Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 68 - Evidence
OTTAWA, Thursday, April 29, 1999
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 12:07 p.m. to give consideration to proposals to correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal certain Acts that have ceased to have effect; and to give consideration to Bill S-17, to amend the Criminal Code respecting criminal harassment and other related matters.
Senator Pierre Claude Nolin (Acting Deputy Chairman) in the Chair.
[English]
The Acting Deputy Chairman: Honourable senators, as you can see from our agenda, we have two items for consideration this morning, the proposals to correct certain statutory anomalies and Bill S-17. The steering committee having been asked to reopen consideration of the proposals, I suggest that we deal with that matter first. Officials from the Department of Justice are here for that purpose, and with your agreement I would invite them to come forward.
Hon. Senators: Agreed.
The Acting Deputy Chairman: Their additional proposal is for an amendment to the definition of "Superior Court" in subsection 3(1) of the Aeronautics Act, and would be a new subclause 4(1).
I would ask the witnesses from the Department of Justice, then, to proceed.
[Translation]
Ms Hélène Rodrigue, Legislative Counsel, Department of Justice: Mr. Chairman, we would like to have your authorization to submit an additional modification to the proposals. It is, as you just said, a change of a very technical nature.
On April 9 1999, section 8 of the Courts Improvement Act came into force. That section is changing the name of the Ontario Court (General Division), which will be now known as the Superior Court of Justice. Subclause 4(1) of our proposal would have the effect of amending the definition of Superior Court in subsection 3(1) of the Aeronautics Act. We would like to move an amendment in order to change the name of the Court of Ontario (General Division) to "Superior Court of Justice." We have prepared a document in which we present that change and the motion which would allow us to amend that definition. I think that the document has already been handed over to you.
[English]
The Acting Deputy Chairman: I have a question. Last fall, we studied the Judge's Act, as we do every 18 months, and we specifically dealt with that name. What happened between November and April?
Mr. Don Macpherson, Legislative Counsel, Legislative Section, Department of Justice: Mr. Chairman, did you change it to the correct name in the fall, or did you update it to "Ontario Court (General Division)"?
The Acting Deputy Chairman: We changed it to "Superior Court."
Mr. Macpherson: Then you were more aware than the drafters of the Miscellaneous Statute Law Amendment Act, which was updating it from the name of the court five or six years ago.
The Acting Deputy Chairman: To be consistent, we should approve that.
Mr. Macpherson: The only other option would be to withdraw the amendment when we go to the other place. Probably the right name would be the preferable route.
The Acting Deputy Chairman: Honourable senators, do we agree to this proposal?
Hon. Senators: Agreed.
The Acting Deputy Chairman: I need someone to move that the further amended proposed by the Department of Justice be agreed to and that it be appended to the report of the committee.
Senator Moore: I so move.
The Acting Deputy Chairman: Is it agreed?
Honourable Senators: Agreed.
[Translation]
The Acting Deputy Chairman: I invite you to carry on with our study of Bill S-17, to amend the Criminal Code respecting criminal harassment and other related matters.
[English]
I now invite honourable senators to turn to agenda item number 2, consideration of Bill S-17. We will hear from the Human Rights Institute of Canada, Dr. Marguerite Ritchie.
Please proceed.
Dr. Marguerite Ritchie, President, Human Rights Institute of Canada: Honourable senators, may I say how very much I appreciate being here. If I may, I should like to make a couple of initial statements, after which, in deference to the Chair, I will use a minute-minder so that I do not go on too long. I will set it for 10 minutes, if that pleases you.
The Acting Deputy Chairman: We do not wish to force you to be brief. We would prefer that your statement be complete.
Ms Ritchie: Honourable senators, I am a lawyer who is concerned with the roots of the problem. To me it is wonderful that this committee is dealing with this issue, an issue that terrorizes, intimidates and destroys families. Only 10 blocks away from here, at the monument for women, there is a stone in memory of a woman lawyer who was stalked and killed on McLeod Street; she was shot with an arrow and died an agonizing death. More and more, such memorials are appearing across Canada.
I am delighted that the Senate, which never receives justice in the newspapers, is taking forward the issue on this. As you will see in my brief, I am urging you not to be modest about what you are doing.
My brief is called "Hunting Women -- the Education of a Stalker." It is my view, that stalkers in some cases are born but in other cases are persons seeking publicity or fame. Actually, the laws that exist across Canada have a major role in having convinced women to accept and men to inflict on women, beatings during marriage, that force them to try to flee, often successfully, sometimes successfully and often not successfully.
When women flee successfully, belatedly, they may encounter the very thing with which this committee has been concerned and they may discover that the price of freedom is no less than the surrender of all their life that has existed before then. That is something that nobody should be expected to do.
On page 1, you will notice that I have referred briefly to my lifetime of work for women and for human rights. Honourable senators will see that much of my work has been as a lawyer. In the Department of Justice, I was the person responsible for international law, the United Nations and its conventions. For instance, I dealt with the UN Convention on the Political Rights of Women. I also dealt with foreign affairs and I dealt with constitutional law.
In the process of my work, I had the opportunity to meet one of the most fabulous senators imaginable, Muriel McQueen Fergusson. With her here, being able to take ideas forward through committees just like this, and with me in the Department of Justice, with the information and the research that I was doing over there that provided her with a bedrock on which she could build, changes were made. One of the most important changes, and one that is probably directly relevant to what you are considering here today, was based on the United Nations Convention on the Political Rights of Women, which required the appointment of women to public office on an equal basis with men.
I urged within the department that that include juries in criminal cases. Those in power at that time, however, did not understand or believe in that, and I failed in that regard. Muriel McQueen Fergusson took up that issue and she fought it through the Senate. The result was that, with the support of the Senate, a provision was put into the Criminal Code of Canada that effectively struck down provincial laws that denied women the right to participate in juries in criminal cases.
Why was that relevant? It was relevant because, until that time, no woman had ever complained to the courts about being raped; no woman had ever complained about being beaten. Essentially, women suffered in silence and died in silence. That was changed because of the Senate.
In my brief I expand more fully on my hopes for this committee and for the Senate.
On page 2, you will see very briefly the outline of the Human Rights Institute of Canada. I invite you to read that later. At the bottom of the page you will see that I advise you that you have the opportunity in this bill to improve the life, liberty and security of the person within Article 3 of the Universal Declaration of Human Rights, and section 7 of the Charter of Rights and Freedoms. Those are goals and directions in which you can take leadership.
With respect to the bill itself, as I have said, I have looked for drawbacks but have found none that will stand up to scrutiny. It is true that it will restrict the liberty of the person who has been convicted of stalking. That is a message to those who engage in or are thinking about stalking. Yesterday, we saw evidence of the copycat way in which violence is spread.
If the convicted stalkers are mentally disturbed, of course they should be treated, but under no circumstance should women, children, or any man who might be so targeted, live in fear or, as Senator Oliver and others have made clear, have to leave their homes and become exiles, in Canada or outside, living under different names as hunted human beings.
I deal then with the education of a stalker. How are stalkers and killers of women created? Not all of them are seeking temporary immortality in the media by targeting a famous person. How are stalkers and killers of women actually created by our society? I do not believe they exist in every country of the world.
The Human Rights Institute of Canada believes that the long history of women's inequality is directly responsible for most stalkers. We are, therefore, seeking a reference to the Supreme Court of Canada that would test the guarantee of women's equality in section 15.1 of the Charter of Rights and Freedoms, because at the moment it is a guarantee in words only. It has not been tested by the Supreme Court. We want the Supreme Court of Canada to decide whether women's equality includes the right to be appointed to the Senate of Canada.
In doing so, we are following in the path of the five Alberta women who were responsible for the 1929 Privy Council decision that there were no legal barriers to the appointment of women to the Senate. Those women, 70 years ago, were not seeking appointments for themselves; they sought a voice for the women of Canada in the laws that were passed by Parliament.
We have copies of petitions from about 1924, mainly from women living in Quebec, demanding the appointment of women to the Senate, because, as it is put at the beginning of each petition, the Senate of Canada passes laws that affect women and children, and women have no voice. That was the goal. Each woman in the Senate carries with her that tradition of responsibility.
No doubt you know that women did not obtain the appointments and the voice they sought. Only since the Human Rights Institute began, in 1985, to demand a reference to the Supreme Court of Canada to test whether women's so-called equality applied at the highest level of government have women been appointed to the Senate in important numbers.
We have paid tribute many times to the present Prime Minister for the appointments he has made. I would like to repeat that tribute here. He has appointed 20 women and 18 men, which has resulted in male members of the institute now complaining to me that they want to be defined as equal. It is a valid point. Equality means equality, and they now understand the issue as some of them did not before.
However, the fact is that what this Prime Minister has done is open to being reversed by the next Prime Minister.
So long as there is no definition of "equality," and so long as there is no recognition of it at the top by the Supreme Court of Canada, the message conveyed to women and men in Canada is that women are no more equal now than they ever were. As a result, they must fight case by case, if they can raise the money, to find out whether under some specific section of a law they are or are not equal.
As you know, when a woman is raped, officially there is equality, officially there is justice, by not requiring equal disclosure by her and by the man who is alleged to have raped her. After the commission of the act has been established, the only question is intent. The alleged attacker is allowed to cross-examine the woman on everything, but his background is never disclosed. Many things must be changed.
That inequality is the education of a stalker. The education is that, when women are out of control, they must be brought back under control; when they are disobedient, they must be punished; when a women is stolen or escapes, the stalker has the right to take whatever action is required and impose whatever punishment he wishes. That is the mind of the stalker.
One hears these views repeatedly. Many women have told me that their husbands regard them as property. Men have complained to me that what angers them most about their wife or partner is that she does not do what she is told, that he has to hit her to make her straighten up. That is a view of ownership of a woman that comes from our old law. Some men say that they are the head of the house and their wives should get their permission before going out or getting a job. When their wives do not do so, they get angry. This, again, is the feeling of ownership.
Countless men and women have been married in ceremonies in which the woman promised before God to obey her husband, and she did. When couples live in common law marriages today, that belief is not necessarily eliminated. They may not take the oath, but they still live with that feeling, which is general in the community.
Such beliefs will not disappear without the strongest message possible from the government, from Parliament, and from the courts. This bill will open a door that will civilize relations between women and men, if it is carried through, if it is given maximum and continuous publicity, if it becomes part of the education system in the schools, and if it is followed up by steps that establish at every level the equality of women in Canada at last.
I admit that it will not be easy, but it must be done. Otherwise, the problem will remain. I draw your attention to the fact that new Canadians are coming from around the world, many from countries where a woman's life is worthless. I have talked to some of those women. I have asked some of them whether, before obtaining citizenship, they were ever told that women in this country have equality. So far, the answer has always been no. They have never been told that.
As a result, in Edmonton a man from the Middle East threw his wife off a fifth-floor balcony. In Ottawa, ritual mutilation of girls takes place, even though it is against the law. In Ottawa, a woman teacher told me that she is not allowed to shake hands with a young boy who is a Muslim fundamentalist. I have been told these things; you have been told them as well.
New Canadian women are at risk, as are Canadian-born women. We lost one young woman volunteer when she fell in love with a Muslim fundamentalist, even though she had seen what took place in his house. The first thing he did was to cut her off from any contact with the institute, because we believe in women's equality and the equality of everyone.
Let us look then at the underlying laws of women as property. Women and men who live together and break up, for whatever reason, are in territory that is only partly mapped, and they can be sure they need legal help. Premier Harris has made sure that needy women will have difficulty getting Legal Aid in Ontario. The situation of a breakup is designed to cause problems, because, again, nobody knows about equality.
The historic situation in Quebec is best left to a Quebec lawyer, but I have the impression -- and I would love to discuss this fully at some other time -- that in Quebec, certainly at one stage, women were required to obtain, or their doctors were required to obtain, the permission of the husband before an operation could be performed on them. A friend of mine was having a baby there; her husband was a judge on circuit, and they did not know whether they could contact him. That led to to a great deal of apprehension.
I would be interested to know how that came into the history of Quebec, because we do know that, in the rest of Canada, there is the basic English law, which, although it has, of course, been changed erratically by the other provinces, dealt with marriage as I have set out on page 6.
By the rules of the common law, husband and wife were regarded as one person, the legal existence of the wife during the marriage being regarded as incorporated and consolidated or merged into that of the husband. The wife was incapable, with some exceptions of no importance at the present time, of acquiring or enjoying any property, real or personal, independently of her husband. The result was that, in the old cases in England, you will see the desperate attempts that were made by fathers to manage to get to their daughter, who was married to some man, some money so that she could use without its being seized by her husband. The husband not only controlled and effectively owned whatever property the wife had; he also, in effect, owned his wife, and that is the origin of this idea of ownership. Under the law, he could beat her. If, in the process, she died, it was probably because she had been too difficult.
I have here a copy of a case from 1840, the Cochrane case, in which a woman escaped from her husband. She must have had her father's money because she toured around Europe. Her husband managed to retrieve her by sending an emissary who lied to her. Once she got back, she was seized, she was imprisoned, and the case came before the court in 1840 as to whether or not she could be imprisoned. The answer was, yes, she could, unless she escaped for some major reason, such as a threat to her life. She could be imprisoned by her husband. That is one of the shocking cases.
Let us then go on. This ownership idea, which came with the common law to Canada, is probably the basis for the refusal of many women today to admit that their husband beats them; they are embarrassed. Why are they embarrassed? It is because they were taught that. They have inherited, almost through their genes, the idea that they are a belonging.
Perhaps it is also a reflection of the equally appalling view that a man shows his love for his wife by beating her. We have a lot of work to do.
It is probable that many stalkers, consciously or otherwise, believe that this is their right. The evidence given before this committee has frequently referred to the reluctance or refusal of police, until very recently, to intervene in domestic disputes, because, of course, a man's home was his castle and what he did in there to his wife and children did not matter.
This was demonstrated in the House of Commons a few years ago, when Margaret Mitchell, MP, raised the question of wife beating and it produced an outburst of hilarity from the male members of Parliament -- men elected to look after the interests of the people of Canada. Fortunately, the cartoonists picked it up, and one produced a cartoon showing pigs in male suits in Parliament laughing outrageously.
I am delighted to have cartoonists.
How else have the laws historically handed over the control of women to their husbands or men in the role of husbands? In countless ways. When one looks at an old Criminal Code of Canada, such as the classic Martin's Criminal Code of 1962, one sees that section 135 defined rape as follows:
135. A male person commits rape when he has sexual intercourse with a female person who is not his wife,
(a) without her consent, or
(b) with her consent if the consent
(i) is extorted by threats or fear of bodily harm.
Men, literally, could not legally rape their wives; although that has now been changed, the change is relatively recent. A man could not be found guilty of raping his wife. She was his property. He could do what he wished with her.
There were loveless marriages that produced many children, and I have talked to the children of some of those marriages. We do not know how the children grew up and formed their own relationships with the opposite sex. Sometimes, it was because they learned from their parents what not to do. In other cases, it was something that they thought was normal and their lives were destroyed.
Allow me to give you one final example to show the extent to which wives were property in Canada. A man, whose wife had sexual relations with another man, could sue the other man in the civil courts for damages, because the other man had damaged his property. I assume that law has disappeared, although I have not really done the research on that to find out when. My guess is that now it would not hold up in court and people would be tremendously amused by it, but the files still remain that document the extent of that ownership.
Those are examples of laws within the memory of most members of the Senate. They are the foundation for the continuing belief by many men that they have the right to control any woman with whom they have lived, inside or outside legal marriage. There is a recurring belief that the woman is their property, and they should take every step possible to retrieve their property, or to destroy it if they cannot get the woman property back.
Of course, women now -- and this is a matter of great concern to the male members of the media -- are picking up guns and proceeding to shoot the men rather than go through the quite possible stalking or whatever exists.
That is why Bill S-17 is so important in starting to change our society in order to protect women. That is also why Bill S-17, by calling attention to the problem, can serve as a major step -- not a minor one, but a major step -- to help achieve the equality in Canada that is guaranteed in the Charter of Rights and Freedoms and to move towards a safer, better country for all of us.
I should like to read out these final two paragraphs so that they are incorporated very clearly in the transcript and so that those who are here may hear them.
I hope that senators will do their best to interest the media -- and I hope the media is here and I hope they pick this up -- in Bill S-17 and the work that the Standing Senate Committee on Legal and Constitutional Affairs is doing. I hope the committee will support the bill strongly.
I hope that you will be successful in bringing about the amendment to the Criminal Code. It will bring this important protection for women and children, and for men who may be in the same position of being stalked, into the laws of Canada. The Human Rights Institute of Canada is pleased to support it.
Senator Beaudoin: Dr. Ritchie, you have presented us with a most interesting memorandum. Your conclusion is that you are strongly in favour of Bill S-17.
Do I understand that you have nothing to add or amend in the bill?
Ms Ritchie: That is correct. I looked at whether it could cause problems for a person -- a man most of the time -- who is accused unjustifiably. The fact is that we are looking at the conviction stage; so all that has been dealt with. We are not dealing with a case in which a man, for the usual reasons, does it once and then can be called back to order. We are looking only at the sentencing after the person has already been found guilty. Therefore, no, I do not have any problem whatsoever with that.
Senator Beaudoin: You say you hope the committee will support the bill strongly. I assure you that I am strongly in favour of the bill, too.
I was a bit surprised by the history of the inequality between men and women. I knew it was bad, but I was unaware that it was to that extent.
Senator Fraser: You are a lawyer, and you did not know.
Senator Andreychuk: He is married, and he did not know.
Senator Beaudoin: Perhaps, Senator Fraser, the civil court is not that bad.
The Acting Deputy Chairman: Since 1964, things have been much better in Quebec.
Senator Beaudoin: Yes. This is a very good snapshot of the situation, and I agree that it is horrible.
I remember reading something apropos when I was at the Faculty of Law at the University of Montreal.
[Translation]
In the first paragraph, it was said that a man could get a judicial separation from his wife for adultery. The second paragraph said that a woman could get a judicial separation from her husband for adultery, if he was keeping his concubine in their common home.
[English]
I was horrified to see that. Senator Fraser, I have known that for nearly 50 years.
I have one question. I am a bit surprised by the discrepancy between the civil law and the common law. What is the situation in common law? In Quebec, we no longer think that way. Is it still like that in the common law?
Ms Ritchie: May I say, I do not believe there is one single position. It seems to me that, first of all, no one knows what the law is in the common law because we do not have a civil code. Also, it depends very much upon the area in which the people live.
I suggest, if you have a strong stomach and do not have plans for dinner, that you read a book entitled Life with Billy. I read about 90 pages, or maybe 120 pages at most, and it just ruined the rest of my week. I had to take it back to the library. This is a true story from Nova Scotia of a woman and her life in marriage and how eventually she wound up shooting her husband. It turned out that the whole village was in support. Even the RCMP, who had been intimidated by this man, were in support.
It was not just the beatings, because beatings take place all across the country. They go on here in Ottawa. I have seen women with terrible black eyes. One can check with the hospitals. The thing that really ended my being able to read that book was the description of the way in which this man had destroyed a previous real marriage -- this was a common law marriage -- and had destroyed the children from that marriage. His son from that marriage was doing whatever he could, stealing anything he could. I read how the boy from the second marriage was not only in terror of his father, but the father would insist that the boy eat when the boy could not. There is a terrible description of the boy with porridge, eating, and the father saying, "Eat faster, eat faster"; the boy, of course, could not. The father took up the spoon and started to cram it into the boy's throat, and then he took up the bowl and smashed it into his face.
That is going on, and it is going on everywhere. Not everyone is as civilized as senators, because you do come from privileged backgrounds. If you did not, you somehow had the intelligence and the drive to achieve success. That is what I mean by a privileged background. Those who have never had that inspiration, who have never had the right teacher at the right time, and who have nothing at home and find no support whatsoever in the family -- those are the ones who need to receive the message.
Senator Beaudoin: I agree with you. We have changed our laws to include section 28 of the Charter of Rights, the notwithstanding clause: Notwithstanding anything in this Charter, the laws apply equally to men and to women. In that sense, we are at the forefront in the world so far as the text is concerned, but you are right that the mentality has not followed. That is where I see a problem.
In that sense, Bill S-17 certainly goes in the right direction. Unfortunately, the mentality is not following as quickly as our laws. Do you agree with that?
Ms Ritchie: I am entirely in agreement. You expressed it very clearly. The important thing is that the start must be made. People look to their leaders. If you want to arrange it with the media, I will be prepared to denounce the media for not giving the Senate the kind of credit it deserves.
Senator Beaudoin: Oh, please do.
The Acting Deputy Chairman: Do not get into that.
Senator Moore: Thank you for your presentation, Dr. Ritchie. On page 4 of your presentation, you say you are seeking a reference to the Supreme Court of Canada that would test the guarantee of women's equality in section 15.1 of the Charter of Rights and Freedoms, and you want the Supreme Court of Canada to decide whether women's equality includes the right to be appointed to the Senate of Canada. You say that until women have a decision of the Supreme Court of Canada, the guarantee of equality is meaningless.
You do not think, I guess, that equality is there now, regardless of the Charter? You still do not think that it is there?
Ms Ritchie: I know it is not there. Perhaps I can give you a precedent. When former prime minister Diefenbaker was in office, he passed the Canadian Bill of Rights through Parliament; but he had to do it twice. He rejected the first version prepared by the Department of Justice, who then prepared a second one. I know that, because I was in the department at that time, and I was the one who contributed the extra data from the Universal Declaration of Human Rights.
Women, officially, were guaranteed equality under the Diefenbaker Bill of Rights, and all of us, who were in Ottawa and working for the government, would say to one another, "Now we have equality." Then we would look at each other and say, "No, you don't have equality; why don't you complain?" Each of us would be looking at the others.
In 1972, two native women had the courage to challenge whether equality actually meant equality in the Diefenbaker Bill of Rights. They wanted equality, of course, with their native brothers, because they had been exiled from their reserves on the grounds of marriage. What happened when they reached the Supreme Court of Canada? The government was totally opposed to them, absolutely opposed. You can see that from the history of the Department of Indian Affairs at that time, which sent out, through the Indian agents, to all the reserves, a warning that if Jeannette Lovell won, it could mean the end of the rights under the treaties. Indian Affairs arranged for a meeting with the Indian chiefs from across Canada to take place in Ottawa. That meeting was postponed while the case was being heard in the Supreme Court of Canada. Because it was over a weekend, it was also arranged, I understand, for chiefs to be flown down to Montreal for a hockey game, and so on. Perhaps not surprisingly, that case on women's equality, was lost. It was lost by one judge, but it was lost. Women's equality, which looked so great on paper, was nowhere. In the process of making its decision, the Supreme Court of Canada destroyed the Diefenbaker Bill of Rights, so that it was now unusable for everybody.
The only way we will know whether equality means anything is by testing it in the Supreme Court of Canada. For that to happen we have to have a test case that is not one at the bottom in importance, such as whether or not a woman who is working at Woolworth's is receiving the same pay as a man. What we need is a test case that will be clear and will set the qualifications. What better one could there be than the Senate, where the qualifications are age -- 30 to 75, and there are more women than men in that group; citizenship -- the same group; appropriate residence -- that they live in, or are prepared to move to, a place where there is a vacancy; and, finally, ownership of real property worth $4,000 over and above their debts at the time they are appointed. That is it, nothing else. Those qualifications can now serve as the model, as the test.
Senator Moore: Is this not the case now for all Canadians?
Ms Ritchie: It is open to discrimination. We are talking about the future. We are not talking about the present Prime Minister, who has outdone himself in the appointment of women to the Senate -- but it affects the future. Does that guarantee of equality mean that women must be appointed to the Senate equally?
Senator Moore: Do you mean equality of opportunity or do you mean equal numbers in the Senate?
Ms Ritchie: I think it is equality of opportunity. I have talked to various senators about this; I had considerable discussions with two of them and I am quite pleased with their support. Senator Kirby is one to whom I spoke; he is very much interested because he was one of the drafters.
Senator Moore: Dr. Ritchie, to connect that to what we are doing here today with Bill S-17, if you do your reference case and are successful, will that have the effect of lessening the attitude you are struggling with here. Will it achieve a reduction in stalking?
Ms Ritchie: That is a good question.
Senator Moore: We have two things going on here. You are trying to get to, I guess, equal respect, really.
Ms Ritchie: Equal respect.
Senator Moore: Of body, person and property.
Ms Ritchie: Yes, equal respect.
Senator Moore: Do you think that, if you got the decision you were looking for in a reference case to the Supreme Court of Canada, that would change the mindset of people who are engaged in stalking activities?
Ms Ritchie: We see examples all the time of the mindset we are talking about. Last year, a man had a heart attack on Carling Avenue. I think it was on Carling; it was just outside a woman doctor's clinic. She went out with her stethoscope to aid him. When the firemen came up, they began to cross-examine her. When she explained that she was a doctor, they asked for proof. They created such harassment that she, a doctor, was moved away. I do not think that helped the health of that man.
The point is that the message has to be given at the top to those men who believe that their manhood somehow depends upon violence against others. I do think there is now a tendency for change, and we certainly have an opportunity here for change, in the message that the Senate can give by saying, "We recognize women at the top." I look around here and I see women and men sitting together, collegially, discussing problems. That message will be important to men working in, for example, auto body shops. I believe the message will get through. That example will be copied all the way down. Men will look at the Senate and say, "Look. Those men are perfectly secure. They are not shaken up by it at all."
Incidentally, it amuses me enormously that men who believe that manhood involves violence can join or support a hockey team called the Mighty Ducks. I do not understand that.
In any event, the start has been made here and the media should be your co-partners in this.
Does that answer your question sufficiently? I think it will make an enormous difference.
Senator Moore: Thank you, yes.
Senator Grafstein: Dr. Ritchie, I welcome you. I know of your institute, but I am not as familiar with it as perhaps I should be. You have indicated general support for this bill, but you have not suggested any specific clause-by-clause recommendations for changing, expanding, or reducing the bill.
I take it that yours is a general approach; that you have read the bill and are in general agreement, but you have not gone through the bill clause by clause to analyze the details. Do you have any specific recommendations either to keep the bill as it is or to strengthen or reduce it?
Ms Ritchie: I would support the bill as it stands. I have read it over. I was here when Senator Oliver and Senator Buchanan made their presentations and I heard the questions that followed. I have also read the transcripts of the hearings. I have great confidence in the members of the Senate.
Senator Grafstein: Yesterday, we heard from one witness that the bill should be amended dealing with the ability to maintain the privacy of the victim, when the matter goes to trial, so that the offence is not replayed endlessly with the victim. There was that recommendation yesterday, and we have had other comments about it.
Let me deal with the substance of your brief and your comments. I wish to start with the support of your organization, which is founded on the Universal Declaration of Human Rights, a document that, obviously, we all accept . Am I correct that you are premising support for this legislation on the Universal Declaration of Human Rights starting with Article 3?
Further on, Article 5 reads:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
I assume that the degrading treatment element of that article is one reason for your position that the Universal Declaration should be incorporated into our domestic legislation.
Ms Ritchie: I agree that that is certainly one element that is directly relevant. I appreciate the fact that you are referring to articles such as that.
Senator Grafstein: Article 12 says:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
I take it that "his privacy" means "his or her privacy" and "his honour and reputation" means "his or her honour and reputation." They were not as gender sensitive then. In effect, that article is dealing with the dignity and privacy of the individual. There may be other clauses, but I assume that those are the two major premises upon which you are asking us to support this legislation, and to incorporate these elements into the domestic legislation; is that correct?
Ms Ritchie: I did not go through the articles of the Universal Declaration on this because I was conscious of the limits of what I wanted to say. It was a matter of space and time; but I am delighted, and regard it as an indication of the role of the Senate, that you bring these other articles forward. It is important that the Universal Declaration, which has also been recognized in the Charter, should be reinforced in this legislation. The point that you are making is an extremely important one, senator.
Senator Grafstein: You referred to Martin's Criminal Code, 1962, section 135. If my memory serves me correctly, that section was amended in the early 1980s; that piece of discriminatory criminal justice, if you will, has been vacated. In effect, we have modernized ourselves somewhat, but I still take your point that we have a long way to go.
Ms Ritchie: I was really looking at the history that we have come from, rather than looking at what has been happening in recent years.
Senator Grafstein: Could we turn to page 4 of your brief, please, because to my mind this is the heart of what you are saying on this bill. The heading on page 3 is "The Education of a Stalker." You say:
How are stalkers and killers of women created? Not all of them are seeking to give themselves a temporary immortality in the media by targeting a famous person. How are stalkers and killers of women actually created by our society?
The Human Rights Institute of Canada believes that the long history of women's inequality is directly responsible for most of the stalkers.
Recently, this committee examined the subject of the homeless in Toronto. We found that at least 67 per cent of them were people with a history of emotional instability. Following this logic, I now turn to your section 6, where you say that Premier Harris has ensured that needy women will have difficulty receiving Legal Aid in Ontario.
I am not making a low political argument here; rather, I am trying to make a high political argument. The political argument has been made in Toronto that as a result of downloading from the federal, provincial and municipal governments, many people with instability who would normally be attached to an institution or an outreach organization that would help them, have been cut loose. As a result, this has been a problem, with emotional instability lying at the heart of the situation.
As regards stalkers, which is the subject matter of this bill, apart from a very few cases of female stalkers, the overwhelming majority of stalkers are men, and to a substantial measure they are men who have problems of emotional instability. I am not sure that the term "education of a stalker" is broad enough; perhaps it should be "education and treatment of a stalker."
Would you accept that as a sociologist, or a social analyst? We are here as senators to deal with clear and present dangers. In other words, we are here to pass laws. We have been told, and I do not dispute it, that stalkers are a clear and present danger to society. We must then legislate to remove that clear and present danger. Of course, we must be substantially satisfied that there is that clear and present danger, and I think most senators are convinced of that.
The question then is: What is the nature of that clear and present danger? Is there criminal intent? If so, we could incarcerate many people without really dealing with the root cause of stalking.
Can you assist us in that regard? Have you addressed that question in relation to this bill? It also goes to the question of equality.
Ms Ritchie: I think it is a matter of common knowledge that exactly what you have outlined has happened. It has happened in many provinces across Canada -- all of them, I suspect. I would be very happy to include the amendment that you have proposed. Obviously, the treatment is what has to be dealt with. I am happy to support what you have said.
Senator Grafstein: Finally, there is another aspect of stalking that I should like to address, and I do not have evidence really to support the contention. However, I have seen well publicized cases of females stalking male celebrities. You are dealing with this as a gender equality issue. Assuming those cases are in the minority, how does one account for that in the gender rationale that you are presenting?
Ms Ritchie: I try not to approach things from a gender basis, because, as I have said, equality means equality for all. I do know that there are men who have been stalked. I can only surmise the reasons for that. Women follow what is happening in society. There is more violence perpetrated by women now, and by girls in school, than there ever was before. The Reena Virk case would have been absolutely unheard of before.
When men, as the leaders, establish the pattern, most of society, including women, will follow it. That is the case in other countries as well. When I was in Morocco, I saw an old woman sitting in front of the mosque denying women tourists the right to enter. Yet, her rights were also taken away.
That is why I regard education as essential. The message will be given to both women and men that equality means equality, and not only between the sexes. They will learn that equality is a human right that applies to everyone. The message from this bill, and the message from this Senate committee, will be like a stone thrown into a pool. The circles will expand in ways that will make you proud.
Senator Fraser: Dr. Ritchie, I should like to draw on your long experience in drafting legislation and then seeing what happens when it gets into the real world.
A number of witnesses have given me, and I think some other senators, the impression that they are so anxious to have a message sent to stalkers and to the judicial system in general that the fact that this bill sends a message is its principal virtue. They will take whatever message they can get, and be glad of it. We all share the ultimate goal of sending a message, but I wonder whether this bill, as it is now drafted, is the most effective message to send.
Some witnesses have suggested to us, for example, that since judges now rarely impose the maximum sentence under the existing law, increasing the maximum sentence may or may not have any practical effect. They have suggested that it might be more practical to have mandatory minimums for repeat offenders, and for stalkers who break a peace bond or a restraining order.
I got the impression from a group yesterday that they thought it would be at least as important, and maybe more important, to include in the Criminal Code, just before this section, a preamble explaining to those in the judicial system why this matters and what they should be looking for.
In your experience, what is the most effective way of sending a message through legislation? Is it by increasing maximum sentences? Is it by imposing a mandatory minimum sentence? Can it be done in the form of a preamble, or is there some other way of sending the message?
Ms Ritchie: I do not think there is a single best way. It depends very much on the issue. In complicated matters, with complex wording, there is greater opportunity for derailment.
I am less worried about judges, however, because I believe that they will do what they will do in any event, regardless of what is included in the legislation. If they believe that there is something wrong, they will arrange things in some way. The problem has been that they have followed the views of society -- views that go back to the police telling couples to settle their differences themselves or, alternatively, taking the husband out of the place with the wife then intervening on his behalf, saying that if he is in jail the family will starve.
That is why the message should be very clear and simple that women and men are equal, that women are no longer the property of men -- or vice versa, of course.
Senator Fraser: So you think that the present approach of just raising the maximum would be the clearest message to send?
Ms Ritchie: I think so, because the judges still do not have to impose the maximum sentence. It is up to the discretion of the judge. Some judges will certainly be at the low end of the scale. We must keep in mind that there are even judges who believe that it is quite all right for men to do whatever they like to women. Remember the judge who said that rules, like women, are meant to be violated.
In summary, I believe that judges will do what they want, but they do need to receive a clear message. With regard to a preamble, I am not sure that drafters currently use preambles, but they should.
I really would like to see a message sent out from the Senate that you are concerned about these problems. Entirely apart from or in addition to whatever the government does in other ways, it seems to me that the Senate should establish its concern for people.
Senator Andreychuk: Senator Grafstein said that the downloading from the federal government to the provincial government of Premier Harris has caused problems with lack of resources and support for victims. He also made the point that many stalkers are emotionally unstable.
We made a shift in the 1970s in Canada. Until then, we had been institutionalizing all our mentally ill and physically handicapped people. Then we began reintroducing them into the community, but we did not institute sufficient support services to help those people cope in the community.
I was in charge of an institution that released 3,000 people into the community. We assumed that their families would look after them and that, if they needed support services, they could call social services. So there has been the double jeopardy of lack of support services in the community and downloading.
I believe that the best message is to the attorneys general of the provinces who administer the law. I used the example yesterday of police not taking assault seriously in marital situations. When the attorneys general got together in their joint meetings and said that this was a serious issue, and then sent out directives to all the prosecutors and the police, there was a real change in the attitude. It was the best education.
In this case, would it be better to pass a bill like Bill S-17 or would it be of more value to grab the attention of the attorneys general of the provinces again -- or the solicitors general or whatever they call themselves -- and stress to them that this should be taken seriously and that a directive should go out as such?
Ms Ritchie: I would urge that the bill be passed first, because the law will be much more difficult to change than the mind of an attorney general who goes home, has a fight with his wife, comes back and then decides that he does not support this. To my mind, the bill is essential. Correspondingly, I am very much interested, Senator Andreychuk, in what you said about the release of people without there being supportive services. I was concerned from the beginning with that.
In addition to that, your idea of contacting the attorneys general and expressing the concern is very helpful. I think it is possible to have both the bill and the attorneys general, not just to have either the one or the other.
Your comments about the devastation created by the release of people into communities that have no way of supporting them is enormously important and is part of this.
Senator Moore: Senator Fraser mentioned the preamble. As I understand it, a preamble may be inserted in a bill but it is never in the act. It will not be in the Criminal Code.
Ms Ritchie: That is right.
Senator Moore: With respect to your mission of sending them a strong message, and your reference case for sending them what you call a higher message, I want to get back to what Senator Fraser said about a minimum sentence. As you say, the judges will do what they are going to do regardless of how high we maximize a sentence. In terms of sending a message that this type of behaviour will not be tolerated, is it worthwhile considering, from your point of view, a minimum sentence that judges must adhere to for situations such as those that were outlined by Senator Fraser?
Ms Ritchie: I would say that that is the best way of sending a message, very definitely. I totally support that, because we have seen that, without that message, without the minimum, one has this present appalling situation. I think it is very important, yes.
Senator Grafstein: Could you just tell us a bit more about the Human Rights Institute of Canada? Is it a national organization?
Ms Ritchie: I incorporated it. I founded it after I left the Department of Justice, while I was Vice-Chairperson of the federal Anti-Dumping Tribunal. It was incorporated in 1974, shortly after I arrived there, and we did research. I say "we." One person was working there on various areas of importance, but it was not open to individuals until about 1980-81, after I left the government. The purpose of it, really, was to do research, but it was basically what I had seen when I was within the federal Department of Justice, where letters were received from all across the country about problems with the laws.
Senator Grafstein: What period was that? What years were you there?
Ms Ritchie: You will not insist on that, surely.
Senator Grafstein: You can whisper it into someone else's ear. Let me tell you why I ask. I spent some time advising the Department of Justice from 1968 to 1972. I agree with your proposition that in those days there was an internal bias within the Department of Justice, in terms of renovation of these issues, and it was intensely negative. You are right that there was a top-down bias in the department about this, and many ministers of justice tried heartily to overcome that built-in bias. It was very slow in changing. I must say there are still vestigial remains today.
Ms Ritchie: I was there from 1968, certainly within that period. That was an overlapping period. My experience really was that it depended entirely upon the person who was the deputy minister of justice.
When I went in, there was a man named Varcoe who was a constitutional law lawyer. I did the work that was not important enough for the men, and that included international law, United Nations, constitutional law -- all the things that are the roots of what is so important today. In connection with that, when the Department of External Affairs, as it was then, would send over material to the Department of Justice and say that Canada wanted to ratify this or that convention, it was up to me then to review the laws and the policies. When I sent in my recommendations to the deputy minister or the minister, as the case might be, my recommendations were accepted 100 per cent, except when it came to women. When it came to women, my batting average was probably about 75 per cent. However, enormous changes were made within the government as a result of those conventions, and so on.
Unfortunately, the successors to Mr. Varcoe did not have the same frame of mind. Mr. Varcoe was prepared to experiment with something. If he liked an argument, if it made sense to him, then he would go with it, but so far as others were concerned, they were very protective. They were very insular. At least one was an imperialist whose main concern was to collect up all the various legal divisions in all the other government departments under the Department of Justice.
When I established the institute, I took with me what I had seen there in the department. I did research there. I learned how to do absolutely top research; I had certainly had the opportunity under Mr. Varcoe.
I saw also, though, that when people wrote in and complained about a law, often they had very good ideas, but they would receive a form letter in response, and then their letter with these good ideas would go down to the files room and never be seen again. It seems to me that the right to vote is useless unless people have a non-partisan knowledge of exactly what a law means, and that is really why the institute was established. Eugene Forsey was one of our strongest supporters there.
It is not a large institution. It does not have government funding. On this issue, I have effectively stopped doing anything else, because I am so concerned that the foundation of this country has to be based upon the equality of women and men and the recognition of the human rights of everyone. This particular test case, this reference case, is the one that I am most concerned with right now.
We welcome donations. They are tax-deductible, and the larger the better.
Senator Grafstein: Thank you, Dr. Ritchie, for your eloquent response. Perhaps this sets the stage for us to institute a careful study of the institutional biases of the Department of Justice.
The Acting Deputy Chairman: Perhaps I should mention, Dr. Ritchie, that the department has been invited to attend at the end of hearings on this bill. I am sure they will read and reread with great interest the testimony you have given today.
[Translation]
Senator Pépin: I was president of the Canadian Council when Une femme sur dix est battue au Canada was published. I remember of all the fuss that took place in the House of Commons when Ms Mitchell made a statement on that matter, when all the members began to ask each other how many of them had beaten their wife that day.
Since then, as a result of the entrenchment of the rights of women into the Constitution, we have seen some changes. Different laws were amended, but we saw also attitudinal changes. We know for a fact that it can take five years to make a law, but also that it can take as much as ten years to achieve changes in attitudes.
In reading bill S-17, which you support, one can notice that it makes specific reference to some contentious points to make things easier for those who have to interpret the law. I have been told that when judges are appointed, they are required to follow training sessions on violence and sexual assault, those sessions being given by an institution located here in Ottawa. I asked if it should not be compulsory for all judges to attend those courses, and I was answered that it was left to the discretion of the judges themselves to determine if they needed to do so.
Senator Beaudoin: It is not compulsory.
Senator Pépin: So, several of them do not follow those sessions. Bill S-17 might help a number of them to revise their ideas.
[English]
The Acting Deputy Chairman: Dr. Ritchie, thank you very much for your testimony this morning.
Ms Ritchie: It has been a great honour to be here. If I have been able to help in any way, then I am very pleased.
The Acting Deputy Chairman: Honourable senators, next Wednesday we will have the Attorney General of British Columbia before us on Bill S-17, and we will be able to question him on the letter that he sent to us and on his concerns about Bill S-17. We will also meet Thursday morning. As I mentioned a moment ago to Dr. Ritchie, officials of the Department of Justice will appear before us at the end of our study of this bill, whenever that may be.
As you know, because of the bill's many ramifications, your steering committee agreed to look into Bill S-17 quite deeply. We intend to hear all of the witnesses we think should be heard so that we can make a decision with all the wisdom suggested by Dr. Ritchie.
The committee adjourned.