THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, November 3, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:30 a.m. [ET] to study Bill S-205, An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders).
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Honourable senators, I’m Mobina Jaffer, senator from British Columbia. I have the pleasure of chairing this committee.
[Translation]
I will now ask the committee members to introduce themselves, starting on my right.
[English]
Senator Cotter: Brent Cotter, senator from Saskatchewan.
[Translation]
Senator Dupuis: Renée Dupuis, from Quebec.
I would ask that when I introduce myself as an independent senator from The Laurentides division in Quebec, that it be transcribed that way, because I noticed that this was not done yesterday. The reason is very simple: there is a historical explanation for why there are 24 Senate divisions in Quebec. That is why I am introducing myself this way.
Senator Boisvenu: Senator Pierre-Hugues Boisvenu, from the La Salle division in Quebec.
[English]
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory.
[Translation]
The Chair: Today, we start our study of Bill S-205, An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders).
[English]
To begin our study, we are thrilled to have the sponsor of the bill, Senator Boisvenu, with us today. Senator, thank you so much for being here this morning. You have the floor.
[Translation]
The Honourable Pierre-Hugues Boisvenu, sponsor of the bill: Thank you for such a warm welcome. I will be making my presentation in French, because I am more at ease if I am able to present the bill in French and answer your questions in that language.
First of all, I would like to tell you that I have been working on this bill for three years now. I say “I have been working,” but that is a bit self-aggrandizing, because a hundred women have helped me in this work. They are the true authors of this bill.
I would like to introduce the two persons who are with me today: Ms. Jeanson, who is the coordinator of the group, and Ms. Berglèse, who is also a member of the group. Both have been victims of domestic violence and attempted murder. These women have lived through extremely traumatizing experiences.
We looked at the experiences of these women with the carceral system. We asked them to talk about what they experienced when they were living through domestic violence for many years, and the moment they decided to report the violence to a police officer. We were with them throughout the entire process: the moment they reported their abuser to the police, the moment the abuser was released on bail with an undertaking to appear in court or released under a section 810 recognizance order which requires the abuser to adhere to certain conditions, as well as the moment their abuser was summoned to appear in court, which is called a section 515 order.
We accompanied these women all along the judicial process and we asked them the following questions: “What changes would you make to the Criminal Code that would make you feel safer? What would be the impact of these changes for women who are currently suffering violence in silence? How can we increase the number of women who file a report?” You should know that very few women report their abuser; 80% of women suffer domestic violence without reporting it.
Based on those experiences, my office staff started to do some research. What is being done in various regions of Canada? What are other countries doing to electronically monitor abusers and those charged with domestic violence? We were very surprised to learn that many Canadian provinces, such as Saskatchewan, Ontario, Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland and, very recently, Quebec, are using an electronic monitoring device or bracelet after a person has been found guilty. Even Correctional Services Canada already has regulations that allow the use of an electronic bracelet in cases of domestic violence. We also looked at what is being done in other jurisdictions. We learned a lot from Spain’s experience, where electronic bracelets have been in use for over 10 years. We also did research on what is being done in France and in the United States, because 20-odd American states use electronic bracelets to reduce domestic violence, or at least to protect victims who have reported their abuser.
Afterwards, we started drafting the bill that you have before you. Because we really needed the support of other stakeholders, and not just the victims, we went into consultation mode. The provinces were the first stakeholders that we consulted. We also consulted the ministers of Justice of most Canadian provinces. In Quebec, we spoke with the premier, Mr. Legault, the minister of Status of Women, the justice minister and the minister of Public Security at the time, Ms. Guilbault.
We also consulted various federations of women’s shelters for abused women and victims of domestic violence in Quebec and elsewhere in Canada; the Association des familles de personnes assassinées et disparues; various police federations; Indigenous associations, including those representing Indigenous women and therapy groups for indigenous peoples, which are mainly in Western Canada; therapists who are already working to rehabilitate violent men; and businesses that manufacture electronic bracelets, in order to know how reliable these bracelets are and how much they cost, and also to learn about their experiences with the bracelets, especially in Canada. This is what we did before tabling the bill a few months ago.
The bill itself is pretty straightforward. When a victim reports her abuser to a police officer, the bill will authorize the police officer, if the victim’s safety is threatened and after consulting with a Crown prosecutor, to place an electronic surveillance bracelet on the abuser. You have to understand that the abuser has not yet been charged and hasn’t yet appeared before a judge. The surveillance can be done over a period of one or two weeks. Those are the usual timelines. That would ensure women’s safety during this period.
Afterwards, as you know, two things can happen once the individual has appeared in court: the first, is a recognizance under section 515, which means that the person is waiting for his day in court, is summoned to appear in court and is charged. At that time, the judge can order the accused to wear an electronic bracelet and undergo therapy. You might say: do you really think the person cares about therapy? Well, more and more therapy is being offered to aggressive men. Ontario is one of the provinces that offers the most therapy. I was surprised to learn that therapy is offered to Indigenous men in Western Canada, and they are enjoying a tremendous success rate. Almost 50% of men do not reoffend, which is very encouraging. The electronic bracelet has to be worn until the individual appears before a judge, and we know that it can take up to two to three years before a trial is held.
The other possibility is that the individual is not charged, and the court will issue a section 810 recognizance order, under which the abuser undertakes to refrain from contacting the victim. What is special here, is that the bill creates a new section 810 recognizance. Such an order exists currently, but it is of a general nature; you can apply it to anything, really, such as people who make a racket or own an aggressive dog. These are not people who appear in court and are formally charged; rather, they receive an order that imposes very strict conditions, such as refraining from disturbing the peace, playing music late at night, etc.
We knew that we had to make a specific order for domestic violence and include factors that are linked to domestic violence. A section 810 recognizance is valid for one year, but our new order would be valid for a period of two years. Why? Because the abuser becomes cut off from the victim. The problem for an abuser who is reported to police and summoned to appear in court is the loss of control, specifically the loss of control over the victim. That is what makes the abuser more motivated to attack the victim again and even kill her. By having a two-year period during which the victim would be protected thanks to an electronic bracelet and strict conditions, the abuser has a period when he is cut off not only physically but also emotionally from the victim.
If a person with prior convictions appears in court, the judge can set a recognizance period of three years. When we are talking about a period of two or three years, this is the maximum period of time, not the minimum. The judge can therefore impose a three-year recognizance period if it is not a first offence. The person would have to wear an electronic monitoring device, as I said; there would also be the possibility of requiring the abuser to undergo therapy, and the court is required to inform the victim of the conditions imposed on the abuser. Often, the victims tell us that their abuser was under a section 810 recognizance, but that they were not made aware of all the conditions and they would have liked to add some to gain some reassurance and a sense of security. If the court sets out an obligation to inform the victim of the conditions contained in the section 810 recognizance, the victim can give some feedback to the Crown prosecutor, who can then make a motion in court.
The other important thing is this: if an abuser asks for a change to his section 810 recognizance, the victim will be informed. Here’s an example: one individual was under a section 810 recognizance in the Lac-Saint-Jean region; six months later, he found a job in Abitibi, and therefore asked the judge to withdraw the condition that he had to maintain a designated distance from his accuser, because he would be in Abitibi. Then the abuser went to the Lac-Saint-Jean region and got close to the victim. If you withdraw conditions that have an impact on the victim’s safety or if the abuser asks for certain conditions to be withdrawn, then the victim must be warned that the individual has asked for changes to his section 810 recognizance.
So that is in essence what Bill S-205 is all about. I made a compelling speech in the Senate on the contents of the bill, but I think that what I should really do today is discuss with you anything that seems vague or worrisome. The committee will undertake a detailed study of the bill later. And with that, I’m done, Madam Chair.
[English]
The Chair: Thank you for your presentation. That’s very interesting.
When you say, senator, two years — obviously, it’s not in your bill — you’re saying that this is the kind of thing the judges will be putting in as bail conditions, am I correct?
[Translation]
Senator Boisvenu: Yes. Only a judge can impose conditions as to the duration and the timeframe for the order, and only a judge has the discretion to compel the abuser to wear an electronic bracelet and undergo therapy.
[English]
The Chair: This will still be at the discretion of the judges, correct? It’s not in the bill, but it would be at the discretion of the judges as to how long, depending on the circumstances of each case. Do you agree?
[Translation]
Senator Boisvenu: Exactly.
[English]
The Chair: You mentioned Spain. I see that you have looked at what other jurisdictions have done regarding the use of electronic monitoring devices for individuals accused of offences against intimate partners. You mentioned Spain, then there is the United Kingdom and Australia. What did you learn from what was happening in these jurisdictions?
[Translation]
Senator Boisvenu: We learned how efficient the system is when it is well managed, but it is an electronic system and it can fail. It would not have saved the lives of the 173 women who were killed in Canada last year, but it does alert the victim and the abuser. What we have learned basically, is that it is not just an alarm system for the victim. It goes both ways: the victim wears an alarm and the abuser wears the electronic bracelet, usually on his ankle. When the judge establishes a set distance in order to protect the victim, there are two alerts: a warning alarm, which goes off when the distance between the two people is down to three, four or five kilometres, say, and a second alarm that goes off when the abuser is close to the victim.
The alarm is heard in three places. First of all, it goes off at a central office which manages everything. In the majority of cases, these are private businesses. In Quebec, it is a private business that manages the alarms under Bill 24. The alarm sounds there and it allows staff to quickly alert police headquarters; an alarm also goes off on the bracelet the abuser is wearing telling him that he is in breach of the conditions of his recognizance, and an alarm is heard by the victim, which gives her an early warning informing her that the individual is getting closer to her. She can then call the police or hide at a neighbour’s house. She can protect herself and her children.
Spain is much further along in terms of research. That country set up a research working group with approximately 900 women who have been wearing an electronic bracelet for a few years. There have been three murders. That proves that the system works. I’m going to say it again: this is but one tool among others. It is not the only tool that we can count on to reduce by 50% the number of women killed. Therapy is a tool, the electronic bracelet is a tool. The victim has to try and ensure her own safety. So there are all sorts of tools, and we are just adding a modern one.
I believe the Université de Montréal and the UQAM did a study in 2019 on section 810 recognizances. The majority of abusers do not go to jail; approximately 10% of men are sentenced to prison, and the majority of those will have a suspended sentence, which means they go back home, or agree to a section 810 recognizance. In cases where a section 810 recognizance was handed down, the study conducted by the two universities showed that 50% of the conditions and undertakings were breached. In my opinion, that proves the effectiveness of the electronic bracelet. The condition that was breached the most in cases of a section 810 recognizance was the distance to be maintained between the abuser and the victim.
Moreover, the Syndicat des agents de la paix en services correctionnels du Québec, the CSN, which represents officers that work in prison in Quebec, undertook a similar study on one to two-year suspended sentences, i.e., when the person is allowed to go back home. The study concluded that there was a 44% chance of non-compliance. We can conclude that even if a recognizance is handed down under sections 810 or 515, there is still a high risk of non-compliance. That’s why we believe that the electronic bracelet can be a tool which will have an immediate impact on abusers, because they know they are being watched. That is what the businesses are telling us. As soon as the abusers start wearing the bracelet, the main impact is one of deterrence.
For the victim, the main impact is that she will be warned if the individual does not keep to the required distance.
[English]
The Chair: Your bill is very laudable. It’s a very good idea. When you go to remote areas, however, the police and the court tell me that it’s very difficult to monitor these electric monitoring devices in remote areas. They may not even be police stations around. Have you given some thought as to how the monitoring would work?
[Translation]
Senator Boisvenu: When we consulted Indigenous communities that are struggling with —
The Chair: It’s not just Indigenous communities, there are others, too.
Senator Boisvenu: I was just giving an example. There is the fact that they are remote; often, some communities don’t even have internet service, and the victim and her abuser live in very small communities. The bracelet will not help in this type of situation. We will have to see what we can come up with to protect women who are living in isolated communities or in rural Quebec. I drive out to Montreal each week on highway 50, and at one point, I don’t have a phone signal anymore. Obviously, there are isolated communities where the bracelet will only work in 50% of cases. I think that over the coming years, with improved technology and cell phone coverage, things will get better.
[English]
Senator Pate: Thank you very much, Senator Boisvenu. As we know, you and I have worked on these issues for decades, albeit from differing perspectives, sometimes. I thank you for all the work you have done and the efforts to continue to ensure women are protected.
You mentioned that you have met with a number of groups. Similarly, when I first meet with them, too often the only things offered are more criminal law or sentencing options, when what they are often saying is they want to ensure the violence stops. They want to prevent what has happened to them from happening to other people.
As you have outlined, and as the witnesses with whom we have talked in other contexts have said, criminal law alone and sentencing law won’t address these issues. In addition, the mechanisms already exist for judges to use electronic monitoring. The science has not been great, as Senator Jaffer just pointed out. There are also some issues when you talk about police responses or lack of responses. Why should we focus on this particular approach rather than continuing the focus that the missing and murdered Indigenous women and girls inquiry, Calls for Justice and others have urged, which is to ensure that we have the kind of social, economic protection that allows women not only to escape violence but also to help prevent the conditions from being set up that put them at more risk?
In our debates, we have talked about the lack of shelter beds and economic supports, all of the reasons oftentimes women are at greater risk. Why do you think we should devote resources to this particular approach when we know that takes away and sometimes even creates a false sense of security — among not only those who are potentially victimized or at risk but also those in the public who think that we have done something to solve this?
[Translation]
Senator Boisvenu: There are quite a few parts to your question, and I am pleased to answer, because you are touching upon important topics. First of all, why will this save lives? We have observed that lives are being saved in other countries. We can’t save all lives, but nonetheless lives are being saved. Moreover, I don’t think that we have to send all these men to prison; that would cost over 10 times more than using electronic bracelets. Women have even told us not to send their abusers to provincial prisons. The most recent statistics show that in domestic violence cases, 80% of men, as I said earlier, receive a suspended sentence, and those that go to prison spend six months there. Women have told us to stop sending their abusers to prison, because they are even more violent when they come out.
That is why our bill has two main thrusts: therapy and coercive control of the abuser. I have a lot of faith in therapy. It’s something that hasn’t really been used in Canada to reduce domestic violence. We have a lot of shelters in Quebec, for example. Almost all cities have a centre for battered women, but we aren’t doing much at all for the abusers.
We have worked on the consequences of violence, but have not done much regarding its causes. That is why my bill has two components: first, the coercive component for the aggressors, to control them, and the therapeutic component, to try to treat them and offer services to them. They cannot get those services in prison though. The Canadian prisons where individuals serve sentences of less than two years offer very few or no services for aggressors or violent men. That is why my bill is fairly well balanced in terms of therapy and control. I would say it is one tool among others, senator.
[English]
Senator Pate: One of the realities that you have just alluded to is that the reason why the majority of people who don’t report is because their experience is that they are not believed — particularly women and girls or those who identify as such — and their experiences of the criminal legal system are ones that don’t engender — as you have already identified — confidence and safety. Yet when I speak to women, they talk about the need for economic security.
Regarding the resources that would be used for electronic monitoring, you have mentioned that while people were electronically monitored there were three deaths versus what might have been predicted had they not been electronically monitored. But the rate of women being killed has not abated. So the resources that need to be put in place to ensure women have homes to go to, have safe immigration status, have the supports they need to be able to be with their children and have supports in family law to be able to leave, are all part of what I hear from women that they need. What the consultations that groups like the National Association of Women and the Law, and others have done around your bill have said, “If we’re going to spend money and money is finite, why not spend it on some of these other factors that would actually provide ways to prevent more of the violence rather than an electronic monitoring initiative?” I agree. We can have another discussion about the value of therapy.
Why would you argue that the resources should be put here rather than in other areas?
[Translation]
Senator Boisvenu: There are lot of parts to your question, so let me start with the first one. Women are not believed; they are afraid of reporting their assailant because they want to protect their children. They are afraid of going to police because they are afraid of being killed if they do so; they have optimal control, which means that they have no control over the man.
It is not just that the justice system does not believe them, but first and foremost that they are afraid of reporting their assailant. The mandatory training of judges on intimate partner violence will help. The other factor is financial support. You are right in saying that women who report their assailant are risking their lives and financial security. I am working right now with Senator Yussuff so that Bill C-13, which was passed in 2012 and which helps families whose child has been killed or has disappeared, includes women who report their assailant.
I recently met a woman at a shelter. She had no money, had reported her assailant and had to apply for social assistance because she had no income or pension. The federal government can do its part, and the provinces can be made aware of their part. If Bill C-13 could be extended to women who reported their assailant, they could receive up to 45 weeks of financial assistance. I am working on amending that legislation now.
Yes, there were just three murders in Spain, but how many victims’ lives were saved? When a woman is killed and the man commits suicide, their children require legal assistance and the government has to support them for years to come. So there is a financial cost. If you compare the financial cost of a murder to the cost of an electronic bracelet, it is an investment, not an expense. Whenever a woman’s life can be saved, whether she is a professional or a housekeeper, you are helping the economy because that woman can keep working and paying taxes. The children will not be dependent on government assistance. We also have to look at all the costs that must be borne by the victims of crime.
[English]
Senator Batters: Thank you, Senator Boisvenu, for bringing forward this important bill on such a crucial topic. My home province of Saskatchewan, sadly has the highest rate of domestic violence in Canada. You noted in your opening remarks that you have consulted with many of the provinces. Have you had a chance to consult with the Province of Saskatchewan as a provincial government and any victims or Indigenous groups from Saskatchewan? If so, what has their response been to your bill?
[Translation]
Senator Boisvenu: Yes, we consulted Alberta, Saskatchewan and Manitoba.
The answers were very positive. We consulted Indigenous groups that conduct therapy there. We have had some very favourable, positive discussions. That motivated me even more. I had thought those communities would show some resistance. Far from it, in fact, they shared their experience with therapy, men who undergo therapy because it is mandated or on a voluntary basis. I was surprised that, in both cases, the results were the same. A man sent for mandatory therapy starts to make progress within a few weeks, because he is with a group of men. Those who do therapy on a voluntary basis make the same progress. We were very favourably received in your province, senator.
[English]
Senator Batters: Did you have a chance to consult with anyone from the provincial government of Saskatchewan or not?
[Translation]
Senator Boisvenu: We consulted most of the provincial ministers of justice. We had direct contact; we did not simply send a letter asking for their input.
[English]
Senator Batters: There has been a relatively recent change.
[Translation]
Senator Boisvenu: We consulted them during the pandemic, so the contact was by telephone because we could not travel. We had meetings of one to one and a half hour with each province.
[English]
Senator Batters: We recently had a change in the justice minister in Saskatchewan. We now have a female justice minister, Bronwyn Eyre. Maybe your consultation was the previous justice minister, Gordon Wyant?
[Translation]
Senator Boisvenu: Yes, but if you think it would be interesting —
[English]
If you believe it’d be interesting that we have contact with him, we will.
Senator Batters: Yes. Could you elaborate further on other jurisdictions that have used electronic monitoring devices in domestic violence cases and what sort of success they’ve had?
[Translation]
Senator Boisvenu: Most provinces use the bracelet. We have very little data for Canada, because the provincial laws are for the most part fairly recent. These jurisdictions have changed their legislation regarding data. The country with the most data is Spain, and some U.S. states also have a lot.
We did extensive research on Spain, because its electronic monitoring model seems to be the most effective. That is really what we focused on. You have to understand that, before it adopted the use of electronic bracelets, Spain was one of the countries with the highest rates of crime related to intimate partner violence. We looked primarily at Spain, because the situation in Canada is approaching a pandemic.
France, which adopted legislation a year ago mandating electronic bracelets, has a population of 80 million, but half the number of women killed as in Canada. So it took that approach based on Spain’s experience.
[English]
Senator Batters: In your bill, you also changed the situation for peace bonds. You’re adding a new type of peace bond which would exclusively deal with intimate partner violence cases. One of the changes would be that that particular type of peace bond could be valid up to two years as opposed to the current maximum of one year.
The current peace bonds under section 810 of the Criminal Code would most likely be used for domestic violence cases already. If you happen to know, what percentage of the current peace bonds granted is for domestic violence cases and is potentially eligible, if your bill passes, for this new type of peace bond?
[Translation]
Senator Boisvenu: I am not a judge, I am not on the bench and I do not have an accused person in front of me. In the case of repeat offenders, however, electronic bracelets should be mandatory. When a Crown prosecutor can prove that a person poses a threat to the life or safety of a victim, even if that person is not a repeat offender, I think the priority should be protecting the woman. This whole process would be handled through negotiations between the Crown and the defence. The Crown would have to prove that the individual is dangerous.
With Bill C-75, in the case of a repeat offender, it is up to him to prove that he is not dangerous. I did not say that we are changing Bill C-75. So those who have received an absolute discharge, with or without conditions, and who reoffend are not subject to the same conditions as a person who has not reoffended. If a person has been discharged and reoffends, the fact that they were discharged should not mean that the person is not considered a repeat offender. Being discharged is a privilege in our justice system. It is not a right. That privilege requires compliance with conditions, including not reoffending. Our bill also amends Bill C-75, so that those who have received that type of court order would be considered repeat offenders. How many people will wear an electronic bracelet? I don’t know. That will be for the judge to decide.
I do hope that, under the Criminal Code, judges will be able to request assessments to determine how dangerous assailants are, but that is not done very often. In cases of intimate partner violence or sexual assault, in all cases, and especially for repeat offenders, the judge should always order a risk assessment, which would give the judge an additional tool in mandating an electronic bracelet. That is very rarely done, however.
[English]
Senator Simons: In some ways, I very much like the phrase “intimate partner violence” because it captures people living outside of a traditional, conventional, heterosexual pair bond. In other ways, it limits people you might want to protect. If somebody has separated from or divorced their violent spouse, or is attempting to get out of a relationship wherein it is an ex‑partner who is the source of danger; or, someone who believes that they are in a relationship when they are not — the kind of delusional stalker who thinks you are their intimate partner when in fact you never have been. It also leaves out a whole other category of domestic violence which takes place between parents and adult children or between siblings potentially.
Is there a phrase other than “intimate partner” that might better capture all the people who might benefit from this legislation?
[Translation]
Senator Boisvenu: I completely agree with you. I think we have people around the table who have a lot of legal experience. I am thinking in particular of Senator Dalphond and Senator Cotter. If this definition or term excludes people who are at risk in some kind of relationship, I would say I am very open to the amendment.
[English]
Senator Simons: Like you, I would look to people on the committee with more judicial experience. The other question I had dealt with the clauses that would bar the defendant from contact with children of the relationship. I can imagine that this could be complicated in some cases where there are custody orders in place. I don’t wish to minimize domestic violence, but there’s a continuum between a horrific beating that almost led to a death and a smaller kind of violence.
I think the woman has every right to leave and lay charges, but a family court judge might say that level of domestic violence doesn’t justify denying the defendant supervised visits with their children, for example.
How do we craft legislation that is respectful of the fact that, A, an allegation may be false; or B, the alleged behaviour may not rise to the level that requires a complete severance of the relationship between the accused parent and the children?
[Translation]
Senator Boisvenu: That is a very good question. In terms of child custody and visiting rights, that falls under Quebec’s civil code. In many cases of intimate partner violence, the DYP is involved. That does not necessarily make things easier. We also know that, if they do not attack the woman, many men in Quebec kill the children.
A great deal of caution is required. I have always said that it is better to go strong than to do nothing at all. In cases of intimate partner violence, we have seen that the children were also assaulted in 44% of cases. My priority is to protect the women and children and to let the civil code or family court manage child custody, which in my opinion is another problem. It obviously makes the situation more complex.
In the majority of cases, when a woman reports her assailant, the assailant then reports the woman to the DYP. It is hell. I did not want to address that in my bill because that would have made things more complex. It would have infringed on provincial areas of jurisdiction, and that is not what the women want. There is already a fight in Quebec following the death of a little girl in Granby — no doubt you have heard about it — where there was a public inquiry into the DYP.
I think the government will be taking corrective steps. In introducing this bill, we hope that children are given priority. The purpose of this bill is really to protect the women. In most cases, a woman hides because she is afraid the man will attack either her or the children. Our priority is to protect the women, and if we protect the women, we can certainly also protect the children.
[English]
Senator Simons: Obviously the best interests of the children have to be made a priority. I covered too many cases in Alberta.
First of all, I think any child is abused if they witness their mother being abused. I think that’s traumatic for the children in and of itself. But I’m sure we all know of cases — and I remember one in particular in Alberta — where the spouse kills the children to get revenge on their partner. Dating back to Medea in ancient Greek mythology, it’s a theme.
But I do think we have to be careful with your bill to make sure that we don’t structure something that precludes a court from looking at the best interests of the child, especially, as you say, when there’s a counterclaim. You could end up in a situation where each spouse accuses the other, and then the children have access to neither of the parents and end up, perhaps, being placed in foster care.
[Translation]
Senator Dalphond: Unfortunately, I had to leave the meeting to join a group that is discussing Bill C-233, which has similar objectives. I agree with the objective of Bill S-205 and support Senator Boisvenu’s efforts.
As I said in my remarks about Bill C-233, electronic bracelets cannot solve all of our problems, but they are a measure that can afford some protection. I would like to make some comments rather than ask questions. Quebec launched its $41-million program to introduce 500 bracelets in the province over five years. That translates to $8 million per year so, if my calculations are correct, that means roughly $1,600 per year per electronic bracelet. That is not an excessive amount.
You have to remember electronic bracelets are used in Ontario. It is often the accused who offers to wear one in order to be released. They are provided by a private company at a cost of $600 per month. They are not necessarily used a lot in other provinces, because the accused has to be able to pay for it.
I think Senator Boisvenu is right to propose this measure and to stipulate that it must include a certain framework and some support.
In my remarks on October 17, I noted that the rate of femicide has dropped by 25% in Spain since 2004. That is significant, not negligible. That is the result of a well-structured framework. Training is provided for police squads that specialize in responding to domestic violence and intimate partner violence, and funding has been increased for women’s shelters. As Senator Pate said, women remain in violent situations not because they like them but because they have nowhere else to go. An increasing number of shelters and beds is needed.
Regarding release, including after the court appearance of a person accused of violence against a current or former intimate partner — that is all covered by the Criminal Code definition of “intimate partner” — in order to get a bracelet, the victim also has to consent to it because the victim must also wear a notification device for when the zones are breached.
There are a lot of little details to consider, but the overall objective of this bill is excellent. I fully support the objectives of the proposal before us. It is not the answer to domestic violence, but it is part of the overall response to this scourge that the system must examine.
Senator Boisvenu: In contrast to drinking and driving, where a detector is installed in vehicles and the driver has to pay, in this case I think the government must bear the cost. Intimate partner violence also occurs in poor communities. If an assailant from a poor community is required to pay that amount, that will exacerbate the poverty issue. The government must cover the cost.
When there is a murder, we often hear that the incarceration of the individual will cost the system $5 million. That $5 million is savings for the government, relatively speaking. I think the government has to bear the cost because ultimately there will be savings that will cover all the cases.
I am very pleased that you are sponsoring Bill C-233. I think we will do good work together.
Senator Cotter: I agree with Senator Dalphond’s remark and your reply.
[English]
This is a complete system that needs addressing. One part of it is the point that Senator Pate made about the believability of the victims so that it comes into the system, mostly that resides with police and that invites training of police and greater sensitivity, more knowledge of the tools that are available, rapid intervention.
Saskatchewan has developed quite a good program that Senator Batters referenced, support for women in safe houses.
We do less well there in our province but there’s also another dimension of it, namely, the rehabilitation idea that you suggest here.
I’m fully supportive of the sentiment of it. There may be some ways in which we can assist in adjusting the focus, as Senator Simons said, but my question is similar to that of Senator Batters.
[Translation]
For this bill to be effective, provincial resources are critical. Have you discussed the bill with the provinces in terms of additional resources?
[English]
That is, equipment and the system? Do you sense that they would support making those investments?
[Translation]
Senator Boisvenu: Yes, we talked about the costs. In general, the justice ministers said we are at that point. It is 2022, and there are now relatively reliable electronic tools that can save lives. It is our responsibility as the government. If we ask women to go to the police, we cannot leave them in fear of being killed. The government has the responsibility to protect women who report their assailant. Otherwise, our invitation to go to the police does not make sense. That is general response we got from the justice ministers.
Of course, I would say all the provinces recognized that the necessary resources must be provided to the women who report their assailants. They are very receptive to rehabilitation. I think we have to work with the men; otherwise the justice system will become a revolving door. In my contact with the justice ministers, I believe there was some recognition that this is an investment, not an expense.
Not one minister of Justice has told us not to go there. They have all said, “We’re all thinking about giving our provinces tools for those in provincial prisons.” When they see that the federal government is moving in that direction, the ministers are very reassured.
Senator Cotter: Thank you.
Senator Dupuis: Thank you, Senator Boisvenu. I have a few questions. The first is that Bill C-233, which was passed in the House of Commons, amends the Criminal Code and the Judges Act with respect to intimate partner violence. It overlaps with your bill. In Bill C-233, which was passed in the House of Commons and is now before the Senate, the justice is required, before making a release order in respect of an accused who is charged with an offence against their intimate partner, to consider whether it is desirable, in the interests of the safety and security of any person, to include electronic monitoring. So there is an obligation to consider the issue. From what I understood from your presentation, you chose to leave it to that justice’s discretion.
Does it reassure women who are victims of violence to leave it to the discretion of justices, as opposed to the discretion that justices already have to set conditions? The current system doesn’t seem to reassure women, and rightly so. It’s a system that discriminates against them from one end to the other; they feel it and they know it. I’m trying to understand why you chose judicial discretion, aside from the fact that justices prefer to have the discretion to decide for themselves whether they’re going to consider the matter rather than being forced to do so. That’s my first question.
Senator Boisvenu: I hope my colleagues won’t contradict me. I’ll be very frank. We could have prepared a bill with them that would have included everything, with a belt and suspenders, as they say, with a Conservative introducing a bill in the context of a Liberal government, and that bill would have been acceptable. We made a strategic choice.
This is a first step. It’s not the only step that needs to be taken, but it opens the door to something that women have been asking for years, which is to have a minimum of protection. That is the only reason. They said, “Look, maybe we’ll come back with something else next year, with more experience and in the light of how judges are going to manage all this.” It’s a bit like the sexual predator registry. When the registry was created in 2004 and the legislation was revised in 2010, we realized that some provinces were registering 20% of offenders and others, 70%.
We thought that it should be a uniform measure. If, in two or three years, we see that the electronic bracelet is used in 90% of cases in the western provinces and in 20% of cases in Quebec, the bill will be amended to require the electronic bracelet. If Bill S-205 and Bill C-233 are passed by both houses, we’ll have killed two birds with one stone, because the hearing will be mandatory, but I would prefer it to be a Liberal member asking for it.
Senator Dupuis: I was going to ask you the question. You don’t see a Conservative member in a Conservative government introducing this kind of bill?
Senator Boisvenu: I’m not there yet.
Senator Dupuis: Thank you for your answer. I’d like to come back to your bill. With regard to the person who reports, you suggested a number of things. The person who reports must be assured that they’ve been consulted. Can you tell us how this will work in practice? It also has to be applicable and practical. If we tell women that we’re drafting a nice bill for them, in practice, for X, Y or Z reason, you must have examined this issue. How far will that go in reality?
Senator Boisvenu: There are three possibilities with the electronic bracelet. The victim calls 911, the police go to the house and the woman is physically injured. There is an order to appear before a judge. It can take a week or two. The police officer tells the attacker, “You’re going to wear the electronic bracelet, because I’m afraid that when the woman comes out of your house, you’re going to go after her.” That’s the first situation.
In the other situation, the individual is brought before the judge. The judge has two choices. If the assault is serious enough, the judge can say, “I’m sending the individual to trial, and it will take one to three years.” The electronic bracelet is then imposed. If it’s an “810,” so if it’s less serious, even if the domestic violence is still serious, but the gentleman says, “Mr. Justice, I’m sorry, yes, I assaulted her, I promise not to do it again. Don’t send me to court.”
The judge says, “Okay, but you’re going to sign this order with the conditions.” When the conditions are going to be entered, the Crown attorney has an obligation to ask the victim, “What would make you feel safe? What conditions do you want me to put on paper?” If it’s the police officer who fears for the woman’s life during those two weeks, the police officer will ask her what conditions she wants. So the victim will be consulted. Our bill will also prohibit the attacker from using social networks in the “810,” because that’s how attackers get in touch with their ex-spouse or with friends or siblings these days. That’s where we’re going to manage the bracelet.
Senator Dupuis: I was wondering, when do you expect the justice of the peace to check with the prosecutor that the accused’s partner has been consulted about their needs? What are we talking about when we talk about consultation? I called you, I called him and we proceed? I imagine that you’ve had the opportunity to speak with these women. Will they be reachable?
How is that going to work? In other words, to make it work in real life, and not just in line 2 or 3 of clause 3.1 of your bill.
Senator Boisvenu: There are women who are in contact with the Crown attorney or the crime victims’ assistance centre, whom they can contact. So it’s all of these people who will have to intervene with the victim to say, for example, “The man won’t be sent to trial, and there will be an ‘810.’ What do you want us to put on it?”
I think that information will have to be passed on to the Crown attorney. When the “810” is drafted and the accused signs or before they sign, the Crown will have to show it. It’s important to remember that the Canadian Victims Bill of Rights contains two fundamental principles: the right to information and the right to protection. This means that there is an obligation to inform the victim of the contents of the “810,” because the “810” is for their protection.
It was completely inconceivable in the past that the accused would be given an “810” to protect the victim, but that the victim would not be informed of what was in it.
Senator Dupuis: I will explain why I’m asking this question.
We can see that the mechanism — There’s a reason why some bills include coercive control when it’s a matter of violence between spouses. That means there’s a relationship between two people, it’s a very closed relationship, and it’s about isolation and control.
If we want to get out of this, what I’m trying to find out, when you tell me about CAVACs — and I think it’s important to raise it — is this: in a regulation that would come afterwards, or in guidelines for the prosecutor, did you plan for any requirement to consult these organizations? So that they become recognized intermediaries, whether it’s a shelter, a CAVAC, whatever the organization. That way it becomes part of the system, and we know that when we say “ensure that the partner was consulted,” it means we know that there is —
Senator Boisvenu: The victim.
Senator Dupuis: Yes, that’s it. It means we know that there are intermediaries who break out of this kind of binary relationship and who become the prosecution’s mandatory partners in the justice system.
Senator Boisvenu: That is because the act includes an “obligation.”
Senator Dupuis: Yes, we check to see if the victim was consulted. My concern is adding ways into the system to make sure that yes, we can reach the victim. Do you understand what I mean?
Senator Boisvenu: I am currently working on a bill to improve the Canadian Victims’ Bill of Rights. Yesterday, I talked about people who post photos of victims. When talking about the right information, that is the type of information we want added to the bill. Indeed, the bill does not currently refer much to using broad principles, such as “information.” What do we mean by “information”?
We will include the type of comment you’ve made it in the Victims Bill of Rights.
Senator Clement: Thank you. Good morning, Senator Boisvenu, and thank you for the bill and your presentation this morning.
Madam Chair, I would like to briefly introduce myself, make a comment, and then finish with a question.
I realize that I am new to the Senate, so people don’t know me, and I see that I have an obligation. I’ve been a member of the Ontario Bar for 31 years. During the 31 years of my career, I’ve represented victims before the Ontario Criminal Injuries Compensation Board.
This tribunal is truly based on the victim, their experience, their testimony and, afterwards, on the treatment and reconciliation they need as a victim. I also sat on the board of directors of a shelter in Cornwall for over 10 years. And I still practice law, I just want to make that clear.
I really appreciate your bill, because of the balance I see between monitoring and treatment. What I experienced in my community in Cornwall was that we really didn’t have access to resources for men; it was always a challenge. It’s not because of a lack of skills; there was a lack of resources. I know you talked about it, and I know the province has played on that, but I’d like to hear more about it.
I also appreciated Senator Simons’ question about the use of the expression “intimate partner.” Senator Audette also raised this issue in the chamber, because we see more and more that the victims can be journalists, for example, victims of specific situations or obsessions. It is interesting that you are open on that level.
I also like the aspect of involving the victim, consulting them, notifying them. That was a consistent complaint from my clients, who couldn’t participate in the process for protecting them. I’m telling you all this to start.
The question is on the Canadian Charter of Human Rights. On the level of research, how will this bill compensate for the weakness of being attacked on the basis of the Canadian Charter?
When you use the word “abuser,” it’s entirely appropriate. However, before that person is convicted, they are the accused, not an abuser. It’s tricky, and that’s where I personally feel uneasy.
I would like to hear you on the subject of the Charter and on the fact that wearing a monitor could be seen as a conviction, even before the courts make a ruling.
Senator Boisvenu: You had the floor.
First of all, thank you very much for educating me on what Ontario is doing. We had the opportunity to take a walk together the other day inside the Senate and you taught me a lot.
Obviously, resources for men are currently lacking in the area of domestic violence. We’ve barely started in Canada. Ontario is very far ahead, more than the other provinces. Quebec has started; I think the province will invest $26 million over the next two or three years. It will bolster existing centres whose financial capacity is not at the required level to offer therapy to more than a handful of people.
As for the Canadian Charter of Rights and Freedoms, use of an electronic monitor is already in the Criminal Code. It exists for terrorism-related crimes. The Parole Board of Canada Act provides for the use of electronic monitors when a criminal is released and poses a threat to their victim.
Therefore, it already exists in the Criminal Code and in federal legislation. In that sense, if it is already in legislation and hasn’t been challenged, I don’t think the way we want to use it, which is to protect women, will be challenged.
Senator Clement: You gave terrorism as an example; what was the other?
Senator Boisvenu: The other is the Parole Board of Canada.
I can say so because I have the relevant section of the regulation in my documents: subsections 57.1(1) and 57.1(2) of the Corrections and Conditional Release Act.
Senator Clement: There hasn’t been a Charter challenge?
Senator Boisvenu: Not that we know of. I cannot give you an absolute answer. Have there been any in the past? Perhaps. The electronic monitor has been used two or three times for people who were arrested while awaiting trial, and that wasn’t challenged.
[English]
The Chair: Senator Boisvenu, will Bill S-205 add a provision to the Criminal Code that is not already available for getting a reconnaissance order? How will it fit into the Criminal Code?
[Translation]
Senator Boisvenu: Currently, domestic violence is spread all throughout the Criminal Code. It could be criminal harassment or home invasion — It’s like a kind of patchwork in there.
That means we don’t create a section on domestic violence, but an “810” specifically for domestic violence. We’re taking it out of the general “810s”, hoping that in three or four years there will be a section in the Criminal Code for women who are victims of domestic violence, just as there is for sexual assault and murder. I think it will help judges to have a specific tool, because when they have to make decisions about orders, they will be able to refer to something specific on domestic violence.
[English]
The Chair: So we’re saying in the future, but how will it fit in the code now?
[Translation]
Senator Boisvenu: The bill will create a specific order for women. I hope that this will be a first step in ensuring that the Criminal Code has an even more extensive tool for dealing with domestic violence. Of course, we could have been ambitious and fleshed it out more. However, I think we were being realistic, and I thank the women, because they would have liked to go further. We are now sure that this is a very good first step, and it’s a matter of convincing my Senate colleagues to pass the bill. I have met a few times with the member sponsoring Bill C-233. I am very happy that the House of Commons has its own bill. This means that there is now awareness in both chambers to move the electronic monitoring project forward.
[English]
Senator Batters: Thank you.
I wanted to bring up one issue to just make it clear to everyone who might be watching this, along with Senator Simons’ intervention. This is a Criminal Code amendment that Senator Boisvenu is bringing here. It isn’t anything to do with family law, custody or access issues with determining the best interests of the child. That’s for family law courts. This is a Criminal Code amendment, and it would be bringing things forward under the Criminal Code, including a different sort of peace bond that would be specifically applicable to intimate partner violence.
I wanted to make that clear. Thanks.
Senator Pate: Thank you, Senator Boisvenu.
My question comes up in part in response to your response to Senator Clement’s question. Have you had consultation with Correctional Service Canada, in particular the Public Safety Canada research folks? There was a fair bit of research done around electronic monitoring. As you may recall, as critic to this bill, I talked about the ineffectiveness of the technology and the reasons that there were some contradictions between corrections and the Public Safety research folks.
So I’m curious whether you have had an opportunity to consult with them.
Also, Madam Chair, if we’re going to have more witness, we may want to actually have them present as well.
[Translation]
Senator Boisvenu: First of all, the Correctional Services project in Ontario was designed specifically at my request. I’ve been working on the electronic monitoring project since 2012. I’m also working on domestic violence and criminals released with an almost certain risk of reoffending. This experiment did not have conclusive results because the technology at the time was very different from today’s. That’s experience talking. Remote surveillance technology has evolved significantly in the last ten years, and will continue to do so in the coming years.
So, no, we didn’t consult directly with Correctional Services, because about 1% of men convicted for sexual assault end up in a federal penitentiary. Eighty percent go to a provincial prison. We therefore consulted the provinces because they have to deal with abusers the most.
[English]
Senator Pate: I was going to say that the research has been done at Public Safety. That’s the provincial experience, absolutely, but might be useful to have that included.
As well, given that it’s already possible within the Criminal Code to do this — as you have already indicated, it has been done in a number of provinces.
[Translation]
Senator Boisvenu: I am certain, Madam Chair and Senator Pate, that these people will be invited to come and tell us about their experience. That’s my hope.
[English]
The Chair: We have come to the end of our questions. I want to thank you all for being here. Once again, I want to thank you, Senator Boisvenu, for your zeal in protecting women in our country. Thank you very much.
(The committee adjourned.)