THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Friday, June 12, 2026
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 9:34 a.m. [ET] to study the subject matter of Bill C-16, An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures).
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good morning, honourable senators. I declare open this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
My name is David Arnot. I am the chair of this committee. I invite my colleagues to introduce themselves.
[Translation]
Senator Miville-Dechêne: Good morning. Julie Miville-Dechêne from Quebec.
[English]
Senator Tannas: Scott Tannas, from Alberta.
[Translation]
Senator Oudar: Manuelle Oudar from Quebec. Good morning.
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator K. Wells: Kristopher Wells, Alberta, Treaty 6 territory.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Dhillon: Morning. Baltej Dhillon, British Columbia.
The Chair: Good morning, colleagues.
Honourable senators, we are meeting today to continue our study of the subject matter of Bill C-16, An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures).
I wish to state that sensitive subjects, including trauma related to intimate partner violence, may be discussed during this session. This content may be triggering for those present as well as for individuals watching or listening to the broadcast. Mental health support for all Canadians is available by telephone and text at 9-8-8.
For children and youth, confidential support is available at 68-68-68. Senators and parliamentary employees are also reminded that the Senate’s Employee and Family Assistance Program is available to them and offers short-term counselling for both personal and work-related concerns as well as crisis counselling.
Senators, our first panel is with us here today by video conference: Professor Colton Fehr from the University of Saskatchewan; Emma Cunliffe, Professor of Law at the University of British Columbia; and from the Macdonald-Laurier Institute, Mr. Peter Copeland, Deputy Director, Domestic Policy.
Welcome to all of our witnesses here this morning. Thank you for joining us on short notice. We appreciate that you have been able to clear up your time to help us in the work that is before us.
We will begin with opening remarks, starting with Professor Fehr, followed by Professor Cunliffe and then Mr. Copeland. You have five minutes maximum, so just a brief summary of some of the issues, and then we’ll be asking some questions of each of you. Thank you very much.
First, then, Professor Fehr.
Colton Fehr, Assistant Professor, University of Saskatchewan, as an individual: Good morning, chair and honourable senators. Thank you for the invitation to comment on this important bill.
I’d like to focus on section 63, which proposes a safety valve for most minimum sentences of imprisonment. This legislation allows courts to exempt offenders from minimum sentences if the consequences would amount to cruel and unusual punishment, a phrase in law that translates to grossly disproportionate punishment. In support of this legislation, I’ll make three comments.
Firstly, I think the proposed exemption provides a prudent starting point for crafting a safety valve. It addresses a core problem with minimum sentences by allowing judges to exempt offenders for whom the minimum is clearly problematic. While it may be argued that the exemption does not catch all problematic cases, it must be acknowledged that application of the proportionality principle in sentencing allows for reasonable disagreement about what consequences are fit for a crime. Institutionally speaking, it is not clear that the judicial understanding of proportionality should always trump Parliament’s. Indeed, the Supreme Court has repeatedly acknowledged the legitimacy of Parliament’s attempts to influence sentencing practices within constitutional boundaries. Bill C-16 achieves this end subject to some comments that I’ll return to shortly.
Secondly, any suggestion that Bill C-16 is pandering to majoritarian demands with this clause is too short-sighted. Public demands to be tough on crime certainly exist, and as the fallout from cases like Senneville and Bissonnette demonstrate, the political temperature is running hot in the criminal sentencing context. This trend should be viewed alongside another: resort to the “notwithstanding” clause becoming increasingly normalized in the provinces. A parliamentary response to one of the more controversial decisions in recent memory — being Senneville — that goes further than required by the apex court would encourage such future responses. Parliament therefore acts prudently by not pushing back too hard at this juncture. Instead, it is reasonable to move incrementally and then take stock of how courts apply the proposed safety valve before considering other policies, such as those found in Bill S-208.
Finally, and despite my support for the bill, a caution is warranted with respect to the minimum sentences that are excluded from the safety valve. While the minimums for murder were upheld in Luxton and Latimer, these cases applied a now‑overruled methodology for assessing the constitutionality of minimum sentences. An expansive approach to foreseeable scenarios, including the incorporation of Gladue principles, combined with much improved evidence on the impact of long-term imprisonment on individuals, suggests that these challenges have a reasonable prospect of success if raised again in the courts, an argument that I detail in a recent book called Rethinking Homicide. Such challenges are particularly strong with respect to the minimum sentence for first-degree murder given the very broad scope of constructive murder under subsection 231(5) of the Criminal Code. Parliament may attenuate this latter challenge in particular by reinstating the “faint hope” clause regime, a policy that may be constitutionally required per litigation in British Columbia.
The minimum sentences for murder are also problematic because they can create a strong incentive to plead guilty to manslaughter when sufficient risk of conviction exists with running a defence, a problem that often arises in self-defence cases, and is particularly prone to raise fairness concerns with battered women who kill their abusers. Parliament may mitigate these challenges by extending the proposed safety valve to homicides, enacting a doctrine of excessive self-defence, or, preferably, supplement the current law with an exemption clause specifically for cases where plea bargaining practices place undue pressure on an individual to forfeit a defence.
While these suggestions require detailed consideration, I want to close by re-emphasizing that I think the current legislation provides a prudent starting point in this political moment. It also provides an excellent template to build upon after Parliament has greater evidence with how the safety valve is being applied by courts.
Thank you.
The Chair: Thank you, Professor Fehr. Now Professor Cunliffe, please.
Emma Cunliffe, Professor of Law, University of British Columbia, as an individual: Good morning, honourable senators. Thank you for the invitation to speak to you today about Bill C-16.
Today, I am speaking to you from the traditional, ancestral and unceded territories of the Musqueam First Nation. I’m a professor of law at the University of British Columbia and principal of Green College on UBC’s Vancouver campus. From 2020 to 2023, I had the honour and responsibility of serving as the Research and Policy Director for the joint Canada-Nova Scotia Mass Casualty Commission.
Senator Prosper, I would particularly like to acknowledge the impact of that incident on the communities in Nova Scotia and Mi’kma’ki.
I will be speaking to you today about some aspects of the commission’s work, but I am speaking on my own behalf and not on behalf of the commissioners.
I would like to focus specifically on the proposal to create a new criminal offence of coercive control and the absence of a correlate defence for offences that are committed by a person who is subject to coercion.
On the basis of evidence from research and other jurisdictions that have adopted an offence of coercive control — including England, Wales, Scotland and the Australian jurisdictions of New South Wales and Queensland, as well as on the basis of Canadian research, including that conducted by the Mass Casualty Commission — there is abundant evidence to suggest that more criminal law, including new offences, will not contribute to women’s safety and, in fact, can be predicted to criminalize some women who are victims of abuse and to re‑traumatize others, without necessarily according them greater safety.
While the criminal law has been a useful tool for some women seeking protection from an abuser, decades of research on legal responses to intimate partner violence suggest that criminalization has created additional harm in the lives of victim survivors, and these additional harms are not visited equally. That is, women who are marginalized and women who are otherwise criminalized are particularly likely to feel these effects.
Criminalization has had a range of unintended consequences, including the increased misidentification of women victim survivors as perpetrators. Although coercive control is clearly a risk factor that increases the danger of intimate partner homicide, research from other jurisdictions suggests bluntly that inserting a new offence of coercive control into the Criminal Code will not make women safer while they remain in or seek to leave abusive relationships, nor will it reduce the rates of femicide.
However, inserting a new defence of coercion into the Criminal Code and establishing national policies and protocols with respect to charging victims of intimate partner violence will provide marginalized women, in particular, with some measure of protection against criminalization.
In the event that Parliament is determined to create a new offence despite this evidence, I would suggest that the least harmful path is to adopt the wording used in Scotland in preference to that which is proposed in Bill C-16.
I’m sure the honourable senators are aware of the genesis of the Mass Casualty Commission — Canada’s most lethal mass shooting perpetrated by a perpetrator who had a significant lifelong history of violence, including toward his common-law partner of 19 years, who survived the incident but was the first victim of the mass casualty. Lisa Banfield had experienced 19 years of profound physical and sexual violence as well as coercive control at the hands of the perpetrator of the mass casualty and was subsequently charged by the RCMP with an offence arising from the perpetrator’s access to firearms for the mass casualty. The commission looked closely at the treatment of Lisa Banfield and consulted with women, including incarcerated women in prison, including Indigenous and Black Nova Scotian women, through work in the Avalon Sexual Assault Centre and concluded that for many women, the pathway to criminalization is their experience of abuse at the hands of an intimate partner.
Coercive control — so we’re clear on what we’re speaking about — is sometimes employed to enforce roles within relationships, including through the microregulation of daily activities. The enforcement of traditional gender roles can sometimes mask this controlling behaviour.
The commission made two recommendations with respect to coercive control. The first is a change to charging policies to require police and Crown attorneys to carefully consider the context of intimate partner violence when criminal charges are contemplated against survivors. The second was to conduct an expert study of the possibility of criminalizing coercive control involving all the relevant stakeholders.
I’ll conclude my remarks there. Thank you.
The Chair: Thank you, professor.
Mr. Copeland, please proceed.
Peter Copeland, Deputy Director, Domestic Policy, Macdonald-Laurier Institute: Hello, senators and colleagues. Thank you for having me. It’s my pleasure to share my thoughts with you on this very comprehensive bill. I’ll confine my remarks to three subjects: coercive control, case timelines and minimum sentences.
Coercive control is a sustained pattern of controlling behaviour. It includes duration, controlling behaviour with harmful effects and multiple acts of varying types. The definition we have before us is not as tight. It puts forward a stand-alone offence that requires a pattern of acts, where the nature of the act, what constitutes a pattern and when that threshold is met, is too vague in places.
Only the “any other conduct” in paragraph 264.01(2)(c) of the definition has an explicit reasonable person standard built in, and the concept leaves open the possibility of charges for coercive control that could be better described as isolated instances of particular offences, such as sexual or general assault, uttering threats, forcible confinement or extortion, all of which are existing offences.
The idea behind the offence of coercive control should be that there is, in fact, a sustained pattern. Other aspects of the definition lack the necessary clarity. When does financial management, for example, become controlling economic resources? When does disagreement about a child’s bedtime become controlling the manner in which the intimate partner cares for a child and over what time frame?
Experience from England, Wales and Scotland — as Professor Cunliffe mentioned — provides case studies in contrast. Scotland’s model requires a pattern, a demonstrable effect on the victim and applies a reasonable person standard to the whole test. It also involved considerable officer training, which I believe is contemplated in this case as well. The results were stark, with conviction rates surpassing 90% in Scotland, whereas England’s were just 13% in the first year.
The definition of “coercive control” in the bill could, therefore, be improved by applying the reasonable person standard throughout the test, tightening the definition of various acts included in the definition, and possibly requiring two or more acts of a type over a defined period, ensuring the definition is in line with the underlying concept — a pattern, not a set, of isolated acts.
We are pleased to see the inclusion of image takedown powers, which the Macdonald-Laurier Institute advocated for, drawing on the work of Michelle Abel and Bridge2Future, which was introduced at the House committee stage. To ensure these tools are effective, the government should closely study the recently enacted U.S. TAKE IT DOWN Act, which ensures the necessary staffing and technological infrastructure are in place to properly operationalize the tool.
The amendments on delays are also welcome. Two recent Supreme Court decisions in R. v. Vrbanic and R. v. Jacques provide further clarity to the exceptional circumstances grounds for extending case timelines, which include disclosure, multiple witnesses and other factors common in complex cases. However, I would still argue, as I have before, for clearer national security and organized crime grounds for case timeline extension, as they are very complex, sensitive and deal with the international legal exchange of documents and are often more consequential than other cases.
On minimum sentencing, the government should be commended for going as far as it has in reinstating currently inoperative minimum penalties. That said, the proposed safety valve could still be refined. It remains to be seen how courts will interpret and enact the provision, but recent experience suggests that some courts may be keen to use identity-based criteria to override sentencing provisions by referencing the accused’s race or migration status, for example. This safety valve could be further refined to prevent this possibility, while also affording clear grounds for exceptions when the facts of an accused’s circumstances warrant it. The bill could be amended to provide a clear list of grounds as either inclusions or exclusions pertaining to the exception to the minimum and for specific offences — things like age, criminal history, whether there’s a commercial purpose present, whether the offender is abusing a position of trust or whether it involves organized exploitation or organized crime, which could be applied for certain offence types, such as drug possession, for example.
This would further constrain the courts from searching for often ideologically driven justifications to lessen charges and ensure that they are better guided by the facts in play and the specific circumstances of the person before them rather than generalized assumptions about group membership.
In the main — and in spite of these comments — the government has put forward a sound bill in response to legitimate concerns from the public across broad swaths of the political spectrum, which I find refreshing and commendable.
Thank you.
The Chair: Thank you.
Senator Batters: I would like to address my questions to Mr. Copeland, from the Macdonald-Laurier Institute. Thanks for your comments at the end there about the mandatory minimum sentences.
You said at the House of Commons committee that the mechanism proposed in Bill C-16 draws too heavily, in your view, from the recent case law on mandatory minimum sentences. Do you think it risks, in practice, giving the courts too much latitude to depart from mandatory minimum sentences that Parliament nevertheless intended to make operative and to express its will in making those mandatory minimums?
Mr. Copeland: Thank you, Senator Batters, for the question.
I’m referring in this regard to the particular section of the Charter here in question. The understanding of what constitutes cruel and unusual punishment has been one that courts have been willing to expand through their constitutional theory of a living tree, in which the court may, if it deems so, change the understood meaning of terms in light of what it considers to be evolving social standards and norms.
In this issue and in other criminal sentencing matters, as Professor Fehr indicated, this has provoked a rather strong reaction from many segments of the public who don’t, in fact, find minimum sentences for certain things, such as child pornography, to be cruel and unusual.
Although this amendment certainly further constrains the ability of the courts to use this reasonable hypothetical standard, which allows for imagined scenarios beyond consideration of the facts of the case in question, it could still, for example, reference an accused’s race or migration status as grounds for saying. In this case, this is cruel and unusual punishment just because the offender has these features.
Listing certain things that prevent the exception from applying could further constrain the court’s ability to engage in creative interpretation.
Senator Batters: Thank you. Given what you were just saying, that the better model would actually rely on that type of clear and objective criteria to govern departure from mandatory minimum sentences, do you think that absence of criteria in that section of Bill C-16 is one of the bill’s main weaknesses?
Also, we heard from Justice officials when I asked what the standard would be to have a sentence overturned on appeal if a judge decided to use the departure mechanism — the escape hatch, the safety valve, whatever you call it — and gave a sentence that is quite a bit lower than the mandatory minimum standard would be manifestly unfit.
Do you have additional comments to offer about that being perhaps much too high of a standard for this kind of a situation?
Mr. Copeland: I’m sorry, Senator Batters. Are you referring to recent examples of what’s going on at the appeals level with the current standard?
Senator Batters: Actually, I asked the Justice officials about these types of departures. What if a judge made an order to say that, “No, the mandatory minimum here is cruel and unusual punishment and is too heavy, so I’m making this quite a light sentence”? Then I asked what the standard for appeal would be. Is it appealable? Yes, but the standard for appeal was described to me justice officials as “manifestly unfit.” The sentence is manifestly unfit. Does that give you additional concern about this?
Mr. Copeland: Yes. Within the existing framework, there’s much more latitude to do that, again, because one is holding the law almost to a standard of perfection such that there is no circumstance in which this charge would be cruel and unusual. Whereas, in reality, even the existing jurisprudence and test fail to recognize that police and prosecutors have a great deal of discretion in play. They decide whether to proceed with a summary conviction or by indictment and which offence to pursue.
It’s not as though they are not taking these things into account. Sometimes there are practical and pragmatic considerations, but, other times, they are considerations that pertain to the suitability of the offence based on the nature of the alleged crime.
Yes, this is a good example that you’ve raised. It underlines the concern that I and others still share, which is that courts could indeed find ways to override the minimum, as there seems to be a good deal of desire to do so.
The Chair: Senators, I have to restrict everybody to four minutes for the question and the answer. That means the question has to be succinct, and the answer has to be succinct. We have many senators who want to ask questions. To be fair to everybody, that’s what I’ll enforce.
[Translation]
Senator Miville-Dechêne: Professor Cunliffe, you said the offence of coercive control will not contribute to the safety of women who are victims of domestic violence. This is significant, and your comment surprises me, frankly, given that a number of witnesses, particularly from Quebec, have argued the exact opposite.
I would like to hear more from you on that, especially since you said that this is particularly true for marginalized women, who could be disadvantaged by this new offence. What I also fail to understand about your reasoning is that, among these marginalized women, there are also victims of coercive control who could find in this offence the tools they need to defend themselves more effectively.
[English]
Ms. Cunliffe: Thank you, senator, for that question.
On face value, it seems that the new offence of coercive control would provide women who experience violence and coercive control with a new legal tool. However, unfortunately, experience in other jurisdictions and, indeed, experience in Canada suggest that this may not be the outcome.
The concept of legal process abuse has been well documented in Canada in the family violence context, as well as in other jurisdictions. It constitutes a pattern of, for example, false reports to police that a woman who is, in fact, herself a victim is perpetrating violence. There’s a great deal of research that suggests that, unfortunately, police and prosecutors often misidentify the true perpetrator of harm and that this extends to circumstances of coercive control.
For example, this is particularly true of women who fight back against their abusers. It’s been documented by Elizabeth Sheehy in her book, Defending Battered Women on Trial, as well as by Patrina Duhaney from the University of Calgary, with respect to Black women in Canada. The misrecognition of victims as perpetrators of violence is a key concern in this context.
The Mass Casualty Commission met with 27 incarcerated women in Nova Institution for Women in Nova Scotia, who shared with the commission their own experiences of intimate partner and family violence and their pathways to criminalization. In many cases, their criminalization was the product of coercion on the part of abusive partners or a response to the poverty of coercive control and an effort to leave abusive relationships. There’s a very strong nexus between women’s criminalization and —
[Translation]
Senator Miville-Dechêne: I’ll stop you there, because I don’t have much time and I have another question for Mr. Copeland.
Thank you very much for that answer.
Mr. Copeland, in your brief, you argue that the term “femicide” used in the bill is misleading and implies that the perpetrator intends to kill because of generalized misogyny. However, as we have noted, the term “femicide” is not really defined like that in the bill.
I’d like to hear your thoughts on that.
[English]
Mr. Copeland: Thank you for the question.
Yes, point taken. My comments amount to the fact that it is supposed to refer to homicide motivated by this generalized misogyny.
When you look at the existing offences, they capture the nature of what is proposed here.
I see it as more a political, ideologically driven term rather than one that affords genuine legal distinction and additional tools.
[Translation]
Senator Miville-Dechêne: Should this term have been better defined in the Criminal Code, or should it have been removed?
[English]
Mr. Copeland: I just don’t think it should be included.
[Translation]
Senator Oudar: Thank you to the three witnesses for being here this morning and sharing your expertise with us. It will be very useful to us as we continue our work. Professor Cunliffe, I’d like to pick up on the conversation you were having with Senator Miville-Dechêne, because I have the same concern.
Yesterday, we heard from representatives of the Regroupement des maisons pour femmes victimes de violence conjugale who presented us with some very interesting and well‑researched arguments about the criminalization of coercive control. The group talked about several significant advances, first from the victims’ perspective, but also from a societal perspective, that would provide new tools for detecting and tackling domestic violence more effectively and even preventing femicides. Representatives from the group told us that coercive control was always a key factor in the steps leading up to femicide.
The group provided us with reassurances regarding the fears you’re expressing today. They conducted missions in both England and Scotland. Contrary to what you’re saying, the representatives told us that several of their counterparts had confirmed that the fear of criminalizing victims through the offence of coercive control had not materialized, precisely because this must be preceded by police training and the administrative measures required for its implementation. That’s also what their counterparts advised. These solutions can’t be found in amendments to the act, but rather in successful implementation.
I’d like you to comment on that, because, in response to a question from Senator Miville-Dechêne, you said that experiences in other countries had shown that this was not the case. Which countries were you referring to exactly? I imagine they must be different than the ones we heard about from the Regroupement des maisons pour femmes victimes de violence conjugale. Could you be more specific about which countries you were referring to in your response to Senator Miville-Dechêne? Thank you.
[English]
Ms. Cunliffe: Yes. Thank you for inviting me to clarify. The countries to which I refer are England, Wales, New South Wales and Queensland in Australia.
In those countries it’s absolutely correct that charges against women have not proceeded to convictions. I want to confirm that so far that has not happened. However, it is evident that there has been no decline in rates of femicide and that charges have rarely been laid.
The Mass Casualty Commission heard from marginalized survivors of violence that women don’t report their victimization for many reasons: because of experiences of not being believed by police and other authorities, because they feel losing children was a consequence of disclosing their own experiences of violence, because they fear the harms that racialized men may experience at the hands of the police and the legal system, because of the impact of perpetuating criminalization on efforts to rebuild community and culture, and because they fear that engaging with police will lead to their own criminalization or immigration consequences.
For these reasons, the Mass Casualty Commission recommended decentring criminal law as a response to violence against women in favour of building up front-line agencies that protect women, offer them financial security and pathways to safety. It’s clear from research around the Western world that offering women financial security and safe pathways to leave abusive relationships and care for their children is the most effective way to address gender-based violence, including coercive control.
The problem with criminalization as a front-line strategy is that it has disparate impact. It may assist some women — I want to acknowledge that — but for other women it may lead to criminalization and legal systems abuse, retraumatization. For yet others, it may drive them away from seeking safety because of the risk of criminalization of themselves or of men they don’t wish to see go to prison.
Senator Prosper: Thank you to our witnesses. I would follow up on a bit of the dialogue here, Ms. Cunliffe. Thank you for your work in this particular area, which obviously has been informed by your work in Nova Scotia with the Mass Casualty Commission but also your international research as well.
Delving a bit further into marginalized women and the interface that has with respect to coercive control, you provided some of the realities that marginalized women face. You got into why, at times, women don’t report, or they’re not believed, their partners being racialized, or children, but you also had a comment with respect to poverty and its interface with coercive control. Can you delve into that one a bit? Thank you.
Ms. Cunliffe: Yes. Thank you, Senator Prosper. The strongest research demonstrates the number one reason why women don’t leave abusive relationships is because they can’t afford to, period. In circumstances where a woman is financially reliant upon an abusive spouse, their capacity to leave the relationship safely is obviously compromised, but so is their capacity to report and to seek support in creating safety within their home.
For these women, criminalization of coercive control as a strategy is unlikely to make them safer.
It’s universal evidence that increasing women’s economic equality increases their safety.
Senator Prosper: Thank you.
Senator Simons: Professor Cunliffe and Mr. Copeland, you have both referenced the Scottish legislation as a potential improved model for dealing with issues around coercive control. While you were speaking, I took a very quick look at the Scottish legislation, which doesn’t use coded language, like coercive control. It cleanly lays out the kinds of patterns of behaviour that could be considered abusive.
I wanted each of you to speak to me from your very different perspectives about how you think that might potentially improve the legislation, both for men and for women, where, in the context of a divorce or separation, things can get very ugly. Do you think the Scottish model would provide more security for both women and men who may be accused of coercive control?
Ms. Cunliffe: Thank you very much, Senator Simons, for your question. One thing I should name is that when Scotland adopted the provision you’ve just looked at, they made a conscious choice not to create a stand-alone offence of coercive control but to criminalize intimate partner violence as a phenomenon and as a stand-alone offence.
By naming the effects that coercive control and other forms of violence have on the person who experiences that violence, the section provides a pedagogical teaching function. It’s much easier for police to interpret what behaviours they should identify and consider worrisome than the language that has been drafted in Bill C-16.
It’s a straightforward formula for police to recognize, “Yes, I have these things in play. Yes, I’m hearing from a victim or a victim who is working with victim services that these have been the impacts on her.”
So we have seen more success in Scotland, in charging and in obtaining convictions. I think this is because it is a very clear framework that names very specifically how coercive control and other forms of violence impact the day-to-day life and activities of a woman who experiences it, or of any person who experiences it.
Mr. Copeland: Thank you for the question, senator. I just build on Professor Cunliffe’s comments by emphasizing the identification of the pattern versus more isolated, specific incidents. If you look at sections 2(a) and (b) of the current proposed definition in Canada, it could be, I guess, a pattern. So two or more instances of sexual assault or coercion — is that really what coercive control is? Or is that an isolated instance of sexual assault or coercion?
Having the fulsome definition of the concept, which includes a sustained pattern of multiple things, really helps put the appropriate contours on what the phenomenon is. So I think amendments to that effect would be warranted.
I also reference the “reasonable person” standard. It’s only included in section 2(c) in our bill, whereas in Scotland it applies throughout.
Again, in sections 2(a) and (b) of the Canadian bill, it’s more subjective fear and safety as to what you’re looking for. That is a little more difficult to ascertain; it’s quite subjective. I think it stands on looser ground and, from the perspective of overcharging, where this, in fact, may not be to the degree of coercion, it may be a very heated argument or a set of them, then that would be problematic.
I think applying the reasonable person standard through the whole test and ensuring that the definition better captures the pattern-based nature of the phenomenon would be welcome.
Senator Dhillon: Thank you, folks, for being here today. An important conversation.
Professor Cunliffe, if I can come back to some of the questions my colleagues have already put to you, but in a different way. We heard testimony yesterday, and some of the confidence that was shared with us around potentially seeing improvements with this legislation around protection for battered women and victims. I want to take you back to your testimony, where you had shared that this could have unintended consequences and does not afford any additional protections. I’m curious as to what data you’re relying on, and if that could be made available to this committee?
Ms. Cunliffe: Yes. Thank you, Senator Dhillon, for your question. I would be very glad to share with you the published research that emerges from Scotland and Australia on this topic, both in peer-reviewed journal sources.
There was a recent article in Social and Legal Studies and a second article in a journal called Violence Against Women, both of which are empirical studies of women’s safety after the adoption of coercive control. I will share those with the clerk after the completion of this committee’s conversation today.
Senator Dhillon: Brilliant. Thank you. That would be very helpful.
Mr. Copeland, if I could follow up with a question for you. You had shared that within coercive control the definition in front of us is not as tight, and you can correct some of what I’m seeing here. On that issue, that we should be coming at it from a criteria-based approach, is there a precedent for that? And what were you relying on when you were suggesting that?
Mr. Copeland: The amendments I have proposed are to apply the reasonable person standard to the whole test to give greater specificity to some of the terms. I’ll pull it up if you don’t mind.
“Controlling or attempting to control the intimate partner’s finances or other property,” I suppose the reasonable person standard already applies here, but it’s perhaps not the best-framed act here that’s being prohibited. I think there could be greater definition, given what this amounts to. When you look at that, it doesn’t have enough definition around it to ensure you’re not capturing things that shouldn’t be.
Senator Dhillon: One of the other issues we heard about yesterday, and this was from the ombudsperson who shared that one miss in this bill is not having mandatory notification of bail orders, and other releases, to victims. Can I get a quick comment on that from each of you, please? Perhaps we can start with Professor Cunliffe.
Ms. Cunliffe: Yes. I agree having notification of bail release would be a valuable aid to victims in ensuring their safety.
Mr. Copeland: Yes, I agree as well.
Mr. Fehr: As do I.
Senator Dhillon: Thank you.
Senator Clement: Good morning. Thank you all for your testimony. It’s heartbreaking to talk about marginalized communities, and I just want to say that there is beauty in living in intersectionality too. Yes, there is vulnerability, but there’s also beauty, and I just wanted to say that, because otherwise it’s just too painful to continue this conversation.
Professor Fehr, I really liked your opening statement in that you were saying the political temperature is running hot. We heard government officials yesterday say the government feels pressured to take denunciatory action, so we see that. But government officials also acknowledge it’s not clear this actually deters crime. So I’m just putting that out there. I think I heard you saying something about that.
I’d like you to say more about how this is a good bill, in the sense that we’re moving incrementally and then we need to take stock. What does that look like to you? Could you say more?
You said something about an exemption clause where plea bargaining places undue pressure on folks. If you could say more on that, that was very interesting.
Professor Cunliffe, I heard that the National Association of Women in the Law actually likes it when committees make observations because they can use those observations to make arguments. A lot of what you said today I feel could be part of an interesting observation. Could you say more about what makes women safer? Just lean into that.
Professor Fehr.
Mr. Fehr: Thank you for the questions, senator. On the point of deterrence, I would agree the emphasis should be on denunciation because the idea that increasing punishments to deter others works has been disproven many times.
The question of whether individuals know of increases in minimum punishments is almost itself dispositive of that question, but there are many other reasons. And the Supreme Court, in R. v. Nur, around paragraphs 113 through 115, explained that quite well and cites a great deal of literature on points.
I’ve also written on that question if the committee is interested.
As to the taking stock point, there are any number of examples of exemption clauses from South Africa to Australia, England, and so on. The standard that Parliament has proposed is on the constitutional standard, and it’s arguably a high one, so gross disproportionality. Whether that is going to result in sentencing trends not shifting in the way Parliament wishes them to or maybe ends up being too harsh, that question is something that requires study. Taking stock of how courts actually apply the exemption standard is important.
To your prudent comment at the outset that we should be thinking about intersectionality, especially the experiences of vulnerable communities, a theme that we have heard in this committee, including the experiences of, say, Indigenous peoples, when we consider whether the safety valve ought to be applied, this is something that is fundamental to the idea of proportionality in sentencing, as Parliament has defined that term and as the Supreme Court of Canada has adopted it. It’s prudent to continue down that track and consider Gladue factors and so on in determining whether the safety valve is appropriate.
Finally, with your question on plea bargaining, it can happen that an individual has a reasonable prospect of self-defence being successful, and then they’re offered a plea bargain where they can plead to manslaughter and then avoid the minimum sentence. That can provide an incentive to not roll the dice, so to speak, with one’s defence, and that raises the serious possibility of convicting the innocent. That is an incentive structure that the law should do away with. I think that a separate exemption clause that doesn’t focus on the proportionality of punishment but focuses on that particular incentive could be crafted and would be prudent and, at a minimum, is something I would hope that Parliament would consider either here or in future legislation.
Senator Clement: Thank you. Professor Cunliffe?
Ms. Cunliffe: Yes. Thank you. I was very moved by your comment, and I fully agree there is beauty in intersectionality. We heard that loud and clear in the Mass Casualty Commission as well.
That leads me to my first strategy for safeguarding women’s safety, which is to fund the agencies and service providers that keep women safe, including those that operate, for example, in African-Nova Scotian communities and in Indigenous women’s communities. The expertise is there. They spend too much of their time trying to fundraise. If we could fund them more securely, they could spend more of their time helping women.
The second thing we can do is fund women’s pathways to safety directly and ensure that women have access to safe and affordable housing, to child care and to the services and daily needs that they require in order to free themselves from abusive relationships.
The third thing we can do is listen to women and believe them when they tell us they’re unsafe. Too often, the police and the legal system disbelieve women who name their own safety, and the Mass Casualty Commission, in Volume 5 of its final report, names a number of specific instances of that in rural Nova Scotia, given the scope of our mandate.
The fifth thing — training of police has been mentioned. It’s always a good thing to have training, but it is to improve police education across the nation to something more like the Quebec model, which is a multi-year approach to education that takes very seriously the intellectual task of teaching the police to understand what the Criminal Code says in order to know what to charge in a given moment.
One of the patterns we saw — and it’s been repeated recently in the Susan Butlin report that’s been released by the Civilian Review and Complaints Commission for the RCMP — is that many front-line police officers simply don’t know the code well enough to know what to charge even when a charge is available.
Senator Dalphond: Thank you very much to all the participants. It is always very interesting to hear from you.
My question is to Professor Fehr. Am I wrong to believe that the Supreme Court in Senneville has shown a kind of greater deference to Parliament in matters of sentencing than before?
Mr. Fehr: On the question of minimum sentences in particular, it would appear that a narrow majority of the Supreme Court has affirmed a very broad methodology for assessing whether a scenario can be used to engage a minimum sentence. What Bill C-16 does is take that tool away from the courts, in the section 12 of the Charter context, as a means to challenge legislation. Now courts can do this on a case-by-case basis.
Senator Dalphond: Yes. Thank you. I agree with you that the answer that Parliament is proposing is going as far as possible away from this reasonable hypothetical scenario, which I never thought was very useful.
If you look at what has been defined by the court as being a cruel and unusual punishment, would you say that the definition is very narrow? We hear in the political climate that we live in right now that a minimum sentence of three years could be changed to a weekend punishment in jail or even at home or something like that. Would that be possible when we look at the jurisprudence of the Supreme Court defining what is cruel and unusual punishment?
The court says there are two forms of it. The first one is grossly disproportionate and not merely excessive, and the second one is a very narrow class of punishment, which is incompatible with human dignity such as lash, lobotomization or castration.
With such parameters, do you think there is a real danger that the judges will go off the rails and replace minimum sentences by what they call the sentence bonbon, the easy one?
Mr. Fehr: I understand your question. I don’t know if I would call it a danger, but there will be some judges who will apply that standard in a way that will need appellate review, to put it bluntly.
The Senneville case is a perfect example where that individual, who possessed 300-odd files of child sex abuse material, was given a three-month sentence, and every appellate judge, as I recall, overturned that sentence and imposed the minimum.
So you will have an ironing-out period, if you will. In some cases, though — and I detail this in a book that’s coming out next month called Cruel and Unusual, on section 12 of the Charter — there are real-life instances where the punishment applies to an individual in a way that is quite absurd, despite Crown discretion.
Thankfully, our Crown prosecutors exercise their discretion reasonably, I think, in the vast majority of cases, and I expect that will continue. But this is a safety valve. It’s meant to serve that purpose, and it’s a vital tool for upholding the minimum sentences’ constitutionality.
The Chair: Thank you. We’re now at a point where we’ll close this panel. I thank our three witnesses for coming today. If there is additional information you’d like to convey to the clerk, it will be distributed to all senators, and I would invite you to do that. Anything you want to submit to augment some of the points you’ve made would be much appreciated.
On behalf of all the senators, I thank you for taking the time to be with us and answering our questions. Your contributions will, no doubt, play an important role in guiding our discussions on the study of this bill.
Honourable senators, as we continue our pre-study of Bill C-16, the protecting victims act, Senator Batters would like to make a comment.
Senator Batters: Before we get this panel started, thanks to all our witnesses for coming on such short notice and on such a complex matter, we appreciate that.
I wish to make a short comment because last night we heard a motion that is going to be tabled by the government for this committee to do a — boy, if people thought that they didn’t like calling it a truncated study of our pre-study on Bill C-25, they sure the heck won’t like the fact that it is going to be potentially one hour of witnesses with a clause by clause right after that for Bill C-25.
Right now, we’re very busy doing all of these many hours to try to do the best job we possibly can on a very truncated study on Bill C-16.
The government needs to hear that this is not an acceptable or respectful way to deal with the Senate, to expect that our committee could do any kind of a job, especially — maybe they should take the time to read our pre-study report we put out saying what a truncated study it was, that we didn’t have time to deal with all of these issues in any kind of reasonable time frame or hear the witnesses we needed to.
Now we’re being put into the position that, because of the government’s timeline, where they will use time-allocated procedure if we don’t have a report back to them within basically one day, I find this extremely offensive.
It’s not fair to the Senate. It’s not fair to this Legal Committee. It’s not fair to the Canadian people who expect us to improve laws, not just rubber stamp them.
Thank you.
The Chair: Thank you, Senator Batters. We will be following that up with the steering committee and perhaps with the whole committee later today.
Witnesses, thank you for coming today. I now have the pleasure of welcoming, from the Criminal Lawyers’ Association, Cassandra Richards; from the Canadian Bar Association, Melanie Webb, Chair, Criminal Justice Section and Katherine Batycky, Barrister and Solicitor.
From the Ontario Crown Attorneys’ Association, we have Lesley Pasquino, President. From the BC Crown Counsel Association, we have Adam Dalrymple, President, and Mark Bussanich, Director.
Each one of the groups has five minutes to make an opening statement, and then we’ll move to questions.
We’ll start first with Cassandra Richards.
Cassandra Richards, Criminal Lawyer, Criminal Lawyers’ Association: Thank you to the committee for inviting the Criminal Lawyers’ Association, or CLA, to speak on this bill.
I will be making three recommendations today.
I echo the comments made by the Canadian Civil Liberties Association, or CCLA, regarding mandatory minimum penalties.
First, the CLA urges this committee to reconsider the proposed section on remedies for delay. This amendment is unconstitutional.
Subsection 24(1) of the Charter guarantees courts and judges broad authority to grant remedies that are appropriate and just.
Bill C-16 undermines that principle by restricting a stay of proceedings, the established minimum remedy for a breach of the right to be tried within a reasonable time.
In doing so, it attempts to do indirectly what Parliament cannot do directly: limit the constitutional role of the judiciary. This is an encroachment, and it is unconstitutional.
Further, the amendment is unclear. It directs judges to consider undefined alternatives to a stay, inviting inconsistency and unfairness.
With great respect, many of the proposed alternatives by Department of Justice Counsel, Chelsea Moore, to this committee would not work.
A judge cannot order the severing of co-accused trials or exclude evidence without those specific applications before them, nor can a judge order an accused to change from jury to judge alone, unless that is what the accused wants. These suggestions do not reflect the law.
Ironically, while judges try to figure out alternatives, cases will drag on and delays will increase.
If a stay does not incentivize timely prosecutions, lesser remedies will not. These amendments risk reviving the culture of complacency the Supreme Court sought to eliminate while doing nothing to address the root causes of delay.
If this amendment is ultimately adopted, the CLA supports the CCLA’s proposed addition of a further factor to guide courts when considering alternative remedies.
Second, the CLA recommends removing the language of requiring an accused to establish that a therapeutic record contains evidence capable of raising a reasonable doubt as to guilt as a precondition of production.
This amendment would require an accused to prove that a therapeutic record contains evidence capable of raising a reasonable doubt before it can even be produced. It imports the “innocence at stake” test, an exceptionally high standard reserved for the most protected areas of law, solicitor-client privilege and informer privilege.
The CLA agrees that therapeutic records engage important privacy issues and deserve strong protection. The current legal framework protects that. Courts approach these applications with extreme caution.
I have significant experience representing complainants in these applications. However, applications for therapeutic records are infrequent by defence counsel, and judges make the right decision when these applications come before them.
In rare cases, these records are essential to ensure a fair trial. The current regime already strikes the appropriate balance.
This amendment upsets that balance by imposing an impossible burden and undermining trial fairness. It is constitutionally vulnerable and increases the risk of wrongful convictions.
Finally, the CLA recommends reconsidering the expansion of constructive first-degree murder.
This is a significant and troubling expansion of the most serious offence in our Criminal Code. Terms like “coercive control,” “direction,” and “influence” are broad and imprecise. They capture a wide range of relationship dynamics that fall short of the level of violence that justify first-degree murder. These provisions also risk capturing conduct and people we do not want captured by the heavy hand of the criminal law.
We are also concerned with subsection (c), which applies where an offence is committed in the context of a “sexual nature or for a sexual purpose.” This language is vague and unnecessary. Sexual assault is already a predicate offence for constructive first-degree murder. This provision is redundant and will create confusion in its application.
Thank you for your time.
The Chair: You’re right on the mark. Thank you very much. Canadian Bar Association, five minutes in total. Please proceed.
Melanie J. Webb, Chair, Criminal Justice Section, Canadian Bar Association: Good morning, and thank you for the opportunity to appear before you again to discuss Bill C-16.
The Canadian Bar Association represents approximately 40,000 lawyers, law students, academics and jurists across Canada. Our written submission was prepared by the Criminal Justice Section, which includes both Crown and defence counsel, with input from the Family Law, Child and Youth Law, and Women Lawyers sections.
I serve as Chair of the Criminal Justice Section and practise as a criminal trial and appellate lawyer.
While our written submission addresses several aspects of Bill C-16, I would like to focus my remarks today on two principal concerns.
First, timely trials and delay: The CBA recognizes that delay remains a serious challenge in our criminal justice system. However, requiring courts to consider alternative remedies over stays of proceedings on a breach of an accused’s constitutional right to a trial without unreasonable delay risks weakening the incentive for governments to make the investments necessary to ensure timely trials. In our view, that could ultimately result in even longer delays. Those delays harm not only accused persons but also victims of crime by prolonging uncertainty, delaying closure and undermining confidence in the administration of justice. We are also concerned that the most likely alternative remedy — a sentence reduction, if convicted — may, when combined with other existing sentencing credits and reductions, produce unfit outcomes.
Second, mandatory minimum sentences: Although Bill C-16 proposes a safety valve for mandatory minimum penalties, it would still require the court to impose a term of actual imprisonment. That approach prevents judges from considering the full range of otherwise available sentencing options, including a conditional sentence order, where appropriate, even though we acknowledge that it is likely to be a rare and exceptional case for serious offences, and rightly so.
The CBA has long supported preserving judicial discretion and ensuring that sentencing judges can impose a fit sentence based on the circumstances of the offence and the offender. We, therefore, encourage the committee to consider the alternative framework proposed in Bill S-208, which would preserve that discretion better.
Ultimately, we are concerned that both of these proposals could increase litigation and court delays, with unintended consequences for victims and for the justice system as a whole.
We, therefore, urge the committee to give these provisions careful reconsideration. Thank you. I would be pleased to answer any questions, and I now turn the floor over to my colleague.
Katherine Batycky, Barrister and Solicitor, Canadian Bar Association: Good morning, chair and honourable senators.
My name is Kathy Batycky. I am a family law lawyer appearing on behalf of the Canadian Bar Association’s Family Law Section.
We appreciate Parliament’s focus on addressing coercive control. Coercive control has already been recognized in the amendments to the Divorce Act in 2021, and more recently as a tort in the Supreme Court decision of Ahluwalia.
However, family courts have seen how complex these cases are with struggles regarding subjective and objective assessments, limited evidence and the risk of strategic counter-allegations. As a criminal offence, and the significant consequences of criminal liability, we wish to highlight that this offence must be drafted with sufficient precision to protect victims without creating unintended harm in high-conflict family disputes.
We have two key messages today.
First, greater guidance is needed regarding what constitutes a “pattern” of conduct that is coercive and controlling, to avoid criminalizing conduct outside what is intended.
While multiple examples of conduct are listed in subsection 264.01(2), we recommend wording that injects an objective standard where the legislation directs courts to consider the nature, frequency, duration and cumulative impact of the conduct with an objective assessment of whether the conduct would reasonably be regarded as coercive and controlling in the circumstances.
Second, the offence should only require specific intent, not mere recklessness.
Replacing intentional wrongdoing risks criminalizing emotionally charged but non-coercive behaviour, which is commonly seen at separation.
Finally, properly addressing family violence requires a multi-faceted approach that includes not only criminal law but also societal level approaches in family law, policing, the courts and the community. We must consider that some diverse communities experience coercive control more acutely, although there is also a risk of misinterpreting cultural practices, such as financial pooling or collective decision making, as coercive control.
Our core message is this: Careful drafting is essential. It will strengthen the offence, protect survivors and avoid unintended harm to the families it is meant to help. Thank you.
The Chair: Thank you. From the Ontario Crown Attorneys’ Association, Ms. Pasquino.
Lesley Pasquino, President, Ontario Crown Attorneys’ Association: Thank you for this opportunity.
The Ontario Crown Attorneys’ Association, or OCAA, represents approximately 1,200 Crown Attorneys across Ontario. Crown attorneys serve as independent ministers of justice in a quasi-judicial role. We prosecute criminal offences in courthouses, satellite courts and fly-in locations across Ontario.
The OCAA supports Bill C-16, particularly its focus on protecting victims and survivors of sexual violence, gender-based violence and intimate partner violence, and on keeping children safe from exploitation and predation. However, the success of any significant criminal law reform depends on whether the system has the practical ability to carry it out.
The work of public safety does not end with an arrest. That is just half the job and when the work of prosecution begins. Every charge must be reviewed, assessed, prepared and advanced in a manner that is fair to the accused and victims, and timely and consistent with the public interest.
Turning to specific areas of the legislation, regarding alternative remedies to an 11(b) stay, a stay of proceedings is the most drastic remedy. When a serious case is stayed, victims are left without their day in court, police resources are squandered and public confidence in the justice system suffers. Courts should consider appropriate remedies other than a stay; for example, a reduction in sentence. However, enactment of the provision will result in constitutional challenges, whereas a properly resourced justice system will avoid many section 11(b) breaches and the issue of remedy in its entirety.
On sentencing, Bill C-16 proposes to restore certain mandatory minimum sentences while introducing a safety valve where a sentence would be grossly disproportionate. This approach recognizes both the seriousness of the offences at issue and the need for constitutional safeguards. It allows courts to focus on the actual offender and the actual offence before them, rather than on hypothetical scenarios. That is a more grounded and principled approach. However, again, there are likely to be significant legal challenges to these provisions.
The expanded child protection provisions respond to real and emerging harms. Artificial intelligence, deepfake images and digital exploitation have changed the landscape of evidence and victimization; however, trials will become more complex. What may once have been a simple question of identifying a photograph may now involve complex issues of authentication, manipulation and technological proof.
These provisions are important, but they also require commensurate resources so that prosecutors and courts can keep up with rapidly evolving technology.
The proposed intimate partner violence offence of coercive control recognizes that intimate partner violence is not limited to physical assault. Patterns of intimidation, isolation, psychological harm and financial control can be devastating. Criminalizing coercive control acknowledges the lived reality of many victims.
At the same time, proving a pattern of conduct, as required by the legislation, will likely require evidence spanning a period of time from multiple sources, including text, email, financial records, as well as witness testimony. The legislation addresses an important gap but will also require court time and Crown resources.
Ultimately, the success of Bill C-16 in Ontario must be considered against the realities of the criminal justice system in which it will operate, both at the national and provincial levels. Ontario’s Crown attorneys already manage a substantial volume of serious and complex cases across a large and diverse province. New offences, new evidentiary issues, and new Charter litigation will add to that volume.
Bill C-16 is a significant legislative initiative. It seeks to modernize the Criminal Code and protect Canadians. However, to achieve its public safety goals, there must be the necessary courtroom capacity, technical and administrative support and prosecutorial staffing. Legislative reform and justice system capacity must move together to be successful. If they do, Bill C-16 will enhance public safety, access to justice and confidence in the rule of law.
Thank you.
The Chair: Thank you.
To the BC Crown Counsel Association, five minutes in total. Please proceed.
Adam Dalrymple, President, BC Crown Counsel Association: Good morning, chair and members of the committee.
On behalf of the BC Crown Counsel Association and the Canadian Association of Crown Counsel, thank you for this invitation to provide submissions regarding this proposed legislation. I am joined by my colleague, Mark Bussanich, a Director of the BC Crown Counsel Association. Collectively, we offer over 40 years of front-line criminal law experience. I have asked Mr. Bussanich to join me because he prosecutes homicides and sexual crimes.
Please note that we do not speak for the BC Prosecution Service or the Government of British Columbia; we represent our membership of approximately 530 front-line prosecutors.
Bill C-16 creates a few new offences and extends the circumstances for which persons could be charged and prosecuted. By definition, this will increase the number of charges and prosecutions, which increases the workload on front-line Crown counsel.
While our association supports this bill and encourages its swift passage, we offer the following brief comments:
My first comment relates to proof of intent. Paragraph 231(5.1)(a) and subsection 264.01(1) require proving that an accused intended to cause a victim to fear for their safety. In our view, this creates an exceptionally high evidentiary burden for our prosecutors.
Secondly, there are clarity issues. Paragraph 264.01(2)(c) and paragraph 231(5.1)(b) remain confusing in their current iteration. They could be clearer.
Thirdly, I have a brief comment on the section 276 amendments. We welcome the codification of applications to adduce sexual activity evidence. This will encourage necessary dialogue between parties and possibly save significant court resources.
Our fourth point involves complainant agency. The requirement for complainant consent in joint applications under section 276 is a positive step that, we believe, will give them agency.
There is a noteworthy shortcoming or possible oversight in respect to section 276 applications. Currently, when the Crown applies alone under section 276, complainant consent is not required. We recommend that complainants be permitted to make submissions and be directly involved in this process.
Our sixth point involves support measures. With respect to subsection 486.1(1), we suggest the wording be amended to explicitly allow for a support person of the witness’s choice and/or a support animal to be present and close to the witness during their testimony.
Finally, we must address the critical issue of resources. This legislation introduces complex offences involving artificial intelligence and intimate partner violence that are resource intensive to not only investigate but to prosecute. Amidst significant turnover, burnout and retirements within prosecution services, there is a critical need for additional resources, including experienced personnel and specialized training.
Similarly, amendments to the Canadian Victims Bill of Rights will require additional staffing and time to be effective. Front-line prosecutors often carry these responsibilities, and without federal financial support for provinces and communities, the impact of these laws may be limited. We also encourage the allocation of resources to track metrics, such as conviction rates over the next several years, to objectively measure the success of these changes and hopefully bolster public confidence in the justice system.
We appreciate this opportunity to share our perspectives on these important legislative updates. Thank you.
The Chair: Thank you to all the witnesses for your opening statements.
Senator Batters: I would like to ask my question to the Ontario Crown Attorneys’ Association.
Ms. Pasquino, from the prosecution’s perspective on this mandatory minimum sentence departure issue, even though a decision made under that subsection 718.4(1) can be appealed, would you agree that the high standard applicable to sentencing appeals — basically, a sentence that is “manifestly unfit” — do you believe that will make it difficult to overturn on appeal a departure from the mandatory minimum sentence once it has been granted?
Ms. Pasquino: It is a high threshold. There is great deference to the sentencing judge. Just departing from a sentencing range wouldn’t be enough.
I’m sure that if this legislation is passed, and there are mandatory minimum sentences that are imposed because a judge says that the escape valve of grossly disproportionate doesn’t apply, I suspect that we are going to see a raft of increased appeal litigation.
The way it plays out on the ground is that the law is living its dynamic. For defence counsel, when they’re faced with somebody who is being subjected to a lengthy jail sentence, they’re going to test this new legislation. They’re going to test these new provisions, and they’re going to refer back to the prior judicial decisions, which found mandatory minimum sentences unconstitutional. We’re going to have a bit of a Groundhog Day until the thresholds and the jurisprudence are established.
Yes, it is a high threshold, but that doesn’t mean to say that good defence counsel or creative defence counsel on behalf of their clients aren’t going to test and see if they can now move that threshold down somewhat.
Senator Batters: I’m sure they’re going to test it, but I think what may also happen is that there may be a number of judges who were inclined to use these reasonable hypotheticals before and now use their discretion instead, with reasons to depart substantially from the mandatory minimum.
It could also be the case, then, that Crowns will need to appeal these sentencing decisions frequently as well if there’s a departure, and it’s going to be difficult to get those sentences back up because, as you confirmed, yes, it would have to be shown to be manifestly unfit, which is a very high standard, as you said.
I also want to ask you about the delay part of it. Bill C-16 could open the door to remedies other than a stay of proceedings in case of unreasonable delays. That could be welcomed but without defining these precisely.
I’m wondering if you could comment a bit further. Do you think this approach genuinely gives you useful tools to prevent a serious case from being delayed? That’s what we would like to see from all perspectives, or does it mainly risk creating more uncertainty? As the Canadian Bar Association representative said here today, this could result in even longer delays.
Ms. Pasquino: In the view of the Ontario Crown Attorneys’ Association, this reform is necessary. The time has come, and that was reflected by Justice Rowe in the Supreme Court of Canada decision in Vrbanic that I referred to in my brief.
The remedy of a stay has not been taken off the table. Melanie Webb referred to the restriction on a stay. A stay is still available. However, what the legislation is reflecting is the public concern at the number of serious cases that have become stayed for delay. The requirement is on the court to consider if an alternative remedy would be appropriate.
Now, I agree with you, there is not a list of alternative remedies that are set out in the draft legislation, and I would imagine that is because the legislators understand that the courts will develop an appropriate remedy on a case-by-case basis.
The issue with a stay is it is automatic and it’s the most draconian remedy that exists. What the draft legislation reflects is that, in almost every circumstance in the criminal law, we look at the specific offender, the offence, and the circumstances, all of which are as varied as human beings in the criminal justice process because it is a human process that, in fact, we are dealing with.
So while there isn’t a list of suggested remedies, what that recognizes is the unique nature of every case, every offender, every offence and the circumstances. There was an exception for complex cases, but complex cases come in all sorts of different shapes, sizes and flavours. I, myself, have prosecuted a case where there was 161 accused on a single case, a project case, out of Ontario with the guns and gangs unit. Or a complex case may only have five or six accused, but the police investigation may have taken many years to complete, and there is a vast amount of evidence, or there is evidence that exists in another country or another jurisdiction that needs to be obtained.
I’m saying all of this just to give an example of how varied the situations are. One of the things we love about criminal law is every day is different; no case is the same.
Again, over time, there will be a development of a body of jurisdictions that will provide guidance, but what can’t happen is in this day, 10 years on from Jordan and 40 years on from Rahey, which said that the stay was the only remedy for the breach of 11(b), that we continue to see serious cases stayed even if they are just a day over the presumptive limit. In Vrbanic, it was four days over the presumptive limit.
The Chair: We will have to end there. Sorry about that.
[Translation]
Senator Miville-Dechêne: My question is also for Ms. Pasquino and relates to coercive control more specifically.
You talked about the difficulties involved in its implementation, given that a pattern of conduct must be proven. You seem to think, or you’re concerned that, you don’t have the necessary resources to prosecute this new offence. Do you think the offence is worded correctly? Does it allow you, as a Crown prosecutor, to carry out your work, given the definition and, ultimately, the various ways that coercive control can be proven?
Second, do you believe that, with the necessary resources — I’m thinking of Quebec, where a questionnaire has been drafted that police officers can fill out to help identify coercive control — we can actually ensure that this new offence will help protect women?
[English]
Ms. Pasquino: I am going to start at the end first. Whether the new offence will ensure the protection of women, I think that’s a lot of weight to put on this new offence. The protection of women needs to be dealt with not only in the criminal justice system but also in supports in society. One of the earlier speakers referred to financial control of women, preventing them from even coming forward and reporting to the police, or going through with a criminal complaint to the police and the trial process because they are financially dependent.
I think that would be a lot to lay at the feet of this provision.
What this provision does attempt to do and what we welcome is recognizing that there can be a course of conduct outside of or prior to actual violence.
The difficulty here, when I look at the definition, is if you look at the definitions of conduct — and excuse me from looking away from the camera, I’m looking at the provision now — it talks about the control or attempt to control or monitor a partner’s location or the manner in which the partner cares for someone, their employment, their finances and their expression of gender. It even gets as broad as to say partner’s expression of their thoughts, damaging or threatening or attempting to damage property.
You can conceive of the breadth of the evidence. If there needs to be a pattern — and there is no definition of “pattern,” although “pattern” exists in other criminal areas, for example, criminal harassment, so we may be able to use some of that as guidance, and eventually the courts will arrive at some decisions that offer us guidance, but you can see the breadth of evidence that a prosecutor would need to corral and present to the court. My point is all of this takes time.
This is a gap that needs to be filled, but it all takes time. It takes the police time to investigate. It takes the prosecutor to the second half of that “Law and Order” episode. It takes the prosecutor’s time to gather and present that evidence and the court’s time to hear and consider it. That’s the concern of the Ontario Crown Attorneys’ Association.
[Translation]
Senator Miville-Dechêne: If I understand you correctly, are you saying that it’s not only unrealistic but difficult to apply?
[English]
Ms. Pasquino: It is in the interest of public safety, and in the interest of vulnerable victims of intimate partner violence. As I said in my opening statement, this legislation fills the gap, but in addition to legislation, the words on the paper aren’t going to address these issues. We also need prosecutorial resources and court resources to ensure the success of this legislation.
[Translation]
Senator Oudar: Ms. Pasquino, I have another question for you that is along the same lines, and then I have a question of the BC Crown Counsel Association.
Ms. Pasquino, I agree with you that the measures in Bill C-16 are a step in the right direction.
It’s worth noting that the committee can also include observations in a report that we will then submit to the government. You mentioned certain principles like women’s financial independence — in a previous life, I worked on pay equity — women’s financial autonomy, access to housing, believing women and, most importantly, training police officers. I believe that all these measures will be important for the implementation of the act and could be included in those observations.
You’re right to say that this legislation is not only in the public interest, but it also aims to protect victims. Why is it important that this legislation be passed and implemented quickly? I don’t know if you noticed, but at the end of the bill, it states that it’s due to come into force over a two-year period. As the Regroupement des maisons pour femmes victimes de violence conjugale pointed out, these two years are key to the success seen in other countries, because it allows sufficient time to train police officers and channel the necessary financial resources into the system. I’d also like to hear your thoughts on the keys to success and give you a chance to expand on your response to Senator Miville-Dechêne earlier.
[English]
Ms. Pasquino: Thank you so much. I agree with everything you say, and the experience of the Ontario Crown Attorneys’ Association is that this legislation is needed. It fills a gap. It will go to the protection of not only women but other genders. Men suffer from intimate partner violence. Intimate partner violence exists across the gender identity spectrum.
This legislation is needed. We see in our dealings with victims that very often they find it difficult to come to court for preparation sessions with Crowns or to attend the police station because they don’t have access to a vehicle. They don’t have access to money to get public transport. They’re fearful of being watched or tracked via their cellphones.
Many of the provisions that I see, for example, controlling, monitoring, or tracking a location — they resonated with me based on my 22 or 23 years of working with victims of intimate partner violence.
I can see what it’s aiming to do. But we need support for victims of intimate partner violence outside of the court system. We need housing. We need shelter facilities.
As the Crown prosecutor, if they do end up in the criminal justice system, not only do we need this legislation quickly, but we also need the capacity to process their cases quickly as well so that they are not carrying the burden and the concern of having to testify in a courtroom, often in the presence of the person who has abused them, and they don’t have that hanging over their head for weeks, months, possibly a year.
[Translation]
Senator Oudar: Thank you, Ms. Pasquino. To conclude with the BC Crown Counsel Association, could you also share your views on the application and implementation of this bill, which must be swift and extensive? Mr. Chair, I do not wish to extend my speaking time, but the statistics — whether from across Canada or as reported just yesterday by the Quebec media — unfortunately remind us that we have a dismal record. Cases of domestic violence are on the rise, and femicide numbers show no sign of falling. This is the sad reality today, which is why I want to hear from you in particular on the importance of implementing this bill swiftly and vigorously.
[English]
Mr. Dalrymple: I’m happy to defer to my colleague, Mr. Bussanich, if he would like to go ahead first.
Mark Bussanich, Director, BC Crown Counsel Association: Sure. The support for this, Ms. Pasquino has identified most of the underlying supports.
Our primary concern, though, if I can put it bluntly, our primary agenda is being concerned about what this legislation could do for the workload of our front-line prosecutors.
The swiftness of passing it — it’s worthwhile. These provisions, by and large — subject to some amendments that earlier colleagues have discussed — are important measures in its total, especially when it comes to creating offences that deal with the intimate partner violence gap that Ms. Pasquino has identified.
The Chair: Do you have any further comment, Mr. Dalrymple?
Mr. Dalrymple: No. I echo Ms. Pasquino’s submissions.
Obviously, we want it to be trauma informed. We want to ensure that it’s victim-centric in our approach to intimate partner violence.
One of the experiences that I’ve encountered as a front-line prosecutor prosecuting what we call “K” files, or intimate partner violence files, is that the process through the court system is so slow. Often, that slowness causes complainants, in particular women — sometimes men, but largely women — to resume relationships with their partners, or abusive partners, because of financial interests, needs or child caregiver issues.
What that causes then is often, sometimes, there’s recantation of their statements. Our files disintegrate essentially from an evidentiary perspective. Then we are forced into a position where we might have to take a lesser and included, or what we call an 810 recognizance, or, in many cases, stay a proceeding. It’s often due to a lack of financial resources to support women financially, but also in caring for children if they’re in those relationships. That is one of the biggest issues that we see.
One idea that has come to mind is specialized courts. Here in British Columbia now we have dedicated prosecutors that handle intimate partner violence files, so there is consistency with the prosecutor.
It may be of benefit to have a consistent judiciary who has experience in handling these types of cases and is aware of the issues underlying these sorts of prosecutions in cases.
I know in other jurisdictions they have adopted intimate partner violence courts, specifically that are available throughout the week, not just on one particular day.
The Chair: Thank you for your testimony.
Senator Prosper: Thank you to our witnesses.
I’d like to delve into the sections around alternative remedies to section 11(b) violations around delay and the remedy of stay of proceedings.
Ms. Richards, if I understand your testimony correctly, you’re saying that these provisions wouldn’t withstand a constitutional challenge?
Ms. Richards: Yes. I think that there would be constitutional scrutiny.
Senator Prosper: Further, you get into that it won’t essentially address the root causes for delay.
Ms. Webb, you also cite that it would disincentivize investing in the real matters dealing with delays and, in fact, can prolong delays to begin with, these provisions.
From your perspective, is there a way to tweak this particular section to make it more aligned with or withstand constitutional scrutiny, since it does seem to replace the role of the judiciary when we’re thinking about limiting a constitutional right from a legislative perspective?
We will start with you, Ms. Richards, then we’ll go to Ms. Webb.
Ms. Richards: In terms of tweaking it to withstand constitutional scrutiny, fundamentally, the tweaks won’t make it withstand constitutional scrutiny because, what it does, it takes away the role of the judge.
When it’s the role of the judge to decide the appropriate remedy, Parliament can’t come in and say, guess what, you have to think of these other remedies.
Ms. Pasquino, when she commented about this, is correct. The minimum is a stay. This legislation would still allow that consideration, but the way the legislation is framed tells judges to pretty much avoid a stay, and that’s not constitutional.
I appreciate I’m not being the most helpful to your question because I didn’t offer any tweaking. Fundamentally, if something is unconstitutional, small tweaks won’t make it constitutional.
I reiterate, when something is stayed, it is stayed because of Crown and court delay, not defence delay. The reasons it’s being stayed are not because of the defence. Yet again, the defence will be prejudiced by these new amendments.
Though I still recognize the impact of a stay on all parties, if the delay is not at any fault of the defence, why should the defence continue to experience further unfairness?
Senator Prosper: Thank you, Ms. Richards.
Ms. Webb?
Ms. Webb: Thank you. I agree with much of what Ms. Richards indicated. I should reiterate that the language does, indeed, mandate that a stay shall not be ordered unless it is satisfied that no other remedy would be appropriate in the circumstances. This is our concern, that that will tend to disincentivize the players and the government to avoid making the investments that are necessary to push matters forward to a timely trial.
I would also just note as well that there were two recent decisions from the Supreme Court of Canada that were quite relevant to the issue of delays, which might be useful to this committee, particularly the decision in R. v. Vrbanic. I refer specifically to paragraphs 72 through 82. I can indicate if one were to read that passage — and I won’t go into it in any great depth — the Supreme Court actually comments on the fact that some of the proposals that were being proffered by the Crown — and this is the majority decision in Vrbanic — would be inconsistent with Jordan and would replicate the flawed approach in Morin, which was rejected in Jordan.
It’s also interesting to note at paragraph 75 the Supreme Court noted that:
. . . the Crown’s suggested approach is designed to excuse delay, not prevent it, and therefore “encourages parties to quibble over rationalizations” for lost periods of time.
I would encourage this committee, before essentially going forward with this portion of the bill, to reconsider the way in which this legislation is drafted and also take into account the very helpful guidance of the Supreme Court in the Vrbanic decision.
The Chair: We will now have to move to the next senator. We have four senators. We’ll allow each senator four minutes for each answer and question.
Senator Simons: I think we are all agreed that for cases especially of murder and sexual assault to be stayed outrages the conscience of the community, but when the court brought down the Jordan decision, the whole purpose of it was to make things go faster. Instead, we still have the situation where we don’t have enough courtrooms or courtroom capacity, we don’t have enough judges, we don’t have enough Crown prosecutors, we don’t have enough duty counsel and we don’t have enough funding for Legal Aid. We have seen an explosion in the number of self-represented litigants who clog up our courtrooms.
Mr. Dalrymple and Ms. Pasquino, when you were here before us on Bill C-14, you cautioned us that, although you supported much of Bill C-14, that if we passed it, it would create even more delays. I am concerned about Bill C-16. It is like if I gain weight, getting a bigger belt doesn’t make me any slimmer. So I’m really worried about the constitutionality of all the various clock stoppages that Bill C-16 allows to prevent a stay. I’m concerned that, although they say the stay is the minimum, there are no alternatives.
Ms. Richards has outlined very clearly in her answer to Senator Prosper why she thinks this is not going to survive constitutional scrutiny. Perhaps I could hear from Ms. Pasquino and Mr. Dalrymple. Doesn’t this just make all the problems of court delays worse, especially now we have reverse onus for a whole new set of first-degree murders?
The Chair: You have one minute each to answer. Are you able to answer the question?
Ms. Pasquino: I’ll go first. I think Mr. Dalrymple was being chivalrous to let me go first.
I hear your frustration. We share your frustration. I can tell you that my members — Ontario’s Crown attorneys — share your frustration.
As I said in my brief to this honourable Senate, the Jordan decision in 2016, which is 10 years ago now, was a call to action. It was seen as a call to action by the Supreme Court of Canada. But, as I said in my brief, I don’t think the Supreme Court of Canada knew there was going to be a global pandemic in 2020, which resulted in a huge backlog and the calls on the public purse that flowed from that.
All of that said, the criminal justice system is so fundamental to what Canadians want from their society — a peaceful and safe society — that it demands investment.
The reason the OCAA supports this legislation is because my members see first-hand the devastation caused when serious cases are stayed, when victims of intimate partner violence, like we were just discussing — and there are so many intimate partner violence cases coming to our courts. It’s in my brief; some of the numbers are staggering. When those victims or witnesses have managed to pluck up the courage to go to the police and engage in the court system, and the court for whatever reason cannot accommodate the trial, the trial is not completed within the 18-month deadline — even if it’s one day over — there’s a presumptive stay.
I understand what you’re saying. The Jordan decision was to incentivize investment in the criminal justice system. To the extent that has not happened, to the extent that cases are more complex, we’re dealing with AI now, deepfakes, global frauds carried out of the jurisdiction, guns and gangs, and criminal organizations, so cases are very complex. Is it right that, even if you’re a day over the 18 months, does it serve justice? Does it serve Canadian values that there is an automatic stay, or should the courts be directed to consider alternatives where appropriate?
The Chair: We’ll have to go to the next senator.
Senator Dhillon: If I can direct this to Ms. Richards first, please. You raised the issue around therapeutic records, that the bar was going to be set so high that it was nearing innocence at stake if not already at innocence at stake. You then went on to share that it was in rare circumstances that the records play a role in the innocence of the accused. And you will correct me if I have misquoted you here today because I just want to make sure that I reconcile what you are sharing.
If I heard you right, then the next comment you made was that there will be an increase in wrongful convictions without access to therapeutic records.
I’m just looking for your commentary on that, that it’s rare, but there will be an increase in wrongful convictions?
Ms. Richards: My comment was that these records are rarely produced, not that it’s rarely related to innocence at stake.
Senator Dhillon: I see.
Ms. Richards: These records, these applications come before the court. They’re done in two stages: a very thorough review by a judge. If the judge ultimately decides that they’re produced to the accused and the Crown — it’s not often that this happens. But in the rare cases where it does happen, it can be very relevant to the fairness of a trial.
Because you have to point so specifically in the records to why it is relevant to the accused to get that production. There is a very high relevance when they are produced.
In those cases, now they will no longer be produced because it’s a practically impossible burden. You are risking the chance of wrongful convictions. You’re risking an increase in wrongful convictions.
Senator Dhillon: Would that not be the exact space and place where innocence at stake would be relevant is to avoid wrongful conviction?
Ms. Richards: Innocence at stake is a bit of a complicated test. You have to point out that this evidence is the only evidence that will prove my innocence. In sexual assault trials and domestic violence trials, although this wouldn’t apply to them, that’s not how a trial works. Very rarely will a judge rely on one single piece of evidence or one thing a complainant said to say, “We don’t believe you.” That’s just not how relationships and humans work.
So the innocence-at-stake test, you have to point out that this is the only evidence I can use. That’s a very unrealistic standard to achieve, and it just does not reflect the reality of how trials happen.
Senator Dhillon: Is it your belief that wrongful convictions will increase, or are you reflecting on data or other measures?
Ms. Richards: I don’t have data on this because it hasn’t come into play. I can’t say I have data that shows that this will increase wrongful convictions because we haven’t seen this play out yet. It’s very hard data to gather, frankly, even if it would. But when we are putting barriers to the right to a fair trial, I think it’s a reasonable inference to assume that, yes, there could be an increase in wrongful convictions.
Senator Dhillon: Thank you, Ms. Richards. I appreciate it.
Senator Clement: Thank you all for your testimony and your careers. I want to ask Ms. Richards a question and Ms. Batycky a question.
Ms. Richards, in your opening statement, you talked about a risk of capturing people who should not be captured by this. I want you to say more about that. We’re talking about protecting victims, but we’re also talking about the unintended consequences. If you could say more about that.
To Ms. Batycky, thank you for reminding us that the Divorce Act made changes in 2021 to include a pattern of coercive and controlling behaviour. I want to talk about the family law context and the unified family courts. I’m an Ontario senator, so we like to boast about the fact that we have unified family courts in this province that work well. I want you to lean into what you said in your opening statement about needing more of a multi-faceted approach. This bill is one thing, but what are we not doing enough of in terms of policing, courts, community and even what is needed by the unified family court to deal with these issues?
Ms. Richards: We’re talking about coercive control. In terms of coercive control, it’s unclear what conduct will fall into that. I think this has been echoed by all parties here, all witnesses.
For example, one of the subsections says, “Threatening to die by suicide or to self-harm.” So what we’re risking to capture are folks with very serious mental health issues that would now potentially be caught in a criminal offence of coercive conduct. All it says is “engaging in any other conduct,” and it lists that as an example.
Yes, we do see cases where, frankly, both parties are texting back and forth and threatening suicide to each other. Is that morally blameworthy? Potentially. Is it criminally morally blameworthy? I’m not sure.
At what point does telling someone you’re having constant suicide thoughts — cries for help or an inability to properly communicate if you suffer from mental health or intellectual disabilities — become criminal offending? You have people who themselves are very vulnerable and don’t know how to communicate and don’t have all the social norms and capacities that I think will get caught up in some of these subsections. I hope that answers your question a little bit.
Senator Clement: It does. Thank you. Ms. Batycky?
Ms. Batycky: Thank you. If I could first add something to what was just said, the issue of unintended consequences happens often in family court, and the concern that we have is that it doesn’t happen in criminal court also, which has even more serious consequences. That is because what we see in family court is the perpetrator twisting the facts, making allegations, such as an allegation that, “My wife controls the children, and, therefore, she’s the one who has alienated the kids against me, and she’s the one who has coercive control against me.” I think that’s why we suggest that you need to really make sure that the language in the statute is very clear.
The Supreme Court of Canada, in the Ahluwalia decision, made very good comments about coercive control and the objective standard so that there would need to be actually subjective proof, which, as Ms. Pasquino indicated, would be very difficult.
With regard to the issue of the unified family courts and what is needed, it’s what everybody else said. It’s resources. Resources are needed. Social resources for the victims. With regard to a criminal charge, more police education, more police being able to investigate and assist the prosecutors, and with that, more prosecutors.
The original unified family court in Hamilton was wonderfully resourced in the 1980s. Not so much anymore. Social workers and mediators to assist people — there are not enough now, even just with basic cases. It has a lot to do with the population explosion and more cases going through the courts. More judges are needed. It is exactly what Ms. Pasquino said in the criminal context. It is also needed in the family context to help the victims.
Senator Dalphond: Thank you. I’m the last one to ask questions, so I will close on the future that we could look at.
In terms of alternative measures, the code includes provisions in order to invite the provinces, the Crown and the accused to look at alternative measures, such as restorative justice, for example. In its brief, on page 17, the Canadian Bar Association states that it supports “. . . the provisions establishing a framework for applying alternative measures and restorative justice processes.”
My question is to the Crown. Ms. Pasquino, do you see any potential there to get out of the normal ways and to put in different channels and track files that deserve to be in different channels to free up time for the courts?
Ms. Pasquino: Thank you for the question.
In Ontario, in the Crown offices that I’m familiar with, in relation to certain offences, there are programs that are available that a Crown can recommend a case should be diverted out of the criminal justice system and into another stream where, hopefully, the person who has been charged with a criminal offence will get counselling or address their substance abuse issues or whatever it is that it appears is underlying the criminal or offending behaviour. If that is successful, the case won’t get to a court other than the initial appearance to keep jurisdiction, and then when the Crown presents the good news to the court that the case has been resolved and the charges can be withdrawn.
In order for that to happen, in order for that to be successful, programs have to be available in the community. The concern I have, when I looked at some of the provisions here about the Crown considering alternative measures and the Crown recommending programs, is this is all additional work for the Crown. As one of my co-presenters noted, there has been a huge explosion of self-represented accused, and this would necessarily mean the Crown engaging directly with the accused, which puts us at risk of giving the accused legal advice, which we are not allowed to do. It also means that, sometimes, my Crowns suffer retaliation and threats from an accused.
Senator Dalphond: I have to interrupt you. But providing a framework that also provides that the restorative justice process may be used at any stage of the criminal justice process, so even when the trial has started. Isn’t that kind of an improvement? Maybe the BC Crown Counsel Association can also come in.
Ms. Pasquino: I’ll defer to my colleague, Mr. Dalrymple.
Mr. Dalrymple: Thank you. In British Columbia, we do maximize the use of alternative measures throughout our prosecution service. It is a principled approach. With the exception of some very serious offences, there’s no prohibition on using alternative measures.
Of course, the serious offences that are taking up the most time in the justice system are sexual offences and those applications. Generally, those are not something that the public would accept as diversion or alternative measures. There are a few exceptions, of course. A lot of the crimes that take up the most time and resources are serious offences.
In British Columbia, one of the gaps is programming. You need community-based programming. You need the money, time and people that can develop those community programs that can make the Alternative Measures Program a success. Without those programs, especially in remote or smaller communities, it’s just not possible.
Of course, I echo Ms. Pasquino’s comments that a lot of that will fall on the Crown and Crown staff to initiate these sorts of programs. If you’re going to do that, you need to make sure we have a commensurate increase in resources. Thank you.
The Chair: We had an extremely expedited study. Obviously, the time is truncated. We were forced to cram, in effect, six witnesses into one panel. I really appreciate the way you’ve handled it. You’ve really helped us a lot. Thank you.
Senator Oudar is the sponsor of the bill, and she has asked to have one clarification question.
[Translation]
Senator Oudar: Senator Dalphond, who often seems to read my mind, has already asked the question. Thank you for the clarifications.
I wanted to provide some clarification on restorative justice, which is something victims called for following the ombudsperson’s report and another report entitled Rethinking Justice for Survivors of Sexual Violence. I would point out that 83% of victims felt that they should be given the opportunity to discuss the impact of the crime with the offender. These are welcome measures, and I thank you for the clarifications provided in the previous answers.
[English]
The Chair: Thank you, witnesses, for taking the time to be with us. We know it was on short notice. You’ve been here before. Your insights today, as always, are very valuable to our committee’s work. We truly appreciate the thoughtful answers that you provided today in the work we are doing on this bill.
Thank you, senators, for your participation and engagement as well. We will reconvene at one o’clock.
(The committee adjourned.)