Justice Committee on March 18th, 2024

[Nathalie Levman]

Proposed paragraphs 264.01(1)(a) and 264.01(1)(b) articulate the mental element of the offence, so those are about what's going on in the accused's mind. If you look at Scotland's approach, you'll see that it's very similar. Scotland uses the concept of harm. We use the concept of safety in the Criminal Code. I believe they're meant to capture the same type of conduct, but the way the intent element is crafted—“intent to cause” a particular effect and “reckless as to whether” the conduct would lead to that effect—is the same.

The inquiry is about what's happening inside the accused's mind at that stage. Then when you move to the act element, you're looking at the actual conduct itself. One example is monitoring a person's finances. Well, we all do that, and when we're in partnerships we do it for each other often. However, that cannot constitute prohibited conduct for the purposes of this offence unless it could reasonably be expected to cause the intimate partner to believe their safety is threatened. That's where the objective element occurs.

Now, from evidence of a person engaging in the prohibited conduct—whether that be the more subtle forms or the violent, sexually coercive forms—courts can infer the mental element, like, for example, intent to cause an intimate partner to believe that their safety is threatened. Obviously, the more evidence you have in that regard, the easier it will be for courts to infer intent. However, both have to be made out for the offence to be proven beyond a reasonable doubt in a court of law.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

Ms. Gladu, you have the floor.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Thank you, Madam Chair.

Ms. Levman, I take your point about reasonableness being in proposed paragraph 264.01(2)(c) so that it applies to all of these non-criminal offences. With that in mind, I'm not going to support Mr. Fortin's subamendment.

I think it's important for people watching this clause-by-clause review to understand what happened here. The government brought in G-2 on Friday morning, and G-2 replaces line 6 on page 1 all the way to line 6 on page 3. The only thing that's before line 6 on page 1 is the title, and the only thing that exists after line 6 on page 3 is nothing. It is, in fact, an entire gutting of the bill, putting forward another bill, which they had three years to do after the last coercive control study. We've had no witnesses speaking precisely to this bill.

I also am concerned about the process and will vote against G-2 on that basis.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Fortin, you have the floor.

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

Thank you, Madam Chair.

Obviously, I won't reiterate the same arguments about my proposed subamendment. The more we talk about it, the more I think it makes sense to pass it. Instead, I'd like to pick up on Mr. Moore's comments.

The list of behaviours in proposed paragraph 264.01(2)(c) includes “threatening to die by suicide or to self-harm”. That's subparagraph vii. This means that if a person told their partner they wanted to commit suicide or were engaging in self-harm, and their partner believed their safety was threatened, then that would be a crime. For example, if I believe that my safety is threatened because my spouse is threatening to commit suicide, that becomes a crime. I'm having a hard time following the logic. I'm not a doctor, but I suspect that someone who's threatening to commit suicide or is being self-destructive needs the help of a doctor or a psychologist. That person doesn't need to be told that they could go to jail for 10 years.

I don't imagine that's your intent, but that's what's written, and I have a problem with that. That's one of the problems I raised initially.

If I understand correctly, my Conservative colleagues agree that this is a totally new bill. I know that my Liberal and NDP colleagues worked on it for several weeks, maybe even months. Personally, I read the new wording this morning, and parts of it bother me.

For example, this part is about an individual threatening to their partner to commit suicide or self-harm, which I understand to be cutting one's skin, self-flagellating, or whatever. From what I understand, if the individual's partner believes that their safety is in danger, the individual could be sent to prison.

I have a hard time understanding the logic here. Can you give me some examples or explain it to me more clearly?

[The Chair, Liberal, Lena Metlege Diab]

Madame Levman, I'll ask you again to please give us some technical support on the questions that have been raised. I think you're about to do that, so please proceed.

[Nathalie Levman]

Certainly, Chair.

In the circumstance that Monsieur Fortin has described, you'd have a person who has threatened suicide or self-harm. Let's say a court has found that this act could reasonably be expected to cause the intimate partner to believe their safety is threatened. That could form part of the pattern of conduct that is the act element of this offence. However, in addition to proving the pattern of conduct, a prosecutor will also have to prove the intent element or recklessness, as I've already described.

It's not technically accurate to say that one act of threatening suicide that implicates the intimate partner's safety would result in a conviction. The offence is more rigorous than that. It requires proof of the accused having engaged in a pattern of conduct, which that could form a part of, and also having the requisite intent element as per proposed subsection 264.01(1).

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

In that case, Ms. Levman, can you give me one example of a situation in which someone who has engaged in the conduct described in proposed subparagraph 264.01(2)(c)(vii), namely “threatening to die by suicide or to self-harm”, could be convicted of an offence under that section?

[Nathalie Levman]

I'm not a prosecutor, but I do understand the components of this offence. What we heard during our engagement process was that this was one of many tactics that people who engage in coercive control of their intimate partners engage in. It would be part of a pattern of conduct, let's say, that may involve violent behaviour, sexually coercive behaviour and other forms of coercive conduct that are more subtle—surveilling, monitoring the victim, denying them ways to express themselves through their culture or religion, for example, and so on. It's a pattern that takes place over time.

I'll just make the quick comment that this is very modern criminal law. This committee has already heard extensive testimony about the criminal law being traditionally incident-based. This is trying to go beyond that. It's trying to capture patterns of conduct, or conduct that takes place over time. Because of that, it's been inspired by the other offence in the Criminal Code that attempts to target conduct that takes place over time. That is the human trafficking offence. There, we also see lots of different coercive-type conduct being engaged in by an accused in order to exploit a more vulnerable person.

It's similar in that regard, but we are looking at a pattern of conduct, which means you cannot ground a conviction on one incident. It's not possible to do so, given the way this offence is constructed.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

Monsieur Fortin.

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

If I understand correctly, Ms. Levman, a person who tells their spouse that they want to commit suicide or, for some reason that I can't even imagine, do something like slash their wrists or scar themselves, could in no case be convicted of controlling or coercive behaviour. Is that correct?

[Nathalie Levman]

That in and of itself would not be enough to ground a conviction, no.

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

So why was subparagraph 264.01(2)(c)(vii) included if it can't ground a conviction?

[Nathalie Levman]

Like all the other examples of conduct in that list in the paragraphs, they are the types of conduct that, through Justice Canada's engagement process, we heard are usually engaged in by people who seek to coercively control their intimate partner. The offence is constructed carefully to avoid criminal conviction for the commission of any of that type of conduct.

Also, the safety test would have to be met before it could even be considered prohibited conduct for the purposes of the offence. Then you need more than one incident in order to establish a pattern of conduct, according to the act element of the offence. The intent element as well would need to be proven.

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

Madam Chair, I have a problem with that. We all understand that we're creating new law. But this is not a civil matter. We're talking about convicting someone of an indictable offence and sending them to prison.

I was prepared to vote in favour of Bill C‑332. We've heard a lot of testimony about individuals who try to wrongly control their partner. I find these behaviours appalling, and I think they should be punished by the Criminal Code.

That said, the list being introduced here is different from what was in Bill C‑332. I feel like I'm repeating a bit of what our colleague, Mr. Moore, was saying earlier, and I don't want to speak for no reason. However, paragraph 264.01(2)(c) says “engaging in any other conduct — including conduct listed in any of the following subparagraphs”. Those provisions will be used to determine whether a situation exists that must be penalized. The list that follows this provision is so long that an individual who tells their partner that they'll commit suicide if the partner doesn't go on vacation with them, for example, could be charged with attempting to control that person and be sent to prison.

We've already heard from a number of expert witnesses, but if they came back to talk to us about this element, they might be able to convince me. I'm among those who are convinced that controlling and coercive behaviour is senseless and is a problem that needs to be addressed. Perhaps everyone here is convinced of that. However, I'm very concerned about the list in this new wording. We have a very important decision to make here. We're changing criminal law and creating new offences. Our role is to legislate. In that sense, we must be prudent, but I feel that we really aren't being prudent.

I believe in the good faith of today's witnesses and of the government, of course, but I'm very concerned when I see this kind of wording and I don't have the opportunity to find out more from the experts who work with victims of controlling and coercive behaviour and with perpetrators every day. We have to look at both sides. We have be prudent and diligent. Right now, I feel we're rushing things, and I cannot condone that.

Nobody has been able to give me a single example in which a person could be convicted of controlling and coercive behaviour because they threatened to commit suicide or self-harm.

If no such example comes to mind as we're creating this legislation, then what will the courts end up doing with it? It's not reasonable for us to proceed like this.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Moore, go ahead.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

To expand on that a bit, here's the problem.

Madam Levman, you've mentioned that the government heard about this particular aspect. I can tell you that I don't remember hearing that in the witness testimony we heard. I'm not doubting that you heard it. Maybe someone did. Maybe someone at the table can correct me on whether this became a theme from the witness testimony we had on Bill C-332, but it's introducing an element to us.

I want to just clarify one point. You mentioned, Ms. Levman, that this would have to be a pattern. There's nothing in my reading of this legislation that suggests the pattern of behaviour has to include multiples of these elements.

Your testimony was that a pattern is at least twice, so my reading of this bill—and I'm going to call it a new bill, Bill G-2—is that “Everyone commits an offence who engages in a pattern”—which means two or more—“of conduct referred to in subsection (2)” and “being reckless as to whether that pattern could cause their intimate partner to believe that the intimate partner’s safety is threatened” and a bunch of terms in there that could be broadly interpreted.... If we then go to the items of conduct referred to in proposed subsection 264.01(2), they include, if we go all the way down, proposed subparagraph 264.01(2)(c)(vii), for example. I'll use this one because it's the one Mr. Fortin was talking about, but I could use others from this list. It reads, “threatening to die by suicide”.

That tells me that if someone threatens twice to kill themselves, maybe because they're in a fight with their spouse or intimate partner and they're arguing back and forth over something—it could be anything.... Let's say the person says, “Well, I'm just going to kill myself and end this”, and then a couple of weeks later there's a fight over something different and they say it again. The testimony we've heard today is that by doing twice, it's a pattern. It's a pattern of non-criminal behaviour, because that's what we're talking about here. We're not talking about criminal behaviour. We're talking about non-criminal behaviour that, by virtue of it being a pattern and falling under this legislation, is now criminal behaviour because this is in the Criminal Code. Through their doing these non-criminal things in a pattern, we, with this bill, are criminalizing them, which means we have to be very careful.

In the Criminal Code, there are criminal thresholds around evidence and the things we choose to include, as Canadians, as criminal. There are then a bunch of items in here that, per your testimony, are not criminal. Threatening to kill yourself is not criminal. By including it in this list, we are criminalizing it in the context of coercive control. We're making that decision without hearing any testimony about it.

You mentioned that the scenario I described would not be criminal because it would have to involve some of the others, but to be clear, my reading of this is that nowhere in the legislation does it say you have to do any multiples of these things. It could be the same offence, for example, around finances, access to health services or threatening to die by suicide. The same offence—a pattern of that—could be captured under controlling behaviour. We don't have to have multiples.

Is that correct? Nowhere in the bill does it say it has to be more than one of these things.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Moore.

Madame Levman.

[Nathalie Levman]

If we look at proposed subsection 264.01(2), which is the definition of a pattern of conduct, it says, “A pattern of conduct consists of any combination, or any repeated instances, of any of the following acts”, and then it lists the three categories of different conduct.

Yes, it is possible to establish coercive control based on numerous incidents of conduct that are enumerated in proposed paragraph 264.01(2)(c), provided that they could reasonably be expected to cause the victim to believe their safety is threatened, which is consistent with what I understand to be the overall objective of a coercive control offence. It is to ensure that coercive and controlling behaviour can be the subject of a charge and a conviction, regardless of whether other criminal offences are also committed.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for that.

I guess the question we have to ask ourselves—and I'm glad Mr. Fortin raised this particular one—is this: Should we as a committee, based on just this meeting today—not based on Bill C-332 and not based any of the witnesses who appeared before us at committee—make the conscious decision that in Canada, from now on, if you threaten multiple times to kill yourself, that's a criminal offence? That's what we're doing here.

It could be that we'd hear enough testimony from different groups that would lead us to the conclusion that, yes, there is a way this could be incorporated. The problem is that we around this table have not heard that. I do think, by a plain reading of this legislation, that this part and some of the others are quite troubling. Again, this is not a reflection on our witnesses. It's more directed to the government. The whole approach of introducing a bill that we haven't had....

I heard what Mr. Garrison said. Yes, we heard general testimony about Bill C-332, but we have not had the chance to ask anyone about any of these specific provisions. For example, I would like to have witnesses here to ask them about each one of the itemized new non-criminal offences that through this bill would now become criminal.

I'm just raising that last point to reiterate that, at this point, unless there are people here who will enlighten us through more testimony on each one of these provisions, I will have to vote against G-2 and support the language we've already considered and already had witness testimony on, which is in proposed subsection 264.01(1) of Bill C-332. I did not hear witnesses say that we had that wrong and that this bill won't be helpful. We heard some testimony that said there are models that itemize some things, but threatening to die by suicide was never suggested at this committee. Words matter. By the testimony of our witnesses here today, this is criminalizing non-criminal behaviour in the context of coercive control. Obviously, we have to be very careful about what gets added to that list.

This is just one thing that's been flagged. I don't see how we could be ready to proceed with G-2 on that basis alone.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Fortin, the floor is yours.

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

Thank you, Madam Chair.

I have another question. When I look at amendment G‑2, I see that proposed subsection 264.01(5), which is the last proposed subsection in this amendment, says, “For the purposes of this section, and for greater certainty, a person's safety includes their psychological safety.” I'd like to know what that means.

Personally, I have a number of friends who suffer from anxiety. Nowadays, it seems that many people suffer from anxiety, for reasons I don't know. I have no expertise in analyzing how harmful it is or not. That said, there are people who are anxious for all kinds of reasons, which may be considered invalid by some people, but very valid by others. It's extremely subjective.

When we say that we are also aiming for the psychological safety of individuals, does that mean that each spouse would become responsible for the psychological safety of their partner? I guess that's not what you were getting at. I haven't had time to think about this aspect in more detail. As I was saying earlier, we only read the amendment this morning.

Explain to me how far you wanted to go in terms of psychological safety. What are we aiming for? What will the consequences be if a spouse has psychological problems? Goodness knows that the notion of psychological safety is quite vague and varies from one individual to another, since everyone has different limits.

I would like to hear your explanations.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Garrison.

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

On a point of order, Madam Chair, I believe Mr. Fortin has a subamendment on the floor.

[The Chair, Liberal, Lena Metlege Diab]

He does.