THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, December 1, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:34 a.m. [ET] to continue clause-by-clause consideration 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).
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: As we are televised this morning, I would ask senators to introduce themselves.
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
Senator Boisvenu: Senator Pierre-Hugues Boisvenu from Quebec.
[English]
Senator Cotter: Brent Cotter, Saskatchewan.
Senator Pate: Kim Pate from here on the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Dupuis: Renée Dupuis, independent senator, Laurentides senatorial division, Quebec.
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Klyne: Good morning. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dalphond: Pierre Dalphond, De Lorimier senatorial division, Quebec.
[English]
The Chair: And I am Mobina Jaffer from British Columbia.
Senators, today we continue our clause-by-clause consideration 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).
Senators, yesterday you were all very patient. We heard arguments on every side, and everyone who wanted to got a chance. Today, if you permit me, I will keep the discussion short. I am hoping that today we can finish earlier.
Before I forget, next week, we will start on the intoxication study. The clerk and the analysts will send you the material.
I understand Senator Pate wants to speak.
Senator Pate: Thank you to all my colleagues. As I was reflecting on this overnight, I’m incredibly torn.
Like Senator Boisvenu, I’ve spent most of my personal and working life working on issues of violence against women and trying to get violence against women taken seriously, particularly for those who end up not being protected but who are also more likely to be criminalized when they act to protect themselves because of the way the system essentially deputizes them to protect themselves.
On this bill, we’ve heard witnesses say that provisions already exist in law. We’ve heard from the police and from the top policy person at the former Public Safety that, in fact, this will not achieve the objectives, even if it weren’t already in the legislation. So my question to all of us, colleagues, is this: While I am confident we all want to see violence against women ended as well as violence writ large — intimate partner violence and violence in the community — the fact that we are proceeding with a bill that we have been told is potentially unconstitutional, whose provisions already exist in the Criminal Code and which will not be effective to stop violence in the way that is the laudable intention, I am curious as to why we are continuing to proceed at this stage.
It feels like this is merely trying to look like we’re taking this seriously when we haven’t necessarily acted in other ways, in a broader context, to really address the issues that give rise to women — in particular racialized women, poor women and women with disabilities — being more likely to be victimized and criminalized.
Senator Batters: Thank you very much. In response to that, I would say that we also heard quite a bit of evidence at this committee from victims, police organizations and a number of different people who said that it will help, in their considered opinion.
Certainly, in the more than nine and a half years that I have sat on this committee, I have seen bills come before this committee — sometimes even government bills — that had many more witnesses, and a much more almost-unanimous take on things, state that a bill had very problematic constitutional issues. I’ve also seen many private members’ bills that had a lot less merit than this one. We had a number of victims who have been through devastating domestic violence situations talk about how they saw the need for these things and have experienced the need for these measures.
We also have to keep in mind that over the last month, unfortunately, we’ve seen a government bill go through the Senate that had very problematic potential for victims of domestic violence with respect to mandatory minimums being removed and with respect to house arrest. I think that this bill is some measure to at least provide women in these spots to have a considerable measure of safety. To simply say that we shouldn’t proceed with it — I guess the avenue would be to vote against it if that’s what you think, but I think we’re far beyond the stage where this bill should at least have the measure of having this committee voice its views on it. I understand that there has been some movement overnight on different amendments that can help strengthen it, so I think it is worth proceeding. Thank you.
Senator Pate: In my experience, when you approach individuals, particularly those who have been victimized, and offer these types of responses when they have received nothing and no support for most of their experience with the criminal legal system, they seize that opportunity. That is not the position of most organizations working on violence against women. They, in fact, know that what we need is economic, social health and security as a starting point. I don’t need to say more. I feel strongly, particularly given there are so many lawyers and former judges on the committee, that the fact that we would proceed with something that we know is not going to stop despite the best intentions causes me significant concern.
[Translation]
Senator Boisvenu: It’s important to understand that this bill is the first private bill, if that’s the right term to use. There have been numerous consultations. No other bill has ever had so many consultations. Most Canadian provinces and departments of Justice have been consulted, including Quebec, Ontario, New Brunswick, Saskatchewan, Manitoba and Alberta. Indigenous groups, abused women’s shelters, and victims were consulted. They were unanimous.
Canada is establishing a two-tier protective justice system. Most of the provinces have adopted similar measures, but these apply strictly to people being released from provincial prisons. However, 80% of men found guilty of assault will never go to prison. They will be subject to a section 810 order and we are not dealing with that aspect at all. Based on the statistics I gave you yesterday, three-quarters of women are killed when their abusers are under an 810 order. They are not killed by abusers being released from prison, but by abusers who are required to comply with an order prohibiting them from approaching their victim.
Do we want a two-tier system in Canada? On the one hand, we would have a system that protects women from criminals being released from provincial prisons. On the other, we would have a system with assailants who, under section 810 of the Criminal Code, are required to comply with an order, and thus do not fall under provincial jurisdiction, which means that the women would not be protected. I believe that this situation is unacceptable. Canadian women need to be protected equally in every province, and that is the intent of this bill.
[English]
Senator Dalphond: I don’t know if Senator Pate intends to move a motion that we suspend the study of the bill, but otherwise, I suggest we proceed with the bill. I want to make it clear because some people are listening to us, I’m sure. This is an important issue. We have heard many witnesses, and I would say that most of the witnesses were of the view that wearing a monitoring device was providing some security to the person and the victims, especially. I made comments yesterday about the fact that I thought imposing, by a judge, specific training when you are in the process of being charged would be challengeable. This has been removed in the agreements we have.
Just to conclude, there is a political point made here, and there is a policy statement that is being expressed, which is not detailed, about the role and approach of that bill. I certainly disagree in part with what Senator Pate said, and I want listeners to know that I think what we’re doing is constitutional. Thank you.
The Chair: Senators, we will now go to clause by clause. If you remember, we have dealt with clause 1. On clause 2, we had lots of debate, and I understand some senators came together and have come to an agreement.
[Translation]
Senator Dalphond: With the committee’s consent, I would like to withdraw the amendment I put forward on the first page of the bill. Perhaps Mr. Palmer could help me find the number. This amendment would therefore be replaced by the new amendment sent to you earlier today. Its number is PJD-S205-2-1-19.
Do you agree to my withdrawal of the amendment and its replacement by this one?
Some Hon. Senators: Yes.
Senator Dupuis: What is this amendment replacing? What’s the number of the amendment being replaced?
Senator Boisvenu: I believe it’s amendment PJD-S205-2-1-8.
Senator Dalphond: That’s correct.
[English]
The Chair: Does everyone have the amendment?
Senator Dalphond: To inform all colleagues, last night, Senator Boisvenu, Senator Cotter and I met after the meeting, as we were instructed to do. After further discussions, we have agreed. Subject to the authorization of the committee, we will remove the authority of the judge to order the accused to go to training, in the framework of 515 of the Criminal Code, we will add the words “Attorney General” for the request for the monitoring device, and the rest will remain the same.
[Translation]
Senator Dupuis: Excuse me, but I’m trying to find PJD-S205-2-1-8 and PJD-S205-2-1-19.
Senator Dalphond: With respect to PJD-S205-2-1-8 and PJD-S205-2-1-19 — I know we’re getting into the technical details — the difference between the initial amendment on the new one is that we’re keeping the idea that the electronic monitoring device can be ordered by the judge if the Attorney General requests it. As was proposed in the initial amendment, we are eliminating the authority of the judge to order treatment or therapy. So it becomes much shorter. The new amendment being proposed, which you have in front of you, replaces lines 19 to 23 with the three proposed lines, which means simply adding the words, “if the Attorney General so requests” to the section that discusses the electronic monitoring device and eliminates the next line about the possibility of ordering treatment.
Senator Dupuis: I don’t think I have the right version, because I have only one item in the amendment.
Senator Dalphond: You have number S205-2-1-19, about the new paragraph (e.1).
Senator Dupuis: That’s right.
Senator Dalphond: That replaces lines 19 to 23. We would replace those four lines with these three lines. The other lines need to be deleted.
Senator Dupuis: Okay. Sorry. Thank you.
[English]
The Chair: Senators, we will go to a vote. Do we all agree?
Hon. Senators: Agreed.
The Chair: We all agree and we will proceed with amendment 2, as Senator Dalphond has stated. Is it your pleasure, senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Do we need a roll call? Is it on division? It will be on division.
Senator Dalphond, I’m just hesitating because you still have another amendment on clause 2.
Senator Dalphond: Yes. We suspended that yesterday. Should I move to that now?
The Chair: Yes.
Mark Palmer, Clerk of the Committee: The numbering of this one is PJD-S205-2-2-8. It’s the same one that was circulated yesterday. That one has not changed.
The Chair: The reason we didn’t proceed, just to refresh people’s memories, is because we were going to deal with half of the clause, but it was best to do the whole clause. Senators, is it your —
Senator Dalphond: Did you want me to explain it?
The Chair: You have explained it.
Senator Dalphond: Maybe I could explain the status now. We discussed it last night together, and Senator Boisvenu agrees that he wants to impose upon the Crown the duty to advise and inform the victim. “Intimate partners” and “victims” were meant to be synonymous. This amendment is only to remove the words “intimate partners” and make it “victims” in the plural.
[Translation]
In French, it would be “toute victime.”
Senator Dupuis: So am I right in saying that we are removing the first part of what was in the bill, as I had suggested [Technical difficulties]? Thank you.
Senator Dalphond: There have been no changes since yesterday.
[English]
The Chair: Anybody else? Senators, is it your pleasure to adopt the motion in amendment?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division. Shall clause 2 carry, as amended?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division. We’ll now go to clause 3.
[Translation]
Senator Dalphond: This provision had also been suspended yesterday, because the words “with the consent of the Attorney General” had been added in reference to the monitoring device. Because we added the words “with the consent of the Attorney General” in clause 2, then it was also logically added to clause 3.
[English]
The Chair: Anybody else? Is it your pleasure, honourable senators —
Senator Batters: Excuse me. So is that amendment 3-3-28?
Mr. Palmer: Yes.
The Chair: If anybody feels I am going too fast, please stop me. We discussed this yesterday.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
The Chair: Agreed?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 3, as amended, carry, honourable senators?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Now we will go through all the clauses. Does anybody have any other amendments? No, not until the end.
Shall clause 4 carry, honourable senators?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 5 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 6 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 7 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 8 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 9 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 10 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 11 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Clause 11 is Senator Dalphond.
Mr. Palmer: This would be one of the new ones that were sent this morning, PJD-S205-11.1-9-31(a).
Senator Dalphond: It was suspended yesterday.
The Chair: We never got to it. That’s why we don’t need to withdraw.
[Translation]
Senator Dalphond: The amendment proposed here is in the same spirit as the one originally put forward, which we did not debate yesterday, because the meeting had been suspended.
In the meantime, to continue with the amendments we discussed yesterday and adopted today, you will recall that with a view to harmonizing our bill with House of Commons Bill C-233, I had proposed that when we mentioned the referral to consideration by the appropriate judge to order the use of a geolocation device, that it should be included in subsection 515(4.2).
Senator Boisvenu commented that if it were included in subsection 515(4) instead, its application would be broader and cover more situations. The senator gave the example of someone entering an apartment building, his ex-partner’s apartment, to hide there or frighten her. This situation would not necessarily be covered by subsection 515(4.2). I agree with the suggestion.
We agreed, in our discussions yesterday evening and the discussion we’ve been having here, to refer to subsection 515(4) rather than subsection 515(4.2). The amendment reflects that. An adjustment is required. If Bill S-233 is adopted by the Senate, it would become law and refer to subsection 515(4.2), whereas if Bill S-205 is adopted, it would refer to subsection 515(4).
The transitional measure provides that if both acts were to come into force, subsection 515(4) would apply, and not subsection 515(4.2). If Senator Boisvenu’s bill is not adopted before the other bill, then Bill S-233 would allow the authority of the justice to order the wearing of a monitoring device under subsection 515(4.2). If the senator’s bill were to come into force afterwards, the provision would be amended to say that the reference was to subsection 515(4). The mechanics are perfect; the outcome is perfectly synchronized.
[English]
The Chair: It is a little confusing, I agree, but it is a coordinating amendment.
[Translation]
Senator Dupuis: I have a question. Am I to understand that we had suspended the adoption of clause 11? Clause 11 of Senator Boisvenu’s bill is part of a section entitled “Consequential amendments — Youth Criminal Justice Act.”
This coordination provision is completely different and about an entirely different subject. Have we or have we not adopted clause 11? I thought we had suspended its adoption and that we were going to discuss clause 11.1 first. I don’t understand why we would proceed that way. Clause 11 is one of two in a section about the youth criminal justice system. The clause stands on its own and this section stands on its own. What we could add is another section called, if I’m not mistaken, “coordination provision?”
[English]
The Chair: Senator Dupuis and Senator Dalphond, I have a suggestion, if you agree, that we deal with clause 11 and then deal with this.
[Translation]
Senator Dalphond: Yes, thank you.
The Chair: All right?
Senator Dupuis: Thank you.
Senator Dalphond: Definitely. I thought we had already done that. Sorry.
[English]
The Chair: Shall clause 11 carry, senators?
Hon. Senators: Agreed.
The Chair: Now we’ll do this one. Shall new clause 11.1 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall the bill, as amended, carry?
Hon. Senators: Agreed.
Senator Batters: Roll-call vote, please.
Mr. Palmer: The question is on this: Shall the bill, as amended, carry?
The Honourable Senator Jaffer?
Senator Jaffer: Abstain.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Clement?
Senator Clement: Abstain.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Klyne?
Senator Klyne: Yes.
Mr. Palmer: The Honourable Senator Pate?
Senator Pate: Abstain.
Mr. Palmer: Yes, 5; abstentions, 4; no, nil.
The Chair: Senators, as we have adopted it as amended, is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of the amendments adopted by the committee, including updating cross-references and the renumbering of provisions?
Is that agreed, senators? Agreed.
Does the committee wish to consider pending observations to this report?
Senator Pate: I’d like to observe that while we consider the issue of violence in our society extremely important and relevant, we must take efforts to not just do things that look as though we’re responding to violence but that won’t actually achieve results.
Second, where we currently have provisions in law that are not necessarily exercised, reiterating those in repetitive pieces of legislation is not necessarily helpful. We actually need action.
Thank you.
Senator Batters: I would suggest that’s probably a better observation made in debate in the chamber as a speech rather than an observation to a bill. It’s not anything that directs the government, departments or anything like that to do something.
Those are observations I certainly don’t agree with.
[Translation]
Senator Boisvenu: To respond to Senator Pate, this bill lays no claim to being able to solve the problem of spousal and family violence. That’s a major generational issue. It’s one more tool that we can add to the justice system, and that women have been asking for, to make sure that court orders are complied with. If they are not, we need to have unchallengeable information to present in court. When I drafted this bill, I never thought that it would solve the problem of spousal violence. That’s an issue that goes beyond the Criminal Code. I just wanted to respond to Senator Pate.
[English]
Senator Pate: I appreciate that very much, and in no way do I doubt your intentions, Senator Boisvenu. It’s the fact that this already exists in law and the fact it’s not enforced. Piling on another law to reinforce it won’t necessarily mean enforcement. Thank you very much.
Senator Dalphond: If you want to append some observations, I think we should have the text of it because, quite frankly, those of us around the table are not going to draft observations. Normally, we get a copy of the text that we can amend or discuss.
I don’t think we had anything before us, so as far as I’m concerned, there are no observations to append. We have not received any observations yet.
The Chair: Senators, it was a fairly short observation, and I saw the analysts quickly typing it down, and —
Senator Dalphond: Let’s adjourn and come back. We’ll have our observations. There is a way to proceed.
The Chair: That’s how we’ve been proceeding, but that has not been the case always. In the past, we’ve also had oral observations.
So, I’m in your hands. Do you want to proceed on Senator Pate’s observations or not?
[Translation]
Senator Dupuis: Am I to understand that the analyst took notes and could read back the notes on Senator Pate’s comments?
[English]
Julian Walker, Analyst, Library of Parliament: What I have in my quick notes is something to this effect:
While we consider the issue of violence against society to be extremely relevant and important, we shouldn’t be passing laws or doing things that won’t achieve results.
And then, “While we have provisions reiterating those, it is not always particularly helpful.”
Obviously, those aren’t complete sentences, but those were the points. We would be happy to draft something that reflects those, but there would be some words in there that we would require further guidance on in terms of how you want to stress those points. That would be helpful.
Senator Dalphond: If we’re going to do this, I suggest also that we have other observations, and that the committee be mindful —
The Chair: Senator, wait. We’re not yet agreed.
Does the committee wish to consider appending observations to the report?
Senator Batters: No.
Some Hon. Senators: No.
The Chair: Let’s vote on it — if we want to append observations.
Mr. Palmer: It would be a vote on a general provision of whether we should append observations.
Senator Klyne: So it’s not just these ones but observations in general.
The Chair: Yes. Do we want to consider appending observations?
Senator Klyne: So if I understand this correctly, we’re really dealing with the one. If we agree to append, I’d like to offer a comment.
Senator Dalphond: If there is one, there could be two or three.
The Chair: Can we do a roll-call vote?
Senator Klyne: Could I ask a question of Senator Pate?
I never interpreted this to be layering on something else. I understand your observation that we have these laws already that don’t seem to be effective in terms of it continuing on. But this certainly was clear to me from listening to the witnesses that this would be a deterrent and an early intervention opportunity, which provide some sense of security for the victims to try to lead a normal life. In that sense, for them, it was desperately needed. Otherwise, they live in fear or in the shadows, never knowing where the accused is. This gives them the opportunity to have the freedom.
The objective of the bill, I believe, was to provide them with some safety and security, as well as early intervention and deterrence.
Senator Pate: I agree that is the intention, but we heard from some individual victims that this is the same rationale that was first put forth for 810, for example, when it was introduced. So we’ve had successive law reforms that have said the same thing, essentially.
So it’s not that it’s not effective; it’s that it’s not utilized, whether by the police, Crown prosecutors or those in authority who run the legal system. That’s the issue.
Yes, I agree totally. If you go to people who have been victimized, the first thing they want is for it to stop and something to stop it. When you offer them something like electronic monitoring or some other intervention and not others — we heard from witnesses who said that they need economic security, housing and other things as well. That’s not being offered, so they take the little bit that is being offered.
I totally understand that as someone who has worked in that field for more than 40 years. But it doesn’t mean that we should, as parliamentarians, as legislators, continue to participate in a process when we know it looks like we’re doing something, but it won’t necessarily change the actors in the system or provide the type of protection that the women are seeking. I’m absolutely in favour of the objectives. That’s not the issue.
[Translation]
Senator Dupuis: What I’m wondering about right now is whether we can agree on the fact that all the committee members are extremely concerned about violence against women, particularly because they’ve been left to their own devices by the criminal justice system, a situation that should not continue. I think we can agree on that, at least.
Can we take it a step farther with what we heard from both sides of our table? I don’t think so, and I’m wondering if including an observation might not reopen debate on the content of the bill, given that the first observation was cancelled by the second, which would be cancelled by a third and then a fourth.
My concern is that we were compellingly approached by victims of violence at the hands of their intimate partners and clearly told that the current system has not been solving anything, whether to keep them safe, or to change the behaviour of those charged or convicted.
So can we take it to another level and agree on the means? It would seem that we can’t. Nevertheless, I believe that we need to talk clearly as a committee and I can’t see why we couldn’t agree on a general observation that would condemn this violence. We need to call upon the appropriate authorities to enforce the law, in a way that would provide better protection for victims.
[English]
Senator Klyne: I think the last line of Senator Dupuis is what I wanted to make a comment on. But to continue the dialogue with Senator Pate, I think both of us would agree that there are systemic issues there that require a basic overhaul of social and economic injustices that are at the root of many of these reoccurrences. The carrying out of justice, whether it’s in keeping of the peace or the courts or corrections, that is probably something that is a bigger issue that is troublesome, but I don’t think that we should stop and not do this because people won’t execute it. I have to have faith in the justice system that they will do this, and if they don’t, it behooves us to take that up as a cause.
Again, I want to support this bill for the purpose that it was designed for. Thank you, chair.
Senator Batters: We had a vote on this bill. No one voted against it; four people abstained. Everyone else voted for it. To have an observation which just says we don’t think this bill is the strongest possible mechanism that can happen — it is a private senator’s bill. It is not a government bill. It has limited things that it can do, but I think it effectively does those. To have an observation that diminishes this bill is not appropriate without a direction. As I said, the appropriate mechanism to voice those types of concerns is in debate about this bill in the chamber. And, particularly, when we have the École Polytechnique massacre anniversary coming up on Tuesday, there’s no way that I want to be associated with any sort of observation that diminishes a bill that could have some good, important things come out of it as this one.
Senator Cotter: I agree with the sentiment of Senator Pate’s oral observation, but I’m not in support of the language that offers criticism of the bill itself.
Having said that, I think there is value in an observation that there is a much bigger problem here than would be addressed by this bill. I’ve written a less critical observation that I would just read out for possible consideration, more along the lines, I think, of the message of Senator Dupuis.
As part of my intervention here, I’ll just read what an observation could say that is not quite as critical of this bill as Senator Pate’s proposal:
This bill is not a panacea with respect to intimate partner violence. Serious meaningful action within the criminal justice system and beyond is required to address the safety and security of vulnerable victims and to significantly reduce these forms of violence.
I’m not saying I have that exactly right, but it is an acknowledgement that this bill isn’t the answer, and big commitments are required. I do think it’s valuable to observe the sentiment of Senator Pate, but I would adjust the tone a little.
Senator Pate: If we want action, I would say the wording as proposed is not quite clear. One of the issues is that we’re talking about adding provisions to the Criminal Code that repeat provisions that already exist, in essence, because they’re not being implemented. The observation would need to, in my humble opinion, include that reference that it’s not just that it’s not a panacea. It’s in large part because of the refusal, incapacity, inability — however you want to frame it — of the system to respond effectively.
Maybe one of the actions to meet Senator Dalphond’s suggestion is that we request that the newly recommissioned Law Commission include that as part of its review of the Criminal Code and the criminal law provisions.
Senator Clement: I want to go on the record to say something.
[Translation]
Senator Boisvenu, your work in this area is remarkable, and the testimony from women victims who came before the committee was very powerful.
[English]
The victims who brought their lived experience into this room — it was some of the most compelling testimony I’ve heard since my arrival here at the Senate.
I thought that people could make observations, and then we would vote them down or agree to them. I’m confused as to why we’re voting to allow observations. I thought people would put forward an observation, and we would discuss it and then go from there. Again, I don’t know.
I’ll end by saying that I am profoundly uncomfortable about this piecemeal approach to the Criminal Code. I know we’ve talked about law reform and going to the commission, but I find these conversations increasingly difficult around approaching the Criminal Code. I want it to be on the record.
[Translation]
Senator Dalphond: I’m uncomfortable about the thrust of the observation. Since becoming a senator, I have learned that it’s best to be careful with respect to amendments to the Criminal Code, and I think that the day will come when the whole question will have to be comprehensively reviewed.
In the meantime, I’ve heard victims strongly demanding protection, and I’m not among those who would say that we should bide our time while waiting for exhaustive, comprehensive and complete work on this matter to be done.
So if we want to make observations, here’s what I would propose, based to some extent on what Senator Cotter suggested, but also on the fact that I —
[English]
The Chair: Stop.
Senator Dalphond: No, I want to —
The Chair: No, I will give you an opportunity, but one minute. I haven’t asked the — okay. Go ahead.
[Translation]
Senator Dalphond: The committee reiterates the importance of attacking the causes of violence between intimate partners, and the need to introduce measures to do so. Moreover, it’s important to recognize the rights of victims to protection measures, in particular during the early months of separation and during legal proceedings.
[English]
The Chair: Senators, I come back to my original question. Does the committee wish to consider appending observations to the report? We’ll take a vote.
Mr. Palmer: The vote is on whether the committee wishes to consider observations and append them to the report.
The Honourable Senator Batters?
Senator Batters: Yes — I’m sorry. I’m sorry. I meant to say no. Not enough coffee.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: No.
Mr. Palmer: The Honourable Senator Clement?
Senator Clement: Yes.
The Clerk: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Abstention.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Yes.
Mr. Palmer: The Honourable Senator Klyne?
Senator Klyne: Abstain.
Mr. Palmer: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Palmer: Yes, 4; no, 2; abstentions, 2.
The Chair: So we have agreed to have observations, honourable senators. Senator Pate, you had an observation. If I’m not mistaken, Senator Cotter suggested he had a better way to say it. I need to give you the opportunity to say what you want.
Senator Pate: Even the last comment from Senator Dalphond — it’s not just when separation happens. There are all kinds of moments that this bill does not capture when violence first begins: pregnancy, saying they’re separating —
Senator Dalphond: That’s what we’re dealing with here today.
Senator Pate: Right. So I think — and we heard from witnesses Scott Newark, Mary Campbell and others that this — yes, I’m just saying that I think the repetitive — the fact that people keep focusing on “we want to prevent violence” — and, yes, we do, we want those tools, but those tools already exist in the Criminal Code.
The Chair: Senator Pate, may I respectfully ask you to say exactly what you want your observation to be, and we’ll vote on it?
Senator Pate: Okay.
The Chair: Thank you. Let’s put it first.
Senator Pate: I would like to say that the issue of violence against women and violence in society is extremely serious. All members of the committee acknowledge that. There is a need, however, to not merely repeat or add on repetitively to provisions that already exist in the Criminal Code. And that we encourage the government to take further action, either through a review of the Law Commission or through other measures that would assist in addressing violence.
The Chair: Now you can add your discussion to it. Did you want to say anything?
Senator Pate: No. It’s not just that this is a tool that may not be adequate; it’s also that it’s already in the Criminal Code is the point.
The Chair: Anybody else?
[Translation]
Senator Boisvenu: I feel very uncomfortable when people say that there are requirements in the Criminal Code that would make it possible to accomplish what this bill is trying to do. I haven’t heard much evidence to the effect that this bill was useless because the Criminal Code already has provisions to cover it.
I would remind Senator Pate that, except with respect to terrorism charges or very serious offences, the requirement to wear an electronic monitoring device in Canada is only ordered in rare cases. With this bill, we are simply trying to say that in a family violence or spousal violence context, the monitoring device can save lives, which is something the Criminal Code definitely does not say.
It’s important not to do what can’t be done through the front door through the back door, by disparaging the bill and saying that it’s almost useless, because the Criminal Code already has everything required. If that had been the case, most of the senators would have voted against the bill.
I am totally opposed to saying that there are already requirements in the Criminal Code. That amounts to a total disparagement of the spirit of this bill.
[English]
Senator Batters: And the further provision that doesn’t exist is the ability to include these types of counselling programs and addictions treatment programs and all those types of things at those early stages. That is also new, so that is not a repetitive part of something that already exists, and we’ve heard that it can be useful. So again, I don’t want an observation to give the message to the Senate that this bill is diminished in some way. Again, I repeat that no one at this committee voted against this bill. There were some people who abstained, but everyone else voted for it.
Senator Cotter: I would support all of the — I’d like to see it in writing — sentiments in Senator Pate’s message, with the exception of the implicit message that this is a bill that does nothing, that it is just a duplicate of what’s there.
The Chair: Senator Cotter, when you say you want it in writing, do you want us to adjourn?
Senator Cotter: Well, to be honest, the best approach, if it could be achieved, would be for us not to be considering this in a kind of an open forum, but within a group of us who are open to an observation to see if there’s language that can be developed around which there could be a consensus.
The Chair: But what I’m asking is that since you want to see it in writing — we don’t have it in writing. Do you want us to suspend so this can be put in writing for people to see?
Senator Cotter: I’m going to be agnostic on that point because others may have comments to make that would clarify the situation.
The Chair: But you put it that you want it in writing.
Senator Cotter: I said I would like to, Madam Chair, but I’m not insisting on that at the present time if there’s a sentiment around it that can improve my understanding.
Senator Klyne: Through the chair, it’s not a long amendment, I don’t think, but I would appreciate it if Senator Cotter wanted to write something out and share it with us, we could deal with it that way. I just want to get this going.
The Chair: Senator, if it’s acceptable to you — and I haven’t asked the analysts — but he was writing something. If you come here, he will write it, print it and circulate it. Let’s suspend for 10 minutes. And if we finish early — is that acceptable, senators? Senator Pate and Senator Cotter will work on it together.
Senator Pate: Before we suspend, just because Senator Batters indicated that these provisions aren’t available, in fact, they are in bail provisions as well as in sentencing provisions, judges can impose conditions including those kinds of treatment orders.
Senator Boisvenu: Chair.
The Chair: You can’t make that comment for one and not for the other.
[Translation]
Senator Boisvenu: I’d like to set Senator Pate straight. What she said is not true. In section 810 of the Criminal Code, there is no obligation to consult victims, but there is in the bill. There is no treatment requirement, but that also is in the bill. There is no requirement if the individual requests an amendment to the section 810 conditions, but the bill requires that the victim be consulted. None of that is in the Criminal Code.
And so, Senator Pate, when you say that there are already requirements in the Criminal Code, that’s false. The bill would amend section 810 by adding specific conditions with respect to spousal violence.
That’s not in the Criminal Code. It’s important to be accurate.
The Chair: Thank you, Senator Boisvenu.
[English]
Senator Cotter and Senator Pate, do you want to do it on your own or do you want to get the assistance of the analysts?
Senator Cotter: I think we should get the assistance of the analysts, but I do think there is kind of a divide between Senator Pate and certainly some others about the degree to which we reflect implicitly that this bill doesn’t add anything.
I’m more interested in bypassing that.
The Chair: So you don’t want to do the —
Senator Cotter: I don’t know that Senator Pate and I would achieve consensus on this, because she’s strongly of the view that she wants to implicitly call into question the usefulness of the bill — and maybe that’s putting it too strongly — and I’m uncomfortable with doing that.
I’m more comfortable with making a statement that this is modest, that this is a much bigger issue, and we heard that, I think, from the witnesses. That’s the dilemma.
Senator Pate: I just want to correct that. No, I’m not saying the bill is useless. When people are responding — and the work that Senator Boisvenu has done to try and continually raise the issue of violence in society, particularly violence against women, is incredibly important. It’s what the legal provisions will accomplish in comparison to that laudable goal that I support of Senator Boisvenu. That is not the issue.
It is the fact that we have heard that there are provisions that exist, and when we continually put in place new laws without looking at how we address the fundamental issues, we may make ourselves feel better, but we don’t necessarily address the issues that we heard very clearly from the victims who were here and that I’ve heard for decades.
The Chair: Senators, I’m in your hands. We said we wanted observations, so if we want observations, what do you suggest we do?
Senator Dupuis: I would suggest that we look at each observation one at a time.
The Chair: The challenge is that Senator Cotter said he wanted to see them in writing, so now where do we go?
Senator Cotter: Mine are in writing, but I’m the only one right now.
Senator Dalphond: I think maybe the best thing we can do is just stop and draft the — because we are drafting a horse that is becoming a camel, and maybe it will become an elephant.
Maybe we should just adjourn, and when we reconvene at the next meeting, we will circulate in advance the observations, as we usually do, so we have a clear picture of what people want.
The Chair: Senator Dalphond, are you moving adjournment of this?
Senator Dalphond: I think if people want to debate observations — I will move that we just send the bill back to the House and report it with the amendments, and that’s it.
Some people will have different views on the utility of the bill, and they will certainly argue it on the floor. If we want to append observations, I abstain. If you really want to have observations, let’s do it properly.
The Chair: Senators, now we have two issues. A number of us said we wanted observations, right? Let’s be very careful. That is what was on the floor.
Now, Senator Dalphond is saying, “No, just send it to the House.” We can’t; there is already a motion that we have to deal with, so we can’t deal with your motion. And Senator Pate —
Senator Dalphond: I didn’t say that. I said that if we want to append observations, I see there is no consensus on what a clear consensus on one observation is. I propose that people draft their observations and send it to the clerk, as we do normally, and we will circulate them, and we will debate at the next meeting.
The Chair: Is that acceptable, senators?
[Translation]
Senator Boisvenu: No. The bill was adopted. I would suggest instead that we make our observations at third reading in the Senate.
The Chair: No, but there are four —
Senator Boisvenu: I suggest suspending the meeting for half an hour to give us time to draft observations. It’s not complicated. Then we could return and submit them. That would enable us to adopt the bill and send it back to the House of Commons this week. Otherwise, we’re going to have to come back next week to discuss it and I find that discouraging. If we want to make observations, let’s take a half-hour to draft them and then discuss them for an hour. That would wrap things up.
Senator Dupuis: I’m in favour of Senator Dalphond’s suggestion. We had decided that we were going to discuss the observations. I think we need to do it in an orderly manner. That means giving those who have been thinking about possibly making observations, to put them in writing and send them to our colleagues so that we can all have them before the next meeting. We could then discuss them at that meeting.
[English]
The Chair: Are you moving an adjournment to have the observations discussed at the next meeting?
[Translation]
Senator Dupuis: I will leave the adjournment of the meeting in your hands, Madam Chair. Those who have observations to make could write them between now and the next meeting so that we could have them in hand by then. We would then be able to debate them and conclude our study of this bill until the next meeting. That’s my proposal.
[English]
The Chair: That’s what I am hearing.
I heard you, Senator Boisvenu. You said no.
[Translation]
Senator Boisvenu: It’s a procedural issue. I’m with Senator Dalphond’s first comment. Normally, when we do a clause-by-clause study of a bill and people want to make observations, they have to send them at the same time as the amendments.
I’m convinced that Senator Pate has been thinking about her observations since the beginning of the study of this bill. I think these should have been submitted this morning or at the same time as the amendments. That’s the usual procedure. We are derogating from the normal procedure. I’d like to hear your point of view on that, Madam Chair.
[English]
The Chair: Senator, you made your point. Right at the beginning, we said we were going to have observations. The majority said we wanted the observations, even though they were not in writing.
I’m in your hands. There is a desire, and so I will adjourn now, and those who want observations, please send them to the clerk, and we will discuss them at the next meeting.
Senators, the meeting is adjourned.
Senator Dalphond: Send to the clerk by which date? By Friday? By Monday?
The Chair: Thank you, Senator Dalphond. By Monday, in both official languages.
(The committee adjourned.)