Thank you, Mr. Chair.
The National Association of Women and the Law, or NAWL, is an award-winning organization that advances women's rights through feminist law reform advocacy. The focus of our brief will be on technical amendments to improve Bill C-16. I'll group them under three themes.
The first theme is where the bill may backfire against survivors. If they're not amended, new provisions on coercive control, mandatory minimums and constructive first-degree murder—which is labelled as femicide—will have adverse consequences for survivors of gender-based violence. Since I have very limited time, I'll focus on coercive control.
This offence would cover “controlling or attempting to control the manner in which the intimate partner cares” for children. That's proposed subparagraph 264.01(2)(c)(ii). This needs to be removed. We've seen that family courts have already started labelling survivors of domestic violence as engaging in coercive control, because their attempts to keep themselves and their children safe are seen as controlling or alienating. If this proposed subparagraph is not removed from the offence, abusers will exploit it to threaten survivors with criminalization. That will make it more difficult to leave an abusive situation.
My second theme is “positive developments but with some arbitrary restrictions”. One example is the criminal harassment offence. Under the reformed offence, it will be illegal to willingly cause fear to your intimate partner, among others, if a reasonable person would have been afraid but not if your partner was in fact afraid. When abusers cause fear to their partners or ex-partners, really it's irrelevant whether an imagined reasonable victim would have been afraid, since the abuser is specifically targeting the fears and vulnerabilities of a person they know very well. NAWL urges the committee to define harassing conduct as one that either causes subjective fear or would reasonably be expected to cause fear. As long as the accused willingly causes fear, it does not matter if the victim's fears and phobias are reasonable, as it's not the victim who is on trial.
Further, that the bill recognizes that abusers use violence against animals to control and terrorize victims is a positive development, but the bill then draws an arbitrary distinction based on the ownership relationship with the animal. In criminal harassment, saying “I will kill your dog” is threatening conduct, but saying “I will kill your mother's dog” is not. Where threats to animals are recognized, which is in criminal harassment and coercive control, we recommend changing the language from an animal that is in the care or property of the victim to any animal known to them.
NAWL also supports various measures in the bill that are procedural protections for victims of intimate partner violence, but does not support limiting them to cases of serious offences involving physical violence and threats. This is a little bit ironic in a bill that seeks to recognize coercive control. Throughout the bill in many places are protection measures that are called for in cases of an indictable offence “in the commission of which violence was used, threatened or attempted against an intimate partner”. We recommend replacing this language throughout with “any offence committed against an intimate partner”.
The bill also seeks to increase protections against the use of victims' therapeutic records without applying the same protections to other records that can also be highly sensitive and very private, such as child protection records, personal diaries and sexual assault centre records. All personal records should be treated with the same care such that they are only produced in criminal trials when they contain evidence that can raise a reasonable doubt as to the guilt of the accused.
Third and lastly, NAWL's brief identifies several loopholes that this bill can and should close, including an overly restrictive definition of deepfakes, where abusers just have to make the image non-realistic to escape criminalization. A deepfake set in a bedroom would be criminal, but the same deepfake where you change the background to be an under-the-sea castle is no longer realistic, so it no longer fits the definition of a deepfake. Again, that's an arbitrary distinction, because the harm of the deepfake is not that people may think the victim has done something sexual. The harm is that their sexual integrity is violated.
In our brief, we also point to a dual regime, where some firearms owners who are domestic abusers will lose their firearms, but not if they are police officers. We also point to and suggest closing loopholes regarding the use of sexual history evidence.
I want to point out that both of these proposals and all the other proposals in our brief come with specific drafted proposed amendments. I'm really happy to go through them in more detail in the question and answer period.
Thank you.
