Evidence of meeting #27 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 ruling.
A recording is available from Parliament.
Liberal
The Chair Liberal James Maloney
Thank you, Mr. Fortin.
I'm going to let the analyst answer the question.
Michelle Legault Legislative Clerk
Thank you, Mr. Fortin.
Let me clarify. It's not a matter of precedence, but a procedural matter related to the fact that the French text tends to be longer. To avoid confusion, when we look at line conflicts, we look at the English first, because the lines tend to be higher in the bill, while the French lines are lower. To avoid confusion and take a consistent approach, we use English when we look at line conflicts. The legal effect is the same. It's just that the drafting is done differently in English and in French, and our practice is to follow the lines in English. There aren't often situations like this, where we really see the distinction between the lines in English and in French. It can happen, but we still have to rely on the English, in accordance with our practice.
I hope that answers your question.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam.
I want to point out that it worked in the French version. G‑7 proposed an addition after line 38. NDP‑6.1 proposed an amendment to delete lines 37 and 38. We could have passed both without any problem, in my opinion.
Again, I don't want to spend an hour on this, but I have to say that this rule of interpretation seems a bit problematic to me. At other times, it could have a significant impact.
I'll leave it at that, Mr. Chair.
Liberal
The Chair Liberal James Maloney
Mr. Fortin, I want to make sure you're comfortable with this. We can suspend for a moment if you want to make sure we're on the same page.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Even if you suspended the meeting, I wouldn't have anything more to say, Mr. Chair.
I explained the problem to you. It's not a matter of personal comfort. Basically, it wouldn't have changed anything, but I was told about an interpretation rule that I find problematic. I wanted to put that on the record. That said, I don't want us to spend the evening on this, because we have important work to do, but I had to mention it.
Liberal
Anthony Housefather Liberal Mount Royal, QC
Thank you, Mr. Chair.
I have a question, out of curiosity.
If there were a line conflict in the French version but not in the English version, wouldn't that have the same effect?
If there had been a line conflict in the French or English version, I believe that, as chair, you would have ruled the amendment out of order. Is that correct?
Legislative Clerk
Yes. In this case, that is what is happening. It's fine in French, but if the amendment were adopted, there would still be a line conflict in English. The rule is that a line of the bill can only be amended once.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I appreciate that.
The purpose of G‑7 was to add a subparagraph, whereas the purpose NDP‑6.1 was to remove a different one. Both could hold up, meaning that one did not prevent the other. Again, I don't want to belabour the point, but I think the translations should be done in such a way that the text is identical in both languages. What I understand from the French version is that a subsection is being added and another is being removed.
The English version seems to say something else. There may be a problem when amendments are prepared or translated. I don't think that's a desirable situation. They are two different things: in one case, we are removing subparagraph (vii) and, in the other, we are adding subparagraph (viii). I understand that the numbering should have been changed, but it's a concordance, and the analysts do that very well. They don't need me or anyone else to make a decision. That said, in theory, both amendments were acceptable and could have been adopted.
Liberal
Liberal
The Chair Liberal James Maloney
It's getting late. Everybody is getting a little giddy, I think, but we're getting there.
I understand we resolved the issue while we were suspended, so I'm going to ask whether clause 28 shall carry.
Go ahead, Ms. Gazan.
NDP
Leah Gazan NDP Winnipeg Centre, MB
Chair, I just want to thank the committee for indulging this and for taking the time, especially because I'm not a regular member. That was very gracious of everybody.
I'm not going to move my amendment. I'll wait for report stage.
I have to say that this is quite emotional for me because these aren't abstract concepts for our families and communities. This is something we live with daily. We are the ones who would be most impacted by this bill. To put forward a bill without acknowledging or considering history and the colonial legacy it has left us with, including.... I was sharing this with Mr. Housefather. They've developed a name: residential school survivor syndrome. They compare it to what veterans and survivors of war have. It's the same sort of psychology.
We're not taking that into consideration. If I see a war veteran in a mental health crisis doing something, I take that into consideration. I think about the trauma that person must have gone through. We have residential school survivor syndrome in our family. We have the highest rate of intimate partner violence. We have the highest rates of femicide and homicide among any population in this country.
I will bring this back at report stage. I want to thank the committee for its indulgence, but we've been punished enough. To ignore our history and the psychology and trauma that came out of it.... When is that punishment going to stop? When are you going to see us and take this as seriously as it needs to be taken?
I'll leave it at that. I want to thank the committee for indulging me and for the respect you've shown me. I really mean it. It really means a lot to me.
Liberal
The Chair Liberal James Maloney
You're very welcome. That's why we suspended. We wanted to make sure we landed in the right place. Thank you for your comments.
Mr. Lawton.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
To confirm, are we now on clause 28 in its totality?
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I was hoping to get some clarity from the officials on proposed subparagraph 264.01(2)(c)(vii). For context, this is under “Pattern of coercive or controlling conduct”.
Proposed paragraph 264.01(2)(c) says:
engaging in any other conduct—including conduct listed in any of the following subparagraphs—if, in all the circumstances, the conduct could reasonably be expected to cause the intimate partner to believe that the intimate partner's safety, or the safety of anyone known to them, is threatened:
Proposed subparagraph 264.01(2)(c)(vii) then says:
threatening to die by suicide or to self-harm.
Perhaps I'm mistakenly reading the grammar. How does threatening to die by suicide or to self-harm fit into proposed paragraph 264.01(2)(c) specifically, which is about an intimate partner feeling like they will be harmed or could be harmed?
Senior Counsel, Criminal Law Policy Section, Department of Justice
That's an excellent question. Perhaps it gives me an opportunity to explain this part of the legislation, which is probably the most modern part of it in the sense that it is targeted at capturing the more subtle forms of coercive and controlling conduct that we know abusers engage in.
What I would stress is that none of these lists in proposed subparagraphs 264.01(2)(c)(i) to (vii) can form part of a pattern of coercive or controlling conduct as defined in proposed subsection 264.01(2) unless they meet the safety test, let's call it, which has just been read out. I won't read it out again, but what it means is that any example of this conduct must also cause a reasonable person in the victim's circumstances to believe their safety is threatened before it can form part of the offence itself.
There's actually a mechanism built into proposed paragraph 264.01(2)(c) to ensure that somebody who threatens suicide...because that could be, as has been very rightly pointed out, a sign of mental health problems and not a sign of a coercive controller.
What we know from the evidence, unfortunately, because we did quite an extensive engagement process, led by Justice Canada, with our provincial and territorial partners in 2023.... We heard from a range of groups, and we heard from survivors themselves and those who represent them that this is a big problem in the context of coercive control. I would also note for the committee, in case it helps them in considering why this is here, that it also happened in the Bailey McCourt case.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
I appreciate that, Ms. Levman.
There are obviously circumstances in which.... In the clearest one, someone would say, “I'm going to kill myself unless you do this.” That would be very clearly coercive control. There are also situations in which someone may be in a crisis. Their intention is not to do that; it may have that effect.
I'm wondering what, in your view, would save people like that—who are themselves victims—from being charged. They're not seeking to manipulate. They're not seeking to control. They themselves are experiencing very real issues with suicidal ideation or mental illness. What's to stop that person in a relationship from potentially being charged under this when they clearly have their own issues they need support for?
Senior Counsel, Criminal Law Policy Section, Department of Justice
It is, first of all, a modified objective test, so it would have to be, as I said, what a reasonable person in the victim's circumstances would believe. In addition to that, there is another safeguard built right into the offence. If you look at proposed subsection 264.01(1), you will see that a person cannot be considered a coercive controller under this offence unless they have the requisite intent, the requisite mental element. In the situation that has just been described, that person simply does not meet the legal test in proposed subsection 264.01(1).
Conservative
Conservative
Roman Baber Conservative York Centre, ON
I really hope that everyone here heard what the official just said. The safeguard against a catastrophe in a situation like this is the requisite intent. Part of the challenge with the clause, since my amendment was defeated, is that recklessness remains as a sufficient element to meet mens rea, which is why I have proposed that we remove recklessness—specifically for the type of situation that we're describing here.
If someone says, “I'm going to kill myself if you don't do something”, God forbid, how do you square the safeguard that you just described—the intent—with the fact that the legislation, in clause 28, makes it clear that recklessness is sufficient to make up the mens rea element?
Senior Counsel, Criminal Law Policy Section, Department of Justice
It's not the only safeguard, first of all. There is the safety test in proposed paragraph (c), and there's a lot of jurisprudence that will help assist courts in interpreting proposed paragraph (c), because this test is taken from the human trafficking provisions in the definition of “exploitation”. We have excellent case law right from the Supreme Court of Canada on that.
On the other point about recklessness, what recklessness means is that the person has to subjectively know that there is a risk their conduct could have that effect and proceed anyway. In the case of somebody who has mental health problems, they would not, in my view, meet that test.
I'd also like to stress that this offence is modelled after Scotland's approach, which stakeholders have said is the gold standard model for coercive control offences. There have been studies, and those studies have not raised any concerns about victims or others being inappropriately charged with the offence. I would stress that Scotland's offence includes the standard of recklessness, and that is viewed as an important protective element for victims.