's language there about repeatedly impacting someone. If you look at the human trafficking provision or the procuring offence, they talk about exercising control, direction or influence over someone.

I think it is important for it to be a Canadian law that will be understood and applied in the Canadian context; that we look to some of those other offences and think about how the language there and the language from some other offences look more towards a course of conduct over time instead of necessarily an isolated incident. We think about how that might emerge. I think it also makes a lot of sense to think concretely about this. I talked about the objective elements of proof that would be required for prosecution.

It is going to be difficult to get people to understand and accept that something should be reasonably seen as having a significant impact on someone without proper training and education for people who do not experience that to understand what that means. That is going to be essential for everyone in the justice system. You need it in your police officers so they can understand the reports and unpack what is meant by this course of conduct over time. You need it in your prosecutors to understand that they can have a reasonable prospect of conviction. You're going to need judges to understand this as well. This isn't necessarily generally understood in the public discourse. It's going to be hard to operationalize this without having that knowledge and training to go along with it.

I think those are some of the key considerations that need to go into this, also thinking through how the requirement for subjectively having the complainant say they were significantly impacted by this; how that will play out in potential revictimization of witnesses, of complainants, during the criminal justice process. We've seen that too often in the context of sexual assault prosecution. I think it's a real risk in this context as well.

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

Thank you very much for that detailed answer.

Mr. Lapierre, you mentioned children being victims of coercive and controlling behaviour. You said that we should look at what other jurisdictions have done in this area. Could you elaborate on that?

[Prof. Simon Lapierre]

In fact, I was referring specifically to recent legislation in Scotland. In a context where children are exposed to or specifically targeted by controlling or coercive conduct, the offence is considered more serious. Just as the status quo doesn't work for women who are victims of domestic violence, it has been found that the status quo doesn't work for children living in the context of domestic violence.

We've done some research with children ourselves, and the results are consistent with that. There is a general tendency to consider that when children are exposed to domestic violence, they are exposed to isolated incidents or acts or a series of isolated acts. However, children's experience shows us that those who live in a context of domestic violence are in fact exposed to a set of strategies that correspond to controlling or coercive behaviours. These children are affected by the set of strategies deployed by the perpetrators of domestic violence. These strategies have repercussions on the mothers of these children, but also on the children themselves, since they live their daily lives in an atmosphere of tension and terror.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that.

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

Go ahead, please.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair.

I'd like to thank all the witnesses.

Madame Stephens, I will ask my question in French, if that is okay with you.

Your comments are really very interesting.

I'd like you to know that I am fully in favour of protecting the rights of victims of violence. However, I question the need to criminalize controlling or coercive conduct, given that section 810 of the Criminal Code, for example, already covers many behaviours.

Do you think this could create a false sense of security, since some people won't go to court, for all the reasons Mrs. Lemay has listed?

Education and training for police officers and other stakeholders could also be provided.

Maybe we can find another solution.

[Megan Stephens]

Let me begin by saying that I'm not sure that the section 810 peace bonds are an effective.... They're not a replacement for this. Those who work on the front lines in shelters—and LEAF is not a women's shelter in that respect—I think would tell you that the 810 peace bonds are not all that helpful and that there is a gap.

There are other Criminal Code offences that could be charged that could cover some of this conduct. I think of criminal harassment, of uttering threats. However, it's not happening. I know that criminal harassment charges are challenging to prove at the best of times and would be particularly challenging in the context of an ongoing relationship where people are living together—and uttering threats, as well. There are real challenges, again, with that.

I think it's important to think about...and I'm happy to see it on the agenda. I'm happy to see it as something being discussed, but I'm urging caution and not just rushing through and getting this done overnight. There is something powerfully symbolic about that...and I acknowledge that.

However, I would suggest that there is work being done. As you know, the Department of Women and Gender Equality is working on a national action plan to end violence against women and gender-based violence. This, to me, is something that fits well with that work...thinking about where the criminal justice system can be an effective and useful response, but also hearing from the survivors, and particularly survivors from vulnerable communities. Hear from them on whether this is what they need and whether they think this will be an effective response.

We know there are real concerns in communities across this country about the ability of police to respond to their needs, and so adding another Criminal Code offence may not be the solution. I don't think that section 810 is a valid alternative, but there may be other options that need to be explored.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Ms. Fedida, do you want to add anything?

[Gaëlle Fedida]

Actually, I'd like to make it clear that it is indeed the political intention that interests us here. I would beg you to hear the political imperative and the political message that new legislation of this kind could also convey.

Of course, as people have been saying for years, there's a need for better training of police officers, judges and the entire justice system on this and other issues.

We think these new legislative measures truly round out the legal arsenal. There are still some technical details that need to be worked out, and we are in full agreement on that. The key for us is to finally close the gap in the legislation.

As Ms. Stephens has explained very well, there are certain offences in the Criminal Code that could be charged, but they are not well used. Just because we do things wrong doesn't mean that we can't think about how to make them better.

That's the point for us. Together with legal experts, we need to take the time to look at the ins and outs of the issue and see what has been done elsewhere. Indeed, it has been done elsewhere. It exists. We really think it would be an important complement, as a working tool, including for police officers.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

I'd also like to hear what Mrs. Lemay thinks. We share an alma mater, the Université de Sherbrooke.

[Mélanie Lemay]

For me, it's very important to mention that I had to go through the criminal justice system. By its very essence, the criminal justice system makes survivors feel doubly victimized. This is why 95% of them don't turn to the police to report their abuser. However, for the 5% who wish to do so and for whom it is a valid option, consideration should be given to the possibility of adding, if not coercive control, at least domestic violence to the list of offences, as has been done in Scotland.

I propose that you show political courage and meet in a transparent committee similar to the one set up in Quebec that Simon Lapierre participated in. This committee could reflect more broadly on the addition of a new area of law in the arsenal of remedies for survivors. For example, it could reach the 95% for whom turning to the police is not even an option.

We have expertise in Canada. Indigenous and Black communities are already thinking about ways to facilitate the social reintegration of all—because this remains a fundamentally social problem. I don't think pointing the finger at anyone is going to solve it. It's important to be innovative. Maybe we can establish a new area of law that would focus on gender-based violence.

[The Chair, Liberal, Iqra Khalid]

Thank you.

That concludes your time, Ms. Brière.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much.

[The Chair, Liberal, Iqra Khalid]

We'll now go to Monsieur Fortin.

You have the floor for six minutes.