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 1:05 p.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 afternoon. My name is David Arnot. I’m a senator from Saskatchewan and the chair of this committee. I invite my colleagues to introduce themselves.
Senator Batters: Senator Denise Batters, from Saskatchewan.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
[English]
Senator Tannas: Scott Tannas, from Alberta.
[Translation]
Senator Oudar: Manuelle Oudar from Quebec. Welcome.
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator Simons: Paula Simons, Alberta, and I come from Treaty 6 territory.
[Translation]
Senator Dalphond: Pierre Dalphond, De Lorimier division, Quebec.
[English]
Senator Dhillon: Baltej Dhillon, British Columbia.
The Chair: We’re meeting to continue our study 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).
Please be advised that sensitive subjects, including trauma related to intimate partner violence, may be discussed this afternoon. This content may be triggering for those present, as well as individuals watching or listening to the broadcast.
Mental health support for all Canadians is available by phone and text at 9-8-8. For youth and children, confidential support is available by phoning 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, for our first panel, we would like to welcome Ms. Kendra Cooke, who is with us in the room. She appears as an individual. By video conference, we have, from the Women’s Legal Education and Action Fund, or LEAF, Rosel Kim, Senior Staff Lawyer; and from the Battered Women’s Support Services, we have Angela Marie MacDougall, Executive Director.
I want to thank all the witnesses for joining us on such short notice. We greatly appreciate and recognize the efforts you have made to be with us here today. We will begin by inviting the three witnesses to give their opening remarks. I’ll give the floor first to Ms. Cooke, to be followed by Rosel Kim and Angela Marie MacDougall.
Ms. Cooke, welcome to the Senate. Thank you for coming. You have the floor. We are very interested in hearing what you have to tell us. Thank you.
Kendra Cooke, as an individual: Thank you, Mr. Chair and committee members.
I am grateful for the invitation to speak today regarding your study of Bill C-16. My name is Kendra Cooke, and I am here to reflect my experiences of intimate partner violence and coercive control.
I experienced coercive control throughout my marriage and continue to be subjected to these abuses more than three years after separation. Here is a list of just some of the things I have experienced, and continue to experience, as they relate to coercive control: dozens of false reports made against me to police, Children’s Aid, health care providers and the children’s school; repeatedly being urged to kill myself and my ex offering to give me one of his firearms to do so; isolation from family and friends; limiting my ability to work; stalking and surveillance by my ex and a work colleague of his; abhorrent and harassing communications in person and through phone, social media and a court-ordered parenting app; disregarding numerous court orders dictating the content and tone of our communications and contact; employing the legal system to perpetuate harms; financial abuses; intimidation through the purchase and display of firearms; psychological and emotional abuse of our children during his parenting time; withholding child support payments and employee health benefits for our children; warning me that he has befriended a judge who would be presiding over our family court case, threatening that he would gain full custody of our children; weaponizing the justice system against me; involving our children in parental conflict, eroding their sense of safety and well-being; having me criminally charged without providing evidence to police or the Crown attorney; threatening to kill me, my parents, my current partner and her children.
For years, I have sought support to safeguard my family from these abuses and their far-reaching consequences. Ultimately, all of the child welfare and justice systems I have encountered are woefully ill-equipped to respond to the abuse we are experiencing. I have routinely been told that because there has been no physical violence in the home, there was nothing anyone could do to help me and that self-help would negatively impact my efforts to secure a divorce and custody agreement in family court.
I met the criteria to live in a second-stage residence for women who have experienced violence, qualified for supports through victim services and consistently scored as high risk for spousal assault through B-SAFER, a tool developed by Canada’s Department of Justice. Even a court-ordered investigation by the Office of the Children’s Lawyer and their subsequent report detailing serious concerns regarding my ex’s abusive behaviour have not been enough to end the abuse.
It is the very nature of coercive control to distribute harms across sectors so as to make the abuse less recognizable and justice for victims impossible. It is true that, taken individually, the harms I have experienced would not warrant notice. Strung together, however, they tell a very different story.
A move to criminalize coercive control must include efforts to educate actors throughout the justice system and across jurisdictions. Establishing a “pattern of coercive or controlling conduct,” as referenced in this bill, can only happen when evidence from all justice and community partners is considered alongside the testimony of victims.
I cannot overstate the devastating impact coercive control has had on my children and me. I was once a homeowner, a social services professional and an entrepreneur. I actively participated in and contributed to my community. Although the love I have for my children has been galvanized by my experiences of intimate partner violence, I long for them to know the version of me prior to that abuse. I know that I am providing for their needs and well-being and that my example of kindness and curiosity will ultimately serve them well. It is, however, impossible not to grieve a more joyful and hopeful version of myself that they could have known had it not been for the unchecked abuse I continue to endure.
In closing, a collaborative approach across systems, along with public education, will be necessary to achieve any positive outcome from the criminalization of coercive control. I urge this committee to carefully consider the work of the Standing Committee on the Status of Women and their report on coercive control in Canada in addition to the witness testimony you hear as you continue the crucial work of studying Bill C-16 and its potential implications for the lives of victims.
Thank you.
The Chair: Thank you very much, Ms. Cooke. We will now hear from Rosel Kim.
Rosel Kim, Senior Staff Lawyer, Women’s Legal Education and Action Fund: Good afternoon. My name is Rosel Kim. I’m a senior staff lawyer at the Women’s Legal Education and Action Fund, or LEAF.
I am joining you today from what’s now known as Toronto, which is the traditional home of the Mississaugas of the Credit, the Wendat, as well as other Anishinaabe and Haudenosaunee peoples.
LEAF is a national charitable organization that uses the law to advocate for the equality of women, girls, trans and non-binary people.
Thank you for inviting me today to speak about Bill C-16. My remarks are based on my testimony before the House Standing Committee on Justice and Human Rights and the written brief that was submitted to the committee jointly by LEAF and the Barbra Schlifer Commemorative Clinic. Of course, I am here today to speak on behalf of LEAF.
We welcome and support the bill’s proposal to increase access to testimonial supports for victims and witnesses. The rigid rules and decorum of a courtroom can lead to additional stress and trauma for survivors who are revisiting and disclosing traumatic memories. In addition, we support the bill’s increased emphasis on restorative justice processes. We also agree with expanding the non-consensual distribution of the intimate images offence to include “deepfakes.”
We are grateful for the efforts of parliamentarians to respond to the epidemic of gender-based violence. There is a need to publicly recognize femicide and coercive control as a serious wrong that must be addressed by society.
However, well-intentioned laws can have unintended consequences. We express caution toward the amendments in the bill concerning femicide and coercive control. While we agree with the need to recognize and address these issues, creating new criminal offences without clear, survivor-centred safeguards could lead to survivors being caught up in the criminal system and being charged themselves, especially if they are members of marginalized communities. We believe a broader, systemic approach is a better answer to preventing and addressing gender‑based violence. We worry that focusing on criminal legal solutions may reduce the capacity to consider and implement those systemic approaches and social supports.
There are, however, ways to improve the criminal response to gender-based violence. I will highlight five areas where we have suggested amendments to Bill C-16 in our brief.
First, I will discuss mandatory minimum sentences. Mandatory minimums do not deter crime and have negative impacts that are especially detrimental for Black and Indigenous communities. In addition, imposing prison sentences on Black and Indigenous women who are mothers or caregivers of children can lead to disastrous consequences for women, their children and their communities, including family ruptures and overrepresentation of Black and Indigenous children in the foster care system. For these reasons, we recommend broadening safety valves to mandatory minimum sentences to include all available sanctions, including those other than imprisonment, as well as applying a gender-based analysis and not reintroducing mandatory minimums that have already been struck down.
Second, we have proposed a series of amendments to the sections on sexual history evidence and third-party records. We appreciate the Standing Committee on Justice and Human Rights’ amendment that clarifies complainants having the right to be represented by counsel during all steps of the proceedings. While we understand the desire to clarify this complex area of the law and to reduce delays, we have heard concerns from lawyers who work with complainants about the risks of increased complexity and constitutional vulnerability in the bill. We also point to a change needed in the process to ensure that the complainant’s intimate images are not shared among lawyers. I am happy to discuss specifics during the question-and-answer period.
Third, we recommend maintaining the current wording of the criminal harassment provision. This proposed change in the bill may increase the risk of survivors being charged with criminal harassment themselves in situations where survivors have to make repeated contact with their abusers about failures to respect custody arrangements or other court orders.
Fourth, we recommend broadening the definition of “deepfakes” to ensure that it appropriately captures the harm caused by non-consensual “deepfakes.” The definition in the bill currently requires that a depiction “. . . is likely to be mistaken for a visual recording of that person . . . .”
However, the harm of non-consensual “deepfakes” goes beyond deception; it is a violation of sexual integrity, where your image is sexualized without your consent, even in a manner that may not meet the realism threshold. Requiring realism for a “deepfake” to be criminal defines the harm of “deepfakes” too narrowly. It also adds confusion about who will determine whether a depiction is likely to be mistaken as an actual visual recording. For this reason, we recommend removing the last part of the definition of “deepfakes.”
Lastly, we recommend that the federal government work with provinces and territories to decrease delays in the criminal legal system rather than requiring courts to rely on remedies other than stays. Meaningful reductions in delay require adequate resources, including increased staffing, judicial appointments and stronger governmental coordination to ensure the system is properly supported.
I will end by reiterating the need for sustained investment in preventative measures that address gender-based violence before it occurs, including community-based supports, education and early intervention initiatives. Criminal law alone cannot end gender-based violence.
Thank you very much. I look forward to answering any questions.
The Chair: Thank you. We will now ask Ms. MacDougall to make her opening statement. Welcome.
Angela Marie MacDougall, Executive Director, Battered Women’s Support Services: Good afternoon, honourable senators, and thank you so much for the opportunity to speak with you today on your study of Bill C-16. My name is Angela Marie MacDougall, and I have the privilege of being the executive director of Battered Women’s Support Services, or BWSS, here on the unceded, ancestral territory of the Squamish, Tsleil-Waututh and Musqueam people, also known as Vancouver, British Columbia.
For more than 45 years, BWSS has been on the front line in the prevention and intervention of intimate partner violence specifically and gender-based violence broadly, including law reform.
From four decades of front-line response to over 5,000 requests annually, and the 1,200 victims and survivors who reach out to us monthly, they have taught us two things simultaneously: Victims and survivors want intimate partner violence to stop, and they want policing and legal systems to help rather than harm.
Historically, we’ve treated intimate partner violence as a private matter and, more recently, as a criminal justice issue. Bill C-16 presents a very meaningful opportunity to understand it as a public safety problem requiring coordinated prevention.
Battered Women’s Support Services, or BWSS, supports the intent of Bill C-16, recognizing that coercive control and femicide within the legal framework are a very important evolution in Canada’s understanding of intimate partner violence.
Victims and survivors have taught us that safety requires more than stronger laws. It requires systems capable of recognizing coercive control, acting on lethality risk and responding without causing further harm.
I respectfully suggest that the question before the committee today is not whether survivors deserve stronger responses — because they do — the question is whether Bill C-16 as implemented and as written now will deliver greater safety. Our front-line experience tells us that one of the greatest challenges in responding effectively to intimate partner violence is that legal and other systems routinely misunderstand the nature of violence itself, and routinely approach intimate partner violence as a series of isolated incidents.
Victims and survivors, then, experience coercive control, patterns of domination, entrapment and the deprivation of liberty, and it escalates over time. When we focus on a single incident, we are looking through the wrong end of the telescope. The question is not simply what happened; the question is what has been happening over time.
As we consider these important reforms, we must deeply recognize that Indigenous women and girls, Two-Spirit people, Black survivors and other racialized victims and survivors experience disproportionate rates of intimate partner violence, including femicide, and are often faced with compounding risk, both in terms of victimization, criminalization and child apprehension, along with those who may not be considered the perfect victim.
Our legal advocacy team, as well as the lawyers on our board of directors, have identified some key areas of change in the legislation because our greatest concern is that laws intended to protect survivors shouldn’t inadvertently cause further harm. Survivors often experience double harm: first from the person who is using violence against them; then from the systems that misinterpret their efforts to survive. Protection must never become punishment.
We have something instructive, I believe, from the Supreme Court of Canada in Ahluwalia, where the justice majority cautioned against failing to distinguish between coercive control and survivors’ acts of resistance, and without clear safeguards and contextual pattern-based analysis, survivors risk being criminalized for actions taken to preserve their safety, autonomy, dignity and the well-being of their children.
Bill C-16 presents an opportunity to move Canada from reacting to violence after it occurs to preventing it before it becomes lethal. The tragedy of lethal risk in femicide is often known, yet policing and legal systems fail to act in ways that provide protection, and so Bill C-16 must consider that in terms of the change.
We know from other jurisdictions that coercive control legislation without careful implementation does not necessarily improve safety. The strongest laws are not those that appear toughest on paper. The strongest laws are those that prevent violence, hold perpetrators accountable and keep survivors safe.
At a minimum, Bill C-16 must include safeguards against survivor criminalization and ensure implementation through system accountability, effective use of risk assessments and a much deeper commitment to community-based supports.
Ultimately, we will measure Bill C-16 not by what it recognizes but by whether survivors and their children are safer because of it.
Thank you.
The Chair: Thank you to all the witnesses.
Senator Batters: Thank you to all of the witnesses for being here.
Thank you, Kendra, for being here in person. That was very impactful. You were talking about how you wish that your children could have seen you before all of that coercive control happened, but what your kids can see about you now is that they have a mom who is strong enough to come to a Senate committee and testify about this very difficult experience, and that’s quite an incredible thing.
I don’t want to make you cry right off the bat, but I very much appreciate that.
In light of your experience, Kendra, what do you say was most lacking in the system’s response? Was it involving the police, family court, child protection or the overall justice system more broadly in recognizing coercive control in your situation before it escalated?
Ms. Cooke: Thank you for that question.
Each of those systems struggles to recognize coercive control at any stage. That has been my experience.
The greatest harm has really come from the lack of each of those systems or individuals talking to each other and respecting a report from professional interveners. The Office of the Children’s Lawyer should be something that is taken seriously by police and family courts. Our report has never even been read, despite being presented.
When we disregard all of those different voices because, unfortunately — and fortunately — it is up to the discretion, let’s say, of an individual police officer as to how they would deem something to be abuse. If we have all those different voices at the table — dozens of police officers, dozens of children’s aid workers, schools and doctors — and the victim is allowed to present all of that evidence simultaneously, it would make a big difference in establishing that pattern, which is what is being asked.
Senator Batters: We have the criminalization of coercive control — as Bill C-16 contains — but you also emphasize that, without training and better coordination across these systems, the law alone won’t be enough.
In your view, aside from better communication and the ability to see everything together, what do you think would need to change concretely in the way police and courts gather and assess evidence for this reality to finally be recognized?
Ms. Cooke: The first step is that they have to be aware of what is and is not coercive control so they know what evidence they are looking for.
My experience has been that even officers who have said they are trauma-informed, for example, really have no understanding of what coercive control looks like within a household and post-separation.
Education needs to be the first piece, and it needs to be accountable, not something where you sign up if you want when you have an extra hour on a Saturday. It needs to be across the board.
Senator Batters: Was there one lightbulb moment that somebody in your situation — with all of these different people you were dealing with — finally got it? Is there anything about which you thought, “Oh, yeah, that was maybe what finally tipped the balance for them recognizing it”?
Ms. Cooke: I’m not sure I can articulate a lightbulb moment. I certainly have had individuals in positions of authority and power who have recognized and validated my experiences of coercive control. However, that is very quickly followed up with, “But there’s nothing we can really do.”
For example, I sought a peace bond because there were threats being made. There was surveillance and stalking. It was rejected because there was no foundation of physical violence in the relationship, and that is a condition.
My children had to be interviewed for several hours by a detective. At the time, they were six and eight years old. He recognized the seriousness of the situation. But, again, there was nothing that could be done.
It’s important that both pieces happen simultaneously: that education piece, coordination, accountability and the laws so that the individuals in those systems, who now can recognize coercive control, actually have a way to move the situation forward in a protective way.
Senator Miville-Dechêne: I also want to salute your courage. Thank you for being with us. I would like to know, at what point you realized something was wrong. I ask because you, like many others, have seen violence against women as a physical aspect. We’re all conditioned to do that. At what point did it tip, and you realized that what was happening was really wrong?
Ms. Cooke: Thank you for that. I certainly was a professional in a system working with women. I thought I was quite well educated and experienced in these areas.
I had no idea, until probably about eight years into my marriage, when enough things accumulated, such as loss of work, isolation from almost all family and friends, and moving is part of that system as well.
A really supportive friend of mine could see, from the outside, that things weren’t looking great. I wasn’t doing very well, either. She encouraged me to reach out to the Emily Murphy Centre in Stratford. They are very well informed. That was the shelter we ended up living at.
But even working with them, as a client who wasn’t living there yet, it took about a year to hear that this really was wrong and that it wasn’t my fault that this one thing happened in isolation. There is a pattern, and it will continue to escalate; it certainly did throughout my marriage and post-separation.
Senator Miville-Dechêne: You’re not a lawyer — I’m not a lawyer either — but you have probably read the clause on coercive control in this bill. What is your take on that? You have seen the words, and you know your life. Does it match? Is it something you find useful?
Ms. Cooke: I think it is a great start. What makes coercive control so difficult is that it can look very different in each individual experience, so I’m not sure you are going to get a perfect sentence to describe what that is.
Part of the language is about establishing a pattern over time. There needs to be some acknowledgment that those patterns can only be recognized when we’re looking at each of these different buckets, whether it be justice or child welfare. Does that answer your question?
Senator Miville-Dechêne: Yes, but is it doable? Do you have hope that this can work for other women?
Ms. Cooke: I think it is doable. I was privileged to be a part of another committee in the House of Commons on the same topic. There were some amazing legal witnesses there, and I’m sure you will hear more in this committee as well. They would be better able to speak to that. But it certainly does offer me some hope that things can get better.
Senator Miville-Dechêne: I have one last question. In Québec, what they’re doing at a police level is that experts have written a questionnaire for policemen so that they can enter with specific questions and they can see if there are signs of coercive control.
You’ve never gone through that, I suppose? It never happened to you?
Ms. Cooke: Not from a policing perspective, no. I have filled out other risk assessments that have come back saying that this is a problem, but there has not been any action after that point, other than to provide me with the very essential community supports that I have been able to access.
[Translation]
Senator Miville-Dechêne: Thank you very much.
Senator Oudar: Thank you, Senator Batters, for starting the meeting by commending Ms. Cooke on her courage.
Ms. Cooke, thank you for having the courage to come and testify before us. We are very proud of you and your courage, and I’m sure your children, family and friends are as well. Thank you.
My question is for Ms. MacDougall.
Thank you for your testimony.
This morning, I was surprised to hear Mr. Cunliffe say that creating the offence of coercive control will not improve the situation of women. As the sponsor of the bill, I don’t share those views, as you can imagine. Your testimony reinforces my position.
Thank you for sharing with us the statistic that 1,200 survivors contact you every month.
Yesterday, we heard from representatives of the Service de police de la Ville de Montréal, who told us that they receive 39 domestic violence calls a day. Those are staggering numbers.
You said that this bill must promote prevention. In addition, you maintain that Bill C-16 must meet the objective of no longer viewing coercive control as part of the private sphere, because it becomes a public safety issue, which I fully agree with.
I would like to give you an opportunity to respond to this morning’s testimony — which you may not have heard, but which I am reporting to you — and to complete your testimony by emphasizing the importance of passing Bill C-16 without delay.
[English]
Ms. MacDougall: Thank you for the question, senator, and for your consideration. Yes, the dynamics of coercive control are vitally significant in the lives of victims and survivors of intimate partner violence, because we can have an extraordinarily abusive relationship and nobody has been hit; there is no physical violence. So it is so important to identify that.
The Supreme Court of Canada has done a great job of doing that as well through the recent tort of intimate partner violence. What is remarkable about their majority-decision consideration is actually looking at some guardrails around the coercive control language. Thank you for sponsoring the bill; it is a major step in the right direction. As I look at the language, there are some areas in the language that we think are effective; however, they can be used against victims of intimate partner violence.
One of the dynamics that happens in a coercive controlling relationship is that the legal systems and the family law systems are being weaponized against victims. There are so many ways in which an abusive partner will use their power and the systems in front of them to do harm. So we have identified some specific language in the bill that may need some changes in order to provide those guardrails that we have seen in the tort of intimate partner violence, for example.
This is an important step in the right direction. We did some analysis of other jurisdictions. The evidentiary requirements are a big ceiling; it is a long way up there to meet them.
The conviction and even the charge rates are still quite low in other jurisdictions because they bump up against a problem we are seeing already, and that is what witnesses have said here today, and I’m sure you have heard from others. This issue of intimate partner violence continues to be downplayed by broader legal systems, including policing.
Perhaps this is another opportunity. I have to be hopeful that we are going to continue educating the system itself.
We really have to caution ourselves against creating an opportunity where we’re seeing more victims wrongfully criminalized for protecting themselves. There are a number of areas in the wording that could be used against victims.
[Translation]
Senator Oudar: Thank you, Ms. MacDougall. I don’t know if Ms. Cooke wants to add anything.
You mentioned something that she experienced, which was the use of the justice system against the victim herself. So, do you wish to comment?
[English]
Ms. Cooke: Yes, thank you. I have experienced that, as I mentioned in response to a previous question about seeking a peace bond. The retaliation — because that was not successful, but he was still served and had to go through a bit of that process — was having me charged with uttering threats of death.
Although I offered my phone to police and offered them all of the historic evidence of the coercive control over many years, I was charged. It has been stayed because there has been no evidence produced. But that was a very humiliating experience. I had to find emergency care for my kids. I can’t attend school trips right now with a stay on my record. I can’t work in my field.
Perpetrators of coercive control know exactly which systems to go after and how to have the greatest long-term impact on the lives of their victims.
[Translation]
Senator Oudar: Thank you for your testimony. I think it contributes even more to the training of police services immediately after this kind of law is passed so that police officers are well trained to help victims.
[English]
Senator Prosper: Thank you to all our witnesses. I appreciate your work and your dedication. Ms. Cooke, thank you for being here with us.
I would like to get into something that was mentioned by Ms. MacDougall and Ms. Kim with respect to safeguards against survivors or victims being criminalized. Ms. MacDougall, you provided some detail. You got into the family law system being weaponized. I think that was the word you used with respect to victims. Ms. Kim, you also talked about that, as well as having appropriate safeguards for victims, especially those who are marginalized.
I am wondering if there is anything further, certainly Ms. Kim and Ms. MacDougall, if you could provide in that regard. Thank you. Ms. Kim and then Ms. MacDougall.
Ms. Kim: Yes. Thank you for that question. Ms. MacDougall started identifying some of those safeguards.
I would add emphasis on training of all the legal system actors, on recognizing intimate partner violence, coercive control and being informed by a cultural context as well and being culturally specific. That also includes recognizing systemic racism that exists in policing.
I would point to a brief that was submitted by the Ontario Native Women’s Association to the House committee that was studying Bill C-16 that spoke about the need to address systemic racism within policing that leads to both under- and over-policing of Indigenous women, and also the need to have Indigenous-led healing and preventative programs, without which bills like this would not be effective at getting to marginalized survivors who are at risk of being criminalized.
By that, I also mean that sometimes there is no “ideal survivor,” but there sometimes is this notion of what a survivor looks like. Racialized or Black and Indigenous survivors tend to be identified as being more aggressive or they might be seen as not being as articulate as their abusive partner. All those things can lead to being criminalized themselves or being identified as the aggressor as opposed to a survivor. Those are some of the things I wanted to highlight.
Senator Prosper: Thank you, Ms. Kim. Do you have anything further, Ms. MacDougall?
Ms. MacDougall: I’m grateful for Ms. Kim’s response.
Senator Prosper: Thank you.
Senator Simons: I want to start by thanking you, Ms. Cooke, for your courage in coming forward and for providing us with that very troubling example of exactly how the system can be weaponized against the women who are making the complaints.
It is one thing for Ms. MacDougall and Ms. Kim to give us a theoretical example, but you are living it.
I want to shift, Ms. Kim, to an issue that I wasn’t able to discuss earlier today with the CBA but that you have also raised, and that is the question of section 15.2 that talks about “deepfakes.”
Both LEAF and the CBA have flagged the fact that that section ends with the phrase, “. . . if the depiction is likely to be mistaken for a visual recording of that person.”
In their brief, the CBA talks about how unfortunate that is because you could very well have a “deepfake” that is not meant to be mistaken for an authentic visual recording of a person but that uses AI or other kinds of video editing to depict someone making love to a dinosaur or showing their sexual organs to a superhero. We’re obviously not supposed to think that is real, but that could be equally humiliating and intimidating.
Both LEAF and the CBA are calling for a simple amendment to lop off the final phrase of that sentence.
We’re in a situation where we may not be able to functionally make amendments. Can you make the case for why we ought to make that one?
Ms. Kim: Yes. The reason we want to push for the removal of that phrase is to be able to recognize the harm of “deepfakes,” as you’ve outlined, that even if the depiction is so clearly not your body — or that it might not be so realistic as to look like you — the harm still is that somebody has taken your image, without your consent, and they have chosen to sexualize that and also create an image that’s meant to humiliate.
That ought to be recognized as a harm, on top of the fact that maybe some “deepfakes” are created with the intent to deceive, that someone actually was in a situation that they might not be in, but the harm goes beyond that.
I also understand the need for having clear boundaries, especially for criminal law. But the definition of an intimate image already specified that it has to be an identifiable person. There is that requirement that it has to be identifiable as you. That part alleviates some of the concern of it being applied in an overbroad way. I hope that helps.
Senator Simons: I imagine that somebody who makes an anime or cartoon of somebody that is recognizably a public figure, but it is obviously not them, or where they morph your head on to somebody else’s body, and the attempt is to humiliate you.
It seems like a small matter, but it also seems like something that is going to render that section much less functional than if we made the amendment.
Ms. Kim: Yes. I talked about this a little bit too. Yes, it’s tough to draw the line. There could be some ways to guard against very obvious cartoon depictions, maybe, but still recognize that somebody has taken your image and violated your sexual integrity by creating “deepfakes” of you.
The wording that is there that says “likely to be mistaken” might create an additional barrier where you would report that to someone, and they might decide that it’s clearly not you, and then there could be harm there as well in somebody not recognizing what has happened to you is harm.
This is also why we advocate for multiple responses, including a digital safety commissioner perhaps that might be created with a new bill or other kinds of supports through provincial legislation that is not necessarily a criminal route.
Senator Simons: Thank you very much.
Senator Dalphond: My question is for you, Ms. Kim. Thank you very much for your brief. What do you mean by removing barriers to restorative justice by limiting the use of statements made during them? Could you elaborate a bit on that? I ask because I’m a big fan of restorative justice so I would like to hear more about that.
Ms. Kim: Yes, thank you. The intent we had with that section was to highlight there could be some danger of what is happening in the process being used against the survivor later on. There are sections in the bill that try to safeguard against that, but we just wanted to ensure that the protection that’s accorded to a person who is accused is also accorded to the survivor. That stems from seeing some survivors of sexual violence being hit with defamation lawsuits in the civil realm later on. So that was the intent of our section.
Senator Dalphond: And for precision because I think the proposed bill is that no admission, confession or statement accepting responsibility is admissible. So if we’re talking about the person that is the accused, there is protection there. But you say it could be clearer. Is that what you mean?
Ms. Kim: Yes, and that section would definitely apply to the accused. We’re hoping that a similar protection can be accorded to the survivor so that whatever they disclose during a restorative justice process is not used against them in a future proceeding, whether that is a civil suit on defamation or anything like that. We want to be able to contain a restorative justice process without fear of anything being disclosed or used later, which would defeat the process altogether.
Senator Dalphond: The other topic of interest for me is the production of records and prior sexual behaviour in sexual assault cases. Do you think there is not enough involvement of the complainant? I thought we covered every angle in terms of making sure the complainant is at one stage informed that she — I say “she” because the victim is 80% likely to be a woman — is entitled to have the assistance of a lawyer. I understand that the judge can make an order that she doesn’t have to pay for the lawyer. So what are you concerned about here?
Ms. Kim: Thank you for that. Something we wanted more clarity on was the fact that complainants in the bill often have a right to counsel at subsequent stages of evidentiary proceedings that are not at the very beginning. We wanted to ensure they do have independent legal advice and, ideally, independent representation at the very beginning so that the complainant understands how their privacy rights would be impacted before the proceedings begin. The amendments that were made by the Standing Committee on Justice and Human Rights clarify that the complainant can have legal representation, so that could address our concerns in the brief.
Senator Clement: Thank you all for your testimony.
Ms. Cooke, thank you for pouring your life story into this record. Also, please know that you spoke with great poetry. Grieving the previous joyful version of yourself: those are powerful words. You are quite a communicator, and that is a gift for us all. I want to say thank you for that.
Ms. MacDougall, I have a question for you, but I’ll start with my question to Ms. Kim.
Ms. Kim, I was interested in your fifth recommendation around the provinces and working with the provinces. Often, when we’re legislating federally, there is an issue with the provinces, especially in terms of how we manage criminal justice systems. What is your best advice here in terms of how we work with the provinces around some of these issues?
Then we’ll end with Ms. MacDougall. You also spoke about acts of resistance. I hear that, and I think back to the civil rights movement. I think about the work that goes into resisting.
I have no doubt that this bill is going to pass, but I think that we also need to do other things, and you alluded to that in your testimony. If you could lean into what you mean by deeper community-based supports. I think we need to have that on the record in terms of understanding what you mean. Ms. Kim and then Ms. MacDougall.
Ms. Kim: Thank you. In terms of coordinating better with the provinces to avoid delays, I would point to the CCLA’s proposed amendment, where they are proposing to add a factor under factors to determine alternative remedies that we should consider the prejudice of unreasonable delay to the administration of justice as a whole as a relevant factor in determining what kinds of remedies are appropriate. Perhaps that consideration could motivate more support in staffing the courts and making sure that the courts are running to avoid any unnecessary delays. I’ll offer that.
Ms. MacDougall: Thank you for the question. With respect to training and policing, that definitely has a provincial jurisdiction aspect to it, and each jurisdiction is unique. Though it’s heavily embedded in the conversations here and implied overall, that requires some thoughtfulness around that.
Community-based responses, senator, save lives every day. They are our first response all across the province: community-based victims’ services, transitional houses, those front-line organizations that meet victims and survivors where they’re at in the community; navigating those barriers that are at the heart of getting free of violence and being able to assist the criminal legal system in holding those that do harm accountable often by advocating for survivors.
This part of the system and infrastructure around supporting survivors is the least respected, the least resourced, the least understood and has the biggest impact overall in saving lives and making a difference over the long term.
If there is anything to come from Bill C-16, it would be to recognize, unequivocally, the importance of community-based response and the necessity for increasing resources there.
We are looking right now, of course, at law, and the law is important. So much of what happens around the law is what happens in communities and those community-based responses. This conversation can really benefit from deepening an expectation and an application of front-line community-based interventions in all of the ways that have been described here but also so much more.
Those front-line workers around the province and around the country are doing the incredible heavy lifting around all of the problems that we have discussed here today that are trying to be addressed in this legislation.
Senator Clement: Thank you.
Senator Dhillon: Ms. Cooke, thank you for being here today. It was incredibly painful to hear your journey. Having had a sibling move through a similar journey, I don’t know every moment, but I know some of them from being there. It is just as painful to hear what you’ve lost, but I also acknowledge that you no longer see yourself as a victim but as a victor in this journey, and that you continue to be there for your children and are here because of them for a brighter future for them. I know everybody here wishes you brighter and better days ahead as well.
We hear you. We thank you. We appreciate you and all other Ms. Cookes out there who have suffered in similar ways.
This bill is a measure, and I think we have heard that. It’s not the solution; it’s not the answer. It is a step in the right direction and an effort to do that.
One of the things that I’ve continued to ask about this bill, which has been a central point on Bill C-225, or Bailey’s Law, is where Ms. McCourt was not informed that her partner had been released on bail. There is no mandatory requirement in this legislation to inform victims when their partner or their abuser is being released on bail or on conditions or other release.
I will invite commentary from everyone here. Do you believe that’s an important part that should be included in this bill?
Ms. Cooke: As a layperson, yes, I can see that would be a great risk and of benefit to include. I would certainly want to know.
Senator Dhillon: Ms. Kim?
Ms. Kim: Yes, generally, we’ve heard that there hasn’t been a lot of communication amongst actors, and so it would be important to ensure that there is sufficient communication and coordination as well.
Senator Dhillon: As you answer the question, I also appreciate our conversation yesterday. I want to thank you — because I probably won’t have time afterward — for all of your work and advocacy in this area and the continued work that you’re doing in ensuring that there are prevention strategies in place. The interest on everybody’s part is that no one moves through this or no one faces this, and that we are there early to prevent this from continuing. I invite your commentary, and then I’ll turn it back to the chair.
Ms. MacDougall: Thank you so much, Senator Dhillon, and for the question and for pointing out Bailey McCourt, who was killed here in British Columbia by her ex-husband.
The part around notification fits within the role of risk assessment, which is assessing risk and acting on known risk. The risk assessment practice is something that we have been very concerned about not being consistently done within policing and other areas of the system in order to identify potential lethality. In a risk assessment practice, applying it in an effective way, then unequivocally, the victim would be notified and the survivor would know, because the risk would have been identified and there would have been an important notification that would have grown directly from that.
One of the pieces for us in terms of implementation is around recognizing lethality and the role of the pattern of domination that’s a part of coercive control and what that means in the leaving process.
These are very important considerations, and we want to ultimately prevent femicides, and we also want to hold those who do harm accountable. The practice will be the biggest challenge, and therein, whatever can be done at this stage to build in the accountability in terms of policing and their response, and then also around the assessing of risk and acting on known risk would be really important.
The Chair: Thank you to all the witnesses for coming here today. Your contributions are very valuable to us, and your perspectives that you shared are very important. They are essential in guiding our discussions, and we really appreciate that. In particular, to Ms. Cooke, as has been mentioned by most of the senators, we really do appreciate you coming here today. Your evidence was compelling, and it certainly helps us understand the dynamics and nuances of coercive control, and so we thank you for that. It has been etched in our memory and will affect our assessment of this bill, so thank you very much.
For our second panel, we are pleased to welcome, by video conference, Victoria S. B. Perrie, Vice President of the Indigenous Bar Association; and Carl Alphonse, President of the Canadian Association of Black Lawyers. Welcome. We’ll hear first from Ms. Perrie and then Mr. Alphonse. Then we will move to questions from the senators.
Ms. Perrie, you have the floor for five minutes.
Victoria S. B. Perrie, Vice President, Indigenous Bar Association: Thank you for the opportunity to appear before you today on behalf of the Indigenous Bar Association, or IBA.
The Indigenous Bar Association is a national organization of Indigenous lawyers, judges, legal academics and law students. Our mandate includes advancing Indigenous legal issues, promoting access to justice and ensuring that Canada’s laws and institutions are consistent with constitutional principles, Indigenous rights and the fair administration of justice.
The IBA supports the overarching objective of Bill C-16. Many of its provisions respond to real harms that Indigenous communities know all too well. At the same time, we believe several provisions warrant closer examination to ensure that the bill protects victims, respects Indigenous legal orders and remains consistent with constitutional principles. I would like to highlight four points for the committee’s consideration.
Firstly, the IBA strongly supports the creation of the new coercive control offence. Indigenous women, girls and Two‑Spirit folks continue to experience disproportionate rates of violence. For many victims, abuse is not a single incident. It is a pattern of domination, intimidation, isolation, surveillance, financial control and psychological abuse that escalates over time.
The proposed offence reflects what survivors, advocates and the National Inquiry into Missing and Murdered Indigenous Women and Girls have been saying for years: Coercive control is often a precursor to serious violence and femicide.
The IBA recommends that paragraph 264.01(2)(c)(vi) be amended to expressly recognize that coercive control exists through restrictions on an intimate partner’s access to land, traditional territories, land-based activities and traditional harvesting practices. Paragraph (vi) already recognizes that coercive control can operate through interference with language, culture, spirituality, beliefs and community. For many Indigenous Peoples, however, connection to land is also fundamental to identity, family life, food security, well-being and the exercise of Indigenous rights. Coercive control may include preventing an intimate partner from hunting, fishing, trapping, gathering, et cetera. Explicit recognition of these realities would better reflect Indigenous experiences and assist courts in interpreting the new offence.
The IBA also encourages the committee to carefully examine whether the provision respecting threats of suicide or self-harm sufficiently distinguishes coercive control from genuine mental health crises, particularly given the disproportionate impact of suicide and intergenerational trauma in many Indigenous communities.
Secondly, the IBA supports the bill’s victim-centred and restorative justice measures. We welcome the bill’s trauma-informed approach, its expanded protections for victims and its recognition of restorative justice processes.
Indigenous Peoples have long maintained their own laws, legal orders and institutions for promoting safety, addressing harm and restoring relationships within their communities. Restorative justice is not a new concept for Indigenous Peoples. Rather, many restorative approaches draw their legitimacy from Indigenous legal traditions and governance systems that have existed since time immemorial. The IBA, therefore, recommends that the restorative justice provisions expressly recognize Indigenous laws, Indigenous justice processes and Indigenous governing bodies.
Indigenous restorative justice derives its legitimacy not merely from community participation but from Indigenous legal orders and institutions. We also support the amendments to the Youth Criminal Justice Act, or YCJA, that require particular attention to the needs of Indigenous and Black youth. Any effort to reduce the overrepresentation of young people in custody deserves support.
I recognize now that I have concluded my five minutes. I have two points remaining, but I will stand aside as I have concluded my time. Thank you.
The Chair: Thank you very much. Mr. Carl Alphonse, please proceed.
Carl Alphonse, President, Canadian Association of Black Lawyers: Honourable senators, thank you for the opportunity to appear before you today. My name is Carl Alphonse, and I’m here in my capacity as the president of the Canadian Association of Black Lawyers, or CABL. Our national organization represents 1,500 Black lawyers in Canada.
CABL stands before this committee today with a clear purpose: to ensure that the distinct intersectional voice of Black legal professionals and the broader Black community is fundamentally heard and integrated into the fabric of Bill C-16.
At its core, the government has a clear mandate to keep Canadians safe. Bill C-16, the protecting victims act, seeks to fulfill this by combatting gender-based violence and the exploitation of children in both the physical world and the increasingly complex online environment.
When the Black community examines criminal justice reform, we must do so through a dual lens: the lens of community safety as victims who deserve protection and the lens of systemic bias within the state apparatus.
Black Canadians are not a monolith. We are deeply invested in eradicating domestic violence, protecting children and ensuring justice for survivors. However, as Black lawyers, we also know that, when Canada expands the scope of the Criminal Code, the net cast by law enforcement historically catches Black bodies at an alarming, disproportionate rate.
Let us begin with what is good and necessary and represents a positive step in the legislation. Bill C-16 proposes sweeping changes to a justice system where survivors who come forward too often encounter unhelpful, adverse and overall negative experiences.
CABL strongly commends several major pillars of this reform.
The first one is addressing digital threats: prohibiting the circulation of AI-generated intimate “deepfakes” without consent future-proofs the law to protect young women, girls and vulnerable communities.
With regard to protecting vulnerable Black boys, across Canada, criminal organizations exploit young Black boys facing economic fragility or unstable living conditions, coercing them into drug trafficking, auto theft and robberies to do adults’ dirty work. Bill C-16 takes a vital step forward by creating an explicit criminal offence for involving youth in the commission of a crime, punishing the adult perpetrators who financially entrap them.
Lastly, protecting Black girls from sex trafficking: Due to the intergenerational effects of anti-Black racism, economic exclusion and hyper-sexualized stereotypes, Black girls are disproportionately targeted by predators. The bill’s strict focus on child luring, sextortion and the expansion of the Youth Criminal Justice Act to require particular attention to Black youth provide law enforcement with the necessary tools to deter grooming and exploitation.
However, honourable senators, as legal practitioners, we must apply an intersectional framework to understand why legislation written with the best of intentions can manifest starkly different realities on the ground when filtered through the lens of systemic bias.
Consider the criminalization of a “. . . pattern of coercive or controlling conduct . . . .”Statistics Canada reports that 42% of Black women have experienced intimate partner violence. Yet, research by scholars like Dr. Patrina Duhaney reveals a critical gap. Black women face profound racism when interacting with the system. Due to negative police perceptions and harmful racial tropes, Black women who call the police for domestic intervention are often subjected to intense scrutiny. In many documented instances, the Black female survivor was mistakenly arrested and charged with uttering threats or assault.
The bill will also allow firearm licences to be revoked based on reasonable grounds to suspect, domestic violence or stalking, even without a criminal conviction. This is a low and subjective standard because Black households are already over-policed and closely monitored. This power could lead to unfair property seizures based on unproven claims or racial bias.
Finally, while restoring certain mandatory minimum penalties aims to punish serious crimes, we see first-hand how mandatory minimums routinely strip judges of their ability to consider systemic discrimination, acting as a direct engine for the mass incarceration of Black Canadians.
What should be changed? To ensure Bill C-16 provides robust protection without accelerating systemic anti-Black racism, CABL urges this chamber to pursue three critical amendments.
First, mandate statutory anti-bias training. The enforcement of the new “coercive control” and “youth recruitment” offences must be legally tied to mandatory, intersectional anti-bias and cultural-competency training for police forces and crown prosecutors nationwide.
Second, we need to expand the mandatory minimum exemption. The bill currently permits judges to bypass a mandatory minimum only if it amounts to the extreme constitutional bar of “cruel and unusual punishment.” We need to remove that or make it easier to remove the mandatory minimum.
The third and last recommendation is to fund Black-led, culturally specific services. There is a critical deficit in the availability and accessibility of domestic violence services tailored for Black women, girls and vulnerable community members, and we need to be more inclusive to Black 2SLGBTQ+ people. The restorative justice and victim-support frameworks in this bill must include dedicated funding for Black-led, culturally responsive organizations to manage these services directly.
To conclude, Bill C-16 represents a meaningful step toward building a comprehensive framework to combat gender-based violence and child exploitation, but true equity means ensuring that a law meant to protect vulnerable citizens does not become a tool that inadvertently oppresses them. I welcome your questions. Thank you.
The Chair: We will move now to questions from the senators.
Senator Batters: Ms. Perrie, first, the new part of Bill C-16 on unreasonable delay could allow courts to consider remedies other than a stay of proceedings, but it doesn’t set out a specified list of any types of possible remedies. Do you think that, technically, that flexibility strikes you as useful? Or do you think that it risks creating additional litigation and even perhaps further delays over the choice of remedy without providing any types of sufficiently clear guidelines?
Ms. Perrie: Thank you for that question. This is, indeed, one of the areas that I had intended to speak to, but I didn’t have the opportunity to do so. I appreciate this opportunity.
IBA’s position is that your question specifically could go either way. While I do appreciate the broad ability for the courts to make a determination in that circumstance, it also does create costly litigation. It is twofold.
I will elaborate to say that the IBA has serious concerns regarding these delay provisions. Indigenous accused persons frequently experience delays because of remoteness, court circuit schedules, language barriers, shortages of counsel in remote and isolated communities and other reasons.
These delays aren’t created by the accused persons. These delays are created by the justice system itself. The right to be tried within a reasonable time under section 11(b) of the Charter is activated quite regularly in remote and isolated communities. The IBA is really concerned that the provisions that restrict remedies for unreasonable delay may disproportionately affect Indigenous accused persons. We urge the committee to carefully examine whether those provisions are consistent with the Charter principles that exist and whether they fit within the realities of Indigenous communities. Thank you.
Senator Batters: Of course, also, there are way too many Indigenous victims, particularly female victims. Do you have any perspective to offer today to our committee about those Indigenous victims, especially female victims, who may be subjected to all of these different types of very serious crimes?
Ms. Perrie: Within the context of the delay amendments, on which I’m going to place my answer to this question, the section 11(b) framework, while important to protect the accused’s Charter rights to be tried within that reasonable time, I would suggest that those rights should also be afforded to the complainants — the victims in a situation — who also have rights to have their matters be concluded within a reasonable time. Of course, it’s not beneficial even to an accused person to walk away from a process where they were charged with a crime with a stay of proceedings for unreasonable delay.
Of course, if someone is maintaining their innocence in that matter, it’s much more effective and beneficial for that person to have their name be properly cleared. It’s also beneficial for the victim to be able to have their day in court, should they be testifying, and to have that matter resolved in a reasonable time. These section 11(b) considerations really go to both sides of this argument.
Senator Batters: Delay is terrible from all perspectives in the criminal justice system: offenders, the victims, the public and everybody. Thank you.
[Translation]
Senator Miville-Dechêne: Thank you very much.
Ms. Perrie, you mentioned that, in defining the pattern of coercive and controlling behaviour, you were of the opinion that there were not enough criteria for Indigenous people. If I understood correctly, and correct me if I am wrong, you talked in particular about access to hunting grounds.
When I reread the various sections of this offence, I wonder if it is necessary to go into so much detail about hunting grounds, since there is one section that is quite broad and seems to allow for cultural differences. I will read it to you, even though you are probably familiar with it:
(vi) controlling or attempting to control the intimate partner’s expression of their thoughts, their opinions, their religious, spiritual or other beliefs, or their culture, including the use of their language and their access to their linguistic, religious, spiritual or cultural community.
This is much broader than what you were talking about. Do you still believe that, in a definition that is already very long, we should include as much detail as you said?
[English]
Ms. Perrie: Thank you for that question. Indeed, that is my recommendation. I do appreciate that language, culture and spirituality are encompassed in what is already provided in that section. My suggestion is, indeed, that expanding that to include access to land is appropriate. Land as a concept is also included within coercive control in Indigenous communities. As it is phrased specifically in this area, the act is contemplating a threat to a person or an animal. What is also missing there are threats to land.
I’m contemplating, by providing this recommendation to the committee, that land can also be used as a tool for coercive control, whether it’s limiting an individual’s access to the land generally or whether it’s with intention to inflict harm upon land and using that as coercive control.
For example, let’s say that someone has a berry-picking patch that they go to quite regularly. If an individual is threatening to destroy that land, that can be an element of coercive control. Picking berries may not seem important to a person who does not have that as a particular part of their culture and heritage. Perhaps the berry patch is in a certain area that their community has used for generations. This is a very specific area that, in the IBA’s position, should be included and specifically delineated.
[Translation]
Senator Miville-Dechêne: Thank you, Ms. Perrie.
Senator Oudar: I too would like to thank you both for being with us this afternoon and for sharing your expertise, which will allow us to continue our work on Bill C-16, which I am sponsoring in the Senate.
Ms. Perrie, my questions were for you. Thank you for touching on the restorative justice provisions. I think this bill makes a lot of progress. You are right to mention that some practices have existed since time immemorial. In that light, I think it would be appropriate to draw inspiration from them.
I would like to talk to you about section 715.46, which is a new section that would be introduced by clause 59 of Bill C-16, and more specifically paragraph (d), which indicates that special attention must be paid to the needs of Indigenous and Black persons. I would like you to speak to this paragraph.
[English]
Ms. Perrie: If I could pass this to Mr. Alphonse. I would like to review the section prior to responding.
Mr. Alphonse: I’m actually reviewing the section as well.
[Translation]
Senator Oudar: We don’t need to dwell on the exact wording. In the section that introduces them, the new alternative restorative justice provisions stipulate that several criteria must be considered. I am referring in particular to the use of judicial resources, effective intervention, and ensuring that we are not increasing crime. There is an important paragraph that reads as follows:
(d) measures that are taken under this Part take into account the circumstances and personal characteristics of the person alleged to have committed the offence or of the offender and victim, as the case may be, with particular attention to the needs of Aboriginal and Black persons.
[English]
Mr. Alphonse: I understand it a bit more now.
I like this section because you are looking at the situation of the accused. You are looking at their background, their race and also the situation. I think this is something that is important in that law.
One of our concerns at CABL is the fact that, in the justice system, we have a lot of representation of Black people and also Indigenous people. We need to keep in mind the different barriers that they face, and also look at over-policing that is happening in their communities.
Looking at the situation of the victim is welcomed, and this part of the law we agree with. It is more about the minimum sentences and also the restriction in order to get an exception. That is what needs to be revamped at our end, but I’ll let Ms. Perrie speak on behalf of the Aboriginal lawyers.
Ms. Perrie: Thank you. I appreciate the opportunity to collect my thoughts prior to making my submissions.
When I look at subclause (d) in particular, the IBA recognizes and appreciates that particular attention is being given to the needs of Aboriginal persons.
What I said in my suggestions to the committee is that Indigenous law needs to be particularly and specifically articulated within the act to which these amendments are going into, because, although this section does contemplate that attention to the needs of Aboriginal persons be considered, my proposal is that Indigenous law, where applicable, needs to be specifically consulted and applied.
What I imagine this looking like in practice is that, if there is an individual who is in a position to perhaps bring an Elder or a Knowledge Keeper from their community to the court and articulate the way in which a community might deal with that situation according to their own laws, the judge in the colonial court process should give attention and real consideration to follow and abide by the laws which are provided and articulated by that Elder or Knowledge Keeper, and, if appropriate, to refer that matter out of the colonial court system and back into the Indigenous court process or Indigenous restorative process; however that exists within that community and context.
[Translation]
Senator Oudar: Thank you both.
[English]
Senator Prosper: Thank you to both of our witnesses. I’ll start with a question to you, Ms. Perrie, and then proceed to a joint question afterward.
I believe you went through four of your five points. I want to give you an opportunity to go through your last point.
Ms. Perrie: Thank you. I appreciate that.
My final point is about recommending greater clarity regarding the term “nearly nude.”
The bill expands important protections against non-consensual intimate images and “deepfakes,” an objective that the IBA supports. However, the repeated use of the term “nearly nude” without definition raises concerns about certainty and predictability in criminal law.
The committee should consider defining the term or providing additional statutory guidance, given the potential for unintended impacts on cultural, ceremonial, medical, athletic and other nonsexual contexts. Having certainty about what “nearly nude” means would be very beneficial to all, not just to the Indigenous Bar Association.
Senator Prosper: This is for both of you, Ms. Perrie and Mr. Alphonse. Within the context of coercive control, Ms. Perrie, you talked about threats with respect to land. You mentioned berry picking, and I am thinking about traditional medicine as well. But more specifically, I’m thinking about elders here as well and coercive control. Would the existing legislation cover an instance where an adult child exerts coercive control over an aging relative? What is that dynamic that you see with this piece of legislation as it relates to an elder or an aging relative?
Ms. Perrie: Thank you very much, senator. This is something I have grappled with for some time in preparing my own submission. In the section, it says coercive control of the individual or “other persons,” and then delineates animals and children. So my understanding, and why I didn’t include that in my initial submission, was that elders would fall under “other persons.”
It would be my suggestion that we expand animals and youth to include elders, but to do so would suggest that they are not part of the category of “other persons.” That was my reasoning. I think it does include elders.
I also agree, though, that a specific section noting elders, given the significant impacts that many elders — and not only Indigenous elders but all elders across Canada — face with respect to coercive control from younger children who are now their caregivers. I would appreciate that delineation. However, I think it is covered by the current wording.
Senator Prosper: Thank you. Mr. Alphonse?
Mr. Alphonse: I would agree with Ms. Perrie on that topic, that it’s already covered by the section.
Senator Prosper: Thank you.
Senator Simons: We know that there is a crisis in this country with supports for women and other family members who are fleeing domestic violence. For Indigenous communities, especially in the North, there is a shocking shortage of shelter spaces. For many Black, Indigenous and other women who are marginalized, there is a fear of even calling the police, we were told, because they don’t know how that will escalate with a partner. For women who are new Canadians, often there are language and cultural barriers that make it hard for them to seek out assistance.
One of my concerns with this piece of legislation is that knowing somebody is going to be charged with first-degree murder won’t comfort me after I’m dead. I worry that we’re looking at the wrong end of the pipeline to make the punishments for the crimes much harsher without investing what we need to invest in making sure people can be safe.
I wonder if you can talk a bit more about the risks this poses to members of your community — not just the men who are more likely to be the ones accused, but to women.
We heard testimony from Ms. Cooke that when she went to complain, she was counter charged. So can you tell us how this is resonating in your communities in terms of the risk?
Mr. Alphonse: It could be weaponized against the women in my community. They could use the different systems in front of them: the family law system and the criminal law system. It is used as threats to silence them. Also many women in my community are afraid of the police because, when they go forward, there is always a risk that they could be the accuser, so there is a lot of risk because of those reasons.
As I mentioned in my opening statement, having police training that is trauma-informed, as well as anti-Black-informed and anti-bias-informed will help, given the sensitivity of the situation.
Ms. Perrie: I agree with you, senator. This is the wrong end of the pipeline. Of course, an individual seeking to murder someone or end someone’s life based on their gender identity or expression is not going to contemplate in that moment whether they are going to be facing murder 1, 2 or manslaughter. That is not weighing on their minds at the moment.
I agree that we need more supports at the other end before people get to that point. I contemplated whether to make submissions on this to the committee, but I don’t know if this is the place for my fulsome thoughts on what needs to be done on the front end because we are here to determine what is happening on the back end in this room.
But what I do appreciate, specifically in 5.1(d), is the inclusion of gender identity or expression being included as having that increased penalty. I know that our Two-Spirit and gender-diverse folks that are Indigenous across Canada face really disproportionate rates of violence and life-ending violence. I think this is a positive step with respect to the folks who are left behind and their healing as they go forward.
But of course, for the individual, I don’t think this is really weighing on them.
Senator Simons: Thank you very much, hiy hiy.
Senator Clement: Thank you both for your testimony and your work. I have a question for Mr. Alphonse, but I want to say something to Ms. Perrie first.
Your answer to Senator Prosper about bringing Indigenous law into the courtroom is really powerful. I think we tend to forget that, before the two colonial legal systems, there were systems, laws and democracies present here on all of the lands and territories in this country. The way that you articulated that and brought it into the courtroom was really powerful. I’m going to remember that. Thank you for that.
Mr. Alphonse, thank you for being here. I’m going to try not to be angry; it’s hard, though. Not at you. Frustration, you said it. You said, “. . . captures Black bodies at an alarmingly disproportionate rate.” I’m trying to just not cry right now at those words, as a Black woman and as a Black lawyer in this place. So I just want to lean into that a bit.
We made some changes some years ago with Bill C-48 to try to make sure that the courts captured people’s circumstances when they were considering sentencing and bail, and trying to make it relevant to talk about the fact that these were people from vulnerable, marginalized and intersectional communities. We realized there has not been much uptake of that; it has not yet become part of the culture of the system to talk about people’s vulnerabilities, so I have anger about that.
But I want to figure out what we need to talk about. You talked about an intersectional lens. How are we doing with that? What do we need to do to get to that place because legislation is not doing it? Even when we tell the system, “Please consider people’s circumstances,” it is not necessarily happening the way we would want.
So what is your best advice here in terms of how we get to viewing things through an intersectional lens for Black people in particular, who are not a monolith, as you said?
Mr. Alphonse: Thank you very much for this question. This is the million-dollar question. In the Black community, we are overrepresented in the justice system. There is not really one solution for it. Even as a lawyer, you guys probably heard, earlier this year there was a Black criminal lawyer who went to the Oshawa courthouse, and she was assaulted by police officers at the courthouse. So even in the workplace, we are not safe.
People in the public are seeing even Black lawyers who have a certain level of privilege in those situations. It is a hard situation to be in. But education is probably key and making sure all the stakeholders have anti-bias education to make sure that they know what the different steps are. Also, it’s important to be able to look at people’s situations. Section 476 talks about individual and personal circumstances, and that is really important.
We also want to make sure that the judges in the cases are able to look beyond the laws and not have minimum sentences. There has to be a way for them to apply an anti-Black lens because a lot of the courts lately have taken judicial notice that there is a problem in the system. There are some anti-Black, aboriginal and other racialized people facing certain barriers, as well as over policing. It is a tough system to be in. There is not really one solution.
We do have a lot of work to do, but we also need to understand the problems that are in the system. So having conversations like this is really important to make sure that the system works for not just a few people, but that everyone is equally protected by the new law.
Senator Clement: Thank goodness you are both in the system.
Senator Dalphond: Thank you very much to both of you. You have answered all the questions I had already.
[Translation]
Mr. Alphonse, I would like to point out that you and I share a name, since my name, Dalphond, means “the son of Alphonse.” It’s nice to meet a cousin.
Have a good day.
Mr. Alphonse: Thank you. I am also a francophone. See you soon.
[English]
Senator Simons: One of the things that we haven’t discussed as much here is the starting and stopping of the clock for judicial stays. Since you are both lawyers, I wonder if you could speak to — I guess Ms. Perrie already did in her opening comments, but I don’t think we heard as much from you, Mr. Alphonse — why there are so many court delays and what you think needs to be done to deal with that, beyond making it easier for the Crown to deke around the limitations of the Jordan decision.
Mr. Alphonse: There are many different factors in court delays. In the Black community, many of our people, unfortunately, don’t have the means or the funds to get proper representation. You will notice that in many cases they are self‑represented. In the criminal justice system, many of us are not able to pay because we just don’t have the means. Many people spend a lot of time in jail, so the delays are affecting them a lot.
I’m not a criminal lawyer. I am an immigration lawyer, so I try to stay in my lane, but from the little bit of criminal law I do know, I would say it’s important for the system to move on constitutional rights as soon as possible. Ms. Perrie talked about section 11(b), which is the section that talks about how a case needs to move at a certain pace to be able to have an adjudication. Otherwise, the accused can get their case thrown out. I feel like constitutional rights need to be respected. That is what I would say on that front. The delays are really affecting people in our community, and having cases heard quickly will be important.
Also, being francophone, I know there are issues with finding bilingual judges for hearings. If someone is asking for something in French and there is no French judge to attend the hearing, that will take additional time. It really depends on the resources at the tribunal.
Moving things along quickly is what we should aim for, but it’s not an easy fix.
Ms. Perrie: I could chime in here as well, if that is acceptable.
Senator, I appreciate your constant insight into front-end problems and how that can be addressed on the back end. My suggestions for dealing with these delays are very front-end focused. As a criminal defence lawyer whose practice is mainly in Nunavut, I could probably go on all day about ways that we could make the system go a little bit faster so that we’re not experiencing these delays. I’m going to make some of those suggestions now. These suggestions would be helpful not only to the accused person and the court system, but I would submit that also, they would be helpful to the victim or the complainant.
One of my recommendations is for increased funding for Crown witness coordinators in communities so that these individuals would be able to stay in contact with a complainant throughout the journey of their case and so that this individual would be aware of what is happening in their matter to ensure that their matter even needs to continue. Sometimes we have a situation where an individual makes a complaint because they want a specific outcome; for instance, an individual out of their residence. Then that person is removed, there is some cooling-off time and they deal with it and move on; the complainant doesn’t want to continue in court.
Now, where we have this individual who is not in contact with the Crown, except for three times per year when the court circuit comes to town, they are not able to meaningfully progress that case or express to the Crown that they don’t want to proceed in that matter anymore. What does that do? It creates a file that is being dragged through the system and basically creates a workload for someone who, in this case, isn’t even going to run in the future because the complainant doesn’t want the process to continue.
Senator Simons: There’s a way for it to be cut off.
Ms. Perrie: Exactly. We could cut it off right at the beginning. That matter could be concluded, and it would open up more time for the matters that will proceed, and then we would not be experiencing 11(b).
On the defence side, I would submit that we should also increase funding for defence court workers in every community. If an accused is able to work with a specific individual, perhaps to follow through on their conditions or to receive ongoing support in their language and in their community, that can create a situation where you have accused persons who are more engaged with their case and more able to meaningfully participate in the process.
Senator Simons: Thank you very much.
The Chair: Thank you for appearing today on very short notice, witnesses. It is very important to us that you came to assist us. Your contributions to our consideration are going to be of great import, so thank you very much for attending.
Senators, I also have a couple of things to say. One is that we’re going to resume our study on Monday at 9:30 a.m. here in this room. It will be the same time frame, 9:30 a.m. to 3 p.m., with four panels anticipated.
In addition, should the government’s programming motion be adopted and Bill C-16 be referred to the committee, I would remind committee members, in anticipation of clause-by-clause consideration, which is scheduled to occur on Tuesday, June 16, to consult the Office of the Law Clerk and Parliamentary Counsel of the Senate as soon as possible if you intend to propose amendments, to ensure they are drafted in the proper format and in both official languages. Please endure that sufficient time is available for amendments to be prepared, including contacting the counsel assigned to Bill C-16, who are Ann Burgess and Philippe Giguère, or through our clerk Vincent Labrosse.
Also, the clerk has sent save-the-date notices for June 16 and 17 on a couple of different things. We don’t have the legislation yet, so we can only do that.
Thank you very much.
(The committee adjourned.)