Evidence of meeting #98 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
11:55 a.m.
Conservative
Marilyn Gladu Conservative Sarnia—Lambton, ON
Yes, I just want to say that I agree with putting that in there.
11:55 a.m.
Liberal
The Chair Liberal Lena Metlege Diab
We do for the subamendment he just put forth. Once we deal with the subamendment, you're the first one on the list on the amendment. I now have to deal with the subamendment.
Can I ask our witnesses if they have any explanatory comments to share with us on adding “without reasonable cause”?
11:55 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
I would just note, from a technical perspective—
11:55 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
—that the way the amendments are drafted now imports the reasonable analysis to the third category of conduct only, the one that is largely non-criminal in nature. Putting “without reasonable cause” in the chapeau of proposed subsection 264.01(1) would allow that analysis to also apply to conduct that is criminal, as defined in proposed paragraphs 264.01(2)(a) and 264.01(2)(b) in G-2, so violent and sexually coercive conduct.
That's my comment from a technical perspective.
11:55 a.m.
Liberal
The Chair Liberal Lena Metlege Diab
Are you saying that somebody can commit something sexually coercive—whatever word you used—if they commit the offence without reasonable cause? I'm sorry. Can you explain again what you just said?
11:55 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
I'm not sure that it would be successful, but it opens the door to that argument. Engaging in a pattern of conduct without reasonable cause where the pattern of conduct is defined to include sexually coercive conduct and violent conduct opens the door to arguments that engaging in that conduct could be done with reasonable cause.
11:55 a.m.
Conservative
Marilyn Gladu Conservative Sarnia—Lambton, ON
Could you give us an example of where somebody could justify that they had reasonable cause to commit a violent or sexually assaulting act?
11:55 a.m.
Liberal
The Chair Liberal Lena Metlege Diab
I don't know the answer to that. I guess we're trying to get a technical explanation.
Is that a possibility?
11:55 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
As per my previous remarks, I think it would be highly unlikely to succeed, but it opens the door to that type of argument. That is why the reasonableness test is built in to the third category of conduct, which tries to identify and target more subtle forms of coercive conduct that aren't necessary criminal offences in and of themselves. That's why you have the objective reasonable test there to help the court and other criminal justice practitioners identify what types of conduct could amount to conduct that would reasonably be expected to cause the intimate partner to believe their safety is threatened.
March 18th, 2024 / 11:55 a.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
Madam Chair, the more I listen, the more frustrating this whole process is, and I'll tell you why.
G-2 is not an amendment to this bill. G-2 is an entirely new bill.
Backing up a bit, in April 2021, this committee agreed that the government should act on controlling and coercive behaviour, including in the Criminal Code. MP Collins, an NDP member, and Mr. Garrison brought forward Bill C-332. We have had three days of witness testimony on Bill C-332. Members of this committee took hours of time to develop amendments to Bill C-332, including us. We have an amendment to increase from two years to five years the time period whereby someone could reflect upon a relationship and achieve a conviction under this legislation. That was based on testimony we heard on Bill C-332.
We have not heard one moment of testimony on G-2. We haven't had the ability to have a witness appear and say, “I agree with clauses 1, 2, 3 and 4; I don't agree with clause 5.” G-2 has never been put to them.
When you look at Bill C-332 and G-2, the amendment is longer than the bill itself. The bill is fewer than three pages and the amendment is three full pages. Mr. Fortin is, rightly, trying to reformulate amendments on the fly, as all of us are, based on what is before us. That's not the way we're supposed to proceed. We have one amendment that wipes out all of our other amendments and wipes out all the consideration we heard on this bill.
For my part, I will be voting against G-2. I'm going to vote in favour of Mr. Fortin's amendment once we figure out that it should only apply to non-criminal actions. It's taking us forever to get there because of how this whole process is unfolding. I think that if the government wanted to bring in their own bill, they should have brought it in. Then we could have heard expert witnesses on that bill instead of bringing in their bill through an amendment to a private member's bill that we've spent all this time considering.
For example, with amendment G-2, based on the testimony I'm hearing from our witnesses—and this is not a reflection at all on our witnesses; they're here to present what the government amendment is and are doing a fantastic job of it—a pattern of behaviour or conduct can be two times. Based on the testimony we've heard, a number of items in this are non-criminal in nature. My interpretation of this is that if someone in a relationship does something twice that is non-criminal, if proof of fear is not required and if that person is the vulnerable individual in a relationship, then we can have criminal action.
It's so easy to contemplate scenarios under here where the threat of criminal action or a criminal charge could be brought. I think Ms. Gladu mentioned one. I see this all the time in relationships. One person says, “I'm not taking my medicine,” and the other says, “The doctor prescribed you this heart medicine; we're not leaving the house until you take your medicine.” The first person says, “Well, I'm tired of this. I'm tired of the way this has been going. I'm not taking my heart medicine.” The other person says, “Well, we're not going anywhere until you take your pills.” If you think that doesn't happen a million times over in Canada, it does. The evidence we have here might be that this wouldn't be captured, but that's exactly what Mr. Fortin's amendment is trying to do: to say that's reasonable.
We understand what we're trying to get to. We're trying to get to the person who says, “I won't give you your medicine unless you do something.” That's coercive. That's threatening. We heard testimony today that proof of fear is not required.
That same person could then say, “You know what? If you keep pushing me to take my heart medicine, I'm going to end it all. I'm going to jump in front of a bus. I'm going to threaten suicide.” That's prescribed in here too. Is that a criminal act? Who's the vulnerable person? Is it the one who needs his heart medicine and is threatening suicide? Are they both vulnerable?
I raise that as just one real-life scenario that we were unable to hear any expert testimony on. There was a tremendous number of really great witnesses who came forward on Bill C-332, but they didn't come forward on G-2. Normally, at this committee, amendments are very direct and focused, but this is a complete rewrite.
I'll be opposing G-2 in favour of the language that was less prescriptive. We heard testimony about whether to be more prescriptive and use examples or to be less prescriptive. We have language in here and have a bill that are the result of a study that this committee did and unanimously passed in 2021.
I applaud any effort to improve the bill, but to ask us right now, on the fly, to come up with amendments to a totally rewritten bill that we've heard no testimony on...I reject it. Our committee should not proceed in this fashion.
It's for those reasons that I will be opposing G-2 in favour of the current reading of Bill C-332. That will further enable us to have some of the amendments that are focused on Bill C-332 considered. According to what you've said, Madam Chair, if G-2 passes, then most of our BQ, Liberal and Conservative amendments go out the window.
At this point in the meeting, I thought we'd be done. I really did. Based on this bill and the support for Bill C-332, I thought we'd be done, but in order to do our job, we need to keep going the way we're going and parse out each one of these elements.
I'm going to be voting against G-2. I would urge my colleagues around the table to do that so we can get on with our consideration of Bill C-332.
If the government wants to bring in a new bill on coercive and controlling behaviour later, it is welcome to do that. It's had three years to do that. At this moment in this committee, when we have less than an hour left, this isn't the time for us to draft a bill, which is what we're doing right now. We're drafting a bill out of thin air.
12:05 p.m.
Liberal
The Chair Liberal Lena Metlege Diab
I'll save my comments and questions until we hear from everyone else.
Mr. Garrison.
12:05 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Madam Chair.
Some quite general things were stated there. I will get to Mr. Fortin's subamendment, but I think, with all due respect, they mis-characterize what's gone on in this committee. What is in G-2, from my point of view as the original author of the bill and from very quick consultations just now with Ms. Collins, reflects the testimony we heard and reflects the consultations that took place. It's not true that this appeared from nowhere.
There were always two approaches to the bill: to have a more exhaustive list in the bill or to have those things in prosecutorial guidelines. The original bill suggested that they would be in prosecutorial guidelines, not in the bill. We heard testimony on that. It's not that we never heard about this.
I do not believe G-2 is a complete rewrite of the bill. I believe it addresses many of the things we heard in consultations and in testimony before the committee, in particular for the survivors of coercive control. I know we can all imagine scenarios, but we have coercive control being used by male partners against their female partners very extensively in this country. It is almost always, in cases of femicide, the precursor to femicide.
It's a crisis that's going on, and we've been dealing with it. I made my first attempts to bring this to the committee's attention four years ago. However, we knew the amendment package was coming, and I believe we've had time to look at it.
I think this package does some important things. There were concerns raised over the amendment about whether it should be two years after or five years after. This amendment goes with the word “former”, which would include after five years if a judge thinks that's appropriate, so it has addressed the concern over that amendment.
I could go on with a number of others. I think there are two really important improvements here. One is the test of what someone would reasonably believe. That's something we heard from survivors and we heard from other experts. We've also had, in the intervening three-year period, the benefit of experience in other jurisdictions, which this bill reflects.
The final one, which to me is the most important, is in G-2's new proposed subsection 264.01(3). It introduces the vulnerability clause, which should help address the very serious concern that many had that this bill could be used against the victims of coercive control by a controlling partner. I think the vulnerability test that's introduced here largely helps answer that question.
When it comes to the specific subamendment by Monsieur Fortin, I think it has an inadvertent consequence, which would be to change the arguments in the initial cases of coercive control to be about whether criminal acts were reasonable or not. I don't think that's a door we should open in this committee. I accept the testimony of our experts that this bill does cover reasonableness in two other places and narrowly applies that to the third category and not to the criminal acts.
I will be opposing Monsieur Fortin's subamendment and urging us to move forward. I reject the argument that this is a completely new bill and that it came from nowhere. It came from consultations and the testimony we heard before this committee. I believe it's a better version, and I believe it will more effectively address the concerns of the survivors we heard before this committee.
Thank you.
12:10 p.m.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Thank you for your testimony. It was very clear and helpful. However, I have two questions.
First of all, related to proposed paragraphs 264.01(2)(a) and (b), the intent or mens rea section, I think you were saying this wording does not require proof of actual victim fear as an objective test. I accept that on face value, but then I look at proposed paragraph 264.01(2)(c) on the next page, in which you use the wording “could reasonably be expected to cause the intimate partner to believe”. What's the difference? Why are you using the phrase “could reasonably be expected to cause the intimate partner to believe” in proposed paragraph 264.01(2)(c), but not also in proposed paragraphs 264.01(2)(a) and (b)? That's my first question, and I'll just throw out my second question.
Following up on what Mr. Moore was saying about having this list of seven items under proposed paragraph 264.01(2)(c), my fear is that, when you draft a list, maybe you're missing something. Maybe instead of seven there should have been eight, nine or 10 examples, because sometimes by including a list you're limiting the scope of the bill.
This came up in a study earlier this session, in October, on Bill S-12, the sex offender registry. Dr. Roebuck, the federal ombudsman for victims of crime, and Professor Benedet were concerned that judges were misunderstanding sexual offences, and were worried about rape myths creeping in. They said that Parliament could respond by setting out a list of factors for judges to consider. We put forward a motion to that effect, and Mr. Maloney had this to say:
I remember the evidence because I think I was the one who actually asked the question, but in my experience, the more you include, the more you exclude, because crafty lawyers...will see a list and then argue that it's exhaustive.
That's a concern. I thought it was a good comment at the time. He almost convinced me to vote against our own motion. He can comment on that if he wants, but that's not the point. As to my question, in taking a look at proposed paragraph 264.01(2)(c), if we take out the words between the hyphens—“including conduct listed in any of the following subparagraphs”—and then exclude all the subparagraphs, have we completely gutted the intent of proposed paragraph 264.01(2)(c), or is it still effective?
12:10 p.m.
Liberal
The Chair Liberal Lena Metlege Diab
Thank you, Mr. Van Popta, for the two questions.
I'll now ask Madam Levman to please comment on those from a technical perspective.
12:10 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Proposed paragraph 264.01(2)(c) is obviously creating a non-exhaustive list, and that's been informed by what we heard during the course of Justice Canada's September-October 2023 engagement, as well as much testimony before this committee. My colleague Ellen can provide the committee with some information on what stakeholders' concerns were and why they felt an illustrative, non-exhaustive list was critically important.
12:10 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
Of the stakeholders who supported or engaged in the “alternative for coercive control” events, one significant concern was implementation by law enforcement and criminal justice practitioners, and including a list in the offence itself would help guide the application but not limit it. It would ask criminal justice practitioners to look at this type of conduct or similar conduct. They also referenced the human trafficking offence, which has such a list and which the Ontario Court of Appeal has since developed further indicators for, so it did not limit it. It has continued to expand as they see new cases and new abuses of vulnerability.
12:15 p.m.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
I will jump in. That sort of answers my question, but my question really is, have we completely gutted proposed paragraph 264.01(2)(c) if we exclude the list, just get rid of it altogether, including the words “including conduct listed in any of the following subparagraphs”?
12:15 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
What we were trying to imply—and I'll state it directly now— is that if you were to do that, it would be inconsistent with what we've heard from stakeholders, including survivors, who wish to see their lived experiences in the legislation and feel very strongly that criminal justice practitioners need to know what types of conduct, more subtle forms in particular—not the violence and the sexually coercive stuff, but the more subtle forms—should be highlighted in the legislation. If you were to remove that, you would no longer be responding to stakeholder concerns in that regard.
12:15 p.m.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
That's just as we were not responding to Dr. Roebuck's and Professor Benedet's concerns in the previous study.
My first question was why there was a difference in wording between proposed paragraphs 264.01(2)(a) and 264.01(2)(b), and proposed paragraph 264.01(2)(c)—the “could reasonably be expected to” wording. Why not have it in all three paragraphs?