Justice Committee on Feb. 26th, 2024

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

Welcome to meeting number 96 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order adopted by the House on February 7, 2023, the committee is meeting in public to continue its study of Bill C-332, an act to amend the Criminal Code regarding controlling or coercive conduct. Today's meeting is taking place in a hybrid format, pursuant to the Standing Orders. Members are attending in person in the room and remotely, using the Zoom application.

We have witnesses in the room and witnesses on Zoom, so for the benefit of everyone, let me take a minute to read some of the comments.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mic. Please mute it when you are not speaking. For interpretation for those on Zoom, you have the choice at the bottom of your screen of floor, English or French. For those in the room, you can use the earpiece and select the desired channel.

This is a reminder that all comments must be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please used the “raise hand” function.

We have a substitute clerk today. I welcome you here today.

We have some substitute help as well. Welcome. We have others virtually.

The clerk and I will manage the speaking order as best we can, and we appreciate your patience and understanding in this regard.

I will now welcome our witnesses for our first panel.

Before we begin, I want to inform the committee that witnesses and members participating remotely in this meeting have completed sound tests.

We have three witnesses appearing in the first hour.

We will start with Pamela Cross, advocacy director at Luke's Place Support and Resource Centre for Women and Children.

Next, we have two representatives from the Regroupement des maisons des femmes victimes de violence conjugale. They are Karine Barrette, lawyer and project manager, and Louise Riendeau, who is jointly responsible for political affairs.

Finally, by video conference, we have Jennifer Koshan, a professor in the faculty of law at the University of Calgary, appearing as an individual.

Welcome to our witnesses.

Each of the three of you has up to five minutes for your opening remarks.

Because we have witnesses and we have lots of members who want to ask really important and good questions, I will say in the beginning that if we terminate the one hour and you have not had an opportunity to say everything you wanted to—this goes for the members as well in posing their questions—or an opportunity to respond, we urge you to please send us in writing whatever you believe would also help this committee. I have to keep track of the time because we also have three witnesses in the second panel.

Thank you very much.

We'll start with Ms. Pamela Cross.

Ms. Cross, you have five minutes.

[Pamela Cross, Advocacy Director, Luke's Place Support and Resource Centre for Women and Children]

Good morning. Thank you very much for this opportunity to speak with you. We provided our brief, and I hope you've all had an opportunity to take a look at that because it elaborates on the points I'm going to make very briefly here this morning.

Luke’s Place works with women in Ontario who have been subjected to intimate partner abuse. We do this through both the delivery of direct services to those who are involved with the family law system and engagement in system-change work.

While we acknowledge that there are a number of reasons to think criminalizing coercive control could have positive outcomes, we believe that the problems with criminalization are greater than the potential benefits.

Over the past 40 years, we’ve seen the many ways in which the criminal law has failed survivors of intimate partner violence. Despite the many legal interventions and initiatives, IPV, including lethal violence, remains a serious social problem in this country. While we absolutely need to find ways to validate the experiences of those subjected to coercive control, we don't think creating a criminal offence is the best way to do this. As with any law reform, criminalizing coercive control will have an impact beyond the criminal law itself. In particular, the intersections between criminal and family law are so deep that it's not possible to make changes to one without impacting the other.

We are also concerned, based on the negative consequences that have flowed from Canada’s long-standing mandatory charging policies, that a new criminal offence of coercive control could likewise lead to women being inappropriately charged, which would have disastrous impacts, including on their family law cases.

With respect to Bill C-332 specifically, we have three concerns.

First, coercively controlling behaviours are insidious, subtle and often invisible to anyone outside the relationship. What constitutes coercive control is different from one relationship to another. It builds, with one incident leading to another and then another. Only when all of them are examined in totality can the pattern of abuse be recognized—by the survivor herself, as well as by outsiders. For this reason, the bill needs a clear and inclusive definition of the prohibited behaviours and what constitutes repeated or continuous engagement if it's to be effective.

Second, it also requires a clear and inclusive definition of who it is intended to protect. We encourage you to consider the language used by Ontario’s domestic violence death review committee, which I'm happy to share in the question period.

Third, given the reality that abuse often continues long after separation, especially for women with children, the two-year time limitation should be removed.

What do we recommend?

First, we recommend that Parliament not move ahead with Bill C-332 at this time.

Second, we recommend following the Mass Casualty Commission’s recommendation to establish an expert advisory group to examine whether and how criminal law could better address coercive control.

Third, we recommend providing training, with real accountability measures, for police to ensure that they understand the prevalence of IPV, including coercive control.

Fourth, we recommend developing new and mandatory education for Crowns and judges, with accountability measures.

Fifth, we recommend funding access to free independent legal advice for survivors of gender-based violence who are considering accessing the criminal system.

Sixth, we recommend creating a criminal court support worker program to work in collaboration with existing criminal court victim assistance programs.

Seventh, we recommend funding national stakeholder consultations and discussions about the appropriate use of transformative and restorative justice models as a response to gender-based violence, in addition to the existing criminal system.

Then, and only then, consider how the criminal law might need adaptation to respond effectively to coercive control, using a collaborative and consultative process with all stakeholders.

Thank you, and I look forward to your questions.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

I will now give the floor to the representatives of the Regroupement des maisons pour femmes victimes de violence conjugale.

[Louise Riendeau, Co-responsible, Political Affairs, Regroupement des maisons pour femmes victimes de violence conjugale]

Good morning.

We thank the committee for the opportunity to speak on such an important topic as the criminalization of coercive control. We also want to thank Mr. Garrison and Ms. Collins, members of Parliament, for having persevered in their efforts to create this offence.

Our association comprises 46 shelters, located throughout Quebec, for women and children who are victims of domestic violence.

Our position in favour of criminalizing coercive control is based on our members' expertise, numerous consultations with our partners and a major project to improve legal practices by including coercive control among the factors for consideration. As a result of this project, over 4,000 stakeholders in Quebec's justice system have been trained over the past year.

Finally, we also met with a number of stakeholders in England and Scotland to determine how to move forward and what has been learned from the criminalization of coercive control. Everyone agrees that they wouldn't go back to the way things were. Criminalization has led to a change in the fundamental conversation about how to better intervene in situations involving domestic violence.

Women who are victims of domestic violence are subject to a variety of types of control and violence. Physical violence isn't the main reason why the majority of women being supported by our members seek our services. Indeed, women requesting our services outside the shelter environment did so for a past relationship. That comes as no surprise, since we know that domestic violence can continue many years after the relationship ends.

Criminalizing coercive control would bring about some major improvements.

Recognizing the impact of coercive control on women and children would constitute a major step forward for victims. Deprivation of liberty and constant control, hallmarks of the dynamics of violence and coercive control, often have more significant and longer-term repercussions than physical violence does.

Coercive control has an impact on the entire family as well. The arbitrary rules, constant tension and fear imposed on the family are harmful to children's well-being. The children are victims too. They too can be subject to arbitrary rules. I'm referring to their limited access to resources, control over their activities and movements, and restrictions on seeing loved ones or friends.

Instead of taking a limited view based on isolated incidents, which is not representative of the lived experience of victims and their children, it is important to consider their accounts as a whole. Criminalizing coercive control would validate their experience.

Criminalization, if accompanied by enforcement measures, has the potential to increase victims' confidence in the justice system.

[Karine Barrette, Lawyer and Project Manager, Regroupement des maisons pour femmes victimes de violence conjugale]

The societal implications are that criminalization would demonstrate that this socially unacceptable behaviour needs to be taken seriously. Although physical violence and femicides are universally condemned, all too often, non-physical intimate partner violence continues to be normalized and trivialized. However, the vast majority of women availing themselves of services for victims of domestic violence have suffered from coercive control, including the use of multiple methods to scare, isolate and control them, in addition to abuse and threats.

Criminalizing coercive control would constitute a major step forward for human rights, namely a woman's right to safety, dignity, autonomy and freedom.

Adding coercive control to the Criminal Code has the potential to ensure not only that intervention is more consistent with the lived experience of victims, but also that it takes place earlier.

Although coercive control is at the core of domestic violence, the current lack of legislative tools to convict the perpetrators leaves the justice system with very few legal levers and tools to take effective action in such situations. During our training sessions, many police officers said that they were aware of or had witnessed situations of concern involving victims who'd been isolated, terrorized or humiliated by their partners. However, the officers were unable to take legal action, in the absence of an offence covering such behaviour. These situations fall into a legal loophole, as a result.

Criminalizing coercive control would allow the legal system to take into account the context in which domestic violence occurs and the history of those dynamics, at any stage in the process, from the moment the police get involved through to parole.

Finally, since coercive control is an important predictor of homicide, creating a new offence would provide another effective tool to help break the cycle of violence earlier and ensure an adequate assessment of how dangerous a domestic violence situation is, at any time in the process.

We support the introduction in the Criminal Code of a new offence for coercive control; however, we believe that this change is insufficient on its own. Additional measures, such as training for all stakeholders, be they police officers, prosecutors or judges, is essential. Public awareness is also essential, along with other measures, which we can speak to later.

We hope that Bill C-332 will be passed, but we would like it to be accompanied by a government bill setting out funding conditions for adjustment measures.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Ms. Barrette. You will undoubtedly have the opportunity to tell us more in your answers to our questions.

Now we will move virtually to our third witness, Jennifer Koshan, for up to five minutes.

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

Thank you.

Good morning, and thank you very much for the invitation to provide input on Bill C-332.

I'm joining you this morning from Treaty 7 territory here in Mohkinstsis, which is the traditional territory of the Blackfoot peoples.

I am speaking on my own behalf this morning, but some colleagues and I did file a submission with the Department of Justice for its study of coercive control in October of 2023. My co-authors are Janet Mosher, Wanda Wiegers and Shushanna Harris. I'm relying on that submission for my remarks this morning.

We argue that it is crucial for all actors in the legal system to gain a nuanced, contextual and intersectional understanding of coercive control to be able to, for example, support risk assessments and safety planning. However, we do not support the criminalization of coercive control in Bill C-332 because of problems with the current legal treatment of intimate partner violence.

We identify several concerns. I'll focus on three sets of those concerns today.

First are concerns about the current criminal legal system's handling of intimate partner violence. The current focus of the criminal law is on incidents of abuse—for example, assault—in which the seriousness of the incident is often tied to physical injury. Embedding an understanding of coercive control, which focuses on patterns rather than on incidents of abuse, poses significant challenges for police, prosecutors and judges.

Legal actors may also fail to recognize the range of coercive and controlling tactics that are influenced by systemic racism, colonialism and other systems of oppression. For example, immigration status can be used as a tool of abuse.

However, the current treatment of intimate partner violence by the criminal legal system and its actors raises concerns about their ability to gain this sort of nuanced understanding. For example, police continue to lay dual charges in intimate partner violence cases, with Black, racialized and indigenous women being disproportionately criminalized.

These problems and broader issues with systemic racism and colonialism have led many women to turn away from the criminal legal system. As I argued before this committee in 2021, we can no longer call these “unintended consequences” because we know the likelihood that they will occur.

Our second set of concerns is with respect to how coercive control is being addressed in the family law system. We're currently reviewing cases under the Divorce Act amendments from 2021, and our early review suggests several concerns.

Family law courts are struggling to understand coercive control and continue to approach allegations on an incident-focused basis. Like the criminal legal system, family courts also characterize intimate partner violence as mutual in many cases, which may minimize the harms of the violence to women and children.

Family courts have also characterized women's attempts to protect their children from violence as amounting to coercive control itself. Given the willingness of family courts to accept allegations of so-called parental alienation, this feeds into potential findings of coercive control against mothers, who risk being criminalized or facing adverse parenting outcomes.

These are examples of perpetrators manipulating the legal system against the real victims of coercive control. Unfortunately, courts are sometimes persuaded by these types of arguments because of the ongoing influence of myths and stereotypes about intimate partner violence and its victims, which is again of heightened concern for women experiencing intersecting inequalities. For example, women are often wrongly accused of making false allegations of intimate partner violence to gain a so-called upper hand in family law proceedings.

If coercive control were criminalized, yet difficult to prove, that would likely feed into these assumptions and work against women and children in parenting disputes as well as undermine their safety.

It's also important to note that coercive control is defined differently in the proposed criminal amendments from the way it is defined in the Divorce Act, which could lead to misunderstandings and misinterpretations.

Then our third set of concerns is with respect to Bill C-332 specifically.

The provision has no explicit connection to intimate partner violence. The prohibited conduct is not defined, and it's unclear how many repetitions of behaviour are required. This vagueness is susceptible—

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much. I hate to interrupt. Thank you very much, and we appreciate your understanding.

We will now move into our first round of questioning, with six minutes each. I will start with Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

Professor Koshan, if you want to take 30 seconds to finish your thought, you can go ahead and do that before I begin my questions.

[Prof. Jennifer Koshan]

Thanks very much. I appreciate it.

Yes, another concern is with respect to the wording of Bill C-332 and its focus on the “significant impact” on the complainant, which means its interpretation in the bill will very much rely on the complainant's testimony, which is potentially retraumatizing.

We also have concerns with the “best interests” defence in proposed subsection 264.01(5). This defence is also subject to manipulation by abusers and can reinforce myths and stereotypes about supposedly benevolent domestic violence, which may adversely impact disabled survivors especially.

Thank you.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

In January, a woman was killed outside a school in Calgary by a man who had been previously charged on three separate occasions, but he was released each time with conditions, including a no-contact order. In this case, despite a clear and established pattern of behaviour, this man was released multiple times and, as we all know, with tragic consequences.

We feel that there have to be improvements to the bail system to prevent those who are engaging in domestic violence from being repeatedly released.

Professor Koshan, would you care to comment on that situation and on whether you see a need for improvements to the bail system in light of cases like this one?

[Prof. Jennifer Koshan]

Thank you for that question.

I think something that's significant about that incident is that we still don't know a lot about it. We don't know, for example, if coercive control was an element of the intimate partner violence that was experienced by the woman who was killed in that case. Unfortunately, I think that this example actually supports the submission that my colleagues and I make, which is that the current criminal legal system is not working as intended. Even in cases where there are clear incidents of physical intimate partner violence, the system is not protecting women.

Our concern is that more training, more responses for the actors in the criminal legal system, are needed. That may include reforms to bail, but that alone will not be sufficient.

[Rob Moore, Conservative, Fundy Royal, NB]

We couldn't agree with you more that the current system is not working. We've seen a remarkable increase in crime, and part of that should be laid at the feet of our bail system, which allows people to continue to revictimize communities and intimate partners as well.

I have a question for Ms. Barrette.

In the bill there's a two-year period that you're probably familiar with. During this period, someone who has exited a relationship can then go back, as long as it's under two years, to seek a remedy under this legislation for a charge of coercive and controlling conduct.

What do you make of that two-year period? Do you think it should be reduced? Do you think it should be increased? Do you have any comment on it?

[Karine Barrette]

Thank you very much for the question.

Indeed, that's one of the amendments we'd like to see in Bill C-332. In particular, we want the two-year time limit set out in the bill to be removed. We're not even proposing that the period be increased, because in reality, there's no time limit on domestic violence following a separation. We've heard of many cases where victims are subjected to violence over many years, even decades, after a separation.

The Criminal Code already sets out time limitations, and we'll leave it up to the prosecutors. However, there's no need to impose a two-year period, because it wouldn't reflect victims' experiences.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

Ms. Barrette, some of our contemporaries globally, including the United Kingdom, have passed legislation criminalizing controlling or coercive conduct. What do you make of their experiences? Are there lessons to be learned as we consider at this committee this particular piece of legislation?

Are there potential traps that we should avoid? Obviously we want legislation that serves its intended purpose, which is to protect the victims of intimate partner violence.

[Karine Barrette]

Thank you for the question.

I actually had the opportunity to go to London and Edinburgh to meet partners in jurisdictions where coercive control had been criminalized. There are many lessons to be learned. Canada's fortunate to be able to propose such measures after those countries did, because it can learn from their experience.

One of the first things to note is that violence following a separation was excluded in the initial version of the British statute.

Another major difference is the fact that Scotland, which passed its bill after England, decided to use an objective approach. Professor Koshan spoke about victims bearing the burden and the significant consequences on their lives. That is why Scotland decided to adopt an objective approach, meaning to use the reasonable person test, and that has made a significant difference. After talking with our partners, we realized that this was probably one of the keys to the success of the Scottish legislation. By using the reasonable person test, victims aren't re-victimized during questioning or cross-examination, and it makes the prosecutors' jobs easier too.

Another important aspect that was mentioned is training for stakeholders before the bill comes into force, so that everyone is prepared.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Ms. Barrette.

It's Ms. Brière's turn now.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much, Madam Chair.

Ms. Barrette and Ms. Riendeau, thank you for taking part in our meeting today. I had the opportunity to meet you beforehand. Thank you for your time. I also thank you for the document you've tabled, which will be a great help to us.

I also thank you for the work you do with abused women so that the situation improves not only for them, but for all of us, in the end.

In your remarks, you talked about the tools needed to make things easier and ensure proper implementation of this new measure. I'd love to hear your comments on this, but really from a very concrete point of view.

[Louise Riendeau]

As my colleague just said, I think training is an essential tool if we want all the players to understand what coercive control is.

It's also important to give guidelines to prosecutors, police officers, everyone in the chain, right down to parole officers, so they know how to handle this aspect.

We need to hold awareness campaigns so that the victims themselves and the public understand what coercive control is.

We also need to talk to those dealing with the categories of people who are currently over-represented in the justice system, to avoid this new measure making their situation worse.

So there are measures to be put in place. To that end, we'd really like to see a government bill that would complement what a private member's bill can't do.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Bill C‑332 terminology is not the same as the definition of “intimate partner” found in section 2 of the Criminal Code.

Do you think this could cause confusion?

[Karine Barrette]

Yes, it certainly could.

In our opinion, the definition that appears in section 2 of the Criminal Code is really hyper-inclusive. It's a very broad definition. A case law review has been done on this subject. This definition has no time limit, nor does it refer to a couple intending to marry, for example. It is therefore a very broad definition.

As case law has already addressed the issue, it would be really easy to use a less restrictive definition. However, section 2 of the Criminal Code already provides this possibility. This is therefore the option that should be retained, in our opinion.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Should we consider including children in the bill?

[Karine Barrette]

Yes, absolutely. There are two levels, one that includes children and loved ones.

For children, we propose proceeding by presumption, i.e., establishing that any child who is part of the family relationship is a covictim of controlling and coercive behaviours. The legislator should reflect the fact that, regardless of whether or not they are physically present at the time of the actions or witness them visually or audibly, these children suffer all the consequences, simply by virtue of being in the family relationship.

This should also be part of the aggravating factors at sentencing.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much.

You heard what Professor Koshan had to say during her opening presentation. Do think it will be difficult to detect or prove coercive control?

[Karine Barrette]

You raise a very good point. Indeed, it is important to be able to do this.

According to the Scottish experience, it turned out that prosecutors and police ultimately found it easier to prove coercive control than isolated incidents of physical violence. Coercive control will often manifest itself in a slightly more legitimized or trivialized way. So there is evidence, particularly evidence linked to electronic technologies, such as bank statements. What's more, there are witnesses among family or colleagues.

First of all, you have to understand what coercive control is. Once you understand it well, it's no more difficult to prove than other types of violence. Even in the presence of contradictory versions, if we look at the context and the history, we're able to better determine who the main aggressor is, especially in the context of cross-complaints, and we're very sensitive to this concern. By investigating much more broadly, by having this broader vision, we're better able to gather evidence, track down aggressors and sort out who's responsible in the case of cross-complaints.