Justice Committee on Feb. 29th, 2024

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

Welcome to meeting number 97 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order adopted by the House on February 7, 2024, the committee is meeting in public to continue its study of Bill C-332, an act to amend the Criminal Code (controlling or coercive conduct).

Today's meeting is taking place in a hybrid format. Members are attending in person in the room and remotely using the Zoom application.

We have two witnesses in the first panel. Both are attending via video conference, and both witnesses have been tested for sound.

Please wait until I recognize you by name before speaking. For the benefit of the witnesses, you'll be allowed a specific time frame for your opening remarks, as well as for answering questions for each of the members.

I will have to be a bit strict on the time use. If so, please bear with me. I ask for your patience. There's a rotation that we follow.

All comments are to be addressed through the chair. For members using Zoom, you can raise your hand using the Zoom “raise hand” function. For those in the room, obviously, you know how to seek my attention.

I want to welcome our witnesses for the first 45 minutes.

We have them both with us by video conference. We have, from the Barbra Schlifer Commemorative Clinic, Deepa Mattoo, executive director; and from the Women's Legal Education and Action Fund, Roxana Parsa, staff lawyer.

You each have five minutes for your opening remarks. I will start with Madam Mattoo.

[Deepa Mattoo, Executive Director, Barbra Schlifer Commemorative Clinic]

Good morning, honourable chair and members of the committee. I am grateful for this opportunity to speak before you this morning regarding the proposed legislative amendments aimed at addressing coercive control within the Criminal Code.

The Barbra Schlifer Commemorative Clinic, since 1985, has been at the forefront of providing trauma-informed legal, counselling and interpretation services. We support marginalized and racialized women and gender-diverse individuals who have experienced violence. With our extensive experience and expertise in this field, we offer insights into the potential implications of the proposed legislative change.

I'll cover three points in my opening remarks: the fact that justice should not only appear to be served but should genuinely be achieved; the consequences of criminalization; and the need for a holistic approach to address coercive control.

I want to start by recognizing and commending the intent behind this legislative change. It signifies a crucial milestone in acknowledging and addressing coercive control as a pervasive form of intimate partner violence. However, you must approach this legislative change with the utmost caution, taking into account the intricate nuances and the potential ramifications of criminalizing coercive control within the Criminal Code.

Coercive control is characterized by a relentless pattern of behaviour aimed at intimidating, manipulating and inflicting harm upon survivors or victims. This insidious form of abuse often operates behind closed doors, which makes it challenging to identify and prosecute. Survivors may endure multiple forms of tactics, including manipulation, financial control and isolation, which can result in profound psychological and emotional trauma.

My first point is that justice should not merely appear to be served. While the criminalization of coercive control may seem like a solution, it's crucial to recognize its practical limitations and potential consequences. Coercive control, particularly within intimate partnerships, poses inherent complexities, making it difficult to recognize and report due to inherent power imbalances and the systemic biases that survivors face. Moreover, proving coercive control beyond a reasonable doubt in a court setting would add a layer of difficulty that survivors routinely face in IPV and sexual violence cases. In these cases, the system routinely fails survivors, with under-reported cases and low conviction rates. Therefore, my point is that not only should justice appear to be served with a new criminal offence on the books, but we should genuinely be trying to achieve this justice for survivors.

The unintended consequences of criminalization don't always align with the intended solutions. For example, we have observed that existing mandatory charging policies in cases of domestic assault can inadvertently result in survivors being charged with the same offences that are meant to protect them. Moreover, survivors, particularly those from marginalized and racialized communities, specifically from non-status immigrant communities, indigenous and LGBTQ+ communities face additional hurdles, such as language barriers, discrimination within the system, intergenerational trauma and lack of trust in the legal system.

My last point is that it is essential to explore holistic approaches that prioritize survivor safety and well-being while holding perpetrators accountable within the criminal justice system. Drawing from the experiences and the jurisdictions in which coercive control has already been criminalized, such as England, Wales and Scotland, we must recognize the limitations of relying solely on the criminal justice system. It is only one part of the solution. Comprehensive support services, awareness campaigns and professional training are essential for meaningful change and for healing for survivors. Furthermore, the inclusion of a broad defence based on the coercive actor's best interests for the survivor raises serious ethical and practical concerns, risking further harm to survivors and perpetrating power imbalances within abusive relationships.

In conclusion, I echo the sentiment of many others who have already testified in front of this committee that increasing criminalization is not the solution. Emphasis on the Nova Scotia Mass Casualty Commission's recommendation, which advocates for a community-based approach over a carceral one, including a community advisory, is something that we also support.

While we oppose the implementation of the new offence for coercive control, we stress the importance of equipping all legal actors with the necessary knowledge and skills to identify and address coercive control effectively. This includes developing risk assessment tools and training that consider intersecting identity factors for survivors who are disproportionately impacted by gender-based violence.

We believe that introducing such legislation prematurely without adequate education, resources and accountability mechanisms in place for legal actors—

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much for your opening remarks. You'll have a chance to continue with that during questions.

I will now turn to Madam Parsa.

[Roxana Parsa, Staff Lawyer, Women's Legal Education and Action Fund]

Good morning.

My name is Roxana Parsa. I am a staff lawyer at the Women's Legal Education and Action Fund, also known as LEAF. I am grateful to appear today from what is now known as Toronto, which is on the traditional lands of the Mississaugas of the Credit, the Wendat, the Anishinabe and the Haudenosaunee nations.

LEAF is a national charitable organization that has worked for 39 years to advance the equality rights of women, girls, trans and non-binary people through litigation, law reform and public education.

In recent years, LEAF's engagement with the criminal legal system has led to a deeper understanding of the ways in which harms can be perpetuated through the justice system. This is why we are grateful for the opportunity to be here today to share our views against Bill C-332.

We know that coercive control is a pervasive form of violence. We have heard the stories from survivors and frontline workers about the insidious ways in which patterns of controlling behaviour develop over time, and we understand the desire to respond.

We agree that there is a need for greater recognition of this harm; however, we urge the government to resist reliance on the criminal law. We echo the calls of experts who have testified before you this past week in speaking against the implementation of this bill.

There are significant systemic barriers that exist within the criminal legal system that will render this bill ineffective.

Coercive control is a highly nuanced and case-specific concept that captures a wide range of behaviours. The lack of physical evidence often means that recognizing the existence of this form of violence involves a deep understanding of the dynamics and context of an interpersonal relationship. Given the subtleties of coercive control, there is a significant risk that, when granted judgment, law enforcement may misinterpret situations of abuse or see abuse even when it is not present. Abusers may also use this to their advantage and turn the law into a tool of coercive control, as we have seen with many other tools in the legal system.

These risks are significantly heightened due to the existence of colonialism, institutional racism and discrimination embedded within the justice system. There are decades of evidence that show that criminal law harms survivors. We can look to the history of mandatory charging policies to see how the potential consequences of a new offence would emerge.

These policies, while well intentioned, led to a significant increase of arrests of female survivors, particularly amongst racialized populations. In Canada, this has been most strongly felt by indigenous and Black women, who are, at the same time, groups that continue to face the highest rates of intimate partner violence. We fear the same consequences arising with the establishment of yet another criminal offence.

We also know that, despite facing higher rates of violence, the history of harm from this system results in a reticence to seek help. Many survivors will not contact the police when they are experiencing abuse, and, when policing is seen as the primary solution to intimate partner violence, it inadvertently excludes survivors from marginalized communities and only deepens the existing inequities in seeking safety.

In discussing the potential harms of criminalization, the conversation often claims that the benefits outweigh any potential risks, so we urge you to examine the question. It outweighs the potential risks for whom? Who will be most impacted by a new criminal offence?

The law does not exist in a vacuum. When considering the development of a new offence, we need to centre the experiences of survivors facing intersecting barriers to justice. Criminalization is likely to either result in a lack of protection or, worse, cause further harm for survivors. Access to a legal mechanism is not necessarily access to justice.

That is why, instead of focusing on the enactment of this bill, we strongly recommend diverting resources to focus on prevention through the development of the infrastructure necessary for survivors to seek safety. This includes more funding for housing, social supports and community services and the development of alternative justice models for survivors seeking validation.

We also echo the recommendation of earlier witnesses in advocating for mandatory and ongoing training to actors in the justice system on coercive control and systemic bias, alongside the development of accountability measures to ensure evaluation of whether training is meaningfully applied. Finally, we echo the Mass Casualty Commission's recommendation to strike an expert advisory group and consult with both experts and affected communities.

Without systemic change, legislative reform only continues to hide the problem and gives the illusion of taking a stand. The criminal law has been turned to for decades as a response to intimate partner violence, yet the ongoing rates of violence show that it has proved to be an ineffective response. We think it's time to look beyond the criminal system and focus our resources on developing the social systems that are necessary for violence prevention.

Thank you for your time, and I'm happy to take any questions.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much. It was much appreciated.

We will now start with our first round of six minutes each. Keep in mind that we need to conclude this panel in 30 minutes in order to have the second panel of witnesses tested as well.

I will start with Mr. Frank Caputo.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Madam Chair, and thank you to our two witnesses for appearing with us.

Ms. Mattoo, I know you didn't get to finish your opening remarks. I'm happy to yield my time to you to finish your remarks.

[Deepa Mattoo]

Thank you so much.

I just have two lines left, saying that we believe that introducing such legislation prematurely, without adequate education, resources, and accountability mechanisms in place for legal actors, risks further undermining access to justice for survivors.

Thank you so much for giving me this time. I was just going to offer to answer any questions.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you very much for that. I appreciate you both for being here.

Ms. Mattoo, in full disclosure, my wife runs two legal clinics where she serves primarily women and mostly marginalized women. My background is as a Crown prosecutor. I listened with intent to both of you and to what you had to say. I found it very interesting.

I'm trying to decide where to start, because there's so much.

I know that when Ms. Parsa was speaking about this, she spoke a lot on coercive control. Generally, if I took those comments correctly, it was that the law should not be the primary mechanism by which we deal with intimate partner violence and coercive control. There should be a rededication or redirection of resources.

In these situations, the law is reactive. You're speaking about something proactive. Should we not be reacting to the situations of coercive control that statistically and in my experience lead to and perpetuate what I would call—and what others have called—the cycle of violence?

Feel free to answer that.

[Deepa Mattoo]

I can take the question, and, Roxana, please add to it.

If Canada recognizes coercive control as a Criminal Code offence, it's another section on the books.

My challenge is looking at and thinking about what England, Wales and Scotland have done. Scotland's model is definitely seen as the gold standard. The studies coming out of those jurisdictions have repeatedly told us that a number of people who were either convicted or charged with coercive control could have been charged under a number of statutes that were already available to the prosecutors in those jurisdictions.

I think it's the same case here in Canada. If you think about what coercive and controlling behaviour is, then criminal harassment, assault, sexual assault, forcible confinement, human trafficking, uttering threats, fraud and stalking are all criminalized behaviours. My challenge remains that when we have so many tools in the box, why do we want to add this one more thing, which is the contextual nature of the crime, instead of giving proper education to our police officers, prosecutors and judges in understanding the context?

Adding this one more thing would unfortunately, in my opinion, add another layer of barriers in access to justice for the survivors. Now they have one more thing. It might also give them the false notion that coercive control is now criminalized. In reality, the “beyond reasonable doubt” test would still remain the same. They would still have to prove all of those actions or those situations that I just listed, and more.

I really, definitely find it really challenging to think about how it will solve a problem that lies in lack of understanding of the context by the frontline responders, prosecutors and decision-makers. I do not believe that it will actually break the cycle of violence, as suggested by you, honourable member. In fact, that's also the evidence coming out of the countries and jurisdictions where it has been criminalized.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

If I could just respond to that, I take some of your points.

For me, personally—again, this is just my anecdotal experience—coercive control takes the form of manipulation. It is manipulation that is meant to control but isn't criminal harassment, even if it is repetitive or unwanted behaviour. The person might not even realize that they're under the thumb of their abuser. Often, in my experience, it takes the form of things that aren't illegal. Having a bank account and controlling all of the finances, isolation of a person that is so coordinated as to leave the victim vulnerable.... That isn't covered under human trafficking. It's not covered under assault or criminal harassment, but its end goal is to ultimately leave the person more vulnerable.

I take your point about the nuances in the law and the difficulty of proof. Maybe it's incumbent on us to change some of the enumerated ways of identifying it.

In 20 seconds, what do you say to that?

[Deepa Mattoo]

I can agree with you on the point that none of the provisions that are listed have the repeated nature of the abusive acts, as you are referring to, but my point is that it is the context of the violence that is not understood by the existing system. Unless and until we fix the existing system, we're actually putting the cart before the horse.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much for that.

I will move to Mr. Mendicino for six minutes.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you, Madam Chair, and thank you to both of our witnesses for the very thoughtful interventions.

I'd like to start with a question for Ms. Parsa.

I take from your preliminary remarks that there are some underlying structural and systemic issues with the criminal justice system that need to be addressed before we consider adding yet another provision, which would be under the Criminal Code, to deal with coercive control.

To my recollection, you referred to looking at ways to devise alternative dispute resolution or alternative judicial resolution measures.

Could you elaborate a little on what that looks like in your view?

[Roxana Parsa]

That's a big question, but that's something LEAF has been engaged in a lot of research on this past year.

What we're talking about is restorative justice and transformative justice models. These can take a variety of different shapes, and they can exist within the legal system or outside the legal system.

Many of these take place in the community and involve a survivor who has access to the resources and has been able to seek out a resource in which they feel safe and which can give them some sort of resolution to their situation of violence.

To be honest, I think this is perhaps difficult to imagine in a situation in which there is imminent harm, but I think this is the kind of resolution we are hoping to move towards for survivors who are seeking validation and recognition.

Based on a lot of research that we've done, experiences of going through a restorative justice process can mean something as simple as writing letters to the person who is accused and sharing thoughts through that. There can be a facilitator, or it can be a long process involving therapists. Oftentimes you don't even have to see the other person. You don't have to come face to face.

These experiences have often been shown to provide survivors the validation that they don't get in the legal system. They feel much more as though their perspectives and experiences have been recognized, and that the person who harmed them has become accountable for their actions. There's a sense that they feel healed in a way that the justice system often does not provide. That's kind of what I'm speaking about.

LEAF actually released a very lengthy report this past year, if you're interested, specifically about alternative and restorative justice models for sexual violence in particular.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I am interested. If you'd be willing to provide it to the clerk, I think all members of this committee—and, in fact, all parliamentarians—would benefit from reading LEAF's study of restorative justice models like the one you just described.

I agree that in some cases, restorative justice is a more appropriate and more validating model than going the full conventional criminal law route. I did want to validate that point of view.

There may be cases, however, where restorative justice is not available. Would you agree with that?

[Roxana Parsa]

Of course. I think our main point, when speaking about restorative justice, is really that we want the options. We think that survivors should have the option to pursue whatever form of justice they want and that the criminal justice system shouldn't be the only route forward.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Is it true that in a case in which the victim or the survivor, or indeed all of the participants, do not voluntarily agree to participate in restorative justice, it may not be the most appropriate option?

[Roxana Parsa]

Of course. There has to be consent on both sides to take part in these processes.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Turning back to this private member's bill, which has been advanced by my colleague, Mr. Garrison, I gather that's really the scenario in which the bill should be contemplated—perhaps where other alternative models may not be available for one reason or another.

It may be because parties don't consent. It may be that there are some cases that are egregious, where serious violence has been involved and, as a result, we may have no other choice but to resort to the criminal law, despite the systemic challenges, which I think you've appropriately identified.

In that scenario, what do you say? Is it that the existing laws on the books are sufficient or adequate to deal with coercive control, or do you acknowledge that perhaps it may make sense to add some additional language that defines coercive control—and I think Mr. Caputo provided some good examples for the committee and for you to contemplate—and additional provisions to deal with this type of harm that's disproportionately towards women?

[Roxana Parsa]

I certainly understand this desire to respond, especially when there's imminent harm or a situation of urgency and survivors feel like they need help quickly. I just go back to what my colleague, Ms. Mattoo, was saying, that the problem isn't that there aren't laws or there aren't these tools. The problem is that they're not used properly. The existing laws are not being adequately used in these situations.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much for that response.

Mr. Fortin, you have the floor.

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

Thank you, Madam Chair.

Ms. Mattoo, Ms. Parsa, thank you for being with us this morning.

The issue of controlling or coercive conduct is of great concern to us. One of our jobs, as legislators, is to ensure that people are safe and aren't victims of violence in any form. To that end, Bill C‑332 seems like a good move.

There are already offences in the Criminal Code for violence, assault, uttering threats, kidnapping, forcible confinement, rape and sexual assault. All of these offences are already covered under the Criminal Code. We could carry on under the current provisions and clamp down on this type of violence. Controlling and coercive conduct is about exerting control over someone else. Usually, it's a male partner exerting control on the female partner, or vice versa. There's not really any specific Criminal Code provision dealing with that.

I understand the position you're both defending. Correct me if I'm wrong, but you're advocating for providing training to everyone who works in the justice system. Obviously, I agree with that, but is it going far enough? Shouldn't we be more proactive? Sure, training needs to happen, but we also need to ensure that we send a clear message to society. If a person treats their partner in that way, we won't be providing them training. Rather, that person will be tried and sentenced.

I realize that Bill C‑332 will probably need to be improved and fine-tuned, but don't we still need to include these provisions and create clear offences for this conduct?

Ms. Mattoo can answer first, followed by Ms. Parsa.

[Deepa Mattoo]

I want to start by appreciating the thought process. I think I already said in my opening statement that I commend the intent behind it. I think the challenge is that threshold for coercive controlling behaviour...without satisfying the individual incidents of abuse, which are already part of the tool box for police officers and prosecutors, and those behaviours are already criminalized.

What I am challenged with and what I am presenting to all of you to think about is that what this will create is another form of abuse, and then it bears noting, from all of us, to understand that then this needs to actually be added as a notion of compounding abuse. Abuse is already happening, and these are the individual incidents, and now on top of it we will add the layer of compounding abuse.

All of those incidents need to be proved.

My questions to you are these. How many incidents are we talking about? How many incidents will make it coercive control? What will a survivor be required to prove? Are we asking the survivor to prove that she felt controlled and that she didn't then have a recourse? How can the intent of harm be proven?

I think my challenge is the practical implications. I feel that, as much as it will look really brilliant on the books to have this, it will be really difficult to utilize in the courts.

We have many other such provisions on our books. Those changes were made for survivors— criminalizing of forced marriages, criminalizing of FGM. There are many other such changes that have been brought forward to protect survivors, but they are never used, because they're so difficult for police officers to understand and for prosecutors to bring forward; they always go back to the existing tools and these charges that they can already lay.

I hope that helps in contextualizing what I'm trying to say.

Thank you.

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

Thank you.

Ms. Parsa, do you have anything to add?

[Roxana Parsa]

Yes, I agree with everything that Ms. Mattoo just said.

I just want to point out that the conviction rates that come out of these cases are very low. There's a study in England and Wales that showed that of the 7,000 arrests that occurred during the time span of the study, only 3% had a conviction rate that was successful.

Even for survivors who are seeking this avenue, the reality is that it is not going to result in the result that they are looking for. It will just lead to further retraumatization through the trial process and through the courts system, especially for something like coercive control, where they will likely be forced to rehash all the experiences of their life and the ways it impacted them—