Evidence of meeting #24 for Justice and Human Rights in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-16.
A recording is available from Parliament.
Liberal
Liberal
The Chair Liberal James Maloney
Thank you to all of our witnesses. We appreciate your making the time to be here today and your valuable contribution to this discussion on Bill C-16. I will let you go.
We'll suspend very briefly to prepare for the next panel.
Liberal
The Chair Liberal James Maloney
I call the meeting back to order.
Before we begin, I would like to say a few words on parliamentary privilege in the context of our study of Bill C-16, the protecting victims act, which, as you know, could raise sensitive issues, personal matters or even legal matters involving the witnesses appearing before us.
It is well established in Canadian law that parliamentary proceedings, which includes the deliberations of this committee, are covered by the parliamentary privilege of freedom of speech. This most fundamental and ancient right protects parliamentarians and witnesses appearing before committees for anything said in the course of parliamentary proceedings. Any comments made during today's meeting cannot be used in a legal action against the person who made them or to attack that person's credibility in a court of law.
That said, parliamentary privilege does not apply if the comments are repeated or reproduced outside of this committee's proceedings. Anyone wishing to consult today's proceedings should be directed to the committee's official website.
On that note, we are pleased to be joined by Kendra Cooke, as an individual.
From the Ontario Child Sexual Exploitation Investigators Association, we have Andrew Ullock, board chair, and Lisa Henderson, a member.
From the Raoul Wallenberg Centre for Human Rights, we have Angela Marinos, chief general counsel.
Thank you to all of our witnesses for joining us.
Each individual or group will be given up to five minutes to make opening remarks, and then we will open the floor to questions.
Ms. Cooke, I'll start with you.
Kendra Cooke As an Individual
Good evening, and thank you, Mr. Chair.
I am grateful for the invitation to speak today regarding your study of Bill C-16.
My name is Kendra Cooke, and I am here to reflect my experiences of intimate partner violence and coercive control.
I experienced coercive control throughout my marriage and continue to be subjected to these abuses more than three years post-separation.
Here is a list of just some of the ways I have experienced, and continue to experience, coercive control: dozens of false reports made against me to police, children's aid, health care providers and the children's school; repeatedly urging me to kill myself and offering to give me one of his firearms to do so; isolation from family and friends; limiting my ability to work; stalking and surveillance by my ex and a work colleague of his; abhorrent and harassing communications in person and through the phone, social media and a court-ordered parenting app; disregarding numerous court orders dictating the content and tone of our communications and contact; employing the legal system to perpetuate harms; financial abuses; intimidation through the purchase and display of firearms; psychological and emotional abuse of our children during his parenting time; withholding child support and employee health benefits for the children; warning me that he has befriended a judge who would be presiding over our family court case and threatening that he would gain full custody of our children; weaponizing the justice system against me; involving our children in parental conflict, eroding their sense of safety and well-being; having me criminally charged without providing evidence to police or the Crown attorney; and threatening to kill me, my parents, my current partner and her children.
For years, I sought support to safeguard my family from these abuses and their far-reaching consequences. Unfortunately, all of the child welfare and justice systems I have encountered are woefully ill-equipped to respond to the abuse we are experiencing. I have routinely been told that because there has been no physical violence in the home, there was nothing anyone could do to help me and that self-help would negatively impact my efforts to secure a divorce and custody agreement in family court.
I met the criteria to live in a second-stage residence for women who have experienced violence, qualified for supports through victim services and consistently scored as high risk for spousal assault through B-SAFER, a tool developed by Canada's Department of Justice. Even a court-ordered investigation by the Office of the Children's Lawyer and a subsequent report detailing serious concerns regarding my ex's abusive behaviours have not been enough to end the abuse.
My experience makes it gravely apparent that the professional expertise of social workers and counsellors is not acknowledged within the systems that could actually intervene to create safety and to hold perpetrators to account and that those systems do not operate in a legislative framework that supports victims.
A move to criminalize coercive control must include efforts to educate actors throughout the justice system and across jurisdictions. As stated in the bill, coercive control can only be defined through a pattern of coercive and controlling behaviours experienced over time. Demonstrating these patterns becomes nearly impossible for victims because every part of the justice system is designed to operate in a silo, systematically disregarding evidence and experience that occurs outside of it, not to mention the unreasonable burden of proving an intent to harm in the current writing of this bill.
We must recognize the authority of professionals working to support victims to affirm experiences of coercive control when police and courts are investigating such crimes. It may also be imperative to adjust other laws and interventions to align with the language in Bill C-16, particularly that “a person's safety includes their psychological safety.”
For example, in order to be granted a peace bond, the applicant must have had a prior physical assault. I learned this the hard way when I applied for a peace bond; I was advised by the Crown attorney that current legislation does not support issuance of such, given the lack of physical harm I had experienced. Unsurprisingly, angered by my efforts to seek a peace bond, my ex retaliated by having me arrested and charged for a crime I did not commit without providing any evidence. This experience was traumatic and violating, and it continues to limit my ability to contribute to my community and provide for my family.
In closing, a collaborative approach across systems, along with public education, will be necessary to achieve any positive outcome from the criminalization of coercive control. I urge this committee to carefully consider the work of the Standing Committee on the Status of Women and its report on coercive control in Canada in addition to the witness testimony you hear as you continue the crucial work of studying Bill C-16 and its potential implications in the lives of victims.
Thank you.
Liberal
Angela Marinos Chief General Counsel, Raoul Wallenberg Centre for Human Rights
Good morning, members of the committee. Thank you for inviting me to contribute to the important work you are doing on Bill C‑16, the Protecting Victims Act.
My name is Angela Marinos; I'm the chief legal counsel for the Raoul Wallenberg Centre for Human Rights, founded by the Honourable Irwin Cotler.
I joined the Wallenberg Centre a couple of years ago after almost 23 years of litigating at the Department of Justice, where I represented the Attorney General of Canada and various federal ministers across a number of governments, across party lines and across all levels of court. As such, I'm well familiar with defending federal decisions, policies and the law as it is, but today, I'm here to advocate for the law as it should be.
I believe that my experience appearing before the Supreme Court of Canada on behalf of the Raoul Wallenberg Centre on issues addressed by this bill may inform your deliberations. I hope so.
Our brief offers five main proposals, but in the time I have, I want to focus on three: independent legal representation; providing a holistic trauma-informed approach to our understanding of exploitation in the trafficking context; and adding human trafficking and sexual services offences to the protective screening mechanism at section 276 of the Criminal Code.
Before I elaborate on these issues, I want to commend the broad reform that's been proposed with Bill C-16. At the same time, we believe this bill can be strengthened in a handful of areas.
The biggest transformational change to this bill would be providing independent legal representation for victims and survivors of sexual violence and sex trafficking from the moment they engage with the legal system when they give their statement to the police to appearing in court.
We are asking for this because we've seen victims torn apart by the legal system time and again, because they don't trust the system as it is, as demonstrated by the fact that 94% of these crimes are not reported to the police and because victims and survivors do not have a meaningful voice in the judicial system. The Crown is not their voice and cannot be their voice. Currently, there are very limited circumstances where complainants have independent legal standing.
This is not enough. We can and must do better. We've done it before, and we can do it again.
Given the time, I'm not going to touch on our other proposal, in which we seek an independent right to counsel where the Crown seeks to admit evidence of prior sexual activity or where there is a joint application, but those submissions are detailed in our brief.
I want to move very briefly to our second proposal with respect to exploitation and then touch on section 276.
We are urging a holistic, trauma-informed lens be applied to the definition of exploitation and that trauma and PTSD are made an integral part of the definition. We're also asking that the definition of exploitation include the belief that the safety of the resident or pet is threatened if they fail to provide the labour or service, and we are asking that the term “manipulation” be added to the factors that should be considered.
Turning to section 276, we submit it's important to specifically enumerate human trafficking, sexual services offences and other sexual offences, because otherwise, defence counsel will argue and the courts will find, as they did at the court of appeal in R v. A.M., that it was Parliament's intention to exclude them.
Does Parliament really intend to exclude these groups from the benefit of section 276? I find that hard to reconcile with Parliament's stated intention to protect the dignity, privacy and equality interests of these vulnerable groups.
I appreciate that the proposed amendment seeks to add the phrase “or any other offence under this Act that is of a sexual nature or that is committed for a sexual purpose”. However, as we submitted in the brief and as one of the Supreme Court judges put it in the R v. A.M. appeal, that will be rife with litigation. That phrase will only bog us down in arguments that the offence was not committed for a sexual purpose. The solution, then, is to list the offences.
In closing, we know this government and this committee want to be transformative and are committed to providing those subjected to sexual violence and sex trafficking with better, stronger protections. We can do this, and I urge you to accept the changes.
Thank you for your time and consideration.
Liberal
The Chair Liberal James Maloney
Thank you very much, Ms. Marinos.
It's over to you, Mr. Ullock or Ms. Henderson, or both, if you're going to share the time.
Andrew Ullock Board Chair, Ontario Child Sexual Exploitation Investigators Association
Good afternoon, members of the committee. Thank you for giving us the time to share with you the perspective of the Ontario Child Sexual Exploitation Investigators Association, or OCSEIA, on Bill C-16.
Our organization includes law enforcement, members of the private sector and retired Crown attorneys. We bring with us a considerable depth of knowledge and expertise that we feel can assist the committee as it deliberates Bill C-16. There are several sections in Bill C-16 that, if passed, will have a significant impact on the investigation and prosecution of offenders who use the Internet to harm children. It is these sections that we wish to focus on.
First, we would like to emphasize the importance of restoring mandatory minimum sentences for offences in the Criminal Code, particularly child exploitation offences. Because the Supreme Court has struck down mandatory minimum sentences for most online exploitation offences, conditional sentences are available for offenders who seek to prey on children in a sexual manner. It is the position of OCSEIA that nothing could be more unreasonable than allowing offenders who do so much harm to the community to serve their sentences in the community. We would confidently argue that there is no realistic scenario where an individual would be convicted for an online exploitation offence and not merit a custodial sentence. The proposed revisions in clause 63 of Bill C-16 that re-establish mandatory minimums in the Criminal Code with a safety valve built into it is an important step for Parliament to take to send a message that society will not tolerate the online exploitation of children.
Second, we would like to speak to the importance of the proposals in proposed part XV.1 of Bill C-16, which deals with the way courts address unreasonable delay in trials. OCSEIA respects the importance of protecting the rights of citizens as guaranteed by section 11(b) of the charter. However, under the current state of law, the courts have only a single “all or nothing” remedy that results in an entire case being thrown out when, for any number of reasons, the Crown is not able to complete the trial of the accused in what can only be described as an arbitrary time limit. The proposals being put forward in proposed part XV.1 will allow for a more reasonable and just assessment of whether or not the accused was tried within a reasonable time, and will allow for a range of remedies that can be applied that is proportional to the degree in which 11(b) has been infringed upon in a given case.
This is important to members of OCSEIA, since most of our cases are highly complex and require the analysis of huge volumes of data. This data analysis usually occurs after the arrest, while the Jordan clock is ticking. OCSEIA believes there is a high societal interest in seeing online child sex offenders held to account, which means the Jordan timeline assessment must be a realistic one that takes into consideration the complex and unalterable nature of these kinds of investigations.
Lastly, we would like to provide the committee with a sense of how urgent it is to update and reform our laws to deal with the very large and persistent threat that endangers all children in Canada regardless of their social status, background, language spoken or geographic location. In the last decade, the exploitation of children has increased at an exponential rate. Our laws in their current state are simply not sufficient to keep up with this problem.
You don’t need to take our word for it. We would like to share with you the perspective of a sextortion expert that we obtained from his user manual that he recently published, for free, over the Internet. We would like to be clear that when we use the term “sextortion expert”, we are not referring to an Internet safety expert who lectures to parents and kids about how to stay safe online. What we mean by that term is a person who is an expert in committing sextortion offences against, according to him, over 5,000 child victims over seven years.
This offender published an over 100-page how-to manual to teach others how to be successful in victimizing children over the Internet in the most heinous of ways. Having read the manual, I can tell you that he knows what he is talking about. In the intro to his manual, this offender answers a question that some of you might be asking. He states, “But why is sextortion the fastest-growing crime in the modern era? The reason for this is simple: power. Sextortion is an escape from the daily lives of perpetrators who seek to exert control and dominance, and they cannot do that in any other way. By exploiting their intimate photos or videos, they manipulate and blackmail victims into submission, gaining a sense of power and gratification. Additionally, the anonymity provided by the Internet makes it easier for perpetrators to carry out these acts without fear of being caught, further fuelling the growth of sextortion as a crime. Sextortion is much more than the basics; once you successfully acquire an obedient victim who has everything to lose, their fear of being exposed is just the beginning; they become a cyber slave, willing to do anything for you, no matter how difficult and painful the task may be.”
This brutally honest confession from a skilled online offender demonstrates the scale and importance of the task we all face. Canada must do more to catch and deter these offenders and to protect our children. If this is not a top priority for us, what does it say about us as a country?
Thank you. We are happy to take your questions.
Liberal
Conservative
Tamara Kronis Conservative Nanaimo—Ladysmith, BC
Thank you very much, Mr. Chair.
Ms. Marinos, I'm hoping to take advantage of your keen legal mind today. I'll ask you a few questions about the safety valve provisions.
Do you agree that Parliament enacts mandatory minimum penalties to set a clear floor for sentencing? Is that the purpose of it?
Chief General Counsel, Raoul Wallenberg Centre for Human Rights
There are two objectives.
I think we would all agree that the mandatory minimums are there to signal the severity of these crimes and Parliament's denunciation of them. We all want to see those mandatory minimums pass constitutional scrutiny. Parliament has to strike the right balance.
Conservative
Tamara Kronis Conservative Nanaimo—Ladysmith, BC
That's a very good explanation of it.
In terms of the safety valve, that's going to allow a judge to go below the floor, if in the circumstances—and it's in the circumstances—the judge decides that the minimum punishment would amount to cruel and unusual punishment for that offender. It allows for that balance to be struck in any specific, individual situation that is in front of the court. Is that correct?
Chief General Counsel, Raoul Wallenberg Centre for Human Rights
Yes, I would read it that way. The judge has the discretion with this safety valve to give a sentence that is less than the mandatory minimum, if the section 12 charter threshold is met.
Conservative
Chief General Counsel, Raoul Wallenberg Centre for Human Rights
Yes, that's my understanding.
Conservative
Tamara Kronis Conservative Nanaimo—Ladysmith, BC
That's the only factor that's laid out in this section. The circumstances of the offender are the only criteria laid out. Is that correct?
Chief General Counsel, Raoul Wallenberg Centre for Human Rights
In the safety valve, yes, but I think that in every case, the judge is taking all sentencing provisions and discretion into account.
Conservative
Tamara Kronis Conservative Nanaimo—Ladysmith, BC
The only circumstance where the nature of the crime comes up as a consideration is in those exceptions that are in the section, which basically amount to circumstances of murder and treason. Is that right?
Chief General Counsel, Raoul Wallenberg Centre for Human Rights
Those are the circumstances, yes.
Conservative
Tamara Kronis Conservative Nanaimo—Ladysmith, BC
It's not the impact on the victim of the crime, though.
Chief General Counsel, Raoul Wallenberg Centre for Human Rights
The impact on the victim is always considered in sentencing when the victim has an opportunity to do their victim impact statement. Of course, the judge is always balancing other considerations, mitigating factors, aggravating factors and what the crimes involve. They're always doing that balancing act.
Conservative
Chief General Counsel, Raoul Wallenberg Centre for Human Rights
No, but there are other sections in the Criminal Code, obviously, that provide for that.
Conservative
Tamara Kronis Conservative Nanaimo—Ladysmith, BC
Is there a limit on how much lower than the mandatory minimum the judge can go?
Chief General Counsel, Raoul Wallenberg Centre for Human Rights
Not according to this legislation, no.
