Justice Committee on March 18th, 2024

[The Chair, Liberal, Lena Metlege Diab]

Good morning, colleagues.

I call the meeting to order.

Welcome to meeting number 98 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). As you know, today's meeting is to go through clause-by-clause.

Members are attending in person or virtually. I believe we have no witnesses outside of members. Of course, I'll introduce the people in front of us in a moment.

I think members by now know what the rules are if they're attending virtually. I think we're okay with that. There are no witnesses attending virtually.

I want to welcome the officials who are assisting us today for our clause-by-clause study of Bill C-332.

We welcome senior counsel Nathalie Levman and counsel Ellen Wiltsie‑Brown, from the Criminal Law Policy Section of the Department of Justice.

May I extend a welcome to both of you.

Thank you very much for being with us. We will count on you for any technical information we require on any of the amendments, or for anything that any member wants clarified or that I, as the chair, wish to have clarified.

I'm ready to start with clause-by-clause, but I want to give a few instructions first, as I'm mandated, I think, to do.

As you all know, this is an examination of all the clauses in the order in which they appear in the bill. I will call each clause successively, and each clause is subject to debate and a vote. If there are amendments to the clause in question, I will recognize the member proposing it, who may explain it. The amendment will then be open for debate. When no further members wish to intervene, the amendment will be voted on.

Amendments will be considered in the order in which they appear in the bill or in the package that each member received from the clerk. Members should note that amendments must be submitted in writing to the clerk of the committee. The chair will go slowly to allow all members to follow the proceedings properly. Amendments have been given a number in the top right corner to indicate which party submitted them. Once an amendment is moved, unanimous consent is required in order to withdraw it.

During debate on an amendment, members are permitted to move subamendments. These subamendments must be submitted in writing. They do not require the approval of the mover of the amendment. Only one subamendment may be considered at a time, and that subamendment cannot be amended. When a subamendment is moved to an amendment, it is voted on first. Then another subamendment may be moved, or the committee may consider the main amendment and vote on it.

Once every clause has been voted on, the committee will consider and vote on the title and then on the bill itself. If amendments are adopted, an order to reprint the bill is required so that the House has a proper copy for use at report stage. Finally, the committee will have to order the chair to report the bill to the House. That report will contain only the text of any adopted amendments, as well as an indication of any deleted clauses.

I will move to clause-by-clause consideration.

Before the chair—that's me—calls clause 1, there's an amendment on page 1 of the package seeking to create a new clause 0.1.

Mr. Maloney, would you like to move G-1?

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Yes, I would, Madam Chair. Thank you.

This is a straightforward amendment that seeks to amend the Criminal Code to require that anybody convicted under this new offence be subject to their name being added to the prohibition order when the offender is convicted with respect to a gun prohibition.

[The Chair, Liberal, Lena Metlege Diab]

Does anyone have anything to say on that?

Shall G‑1 carry?

(Amendment agreed to [See Minutes of Proceedings])

(On clause 1)

We'll go to clause 1 and G‑2.

Mr. Maloney.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Madam Chair, I would like to move this amendment. It's a substantive amendment, and I believe it reflects a lot of the evidence we have heard before us over the course of the discussion in the last few weeks and reflects the consultations that had taken place in the process leading up to the discussion of this piece of legislation.

It reflects, for example, what we've been referring to as the Scottish approach. It changes the nature of the offence. It focuses more on the accused. It addresses concerns that were raised throughout our discussion that might, as previously proposed, result in victims reliving some of these horrors they had been put through. I think the amendment is quite comprehensive, changes some of the terminology and captures much of the language that we all, I believe, supported during the course of our debate.

I will leave it there, Madam Chair, and look forward to hearing from others.

[The Chair, Liberal, Lena Metlege Diab]

Before we continue, I have to inform you that if G‑2 is adopted, BQ‑1, BQ‑2, BQ‑3, LIB-1, BQ‑4, BQ‑5, CPC‑1 and BQ‑6 cannot be moved due to a line conflict.

As House of Commons Procedure and Practice, third edition, states on page 769:

Amendments must be proposed following the order of the text to be amended. Once a line of a clause has been amended by the committee, it cannot be further amended by a subsequent amendment as a given line may be amended only once.

I now have a list of speakers. Before we go to the list of speakers, I'm personally going to ask the staff who are here to support us to provide us a bit of a technical explanation.

[Nathalie Levman, Senior Counsel, Criminal Law Policy Section, Department of Justice]

Thank you, Chair. I'd be very pleased to give a technical overview of the various components of the proposed provisions in this amendment.

This proposed coercive control offence would prohibit engaging in “a pattern of conduct”, which is the act element of the offence, with the intent to cause an accused's intimate partner to believe their physical or psychological safety is threatened, or being reckless as to whether their pattern of conduct could have this effect. This is the fault or mental element of the offence.

In respect of the mental element in proposed subsection 264.01(1), a person who intends to cause their intimate partner to believe their safety is threatened either desires that outcome or is virtually certain that their conduct will result in that outcome. A person who is reckless as to whether their conduct could cause their intimate partner to believe their safety is threatened is aware that their conduct is likely to have that result and proceeds to engage in the conduct despite that risk.

This approach is closely modelled on the mental element in Scotland's domestic abuse offence, but uses terminology that has meaning in Canadian criminal law. For example, “intimate partner” is defined in section 2 of the Criminal Code as including “current or former spouse, common-law partner and dating partner”. “Pattern” has been interpreted in the context of the dangerous offender provisions to apply where conduct is engaged in at least twice. “Safety” has been interpreted in the criminal harassment and human trafficking context to include psychological safety.

I'll now move to the act element of the offence in proposed subsection 264.01(2). The act element is, as I've said, engaging in a pattern of conduct. That is defined as “any combination, or any repeated instances” of any of three types of conduct—first, violence, including attempted and threatened violence toward the intimate partner, the intimate partner's child, their animal or anyone known to them; second, “coercing or attempting to coerce the intimate partner to engage in sexual activity”; and third, conduct that could in all the circumstances reasonably be expected to cause the intimate partner to believe their physical or psychological safety is threatened.

Notably, the first two categories of conduct constitute criminal conduct in and of themselves. The last category encompasses subtler forms of conduct that are generally non-criminal behaviours in other contexts.

The definition of this third category of conduct is informed by the Criminal Code's definition of exploitation for the purposes of the human trafficking offences. It uses an objective test and relies on the concept of physical and psychological safety. Appellate jurisprudence interpreting that definition clarifies that the test is objective, meaning that the focus is on whether the conduct could reasonably be expected to have the prohibited consequence, not on whether it actually had that consequence. In particular, proof that the victim actually feared for their physical or psychological safety is not required to meet the test.

A non-exhaustive list of examples of this third category of conduct is provided to assist criminal justice practitioners in identifying conduct that could reasonably be expected to cause a complainant to believe their safety is threatened, including more subtle forms. This list is informed by relevant legislation in other jurisdictions, as well as input from Justice Canada's 2023 engagement process, including the lived experiences of survivors.

The list highlights that abusers may engage in subtle forms of abuse that do not constitute criminal offences in and of themselves and that may not be readily recognizable as coercive, particularly if considered out of context. This approach is also informed by the coercive control offences that have been enacted in Scotland, New South Wales and Queensland.

Clear act elements may also assist with interpreting and applying the offence. For example, courts may infer the offence's mental element from evidence that the accused repeatedly engaged in the prohibited conduct.

Moving now to the interpretive provision in proposed subsection 264.01(3), this provision directs consideration of “the nature of the relationship” between the accused and the complainant, including whether the complainant was in a “position of vulnerability in relation to the accused.”

This factor is to be considered when determining whether any conduct could reasonably be expected to cause the intimate partner to believe their safety is threatened. The purpose of this provision is to assist in minimizing opportunities for the offence to be weaponized against the victim by requiring consideration of the whole context of the offending and, in particular, any power imbalance between the accused and their intimate partner, which is generally present in relationships marked by coercive control. Situating the alleged conduct in the overall context of the relationship at issue could assist in identifying the true aggressor, including in cases involving mutual intimate partner violence allegations.

Turning now to the penalty provision in proposed subsection 264.01(4), the proposed penalty is a maximum of 10 years on indictment, which would treat the offence the same way as criminal harassment and would ensure its eligibility for dangerous offender and long-term offender designations.

Finally, the “for greater certainty” clause in proposed subsection 264.01(5) clarifies that safety includes “psychological safety”, which has the same meaning it has in the context of the Criminal Code's criminal harassment and human trafficking provisions.

I hope that assists the committee. I will be happy to try to answer any of your questions.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much. That explanation is extremely helpful and valuable as we continue to do clause-by-clause. I hope it has benefited members as well.

I have a list of speakers, starting with Ms. Gladu. Then it's Mr. Caputo, Monsieur Fortin, Mr. Moore and Mr. Garrison.

Ms. Gladu, we'll start with you.

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

Thank you, Chair.

You'll recall that when we were going through testimony, I wasn't opposed to having a list. In fact, I think a list of what constitutes coercive control would be very helpful in the training of police officers and justices. I don't really like this list compared to the list England has, because I think there are some problems in this one.

Let's think about the limit on medications. I was thinking of some of my family members who are bipolar, for example. Sometimes they think they're feeling well and they don't want to take their medication, and their partner basically forces them to take their medication; otherwise, they escalate into a bad place. That's one of the things that are considered coercive control in this list.

I would rather not have the list in there. I thought originally that having a list would mean more convictions, but we heard testimony that in England, 6% of cases that were brought forward saw prosecution, and out of the 700 that were prosecuted, only 3% saw conviction. I'm not sure that this is going to actually fix the problem.

I think there might be a couple of things on the list that are problematic, so I'd prefer not to have it.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Ms. Gladu.

I would like to receive a response from our guests, who are here to help us, specifically on what Ms. Gladu mentioned.

[Nathalie Levman]

It's important to remember that none of the conduct listed in that list can be considered prohibited conduct for the purposes of the offence unless it is considered, in all circumstances, to reasonably be expected to cause the intimate partner to believe their physical or psychological safety is threatened. That is the legal test. That conduct is illustrative of types of conduct that could meet that test and that we know have met that test in real lived experiences, but the test would need to be met before it could be considered prohibited conduct for the purposes of the offence.

[The Chair, Liberal, Lena Metlege Diab]

Ms. Gladu, are you okay with that? Do you have anything to add to that?

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

No. You can go to Mr. Caputo.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Caputo, go ahead, please.

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

Thank you to our subject matter experts here. I appreciate what you said. I hope I don't paraphrase incorrectly, but what I took you to say is that the legal test requires the outcome—it's the intent to do this or it's reasonable that this is going to follow—as in the wording in the act, that a person would fear.... Again, I'm paraphrasing.

My concern, though, is this. Obviously, that's when we get to the point of conviction. At that point you're before the judge or jury, as the case may be. When we're looking at things like controlling physical appearance or access to health services or medication, my concern is that perhaps we are muddying the waters about what this entails. Obviously, none of us want to see coercive behaviour and any behaviour that's isolating.

Like Ms. Gladu, I have some issues, especially on the medication end or when a person expresses spiritual beliefs. This is something couples are often going to discuss. At what threshold or point does that bleed into criminal behaviour? I understand the test that you've enunciated, but that line is less clear for me. I'm not looking for an answer from the experts. I'm just intervening with some concerns.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Caputo.

I personally would like to know if you have anything you can share with the committee and the public at large, who are listening and have a stake in this, on that exact point.

[Nathalie Levman]

As I said in relation to the other question, none of that conduct can be prohibited conduct or considered coercive conduct for the purposes of this offence unless it meets the safety test. It has to be considered to be reasonably expected to cause the intimate partner to believe their physical or psychological safety is threatened. However, in addition to that, we have to remember there is a mental element that also needs to be proven, which is either intent to cause the intimate partner to believe their safety would be threatened or being reckless as to whether that would ensue from their conduct.

There are a lot of protections built in to ensure that the list of conduct is truly just illustrative and based on the lived experiences of those who have gone through this or are being subjected to this horrific crime—or soon-to-be crime, perhaps, as it's up to you to decide that. It's very carefully crafted to ensure that only the person who is holding the power in that relationship, not the vulnerable person, would be captured by it through both the intent element and the way this third category of conduct is defined with respect to the legal test. It has, by the way, a lot of appellate jurisprudence interpreting it, so we know what it means, at least in the context of human trafficking, which is an overlapping type of crime.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Mr. Caputo, please go ahead.

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

Thank you. That's very helpful.

Just so I'm really clear here, let's take proposed subsection 264.01(6) as an example. A person must cause their intimate partner to believe that their partner's safety is threatened, or they must be reckless to the belief that their safety is threatened, if they engage in conduct that controls the intimate partner's expression, thoughts, opinions or religious or spiritual beliefs. The connection there is that the victim in this case has to feel a threat to their personal safety that the accused either intends or is reckless to, based on how the person is expressing their spiritual beliefs. Do I have that right?

[Nathalie Levman]

I think you first need to go to the legal test that's in the third category of conduct, which is whether or not the conduct could reasonably be expected to cause the intimate partner to believe their safety is threatened. The first analysis that a court would need to struggle with is the way in which that particular accused is seeking to control those forms of expression. Could that reasonably be expected to cause the intimate partner to believe their safety is threatened?

In addition to that, the intent element or the mental element would also require proof. That could be inferred from multiple examples of prohibited conduct, including, for example, if the accused engaged in violent conduct, sexually coercive conduct or some conduct from the third category, which is any conduct that could reasonably be expected to cause the intimate partner to believe their safety is threatened.

These are just examples of different ways, as we've seen in the literature and the research, that coercive controllers have sought to control their victims. This has to be read in the context of the overall offence, and you have to remember that the legal test will require proof. It's an objective one, so it's based on what a reasonable person would think in that particular context. Scotland, New South Wales and Queensland also ask for that analysis.

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

Thank you.

I have one last follow-up question; I apologize. This is very helpful. You're being very clear here.

The first element that would have to be proven beyond a reasonable doubt is.... It's an objective test, not a modified objective test. Is that correct?

[Nathalie Levman]

Some may say that you're also supposed to consider all of the circumstances of the offending, which does require an analysis of that particular context. The interpretive provision helps with that. It tells the criminal justice practitioner who's looking at that situation to look at the whole context of the offending to try to identify where a power imbalance is and where a position of vulnerability is.

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

We may actually be looking at this in part through the victim's eyes objectively, and then there's a requirement of proof of intent or recklessness.

I'm sorry it took me so long to get to that.

[Nathalie Levman]

Yes, you are correct.

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

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Caputo. Your questions are very helpful.

Mr. Fortin, you have the floor.