Justice Committee on Feb. 16th, 2021

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

Thank you, Madam Chair.

Just like Mrs. Brière and you, Mrs. Lemay, the Université de Sherbrooke is my alma mater. So I'm interested to know what the people from Sherbrooke think about these issues.

I'll start by asking a quick question. You've probably heard about the movement forming in Quebec City to create a specialized domestic violence court.

What are your thoughts on that?

[Mélanie Lemay]

This means that it's important to update knowledge in this area. It's clear that there's a significant gap between the reality of a sexual assault victim and what they're asked to do to enter a system that, in its very essence, makes them a victim again. This system hasn't been adapted. It was set up in a century where women didn't even exist as legal persons and had no place in society.

It's necessary to ask how we can ensure that knowledge is updated to reflect what we know today.

Moreover, since we know that 95% of sexual assault victims don't file a complaint with the police, it would be interesting to reproduce the Quebec model for them and to work in a transparent way to establish a new field—

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

I don't want to rush you, but we don't have a lot of time. Thank you.

Ms. Fedida, I saw you react to the question. Could you tell me in a few seconds whether or not you're in favour of creating a specialized domestic violence court?

I would especially like you, as a lawyer, to give me your opinion on another issue. Indeed, in light of your testimony, I understand that you're a lawyer. If specific measures are adopted to punish controlling and coercive behaviour, won't it be difficult to prove such behaviour? We're talking about repetitive behaviour, the intent of the abuser to harm and the effect this would have on the victim. Won't the difficulty of proving it undermine the process a bit?

Those are my two questions. I'd like you to quickly answer the question on the possible specialized court in Quebec City and, then, the question on the difficulty that would be encountered when it comes to proving controlling and coercive behaviour.

[Gaëlle Fedida]

It's very clear that we strongly support the creation of a unified family court. Women's groups have been calling for this for a very long time. There are some technical and legal details that still need to be worked out, but it's an excellent intention. We think establishing such a court would be a big win.

I'll now answer the question about problems with evidence. Today, we may have evidence for one, two or three incidents. Now, coercive control is defined as the repetition of small incidents that occur within a given time frame. Each small incident in itself is not necessarily criminal. However, new legislation will allow for a whole context to be portrayed. Evidence of coercive control will more accurately be a balance of probabilities, in the sense that evidence will accumulate. It may be text messages that are sent at any time of the day or night, although that in itself is not a criminal offence.

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

Yes, but harassment is already criminal.

[Gaëlle Fedida]

This is indeed the case, but the act that's been criminalized is the harassment of each and every person. As Mr. Lapierre explained very well with respect to children, it's important to look at the overall context in which domestic violence occurs and the general atmosphere it creates. It's harassment set up as a system. This is the mechanism of dominating—

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

What exactly is the difference between the harassment that is currently a criminal offence and harassment that is controlling and coercive behaviour?

[Gaëlle Fedida]

In the first case, there is a single infraction; in the other, there are a series of elements that lead us to understand that it's a coercive control. Coercive control isn't just harassment, it's everything surrounding the harassment and taking control of the victim's life.

Perhaps Ms. Pontel has some clarification on this.

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

Go ahead, Ms. Pontel.

[Maud Pontel]

Circumstantial evidence is increasingly sought in police investigations. An extensive investigation is therefore conducted to establish context. This allows police officers to fully understand the context of the various elements and incidents that may be recognized by the Canadian Criminal Code.

The problem is that when the Crown files the evidence, this context isn't automatically taken into account.

With regard to the difference between criminal offences and what coercive control might represent, a paradigm shift needs to be considered. As Mrs. Lemay was saying, it's a new way of understanding the context in which domestic violence occurs and—

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

I'm sorry for interrupting you, Ms. Pontel, but isn't there a danger of creating an offence similar to one that already exists?

[Maud Pontel]

I don't see that as a danger at all. On the contrary, I see it as something that could support the victims and allow them to be better heard, since the violence they've experienced would be considered in a comprehensive way. We are not talking about an incident, but about a context of violence that prevents women from running away, leaving, talking, and so on. We work with women who are trapped, even if the door is open. These women are afraid, even if it's just because of a look.

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

Don't worry, I agree with you. I'm asking questions to better understand, but I'm not against the idea.

Thank you, Ms. Pontel.

Thank you, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Thank you so much, Mr. Fortin.

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

Go ahead, sir.

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

Thank you very much, Madam Chair.

Thank you to all the witnesses for being with us today on this very important study.

I listened carefully to the witnesses. I think we heard five voices here today: four saying that we should add an offence of coercive and controlling behaviour to the Criminal Code, and one qualified yes.

I'm going to start with Ms. Stephens, and I want to ask all the witnesses the same question. I think we do understand on the justice committee that women facing violence often have difficulties in the prosecution and court system that lead to revictimization and threats from those who had already harmed them.

Would this be any different, for an offence of coercive and controlling behaviour, from all those other offences where women already find difficulties in the court system and with the police?

[Megan Stephens]

That's a hard question. Would it be any different?

The system itself is highly problematic, particularly in the context of domestic relationships, and intimate partner violence.

Asking witnesses to come forward and testify with respect to incidents that have happened in the context of their relationships is always challenging, even when it's a one-off context. Asking people to come forward and talk about coercive conduct as being controlling and impacting their lives will also be very challenging.

There will be a whole process of these women having to also understand it in that context, understand the conduct in that way. That can take some time for people to come forward.

There is a risk here, as I pointed out, because there are objective and subjective elements here. Having complainants come forward to talk about how they have been impacted can definitely be challenging for them. It can be challenging when they come from vulnerable communities where there might be racist stereotypes or other discriminatory stereotypes that they have to overcome to have that understood objectively.

There's also a risk that we see in the context of sexual assault prosecutions and others. There are requests for records that can be their own private records, that can be quite intimate—their therapeutic and medical records—in order to either undermine their evidence with respect to how these are impacted or otherwise.

I don't necessarily think it will be different. Those problems will continue.

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

Ms. Lemay, please go ahead.

[Mélanie Lemay]

Until we address the question of whether police or judicial stakeholders are the best professionals on the ground to receive disclosures of sexual assault or domestic violence in one way or another, the same victimization will be repeated. Whether we add coercive control to the list of offences or operate through the existing Criminal Code offences, I believe that the essence of the criminal process is that women feel like victims again.

While this isn't the issue I'm raising today, I don't believe that adding the notion of domestic violence or coercive control to the Criminal Code will address the problem of repeat victimization. It's the very structure of the system that is lacking.

This is why I invite you to review the system, to consider the possibility of establishing a new area of law or to think about what could be done outside the law.

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

Ms. Pontel or Ms. Fedida.

[Maud Pontel]

What's very important to understand is that it takes a lot of courage for women to file a complaint. If, from the very first moments of disclosure, they are welcomed into a structure that understands what coercive control is, they'll be able to move forward. Their greatest fear, when they reveal what they've experienced, is that they won't be believed.

If the training of police and judicial stakeholders was focused on recognizing coercive control, then I'd be able to say that, despite all their fears when it comes to disclosing their experiences, women could be accompanied and assured that they would be heard and believed. Women's greatest fear is that they won't be believed and that their whole experience and the violence they've suffered won't be taken into account.

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

Ms. Fedida, there has been some reference to use other ways to get at this problem. Do you think there are other ways we could address coercive control behaviour by adding it to the Criminal Code?

[Gaëlle Fedida]

The unified family court proposed for Quebec in the expert committee's report is very promising. In our view, this would allow the victim to be heard and all the issues to be taken into account. Basically, the goal of this unified court is for the civil justice system and the criminal justice system to talk to each other. Currently, the two systems are completely sealed off from each other, unfortunately. Often, women are even advised not to talk about domestic violence in criminal cases, even in civil cases, in order not to lose their children or appear antagonistic, for example.

As always, therefore, we come back to the need to hear what these women have gone through, to put a name to it, and to establish specific consequences.

Earlier, a question was asked about section 810 of the Criminal Code. However, it's not just about section 810, it also applies to section 811. Practically, therefore, we can clearly see that things are not working correctly.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.

We've finished our first round of questions. I see that we have seven minutes left on the clock. Do I have consensus from committee members to allow one representative from each party to ask one question as we approach the hour?

I see thumbs-up from everyone.

We'll start with Mr. Lewis.

I ask that you keep it brief so we can get through everyone.

[Chris Lewis, Conservative, Essex, ON]

Thank you very much, Madam Chair.

I promise you I'll keep it brief, but I do have to say three things. I'll say them very quickly.

Ms. Stephens, thank you for bringing up human trafficking today. I'm very glad that that discussion came forward. My riding is right beside the Detroit-Windsor Tunnel and bridge. We are, unfortunately, very much a human trafficking corridor.

Mademoiselle Lemay, I had a question for you. I'm not going to ask the question, but I do want to say that you said a word that really sparked my interest. It was “innovation”. That's the kind of thinking that we need going forward.

Monsieur Lapierre, I know you've kind of been cut off twice, so in however much time Madam Chair will give you, I would love to hear a little bit more about how that affects children.

Thank you, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Lewis.

As succinctly as possible, Monsieur Lapierre.