THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, November 16, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:17 p.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, and I have the pleasure of chairing this committee.
[Translation]
I’d like to ask the senators to introduce themselves, beginning with the person on my right.
[English]
Senator Batters: Senator Denise Batters, Saskatchewan.
Senator Cotter: Senator Brent Cotter, from Saskatchewan.
Senator Clement: Just in time, Senator Bernadette Clement, Ontario.
Senator Manning: Senator Fabian Manning, Newfoundland and Labrador.
Senator Pate: Kim Pate, from here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
The Chair: Today, we continue 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). For our first panel, we have, from the Indigenous Bar Association, Alain Bartleman, Member of the Board. We also have, from the Criminal Lawyers’ Association, Daniel Brown, President of the CLA and Lead Counsel at Daniel Brown Law; and Stephanie DiGiuseppe, Women’s Director — Toronto for the CLA and Partner at Ruby Shiller, by video conference. And from the Women’s Legal Education and Action Fund we are joined by Rosel Kim, Staff Lawyer, also by video conference. We will begin with you, Mr. Bartleman.
Mr. Bartleman, before we start, I want to recognize how you always make yourself available to all our requests, even if they’re at the last minute. You always add to our discussion. We sincerely appreciate all of your contributions. You can begin now.
Alain Bartleman, Member of the Board, Indigenous Bar Association: Chi-meegwetch for your comments, Madam Chair, and chi-meegwetch for once again having invited the Indigenous Bar Association to present and offer its perspective.
As Madam Chair has indicated, I am here on behalf of the Indigenous Bar Association, or IBA. I’d like to note at the outset that we laud the bill’s aim of reducing domestic violence, particularly violence against women. However, the IBA notes that amendments to the Criminal Code cannot on their own reduce or, at a minimum, protect or guarantee women’s safety.
The presentation that I’ll be providing over the next three or four minutes will focus on two elements: the proposed amendment to section 515 of the Criminal Code, particularly regarding the addition of seeking treatment and counselling, as well as provisions related to electronic monitoring.
With respect to treatment, the Indigenous Bar Association applauds the inclusion of this provision but notes the real risks associated with funding deficiencies for Indigenous mental health and asks that these be considered by the Senate in its deliberations on this bill.
Regarding electronic monitoring, we note our concerns with potential reliance upon this tool if taken in isolation of further means to ensure proper social and other supports, as well as the pitfalls associated with reliance on a technological tool in areas that are particularly inhospitable to modern technology, for example, the Far North and especially remote regions.
Regarding the IBA, we are a not-for-profit federal corporation. We are a national association of Indigenous lawyers, judges, academics, scholars, articling students, law clerks, paralegals and law students. IBA members individually identify as members of Indigenous peoples of Canada, whose constitutional rights are recognized and affirmed under section 35 of the Constitution Act, 1982. We also often represent members and collectives of the Indigenous populations across this country.
The IBA’s objectives include the promotion and advancement of legal and social justice for Indigenous peoples, promoting the reform of policies and laws affecting the Indigenous peoples of Canada and fostering public awareness within the legal community, the Indigenous community and the general public in respect of the legal and social issues facing Indigenous peoples within Canada.
We are all aware of the concerns involving domestic violence and the Indigenous populations, but in order to provide more information and perhaps a bit of context behind the IBA’s special interest in commenting on this bill, I would like to spend a few moments discussing the social scope and the importance of this bill for us.
Very simply, Indigenous women and girls bear the brunt of domestic violence in this country on a proportional basis. Results from the Government of Canada’s Survey of Safety in Public and Private Spaces indicate that more than 6 in 10, or 63%, of Indigenous women have experienced physical or sexual assault in their lifetime. Within the sphere of domestic violence, which concerns us today, 57% of First Nations women and 63% of Métis women experienced psychological intimate partner violence by an intimate partner within their lifetime. Of Indigenous women, which include Métis and First Nations women, 44% suffered either physical or sexual abuse by an intimate partner in their lifetime. The comparative figure for non-Indigenous women is 25%.
To continue on with discussions regarding physical violence, Indigenous women experience disproportionately higher levels of specific physical abuse behaviours. In particular, Indigenous women — again, Métis as well as First Nations women — were approximately three times more likely than non-Indigenous women to have an intimate partner in their lifetime who threatened them with a weapon, 13% of the Indigenous women population versus 4% of non-Indigenous women; choked or strangled them, 17% versus 6%; or beat them, 16% versus 6%.
Furthermore, Indigenous women were two times more likely than non-Indigenous women to have been pushed, shaken, grabbed or thrown, amounting to approximately a third of Indigenous women versus 17% of non-Indigenous women, or alternatively, hit with a fist or object, kicked or bitten by an intimate partner in their lifetime, 26% versus 11%.
I note to the members of the committee that this data is old. Since the COVID-19 epidemic, there has been a further sowing of the seeds of domestic violence within Indigenous communities, and it is Indigenous women who have harvested, unfortunately, this dismal fruit of increased violence. Accordingly, the IBA is very interested and concerned by this spectre of violence, and we take a special interest in measures to address it.
There are many sources of this violence. I believe that we’re all familiar with the recommendations of the report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, likewise with the Royal Commission on Aboriginal Peoples. They speak at length and eloquently about the sources of this violence.
There are equally many solutions that must be considered together, and in that sense, we echo the words of Justice Locke of the Supreme Court of Canada in the Goodyear Tire & Rubber Co. of Canada v. R. decision, which was upheld in 2019 and cited by the honourable senator who brought forth this private member’s bill, particularly the comments of Justice Locke that:
The power to legislate in relation to criminal law is not restricted . . . to defining offences and providing penalties for their commission. The power of Parliament extends to legislation designed for the prevention of crime as well as to punishing crime.
We encourage both houses of Parliament to consider expanding the provisions of this bill to address the root causes and to address what Justice Locke of the Supreme Court called the prevention of crime.
Accordingly, with respect to the proposed amendments to section 515 allowing for treatment, we salute the inclusion of additional language within 515(2)(e). We note that violence against Indigenous women is frequently the product of disordered thinking and unregulated emotion. Saying so does not diminish the accountability demanded of those who commit violence. However, recognizing the roots in mental illness, colonialism and racism, both historic and current day, within the creation of mental illness, as well as explicitly affirming the power of a justice to require attendance at a treatment program has the potential to break the cycle of partner violence that plagues our communities. We must signal a warning that requirements to attend treatment can only be effective if, one, there are treatment centres, and two, if they are properly resourced.
As noted by a study of Dr. Arjun Patel from McMaster University published in 2019, entitled Access to Mental Health Care in Indigenous Communities Across Canada, 9 of Canada’s 10 provinces do not include Indigenous-specific mental health programs. As Mr. Patel noted, while the federal government does provide health benefits, including mental health benefits —
The Chair: Mr. Bartleman, I’m really sorry to interrupt, but can you please conclude? Thank you.
Mr. Bartleman: I apologize, Madam Chair. Requirements for treatment can only be taken if, in fact, there is the ability for the population to access those resources.
Likewise, for electronic monitoring, when confronted with situations where there are extreme climatic conditions, reliance upon electronic tools can often pose numerous issues with respect to not only the availability of the tools but also the seriousness with which they’re treated by local police services. Meegwetch.
The Chair: Thank you very much. We will now go on to hear from Daniel Brown and Stephanie DiGiuseppe. Mr. Brown, please go ahead.
Daniel Brown, President of the CLA and Lead Counsel at Daniel Brown Law, Criminal Lawyers’ Association: Good afternoon, Madam Chair and senators. It’s been repeatedly recognized by our highest court that most bail conditions restrict the liberty of a person who is presumed innocent. As the Supreme Court reminded us in the Zora decision in just 2020, widespread problems continue to exist with the ongoing imposition of bail conditions, which are unnecessary, unreasonable, unduly restrictive, too numerous or which effectively set an accused up to fail. Breach of bail allegations can lead to serious consequences for an accused person and for the justice system at large, especially when the system is overburdened by breach of bail cases that come into the system. Just last year, they made up one in five cases in the justice system.
So the Supreme Court reminds us that we need to be guided by the principle of restraint when it comes to imposing and enforcing bail conditions. Justice Martin, in the Zora decision, on behalf of the Supreme Court, said:
Before transforming bail conditions into personal sources of potential criminal liability, judicial officials should be alive to possible problems with the conditions.
Now, this caution to judicial officers applies equally to our Senate as well. Like Mr. Bartleman, on behalf of the Indigenous Bar Association, we agree that intimate partner violence is a scourge on society with many negative and traumatic effects faced by those who experience it.
The Criminal Lawyers’ Association, or CLA, didn’t come to the Senate today to defend domestic violence or to suggest otherwise, but we’re here today to talk about the need for evidence-based tools to address this problem, tools which respect constitutional principles. Legislative reform should be necessary, constitutional and it needs to make practical sense. One of the challenges here is that we don’t believe that this Senate bill makes practical sense. We don’t believe it adheres to constitutional principles, and we don’t believe it’s necessary.
Despite its laudable goals, it just fails to solve the problem of domestic violence or intimate partner violence. It’s unnecessary because the tools already exist in our justice system to address this problem and to address it in a well-balanced way.
This bill runs afoul of Supreme Court jurisprudence, which fails to respect the principles regarding reasonable bail and the presumption of innocence. The bill creates insurmountable practical hurdles to implement these proposed changes. It will negatively impact an overburdened system, which in turn will impact the public’s confidence in our justice system. Finally, we believe it will disproportionately impact racialized, Indigenous, vulnerable communities and low-income accused more than others.
Just on the point of whether our bail system already has all the tools it needs, judges and justices of the peace can impose appropriate restrictions on a person’s liberty at the bail stage when an accused person presents a substantial risk to reoffend or commit other crimes without these restrictions in place. This includes the ability of a judge to impose ankle bracelet monitoring already, or any other reasonable condition that is necessary in the circumstances.
This bill proposes to download that responsibility from judges onto police officers at the police station. But there’s a reason why police aren’t tasked with this responsibility. It’s the concern that, without judicial oversight, these conditions are going to be overused, unduly imposed and set a person up to fail.
Judicial oversight is necessary to ensure there’s a restrained approach to bail and to ensure that the presumption of innocence is respected. Unlike in a criminal court, at a bail hearing, an accused person can be represented to make legal arguments in favour of or against any particular condition. There’s no such legal representation afforded to somebody at the police station.
We also know that a person who’s at the police station is in a vulnerable situation. We know that they’re likely to agree to just about any condition to be released. We’ve seen it every day; the police impose unduly harsh conditions. Ms. DiGiuseppe and I deal with that reality every day, as do other defence lawyers across Canada.
We’ve also seen, unfortunately, that these types of unduly harsh conditions are placed disproportionately on racialized accused. Black offenders and Indigenous offenders are more likely to face harsher conditions than others. They are more likely to reside in areas that tend to be over-policed. They are more likely to be brought back into the justice system on allegations of breach of bail, and it exacerbates the problem of the overrepresentation in our courts and our prisons that is already out of control and offensive. It will discourage restraint.
From a practical perspective, the ability to sort of implement ankle bracelet monitoring at that early stage is near impossible. Even when we have clients of means who can have these conditions imposed, it takes days, sometimes even weeks, to put a plan like this together and to ensure that the plan is implemented. The idea that someone is released from the station is intended to be a very efficient and quick process, normally, for someone who poses no risk in the community, has no criminal record and does not need to be supervised.
To give the power to the police to impose such a harsh condition but not the ability, for example, to impose any other type of judicial supervision, like a surety — it is just incongruent with the others. If there’s a real risk that a person needs to be monitored in the community, that’s the ideal case for a judge to hear and to determine whether or not conditions like that are appropriate.
We also have concerns about the peace bond regime that’s being proposed. Right now, the peace bond regime that already exists in our justice system addresses all of the concerns raised by Senator Boisvenu’s proposed bill. The idea that a child of someone who is a victim of intimate partner violence or that person themselves — they can already go to the courts and receive a restraining order for protection. They can ask for any reasonable condition they want, and a judge, upon hearing the evidence, can impose those conditions.
That’s the section 810 regime of our Criminal Code, but there’s a separate, more onerous regime that would allow for additional preventative measures where a person is at risk of causing sexual harm to a child or a serious personal injury offence, including more serious forms of intimate partner violence. These exist under subsections 810.1 and 810.2 of the Criminal Code. These are well-crafted, well-balanced provisions already. They have been carefully thought out, debated at length and address the concerns that this bill raises with respect to domestic partner violence.
They also have an added element of oversight. They require these more intense conditions —
The Chair: Mr. Brown, may I ask you to conclude, please?
Mr. Brown: Absolutely. These conditions really go too far. The proposed bill does not solve a problem that isn’t already solved by our Criminal Code. What we have here is a bill that is presented as a solution to domestic violence, but it actually risks creating overrepresentation in the justice system, something our courts have warned us against and encouraged us to avoid. Our submission is that it doesn’t solve the problems it’s intended to solve.
The Chair: We’ll go on to the Women’s Legal Education Action Fund, Ms. Kim.
Rosel Kim, Staff Lawyer, Women’s Legal Education and Action Fund: Good afternoon. My name is Rosel Kim. I’m a staff lawyer at the Women’s Legal Education and Action Fund, LEAF for short. I’m grateful for the opportunity to appear today from the traditional lands of the Mississaugas of the Credit River, the Huron-Wendat, the Anishinaabe and the Haudenosaunee peoples, now known as Toronto.
LEAF works to advance the equality rights of women, girls, trans and non-binary people through litigation, law reform and public education. For the past 37 years, LEAF has advocated for the need to improve the justice system’s response to gender-based violence, including domestic violence.
We agree with Senator Boisvenu that addressing intimate partner and family violence must be a national priority. Intimate partner and family violence are highly gendered acts. They require a multi-pronged and systematic approach that must be centred on the needs of survivors of violence. However, ensuring that survivors have the support they need requires us to acknowledge that the criminal legal system cannot be the sole focus when addressing domestic violence, nor should it be the default response.
Expanding the criminal legal regime may have the effect of diverting funds and resources that could be used to provide direct and necessary support for survivors. Often, criminal law is a site of trauma and revictimization for survivors. For these reasons, we have concerns about the emphasis on electronic monitoring as a tool to address domestic violence. We also have questions about the efficacy of a newly proposed peace bond for family violence.
I want to begin, however, by expressing our support for the provisions of the bill that increase opportunities for sharing information and consulting with survivors. Survivors are not direct parties to criminal proceedings. The criminal legal system remains inaccessible to many of them. When survivors do manage to access it, it can pose safety and retraumatization risks.
Informing survivors of their rights during the legal process and requiring judges to ask prosecutors whether the intimate partner of the accused has been consulted about their safety and security needs before making an interim release order can have a positive impact by providing survivors with information about the process involving the aggressor.
At the same time, I want to stress that meaningful consultation about safety and security needs is not possible without providing adequate resources for survivors.
Our primary concern with this bill relates to its electronic monitoring provisions. Ultimately, electronic monitoring is a reactive tool that provides a false sense of security for many survivors and does not address the systemic causes of domestic violence or the underlying issues that survivors face, like isolation and the lack of resources.
Electronic monitoring — which already exists as an option for judges to impose as a condition on interim release — may make some survivors of intimate-partner violence feel safer and may protect survivors from harm in certain cases. However, this is not the case for many people. Electronic monitoring can be ineffective and even harmful, especially for survivors who are Black, Indigenous and racialized. For survivors living in rural areas and remote communities, including Indigenous communities, poor connectivity issues and the lack of access to geolocation services decrease the effectiveness of monitoring. Many women fleeing violence face the risk of being electronically monitored themselves. Most importantly, even proponents of electronic monitoring have underscored that it’s just one of the many tools to address domestic violence, not the only one.
Electronic monitoring is costly. In Ontario, electronic monitoring devices cost between $400 and $600 a month. The Quebec government has committed $41 million to implement its electronic bracelet program for domestic violence offenders. One of the main challenges that survivors face is not having the economic and social supports that will enable them to leave a violent situation. We urge the committee to consider how the costs of implementing something like electronic monitoring can be used directly to empower survivors instead.
With respect to the peace bond provisions of this bill, we are concerned that the new provisions would not actually lead to concrete benefits for survivors and that they’re largely duplicative of existing peace bond options available to them.
Peace bonds are one tool for preventing the aggressor from engaging in violent or harmful behaviour. However, advocates supporting survivors have highlighted the shortcomings of peace bonds as a meaningful tool.
Instead, I would highlight the need to strengthen the resources survivors can access directly and tangibly, such as a network of support and resources for safety planning, when considering tools that could actually be effective in addressing domestic violence. Thank you.
The Chair: Thank you very much, Ms. Kim.
We’ll now go on to questions. I have a question for you, Mr. Bartleman, and that is to do with electronic monitoring. How feasible is it to have electronic monitoring considering that oftentimes Indigenous people are living in rural areas where there are not many facilities? How feasible, do you think?
Mr. Bartleman: I don’t think it’s very feasible. There are two concerns that I can think of off the top of my head which would pose serious concern, frankly.
The first is the technological difficulties faced with ensuring that there’s a constant signal going between the device and whatever receiving unit, if you will, would be involved. I think, in particular, of many of the communities that I visited and one community in particular that I have represented along the James Bay coast where there was no cell coverage. I would find it very difficult to see how there could be an effective monitoring system in a place where there was very little cell coverage and where, if a bad storm came around, the localized cell service was often quite severely disrupted.
The second issue is with respect to the geofencing. Many reserves, especially in northern Ontario, are surprisingly small for the areas in which they find themselves, and I would be concerned by the broadness, if you will, of the geolocation services. I’m not sure what value would be placed for a geolocation service if an individual was provided with a location that was only accurate to about a kilometre and a half, which could cover the entirety of the reserve in which that individual would find him or herself.
The Chair: Thank you very much, Mr. Bartleman.
Mr. Brown, I have a question for you. You spoke about how racialized and Indigenous accused people face more restrictions, more conditions. Can you expand on that, please?
Mr. Brown: Absolutely. What we’ve seen is a prison system where overrepresentation is stark. A recent report that just came out last week said that Black offenders are represented three times more in the justice system and in the prison system; Indigenous offenders, seven times more. In fact, right now, 50% of the female federal prison population is Indigenous.
Statistics and studies show repeatedly, over and over again that Black and Indigenous offenders are subject to harsher conditions, more conditions and over-policing in the communities. The communities they come from are over-policed, and therefore there’s more scrutiny placed on them. They’re set up to fail. And when they’re set up to fail, what happens is they’re brought back into the justice system and many times denied bail the second time around, and they will plead guilty — whether they’re guilty or not — to get out of jail, rather than wait in prison for their day of trial.
It creates a vicious cycle, and we don’t see that with other communities. Those who can afford private ankle bracelet monitoring will be able to be released from jail immediately. Those who need to wait for the government-subsidized ankle bracelet monitoring or other conditions like this will spend time in jail. We saw that during the COVID pandemic. They actually made ankle bracelet monitors available to some. Those who could afford it hired private services — hundreds of dollars a month, because they were able to afford it — and those who couldn’t had to wait until those bracelets became available. So it was a practical resource issue.
In principle, some of these things sound like good ideas, but it creates a pay-to-play system, a two-tiered justice system: one for the wealthy and one for racialized or marginalized members. That’s what we’re really concerned about.
The Chair: Thank you, Mr. Brown.
Senator Dalphond: Thank you to the witnesses. My question is to Ms. Kim. Can you elaborate more about the concerns you have raised about electronic monitoring?
Ms. Kim: Yes. We certainly appreciate the initiative and the thought that has gone into drafting the legislation. What we want to highlight with our testimony is not that we should do nothing but that we should look to what kinds of tools can actually meaningfully address domestic violence and provide preventative — not reactive — measures, which we think electronic monitoring represents.
There are existing studies that show that the usefulness of electronic monitoring is somewhat questioned, especially as a stand-alone tool. Some studies — one from 2012 by the Standing Committee on Public Safety — have shown that even when you’re trying to use it, it has to be used with other community supervision and reintegration tools.
I think those are some of the concerns that I would express — that when survivors are leaving violent situations or violent relationships, what they really need at the time are the resources to leave and a network that can actually support them and make sure they are safe.
So we are just looking to those kinds of measures before turning to something like electronic monitoring, which is costly.
Senator Dalphond: Yes, but if we look at the Spanish experience, it seems it has been quite useful. It’s a comprehensive program. It’s police training; it’s having more refuges available and more refuge rooms available, more shelters, places, all of that, but it’s also electronic monitoring. At the beginning there were a lot of concerns, but it seems, according to recent studies, that people are getting familiar with the system and that the victims are better protected than they used to be. Are you familiar with the Spanish experience?
Ms. Kim: I saw the references to the Spanish example when preparing for this. Right now, we are seeing a crisis in shelters, and we are generally seeing a lot of shortcomings in resources that the survivors really need. Those would be the priorities that I would point to, where the survivors really need support, before considering things like electronic monitoring.
Senator Dalphond: But you’re not saying that one excludes the other? For example, Quebec has had a program for over five years, providing the bracelets, financing it, and there are also more shelter spaces being made available. There are also social work, training and all types of protection. Your concern is that the money would be diverted to monitoring instead of to more critical resources. Is that what you’re saying? Because I don’t see it as being opposite. It would be part of a whole package that would include social interventions, shelters, education and also monitoring.
Ms. Kim: Certainly. That kind of multi-pronged approach is great, but I would prefer something that can go directly into the hands of survivors, instead of something that strengthens the criminal system, which isn’t always accessible. If not all survivors will resort to it, to flee violence, then I think the resources are better spent on other economic and social supports.
Senator Cotter: Thank you to the witnesses for very insightful presentations. Much appreciated. I have some questions that might arise in the second round, but initially I have a question for you, Mr. Brown, along these lines: You identified a number of concerns you had with the bill. Some of them are what I would call policy concerns and the effectiveness aspects of it; others are constitutional. Those are two significantly different levels of concern. One can make policy choices in one or other direction, wisely or unwisely, but it does become a concern if we are opting for and supporting unconstitutional provisions.
Can you speak more specifically to what you see as problematic constitutional aspects of the bill that Senator Boisvenu has presented for our consideration?
Mr. Brown: If it’s okay, I’d like to pass this question to Ms. DiGiuseppe to answer.
Stephanie DiGiuseppe, Women’s Director – Toronto for the CLA and Partner at Ruby Shiller, Criminal Lawyers’ Association: The constitutional concerns that we’re most concerned with, obviously, come out of section 11(e) of the Charter, which is the right to reasonable bail. That can be affected or breached in practical ways. If a number of people who do not need to be on ankle monitoring conditions, for example, are being released from the station on ankle monitoring conditions, they are receiving a more onerous bail plan or bail condition than the constitutional protection of reasonable bail would say that they should have. So we’re seeing practical breaches in that way.
Another interesting point under the heading of constitutional concerns comes out of the proposed conditions which have to do with imposing additional treatment conditions. That was something in the bill — at least a suggestion that treatment conditions should be imposed more because we’re going to actually enumerate them in the bill.
Recently, in 2020, the Supreme Court in the Zora decision, had something to say about this and about the restraint that needs to be used in imposing treatment conditions. The court in Zora, Justice Martin, made it very clear that rehabilitating or treating an accused for an addiction or other illness is not an appropriate purpose of a bail condition. That means it’s a breach of section 11(e) of the Charter. To suggest to judges that these should be imposed more often is incongruent with Zora and with the clear Supreme Court guidance in this area. It’s an area of particular concern for our organization.
I’m not sure if that sufficiently answered your question, senator. I’m happy to answer any follow-up.
Senator Cotter: Very helpful. I have a supplementary that might not be directly focused on these provisions, but one of the concerns Mr. Brown identified was the sort of “innocent until proven guilty” dimension of things. The fact of the matter is people who have bail conditions imposed upon them are still innocent until proven guilty, but aspects of their liberty are constrained. Is there more you could say about this concern about the “innocent until proven guilty” side of the equation being made more complex here?
Ms. DiGiuseppe: That concern is twofold, as Mr. Brown suggested. One, we have very real concerns in practice that when individuals are denied the right to reasonable bail, they enter false guilty pleas. They plead guilty just to get out of jail, instead of holding the Crown to the burden of proof. That means innocent people are being convicted. Every time we introduce legislation that suggests to judges that they should be more heavy-handed in bail, we go against a series of cases that have come out from the Supreme Court of Canada from the 1990s until quite recently that suggest the exact opposite and tell us that release should be the norm.
That’s one concern that we have. Onerous bail creates false convictions.
The other concern, of course, is a little more general than that. When a person is on bail, they are presumed to be innocent. When bail becomes punitive or when bail is structured in a way that it’s premised on an assumption of guilt, then we start to interfere with the right and the presumption of innocence enshrined in section 11(d) of the Charter.
Treatment conditions can be looked at that way as well. A condition to take anger management presupposes guilt, presupposes an anger problem. Other conditions can also presuppose guilt and particular problems. This is why the Supreme Court in Zora said these conditions have to be meted out with restraint; they have to be very carefully tailored. Judges are in the best position to do that, and they can do it with the resources they have. They don’t need additional tools.
Senator Batters: Thanks, all of you, for being here and for all of your work on these key topics.
Mr. Bartleman, I really appreciate the enormity of the statistics that you highlighted today. They’re certainly staggering. Particularly, as you stated, Indigenous women and girls definitely bear the brunt of domestic violence in Canada, unfortunately. The circumstances of the COVID pandemic over the last two and a half years have only exacerbated this with its isolation, its dramatic economic difficulties and increased addictions and mental illness challenges.
I actually gave a speech in the Senate Chamber just last night regarding a Bill C-5 amendment that detailed some of these different, very startling statistics that you spoke about today. Thanks for talking about that.
Also, I absolutely share your concerns about the mental illness component here and how there need to be more resources devoted to this. I would point out that the federal government right now has a very major promise on the books of $4.5 billion establishing the Canada Mental Health Transfer. They are already $875 million behind, and the economic statement that they just put out doesn’t even mention it, so that’s very unfortunate to see.
The question I’d like to ask you, Mr. Bartleman, is about the electronic monitoring. While electronic monitoring has been an option for judges to consider for some time, as you’re, of course, aware, some provinces have recently been developing programs to increase its usage. In particular, the province of Quebec has recently been implementing an electronic monitoring program. I’m wondering if you’re familiar with those provincial programs and whether they’re proving to be successful.
Do you foresee more provinces taking greater interest in developing electronic monitoring programs to a greater extent than they are already using them? What can and should the Government of Canada do to assist the development of successful programs with that?
Mr. Bartleman: Thank you for your question and your remarks, Senator Batters.
From a high level, we see in Indigenous communities — and I am going to focus my response on Indigenous communities that are, in many cases, situated in provinces and also territories. We see a barbell problem, I should say, with Indigenous peoples. On the one hand, there is over-policing in urban areas, but on the other, there’s often quite dramatic under-policing within First Nations reserves.
One of the concerns that the IBA has with electronic ankle monitoring or electronic monitoring full stop, on top of the concerns raised by my friend Mr. Brown, is that when there are false alerts, which can happen frequently, less and less attention is paid to them. When you look at the geographic constraints of many reserves and the concomitant struggles that come with being a geographically isolated area — for example, extreme cold or extreme weather events, where these monitors or monitoring systems will often fail; either the case gets cracked or the battery dies, which triggers an alert — you’re putting additional stressors upon, in many cases, an under-resourced, underfunded and understaffed police service. So requiring or expanding the use of these monitoring services within Indigenous communities, whether through a provincial initiative or a federal initiative, could, frankly, prove to be just an additional burden upon police services and restrict what we’re trying to achieve here, which is greater protection for the victims of domestic violence.
I’m not sure that expanding ankle or other electronic monitoring systems is really the way to go if we’re serious about preventing intimate partner violence.
Senator Batters: What would you suggest are some better ways where the federal government can take initiatives to handle this problem, which is such a drastic crisis?
Mr. Bartleman: There’s a smorgasbord of options. I’d suggest what we can begin to think about is providing increased mental health resources to individuals in the community. I think you alluded to that as part of the preface to your question.
I’ll speak particularly in the First Nations context. We’ve endured centuries of systemic racism and abuse, which culminated, in many cases, with the horrors of the residential school system, which only recently ended. It’s trite, but it is true to say that hurt people hurt people. If you expose generations of individuals to physical and sexual abuse as a way of discipline through the residential school system, we should not be surprised to see those same individuals turn around and unfortunately perpetuate the cycles of violence to which they themselves were exposed onto their partners.
We also know from looking at social science that partners or children who are the victims of violence within the home are, unfortunately, in many cases victimized themselves when they approach the police. Indigenous trust in the police is at a very low level. I think the most recent figure I saw was somewhere around 21%.
Breaking the cycle of trauma through the provision of mental health and other resources, I’d suggest, is probably the most effective way of preventing domestic violence, not through monitoring of individuals.
Senator Pate: Thank you to all of the witnesses. My questions pick up a bit on where you’ve already been.
There was a study done by the House of Commons in 2012 that looked at electronic monitoring and essentially concluded that many of the issues that have already been raised, in particular by LEAF and by the Indigenous Bar Association, were that not only were the devices costly but they often created a false sense of security and couldn’t be relied upon and that the need to have responses to those, whether by the police or correctional authorities, was problematic. You’ve just identified that again, Mr. Bartleman.
But also, as came up when Senator Batters asked her question, the discussion was the fact that many individuals don’t report the violence, either because they don’t trust or because of the fear that, in fact, the repercussions of reporting are much more problematic than trying to continue to go on.
I’d like to hear how each of you would prefer to see the $400 to $600 a month minimum that this kind of initiative would cost being applied. My understanding of the model in Spain and in other jurisdictions where there has been more support from women’s groups is that it’s predicated, as Senator Dalphond said, on social, economic and mental health supports first, and then only as a supplementary measure does it include electronic monitoring. Could you each speak to that, please? Maybe we’ll start with Mr. Bartleman and then LEAF.
Mr. Bartleman: Thank you, Senator Pate, for that question. To take the example of Quebec, and to answer the question of what could be done with those funds or another use of the funding, I note that 21% of the women who exited the shelter system in Quebec, according to a 2018 study, felt they had no option but to return to their home where the abuser or the accused lived.
That $400 could be spent to increase the supply of shelters within the First Nations context, and I hope I don’t need to emphasize this, but the need for additional housing requires not just a sense of urgency but a sense of crisis or calamity. This $400 may not go far enough. I would, however, note that in many cases, therapy and other treatments for unresolved mental illnesses could be alleviated by, frankly, the provision of a subsidy in the amount of that $400 for the accused. That’s at a very high level conceptual, but I do think it would go some ways to reducing if not the prevalence then certainly the severity of the predicament that many Indigenous women and girls find themselves in when confronted with domestic violence.
Senator Pate: Ms. Kim?
Ms. Kim: Yes, thank you for that question. I agree with Mr. Bartleman. I think mental health and housing supports are crucial so that people have a safe place to go.
Another thing I would mention is success of any measure in the criminal legal system is predicated upon the justice system actors understanding the seriousness of intimate partner violence and family violence. We’ve been calling for judicial education on sexual assault, but I think there is a need to understand the seriousness of intimate partner violence and family violence as well.
Senator Pate: The other component I would add in is this obviously doesn’t include the cost of supervision, which is one of the main problems and why so many have spoken out against electronic monitoring and why it creates a false sense of security. Any additional information you might have on this we would be happy to receive.
Senator Clement: Thank you to all of the witnesses. It is so hard to hear over and over again about the overrepresentation of Indigenous people and Black folks, either on the victim side or on the correctional side. I find the air in this committee room and in the chamber very heavy. I want to thank you for your comments and just know that the stats are heavy.
I have a question for Ms. Kim. All of your points on where it may be best to invest resources and your points around the constitutional issues in response to Senator Cotter’s questions are well taken.
Ms. Kim, you raised the issue about victims needing more information and that maybe there was something in this bill that speaks to that. Could you lean into that? I wasn’t quite sure what you meant. And maybe what’s going on now that should and can be addressed, either by this bill or elsewhere.
Ms. Kim: Yes. Thank you for that question. As I mentioned earlier, victims are not direct parties to criminal cases. It’s the state that is prosecuting the accused. In many cases, because they are not direct parties, they don’t always know what’s going on with the cases unless the prosecutor is taking the time and care to do so. There are provisions in this bill where before a judge makes an interim release order, there’s a provision that would require the judges to ask the prosecutor if the intimate partner of the accused has been consulted about their safety and security needs. That is one area where we saw that there is increased information sharing.
Senator Clement: And that isn’t already the case?
Ms. Kim: It happens, but I’m not sure if it happens all the time. I do not have the statistics on that, but I’m happy to send more information on that later once I have had a chance to look.
Senator Clement: Okay, thank you.
[Translation]
Senator Dupuis: Thank you to the witnesses here today.
I’d like to continue to address Senator Clement’s questions, but I would ask Mr. Brown and Mr. Bartleman to provide us with some details.
I am also struck by Ms. Kim’s evidence, who explained to us the full extent — and this is not the first time we have heard about this — of what victims of violence are subjected to by the Crown in criminal proceedings. They are not considered parties and you are right to underscore that.
My question is for the representatives of the Indigenous Bar Association and the Criminal Lawyers Association. What are the shortcomings of the current system — whether in terms of consultation with victims to keep them informed and so that they are automatically given a copy of the order — and how can these be remedied?
We understand your message: the facts have shown that monitoring systems do not solve the problem, which is that one day, the proceeding will evolve and there will no longer be any monitoring.
What are the shortcomings of the current system, and how do you think they might be dealt with?
[English]
Mr. Brown: When it comes to this idea about consultation, quite often there is consultation. It’s consultation with the police, consultation with the Crown and complainants when they want there to be consultation. But as you heard Mr. Bartleman say earlier, many people themselves have not had positive experiences with the police. They have not had good interactions dealing with the justice system themselves. They themselves have gone through the justice system in a very negative way, and they don’t wish to have contact. So creating a bill or an obligation where consultation must happen before a person can get released can lead to offending the presumptions of innocence and denying a person reasonable bail while those consultations happen.
We often see where consultations are required on the back end, where somebody needs to give victim input before a sentence can be imposed, quite often sentences are delayed, and repeat appearances in court that lead to delays of other matters happen. This is not something that is just negative for the accused person. It’s also negative for victims of crime, who will have their proceedings delayed over and over again.
So if there are any failings in the system, it’s just a lack of funding, really. And my experience is that there are robust victim witness programs that are available certainly in the province of Ontario. They work closely with the Crown attorneys and the police to liaise with complainants at the bail process, the pretrial process, throughout the court process. Those programs need to be funded and funded well.
Sure, people need to have more information about what’s happening, but not everyone wants to be a participant in the process, even if they are a victim of a crime or a complainant in an offence. To impose mandatory reporting obligations and consultation obligations, I think, sets the bar too high and will negatively impact the justice system as a whole.
Mr. Bartleman: I would echo the comments made by my friend. I especially echo, senator, the concern about engaging with the justice system that in many cases has failed Indigenous peoples, whether on purpose or simply by omission or by lack of caring, frankly.
With respect to the proposed amendment of section 515(14)(a), I think it is a step in the right direction, but I would echo my friend’s concerns that it should not be used as an excuse to either slow down a process or, alternatively, be used, whether on purpose or inadvertently, as a means of slowing down the administration of justice.
The Chair: Thank you very much to all of you for making time available for us to get a better understanding. I can assure you, we did. Thank you very much for always making yourselves available.
We will now go on to the second panel. We have, from the Native Women’s Association of Canada, Sarah Niman, Legal Counsel, Assistant Manager Legal Services; from Ma Mawi Wi Chi Itata Centre, Diane Redsky, Executive Director; and from Central Alberta Outreach Society, Ian Wheeliker, Executive Director.
We will start with Ms. Niman.
Sarah Niman, Legal Counsel, Assistant Manager Legal Services, Native Women’s Association of Canada: Thank you very much for having Native Women’s Association of Canada, or NWAC, appear today. Today, when you hear me refer to Indigenous women, I’m going to be including in that Indigenous girls, two-spirit, trans and gender-diverse people.
At our core, we all want to be seen and heard, and in Canada, domestic and intimate partner violence victims are not well seen or heard. NWAC uses the terms “domestic and intimate partner violence” to distinguish that this type of violence harms both intimate partners and other people in the house, including children. These victims are invisible to the criminal justice system until there’s a call to police. Keeping Indigenous women safe is NWAC’s top priority. Our research, policy development and grassroots consultations tell us they don’t feel safe.
When an Indigenous woman overcomes her distrust and seeks help from the police, the Criminal Code sends the abuser home to keep hurting the victim while everyone else waits for judges, trials and due process to run their course. It is not an Indigenous woman’s responsibility to convince others she is worthy of safety and protection. Bill S-205 seeks to provide violence victims something of a voice. This bill places the onus on the criminal justice system to check in with victims, consider their safety through the proceedings, and produce outcomes that consider their safety. Bill S-205 does not create a response specifically tailored to Indigenous women, but it does create a framework for them to be seen and heard in a system that otherwise does not.
Bill S-205 considers victims’ safety concerns at the earlier stages of domestic violence proceedings. NWAC supports that this bill contains mandatory victim consultations and the option to order family violence and/or addiction treatments as part of a release order. These improve a system that does not currently serve Indigenous violence victims very well. Bill S-205 shines a light on domestic and intimate partner violence victims and survivors who otherwise fall through the cracks when seeking help through the criminal justice system. An important part of this committee’s study will be to consider Indigenous women’s unique experiences as victims of domestic and intimate partner violence. That’s because many of the underlying social factors for non-Indigenous people are similar, but the social histories and the systemic discrimination informing those experiences are very different.
Indigenous women, of course, experience intimate partner violence at rates higher than non-Indigenous people, as Mr. Bartleman explained in his testimony today. The statistics he provided are underestimates because Indigenous people are hesitant to report crimes to police. Intimate partner and domestic violence rates, of course, increased during the pandemic. History has taught Indigenous women to hesitate before they call for police because she fears alerting authorities to any domestic violence in her home may lead to her children being taken away or for her to be arrested as well. Canada’s colonial policies and laws devalued Indigenous women for centuries, in trying to assimilate them, take their children or otherwise dismiss their equality complaints. So their fears are valid, and the National Inquiry into Missing and Murdered Indigenous Women and Girls, or MMIWG, concluded that Canada’s harmful laws and policies amounted to genocide.
NWAC supports and advocates for Indigenous women’s safety through violence prevention strategies and services. Criminal law reform is one tool in the tool box, as Senator Pate identified in her response speech before the Senate. To prevent domestic and intimate partner violence, Canada should not rely on legislative amendments to make a difference for Indigenous violence victims. Addressing systemic racism against Indigenous women is a necessary component of Canada’s commitment to reconciliation.
Addressing the MMIWG report’s 231 Calls for Justice is an imperative. For a long time in Canada, Indigenous women were not being seen and heard. The national inquiry’s work changed that, and their final report is an important resource for all those committed to ending violence against Indigenous women, including this committee. Specifically, I will turn your attention to Calls for Justice 5.1 to 5.3 and 9.2. These reflect actions that this committee ought to consider.
Canada’s commitment to reconciliation informs how the criminal justice system must treat Indigenous women who are victims of domestic and intimate partner violence moving forward on the path to reconciliation.
Electronic monitoring devices set more Indigenous people up for escalating criminal sanctions rather than address the root cause. NWAC does not want to see more Indigenous people being penalized in a criminal system that has a long reconciliation journey ahead.
NWAC supports Bill S-205’s commitment to mandate victim consultations and requiring judges to specifically consider a victim’s safety when imposing conditions.
NWAC also supports amending section 515 to give judges the option to order addiction or family violence treatment. This opens the door for Indigenous legal orders and communities to apply their own ways of addressing the issue.
In these ways, Bill S-205 is likely to help Indigenous women experiencing domestic and intimate partner violence to feel more seen and heard. Meegwetch.
The Chair: We will now hear from Diane Redsky.
Diane Redsky, Executive Director, Ma Mawi Wi Chi Itata Centre: Thank you. Good afternoon. [Indigenous language spoken].
I’d like to acknowledge the traditional territory of Treaty 1, homeland of the Métis Nation, which I have the privilege of living and working on in Winnipeg, Manitoba. My English name is Diane Redsky. I work for an organization called the Ma Mawi Wi Chi Itata Centre. The Ma Mawi Wi Chi Itata Centre does many things. It’s an Indigenous-led organization, and one of the programs we operate is called Spirit of Peace, which is a violence prevention program.
Some of our other experience relates to work that we’ve done pertaining to the National Task Force on Sex Trafficking of Women and Girls in Canada, understanding that unique violence that can sometimes show as domestic violence or intimate partner violence through the court system.
In addition to that, our organization has been a part of the Missing and Murdered Indigenous Women and Girls development of the national action plan, where there are also recommendations on how to protect urban Indigenous women and girls, two-spirit and LGBTQ2IA people.
With that introduction, I wish to express my support for Bill S-205 with some conditions, with some framework of what is important, and I want to echo NWAC’s message about women being seen and heard.
I logged in a little earlier to the previous consultation and presentations, and I heard a lot about the rights and protecting those who are violating Indigenous women and girls. Here I do believe that we need to be focusing on what could save lives of Indigenous women and girls. Certainly, working in the jurisdiction and the region of Winnipeg, we are ground zero, not only for Missing and Murdered Indigenous Women and Girls, but also for violence against Indigenous women and girls in our city.
It’s important to understand that unique dynamic of what we experience in terms of violence, what that particular experience looks like, and where there are opportunities to address that. We need to throw everything at making sure we are doing whatever we can to protect women, Indigenous women and girls.
If it costs a little bit of money, if the system has to make it work, then we have to rely on the systems to make those pieces work.
The connecting factor to what is important in all of the statements that I’m making is that this also must empower Indigenous communities and Indigenous organizations to be at the forefront of those solutions. We need to be the ones delivering the services at the grassroots level, both reaching the perpetrators of violence — with the counselling and all of those services — but also giving protection to women, which many urban Indigenous organizations do already across this country.
There are always going to be women who are going to need this level of protection against a perpetrator who is going to harm them. Every bit of investment is a good investment if it saves an Indigenous woman’s life. Community-based organizations are the ones that are empowered, funded, to do the work. The criteria for who gets an ankle monitor and what is mandated through this program must be very clear, so that it doesn’t end up being an overrepresentation or targeting a population that doesn’t need to be targeted.
The value of a life, to me and to the Ma Mawi Wi Chi Itata Centre, is the most important thing. I hope that the Senate committee understands and appreciates that we need to concentrate on doing whatever we can to ensure the protection and safety of Indigenous women and girls and 2SLGBTQQIA people, so that we no longer lose lives and so that we are focusing in on addressing those who are perpetrating the violence, while we are working on all of those prevention initiatives that need to happen. Meegwetch.
The Chair: Thank you very much. Now, we’ll go to Mr. Wheeliker.
Ian Wheeliker, Executive Director, Central Alberta Outreach Society: Thank you and good afternoon. I’m speaking to you today from Treaty 6 lands in Alberta, and I’m happy to be with the committee.
I’m speaking today from my experience, having worked on a pilot project with GPS ankle bracelet monitoring, in particular with domestic violence offenders who had gone through the court system and now, as a condition of community corrections or of probation, were ordered to wear the ankle bracelet as prescribed or as ordered by their probation officer. That is the sort of experience that I’m bringing to the committee today in terms of how that worked, whether it worked or whether it didn’t work.
My opening remarks would be that family violence and domestic violence and intimate partner violence are extremely complex situations. I appreciate all the remarks from the witnesses, and I think, for the most part, I agree with everything that I’m hearing. I’m so pleased to hear the representatives from agencies that work with Indigenous people have brought forward and shone a light on some very significant systemic issues that this committee and any legislation would need to consider very carefully through an Indigenous lens.
I would also argue that any actions or legislation need to be looked at through a gender-based lens as well. I would agree with the speakers on this panel that a comprehensive response to domestic violence can include various tools. I would say there is a role for GPS or electronic monitoring in the tool box, but it needs to be in partnership with law enforcement, with police, with the Crown, with the criminal justice system.
I’ve been working specifically in the field of intimate partner violence since the mid-1990s. I’ve worked with the men’s programs — so providing psycho-educational programs for men who are violent in their intimate relationships — and I’ve also worked with victims, both in my current position and also in my position as a director of the Central Alberta Women’s Emergency Shelter.
I would agree with the comments that we’ve heard that the criminal justice system is not a friendly system for victims and particularly for Indigenous peoples.
I’ll just leave it at that. Thank you for the invitation to speak today.
The Chair: Thank you to all the witnesses.
I have a question for you, Mr. Wheeliker. How available are monitoring devices, from your experience, because you’ve been very involved, especially for Indigenous communities?
Mr. Wheeliker: The availability of electronic monitoring devices — it’s commercial availability. In my experience in Canada, it’s not being extensively used, as we’ve heard. There’s a program in Ontario and a program in Quebec. Its usage is very limited here in Alberta. The commercial production of them or the supply chain, I imagine, is adequate. Probably, the industry that creates them would need some time — if it were to be implemented Canada-wide — to produce the number of bracelets that would be required.
I think the committee has also heard that there are glitches with the technology. While the GPS electronic monitoring devices use GPS satellites for monitoring, there’s also a cellphone component. There are technical challenges with using them in different parts of the country.
We’ve heard about isolated, rural, remote Indigenous communities. There are specific challenges in those communities, but also there are challenges with GPS technology in cities with big skyscrapers, with GPS drift. The committee might have also heard some people comment on the technical challenges that GPS drift can create.
I’m not sure if that answers your question.
The Chair: It does. Thank you very much.
Senator Dalphond: Thank you very much to the witnesses for being here. It’s important for us to get more.
I have two different types of questions. I’ll start with Mr. Wheeliker, and then I’ll go to Ms. Niman.
You are experienced with ankle bracelets. Can you describe what kind of experimental program it was? Is there a report about it? Did you measure any positive aspect of it?
Mr. Wheeliker: Sure. I was involved in a project that ended in 2015. It was a fairly small pilot project. It was funded by the Government of Alberta. At the time, it was Justice Minister Redford. Her department provided the funding. We were looking at a coordinated community response using GPS ankle bracelet monitoring. The project involved a women’s shelter, the Red Deer City RCMP detachment, the Crown’s office, and it also involved the Community Corrections or probation office. A lot of time went into developing the program and protocols.
We had a primary focus on enhancing victims’ safety. Basically, what was happening was, in court, when there was a finding of guilt, at sentencing the judge would say that the guilty offender will comply with and wear an ankle bracelet as directed by the probation officer. The probation office protocol was to screen offenders, and they were basically looking at those in the mid- to high-range seriousness of reoffending. The probation office would basically contact the women’s shelter. If there was an offender whom they wanted on the ankle bracelet program, we would then meet with the victim. We would make a safety plan. We would discuss the program. We would see whether or not she was even interested in the offender basically being on an ankle bracelet. Our view was that if she has no interest in the offender being on the bracelet or doesn’t feel there are any security or safety concerns, we didn’t feel that was a very good use of the resource.
Over a three-year period, a lot of women worked with us and said that, yes, they would want safety planning, support and counselling, and then the offender was put on the bracelet. There is a final report that was submitted to the Government of Alberta.
Senator Dalphond: Would it be possible to get a copy of that report?
Mr. Wheeliker: Yes, we can get a copy of that report.
Senator Dalphond: If you could send it to the committee, I think it would be useful. Time is running out, so unless you want to add a few seconds to conclude on this, then I will ask my question to Ms. Niman.
Mr. Wheeliker: We found that for a type of offender that I call relentless, who drives by her house 50 times a day and has her under constant surveillance, this program was extremely successful in stopping that type of harassing behaviour.
Senator Dalphond: Thank you very much. Ms. Niman, you say that one of the good things about the bill is that it provides an opportunity for victims to be heard.
Is your group also supportive of the idea of the ankle monitoring process? I understand the experiment in Alberta was about a condition of release after sentencing or maybe in the course of serving the community or after jail time. Here, Senator Boisvenu is also mostly targeting the bail conditions because we know violence is higher after separation than later on. As time goes by, sometimes the risk goes down. What are your views on ankle monitoring?
Ms. Niman: Thank you for your question, senator.
The Native Women’s Association of Canada does not support electronic monitoring as a means of addressing intimate and domestic partner violence. The reason for that is because we’re trying to balance, on the one hand, supporting Indigenous women who are experiencing this, but on the other hand, not sending more Indigenous people to jail. Electronic monitoring increases the chances that there will be escalating criminal sanctions against the person charged or accused of domestic violence.
On a practical level, it furthers reconciliation goals because it imposes criminal sanctions on behaviour rather than addressing the behaviour. With all due respect to Senator Boisvenu and the work that he’s doing — and we understand that in building this bill, he heard directly from victims who said they would like to see electronic monitoring — but where Indigenous women compose such a large proportion of domestic violence victims, that is not what the women we represent are asking for.
So I think where there are mandated victim consultations built into this bill, that is asking the entire criminal justice system to stop and consider a victim where they otherwise wouldn’t, not as an act of good faith or because it’s the right thing to do, but because it’s mandated. That is significant in improving a settler-imposed legal system that otherwise doesn’t accommodate Indigenous women.
Senator Batters: Thank you. My first question is to Mr. Wheeliker. Your field experience since 1986 has allowed you to work with victims of domestic violence and family violence and to set up support programs to help them. You’ve also had the opportunity, as you talked about briefly, to work directly with men who have a history of domestic violence.
If you can tell us in a little bit more detail: What do you think of the clause in Bill S-205 which gives the judge the option of imposing the electronic monitoring device on an offender, at least pending trial or when an offender is subject to a recognizance order under section 810? I’m wondering whether you believe that electronic monitoring device can be an effective solution to ensure the safety of victims, in your experience, and also if you think that device can be an effective way to prove breach of conditions.
Mr. Wheeliker: Okay, that’s a lot of questions.
Senator Batters: Sorry.
Mr. Wheeliker: When we designed our program in Red Deer, we did consider the bail stage, but we felt that that stage was problematic for a number of different reasons, some of which you’ve heard from experts who have already testified in terms of assuming guilt and putting punishing conditions on people.
The other problem we found was that we needed a probation officer in charge of a case who would be accountable in terms of monitoring the offender. Under bail conditions, that’s not quite as rigorous or as clear in terms of who is monitoring, and I don’t think we would want a commercial agency monitoring bail conditions.
We felt that the appropriate time for any type of electronic monitoring would be during the probationary period. In the work that we did, the probation officer or officers themselves had the authority to determine which offender would actually go on the ankle bracelet. So the judge would say, “as directed by your probation officer.” They did their assessments — I think they used the SPIn tool — and then they would determine whether or not this offender would be appropriate for the ankle bracelet. They had the expertise to do that, and we didn’t question it.
Again, as I said, I think what we heard from the victims that we worked with during that period was particularly where the type of offender was monitoring the victim, driving by the victim’s house or following them, that’s where we saw the greatest effect. We saw that there were very few breaches of their no-contact order and that the monitoring, to a very large degree, stopped. We had victims who said that for the first time they could sleep at night.
I know we’ve heard that the technology can give a false sense of security, but I would argue that emergency protection orders, peace bonds and men’s treatment programs also give a false sense of security.
Senator Batters: Thank you. I appreciate that.
Ms. Niman, as you briefly mentioned in your opening remarks, Bill S-205 also adds to the Criminal Code the possibility for a judge to order domestic violence and drug addiction therapy for an offender released pending trial or when an offender is subject to a section 810 recognizance order.
What do you think of that approach? If you can just give a little bit more detail. It allows that electronic monitoring device to watch offenders, but also the portion particularly about the therapy to promote rehabilitation. I want to say as well, I think you made such an important point about giving women and Indigenous victims on this issue their voices back. That is a critical factor.
Ms. Niman: Thank you, senator. On the issue of the option to order addictions or family violence treatment, NWAC’s pie-in-the-sky hope is that this opens the door for communities to lead their own healing, whether that be toward the victim or offender or both. Oftentimes, there’s a ripple effect outward from the family into the community; it’s not just two-person healing.
Not every community is currently equipped to offer those kinds of healing services. It’s our hope that as the justice system becomes more responsive to that need for Indigenous-led healing services, that becomes something that is more funded, accessible and consistent. We are leaning into this option for judges to order that kind of thing.
When looking at situations where those services aren’t available or involve removing someone from the community where that’s not the best idea in those circumstances, then NWAC doesn’t offer the same support. On a case-by-case basis, I think this helps improve access to Indigenous-led healing.
Senator Batters: I have one question I would like to ask Ms. Redsky in the second round.
Senator Pate: Thank you to all the witnesses. My questions are for all of the witnesses. I did this last time and then there was awkward silence, so I’ll start with Ms. Niman, then Ms. Redsky, and last but not least, Mr. Wheeliker.
One of the issues for many of us who have worked in this area for a long time is the fact that every time we bring in a criminal law sanction against men — from mandatory charging to, I would suggest, bail conditions to something like this — invariably the misogyny and racism of the system often result in it disproportionally being also used against women. I think of the mandatory charging, for example.
Have you looked at this option? What would you recommend as an alternative to this process, given that the criminal law sanction has not, thus far, proved useful in reducing violence against women?
Ms. Niman: One of the things we learned from NWAC’s work and from the National Inquiry is that there are high instances of dual arrests when the police are called for domestic violence. So that perpetuates Indigenous women’s over-incarceration and involvement in the criminal justice system.
To your point, violence is essentially controlling Indigenous women’s power and agency. That’s specific to instances of intimate partner and domestic violence, but that also expands to the criminal justice system. Where we’re hoping Indigenous women have their voices heard is in this entryway for the system, to stop and ask: What is your safety concern? What are your needs? And mandate that there’s that line of communication opening to give her more of the power that the system and violence have taken from her.
Where NWAC is interested in balancing victims’ rights, we are equally concerned with keeping Indigenous people out of jail when that’s not serving and that’s not healing.
Ms. Redsky: We operate at the Ma Mawi Wi Chi Itata Centre a family violence prevention program for men and women, teens and their children. The men’s group is mandated, but only 50% are mandated. The rest are coming because they want to. The same would go for women.
Why I’m explaining that is that I would like to see a shift. I think if we can all prioritize seeing a shift away from the system into more grassroots, Indigenous-led, community healing programs, then a lot happens at that level. We understand what the challenge is, what the experiences are, and then they tell us everything; the men and the women are telling us everything. We need to shift from the system making the decisions and the power to more of the community making the decisions and having the power to keep everybody safe.
Mr. Wheeliker: I would agree with your comments. With each initiative we’ve seen, we’ve seen the inadvertent consequences, dual charging, the impact on Indigenous peoples.
One of the other things that I’ve seen in my career is when the court imposes a no-contact order — and we saw this even during the GPS project — when the offender was to have no contact with the victim and was on the monitoring bracelet, she still was able to meet with him if she chose to outside of the geo-zones that were set up. If the police discovered that she was meeting with him outside of those GPS zones, she was charged with breach of then Queen’s Bench order, now King’s Bench order. That certainly was never the intent of the project or of the initiative, to put the onus and responsibility on the victim.
Your point is well taken as we move along. A part of it is that the criminal justice system and the Criminal Code of Canada were not able to contemplate the complexity of intimate partner violence situations and the impact that they have at a community level and a grassroots level. In some ways, I agree with the previous speaker that what we’re trying to do is, through a big code, to respond to a very complex situation that, in my view, needs to be a coordinated, collaborative response between big-system justice players and the community players.
I would agree that the solution is not just in amending the Criminal Code but in looking at, in particular, domestic violence as a much more complex community challenge that the criminal justice system and the Criminal Code can play a role in, but where the community really needs to be coming up with comprehensive, coordinated, collaborative responses.
The criminal justice system, as they’ve developed expertise in the area of domestic violence, has, in my view, moved away from the grassroots community agencies and said, “No, we got this,” and the truth is they don’t. That’s why we see such low numbers of reporting to police and mistrust of the overall system.
Senator Manning: Thank you to our witnesses here this evening. I certainly agree with many of the comments that have been made that we’re dealing with an extremely complex situation when it comes to intimate partner violence, family violence and domestic violence. I have several questions. I’d like to go to Ms. Redsky if I could.
Senator Boisvenu’s bill, in addition to the electronic monitoring device, favours a therapeutic approach to people who have committed acts of domestic violence. You talked about different programs that you offer, the Spirit of Peace family violence prevention program and so on, and I applaud you on those. Have you ever implemented a therapy program to help abusive men improve their behaviour? If so, can you give us any of the results from those programs?
Ms. Redsky: Yes. Our Spirit of Peace Program operates three nights a week for open groups. You come if you want to, but 50% are mandated, and 50% are coming because they want to. On each one of those nights in those open groups there are between 40 and 50 men attending, each of those evenings. I think that speaks to the power of an Indigenous-led organization creating an opportunity for those circles to talk about peace, to talk about the spirit of peace and to talk about their role in perpetuating, for the most part, domestic violence. Oftentimes, we know that they are victims themselves. There is that aspect of it as well.
The power of the circle is critically important because when we have especially the mandated men who are coming, their first time coming, they’re mad. They are mad that they’re there. We find that the madder they are, the more opportunity we have to work with them. The mandate for taking this program — in order to get a letter to take to court — is eight sessions. They have to see us eight times before we give a letter. Those are eight opportunities that we see as critical opportunities to go through our curriculum that is rooted in Indigenous values of healing.
It’s important because a lot of mainstream organizations still do that shame-based type of programming for men. Ours is more of a healing approach. I think it speaks to the fact that we have 40 or 50 men coming per night, three nights a week, to the open group.
There is also an opportunity to take closed groups, and those are more focused on taking the healing to the next step. Those closed groups operate twice a year with a smaller group of 12 men. They’re the same men from beginning to end. You can’t jump in and jump out of the closed groups.
We’ve been running Spirit of Peace Program for over 25 years. We have seen that there is value in having them mandated to come because otherwise they would never come on their own. That just would not happen. I find that the more angry they are, the more opportunity there is for us to introduce those healing opportunities. That’s why I do support the ankle bracelet as part of a continuum of services that also mandates the therapy piece of it.
Senator Manning: Mr. Wheeliker, Senator Boisvenu’s approach is based on giving back confidence to women victims of domestic violence by acting at the beginning of the judicial process. Do you think the measures in Bill S-205 will be an effective approach to restore the confidence of domestic violence victims who are afraid to report the violence that they experience? As we all know, in 2019 stats, about 80% of victims of domestic violence failed to report the incidents of violence toward them. Is the approach of Bill S-205 an improvement in your view?
Mr. Wheeliker: I’m not convinced that taking an action at the beginning, at the bail piece of the criminal justice process, is the best use of resources and the best time. I don’t think it’s going to have any impact on the number of victims reporting to police. I think victims want to see that both the criminal justice system and the community agencies are in there for the long run to support them.
This is anecdotal, but what I’ve seen is that if this is the first criminal justice response — that is, the first time police have been involved — there’s probably an 80% chance that the couple will reconcile, and probably before the end of the bail period. That’s one thing that maybe the committee wants to get some data on. There might be an expert out there who might have information on that. That’s been my experience, namely, that there’s a high likelihood of reconciliation shortly after the offence or shortly after the jail or the remand period.
I’m not convinced that at the bail process is the best time to implement an ankle bracelet monitoring program. In my experience, a better time is during either the community corrections or the probation order time because the couple will have decided whether or not they’re reconciling by then. Again, for the type of offender who is obsessed with getting her back and monitoring her, that had a huge impact.
[Translation]
Senator Dupuis: I’d like to thank the witnesses for coming today. Ms. Redsky, you spoke about your violence prevention program and about men who had been forced by a court decision to take part in the program. You said that the goal had to be centred on victims. What programs does your centre manage for women interested in victims of violence?
[English]
Ms. Redsky: The Spirit of Peace Program has a men’s component that we’re focusing on because the reality in our city is that the perpetrators are most often men. So the curriculum is focused on the healing components regarding what brought on the violence and what can prevent the violence from happening in the future.
For the women’s program, it’s the same. There are closed groups and open groups that happen three times a week. The closed group, which is twice a year, is similar. That focus is more on healing from the violence. That is, creating those safety plans and what they need to work on around their healing journey. Oftentimes, they are having to find a new place and rebuild their whole life, take care of the kids. So there would be the healing component regarding that.
The curriculum for the children is they most likely witnessed the violence. We have a specific curriculum that helps work through the services and supports and the journey that they need to go through as part of witnessing the violence.
The programs focusing on the teens prioritize those healthy relationships as teens grow so they understand what violence is. They may or may not have been impacted, but this is an opportunity to ensure we’re not repeating the cycle of violence through the children and teens. It focuses in on what a healthy relationship is, how to recognize violence and what to do in a situation if you become placed in a situation. The curriculum is focused and targeted toward those who are going to benefit from ending violence. That is the goal of our centre.
It’s also important to recognize that not all of the men who are participating in the men’s side of Spirit of Peace Program are Indigenous. I hope we don’t assume that only Indigenous men are perpetrating violence against Indigenous women. That’s not the case at all. I hope that’s clear.
[Translation]
Senator Dupuis: I have an additional question. Is your organization involved in the criminal justice system before decisions have been made, such as requiring men to take part in your program? Is your organization engaged, in one way or another, in the judicial system? Do you consider your centre to be a stakeholder in the administration of criminal justice, or if not, that it should be?
[English]
Ms. Redsky: Yes, we would be a stakeholder. We are a stakeholder in the justice system as it relates to our Spirit of Peace Program. It is the court that mandates an individual to the Spirit of Peace Program. As a program, particularly if there are any Indigenous parties that are impacted by violence — by gender-based violence or by domestic violence — then we definitely want to ensure that it’s our organization and our healing program that is the one that is being mandated by the court for those people to participate.
[Translation]
Senator Dupuis: Are you also asked to collaborate in providing support to victims, or only when men are required to participate in your group’s programs?
[English]
Ms. Redsky: We can be, but it’s not driven by the justice system where we’re asked. It would be driven by the men who are participating in our program and have graduated and feel that they could benefit from some of our advocacy as they’re going to court. Our letters are recognized by the judicial system for them to take the eight sessions with us. We don’t write a letter if we don’t feel that person deserves the letter, for example, if they’re coming to our program and they’re not participating — if they’re just sitting there and saying nothing, and we can see that they’re just there and they’re not learning anything or have no intention of changing anything. It’s actually very rare, but we have not written a letter for court when we felt that the person had not started their healing journey to end the violence.
[Translation]
Senator Dupuis: Thank you.
[English]
Senator Pate: You mentioned dual arrests, Ms. Niman. I’m also familiar with a number of folks who end up with a countercharge or they’re only the ones charged when it’s women calling about violence. There was an example given by Mr. Wheeliker about when women go out of their zones. In that context, most of those times, in my experience, have been when men have first said, “You can’t get the money for child support,” or, “You need to meet with me.” They know which zones to encourage women to go to. Often, they are the ones who notify the police and end up with the women being charged.
Is that your experience as well, or is that just the unusual perspective I have based on the work that I was doing?
Ms. Niman: Thanks for your question. Based on what NWAC knows about the myriad of reasons that inform hesitancy to disclose family violence, like some of the ones you mentioned — maybe they’re the primary breadwinner, maybe that means they have to leave their home, oftentimes wider cultural, familial and community concerns — if those all play into the reasons why a woman would fear calling the police or disclosing violence to somebody, like a third party, those would also inform her hesitancy or vulnerability to being manipulated by somebody who’s trying to get what they want.
When this whole thing is predicated upon manipulating power and control, and there aren’t healing services, a woman might also be encouraged to initiate her own healing if there are no alternatives to doing that. I won’t speculate without having a case in front of me, but we do know from the women we hear from that when there aren’t those healing resources, they often feel like it’s incumbent upon them to mend fences — even as the victim in those situations. That’s where we need stronger supports in the community.
The voice we’re also not hearing is, of course, the children’s. NWAC’s hope is that when Indigenous children see that their parents or aunties and grandmothers are experiencing violence, they see that someone is coming to help them and that that person does so in a positive, respectful, culturally appropriate way.
Mr. Wheeliker: I would agree that there’s “nice” manipulation and there’s nasty manipulation, but in an intimate-partner-violence relationship, it’s pretty much always manipulation. When women are meeting with the offender outside of a geo-zone, they’re being drawn there with nice manipulation, and then it very often is a combination of both during every contact that they have. There are literally the nice promises and then the nasty threats.
Senator Manning: I want to thank our witnesses. I struggle with some of this, trying to find answers, because we have situations where in many cases that I’ve dealt with over the past number of years, it’s the sixth or seventh time that a woman is abused before she reports, finds the courage — or finds the avenue maybe, not the courage — to do the reporting, if they’re lucky to be still alive. I realize we’re trying to put things in place to help these people, but it seems to be a very slow process. I’m wondering if by hoping that we have all the ducks lined up before we can really do something, we are failing the victims in some way, shape or form.
I don’t have the answer, to be honest with you, because I struggle with it. I don’t think there will ever come a day when we have all the ducks lined up. Living in hope is great, hoping that things happen, but the fact is that women are being abused in greater numbers than ever. In Aboriginal communities their numbers are 2.7 times the national average, from the latest numbers I’ve seen.
I’m trying to find if anybody has put forward some suggestions on how we get to a point where a woman feels — and I use “woman” — a woman feels safe or powerful enough to be able to pick up the phone and report. Maybe it’s not even a question, because I really struggle with this. It seems there are so many people out there — and I congratulate all of you for your efforts — trying to put in place a system that protects everybody. But that’s not ever going to happen, in my view. If we save one life, if we save 10 lives, aren’t we doing something right then?
Ms. Niman: Thank you for your thoughts. Your struggle is understandable. I think what this bill is trying to do is create a nexus between the criminal justice system, the victim and the offence. I think where the help is, speaking from experience with smaller or more geographically remote communities, there is a relationship between the police, because that’s the point of contact, and those who disclose family violence. When there is distrust that informs that relationship, then there’s that hesitancy you speak of, of making the phone call, seeking the criminal justice system’s help in dealing with the problem.
One of the things that NWAC leans heavily upon is the work done by the National Inquiry. Their Call for Justice 9.2 calls on police — and I’m going to connect it to this bill — if this is enacted and this is an option on the table now for there to be increased victim consultation, that needs to go hand in hand with training to the people providing those services — largely police — to make sure there’s community outreach in building that bridge and that trust again.
That’s going to look like “knowing, understanding, and respecting” the Indigenous people they’re serving in their communities and providing a victim service delivery within the gamut of the criminal justice system that must always be culturally appropriate, reflect no systemic bias or racism toward the Indigenous women who are calling and make sure it’s all couched in an understanding of trauma-informed approaches so we’re not revictimizing victims; we’re not furthering the wedge or the divide between the police and the Indigenous women who are victims.
Within the confines of the criminal justice system and the nexus of this bill, I think that’s a path forward.
The Chair: I want to thank all the witnesses for your testimony. We’ve learned a lot from you. Thank you for being here.
Senators, I just have a few announcements to make. One, tomorrow we are in room B30, not in this room. Second, I want to thank the interpreters. I know the first panel was very difficult for you, and you were very patient with us and did not complain. It’s very much appreciated. Thank you so much.
(The committee adjourned.)