Therefore, honourable senators, in amendment, I move:

That Bill C-48, as amended, be not now read a third time, but that it be further amended in clause 1 (as amended by the decision of the Senate on October 26, 2023), on page 2, by replacing lines 28 and 29 with the following:

“(4) Paragraph 515(6)(b.1) of the Act is replaced by the following:

(b.1) with an offence in the commission of which violence was allegedly used, threatened or attempted against their intimate partner, and the accused has been previously convicted or discharged under section 730 of an offence in the commission of which violence was used, threatened or attempted against any intimate partner of theirs;”.

Thank you.

Would the senator agree to answer a question?

Coming from you? Of course.

Thank you.

Senator Gold, we have very little time left, so I’m wondering if you would like to ask for a few more minutes.

I would like another five minutes, please.

Is leave granted?

Thank you, Madam Speaker. Senator Boisvenu, I thank you for bringing this proposal forward for our consideration. We’re talking here about a provision that, in the original version of Bill C-48, sought to better protect victims of domestic violence. It was supported by all the members in the other place, by the Native Women’s Association of Canada and by every provincial and territorial government. What’s more, the Attorney General of British Columbia, Niki Sharma, said that she would write to the Minister of Justice to urge him to keep this part of Bill C-48.

Senator Boisvenu, can you confirm that your amendment uses the exact wording of the initial version of the bill?

Yes, it is the same wording, and I will add an explanation, because it’s a rather complex subject. It’s important to understand that a man — because in 90% of cases, it’s men who abuse women — who has received a pardon and then goes on to assault another spouse, when he appears before a judge, if this section doesn’t exist, the onus will be on the Crown to prove that this is a violent repeat offender who shouldn’t be released.

If we take away that privilege, any repeat offender who is brought to justice will be treated equally. Whether an offender has been pardoned or not, if he assaults another intimate partner, the onus will not be on the Crown but on the accused to prove that they aren’t violent.

What this says is that the offender had a privilege, but if he has breached his obligations, he is treated the same as a violent man who appears before the court after having reoffended.

I have a brief question for Senator Boisvenu. In regard to this, I just want to make it clear for those of us who are not fluent in French, and who do not have a full understanding of what has been said. My understanding is that this particular amendment returns the bill to the form in which it existed previously. The part of bail reform relating to serious offences would apply not only to people who have been convicted, but also to people who have been found guilty and were discharged, whether it’s an absolute discharge or a conditional discharge. Just so that my colleagues know, absolute discharges can be quite serious matters. For example, in 2008, Saskatchewan Roughriders general manager Eric Tillman received an absolute discharge after he sexually assaulted his children’s babysitter. That is the kind of serious charge that we’re dealing with here. Is it correct that those are the types of matters that we’re dealing with, and that we want to ensure we can have a reverse onus on bail applied to those conditional and absolute discharges?

That is absolutely true. We are referring here to repeat offenders. Put yourself in the shoes of a victim who found out that her abuser, for all sorts of reasons, is travelling to the United States. Justice granted him a full discharge. The victim is under the impression that the individual didn’t receive a sentence for the assault he committed. The victim feels frustrated.

It remains a privilege that this individual receives, and it is a unique privilege. This privilege is conditional on one thing: He must not reoffend.

This individual who would abuse another spouse and end up before the same judge might tell him that he’s not a repeat offender since he was granted a discharge.

In my opinion, the discharge is a privilege that requires an obligation not to reoffend. If you reoffend, that privilege is revoked. This will apply mostly in the case of men who are repeat violent offenders. We’re talking about repeat offenders who are a risk to women, not only abused women, but all women.

I have a brief follow-up because at one point, Senator Boisvenu, your answer was translated as applying to people who had a pardon. It is not a pardon that we’re dealing with here, right? It is a discharge where someone has been found guilty but received a discharge from the judge as their sanction.

Yes, exactly. We’re not dealing with pardons. I may have used that word, but we’re talking about a discharge. This has nothing to do with pardons.

I’m sorry, but the time allotted to this debate has expired. Senator Boisvenu, another question?

No, I think we’re ready to vote on the matter.

Are senators ready for the question? Continuing debate.

Honourable senators, I’d like to raise two points in response to Senator Boisvenu’s amendment.

First, we heard from many witnesses at that committee that there was an absolute lack of data to support that this change was actually going to be helpful and make communities feel safer. In fact, we heard the opposite — that this reverse onus does not work and actually creates inequities that are absolutely unacceptable for racialized, marginalized communities.

Second, the discharge piece affects Indigenous women and women who are caught in a cycle of violence and then charged along with their spouses. We call that dual charging. Often they will then be discharged.

Those are the people who will be affected by this reverse onus. I proposed that amendment, which passed at committee, to remove the discharge piece because this is where we see the overrepresentation of Indigenous women in prison.

In August, I went to visit Grand Valley Institution for Women. I had never been inside a prison before. I know the statistics; I’ve heard the statistics. We heard them when we were having the debates around Bill C-5. But when you sit in that prison in a town hall gathering, you actually see the overrepresentation. You see that more than 50% of the women sitting there in front of you are Indigenous and realize that those statistics have real and true meaning.

My point is that we did not hear any data from the witnesses to support that this reverse onus would be helpful, but it could create more overrepresentation of Indigenous women in particular. Thank you.

Will Senator Clement take a question?

Yes.

Thank you. Senator Clement, wasn’t it the case that for this bill generally, we didn’t hear any data, period? I think you probably have to concede that the government didn’t have any data to justify the provisions here, nor was there any on this particular element.

Thank you for those comments, Senator Batters. Of course, I agree with you. All of us around that committee table were troubled by the fact that there wasn’t sufficient data to justify this bill or prove it would work.

My efforts regarding making amendments to this bill revolved around compromise and trying to find a way to make this better — or less bad — for the people who end up in prisons and Indigenous women in particular.

I would like to ask a question of Senator Clement, if I may. Thank you.

I’m always caught on this issue because I also know that the reason this bail reform bill is coming before us — as opposed to the tragic circumstances you mentioned — actually involves the deaths of police officers. Domestic disturbances are one of the most serious issues that police officers respond to. I ask then, was any of that introduced at committee?

Second, what about the second victim of someone who is an abuser? What about the third victim? I appreciate the perspective you come from and, as Senator Batters says, that the data was absent, but I’m concerned we may be missing the point with the bill itself. Taking it out of the bill doesn’t resolve the issue of mass incarceration of Indigenous women.

Senator Boniface, I completely understand that question. I personally struggle with that. Obviously, I’m a Black lawyer. I am very concerned by the overrepresentation of Black and Indigenous people in prison. At the same time, every time I turn on the news, every time I come into the Senate and there is a speech — often given by you — recognizing the life and death of yet another police officer, it’s a struggle. But I have to come back to data. I have to come back to evidence, which we need to make legislation that is not just reactive and will actually be effective in making communities safer.

For this bill, we just didn’t hear the evidence, the data, to support that this change would make things better for our communities, for police officers, for women — Indigenous women and women who are victims of violence. We just didn’t hear it.

I completely understand what you’re saying. It’s a constant struggle. The Standing Senate Committee on Legal and Constitutional Affairs, or LCJC, is the hardest committee to sit on, but we should be data-driven and evidence-driven, and we didn’t see it here. I didn’t see it here.

Thank you very much. I know you share the same concerns I do. I want a bill that’s effective, but I look at events such as the ones that just took place in Sault Ste. Marie as an example. Again, there is a second victim, a third victim, now a fourth victim and a fifth victim. I’m not saying that case had anything to do with bail, but the violence that is in perpetrators does not just impact one person. I guess I’m surprised that the committee didn’t hear some evidence regarding repeat offenders.

We didn’t hear much evidence at all. We heard the government saying they’re making efforts and will start trying to collect data. We know that in provinces like B.C., they’re trying to make more investments in data collection, community building and community supports, but I can’t say that I heard evidence regarding that.

We did hear Michael Spratt, who is a defence attorney, talk about the dual charging and the fact that the discharge piece was particularly egregious for Indigenous women. We did hear Michael Spratt around that, but in regard to what you’re speaking to, I don’t feel that I heard sufficient evidence to justify saying this bill will actually make us feel safer.

The point of my two amendments is really to try to make it less bad, if I can say that again.

Would you be willing to answer a question or two?

Yes, of course.

Senator Clement, you’re a lawyer. You must know that the Criminal Code already provides for the reversal of the burden of proof in some cases. The Parole Board of Canada also applies a reverse onus when dealing with repeat offenders.

I’m trying to make the connection between taking a privilege away from someone who was granted a discharge and the overrepresentation of Indigenous people in prisons. Should your logic not apply to the bill as a whole? Even if we adopt your amendment to the bill, will it really reduce the overrepresentation of Indigenous people in prisons when this affects just one in every 1,000 men who are granted a discharge?

What is the connection between your argument that there are too many Indigenous people in prisons and discharges? Instead, you should be encouraging all senators to vote against the bill. There’s no connection between the granting of a discharge and the overrepresentation of Indigenous people in prisons, unless you can show otherwise.

Thank you for your question. I repeat: It really comes down to the fact that there is no evidence that this type of bill will be effective in protecting people. I didn’t think there was enough evidence to prove that this legislation would work the way it is supposed to work. I am repeating myself, but I’m telling you that I didn’t hear any such evidence. The evidence I heard is that Indigenous people are overrepresented in prisons. We heard that during the debates on Bill C-5 and again this time. I would say that I saw far more evidence on one side than the other. To me, there is consistency in all this.

The issue of Indigenous women is really very pertinent, because they sometimes suffer violence that is truly remarkable and difficult. They find themselves in situations where they are the ones convicted following a dispute. This situation primarily affects Indigenous women, and we heard evidence to that effect. I think it’s a matter of evidence. I understand your point of view and your work with victims. I too represented victims in my career as a lawyer. However, in this case, I have to be guided by the evidence presented in committee. Personally, I didn’t see any. I saw a continuum of laws designed to respond to a difficult situation in communities, but these laws are ineffective, and we don’t have the evidence to show that they could be effective.

I take it, then, that there’s no connection between discharges and overcrowding. However, you’re saying that there is a connection between the reverse onus for offenders from all walks of life and overcrowding. Will you be voting against the bill?

This debate is similar to the one I took part in on Bill C-5, which I voted against. I’ve since been on a journey, and the two amendments I proposed were adopted in committee. If those amendments are included, in particular the one requiring judges to explain that they have considered the issue of Indigenous and Black overrepresentation, I would be able to vote in favour of this bill. That is why I proposed amendments. It’s my job as a senator to improve these laws.

This has been a personal journey for me, and that is why I proposed the amendments. I want to try and improve the situation.

Would Senator Clement take another question?

Absolutely.

When the minister appeared before the Standing Senate Committee on Legal and Constitutional Affairs, I told him that it seemed like he was covering two completely different things in this bill. The very structure of the bill was intended to respond to crimes during which police officers die. There were consultations with the premiers, interventions and a consensus on this part of the bill. Then a clause having to do with intimate partner violence suddenly appeared in the bill. I asked him whether that issue had been raised during the consultation. He told me that they had taken something from a bill introduced by a senator and included it in this bill.

When the officials came back to the committee, I asked them the same question and asked whether there had been a consultation on this part of the bill that has nothing to do with the crux of the bill, since it is on the issue of intimate partner violence. The officials told us that they could not say because the minister’s office had dealt with that.

Do you recall hearing that?

Thank you for that question. Yes, I remember that. It was a surprising answer. It seems to support my argument that there really was a lack of solid evidence, consultation and information to justify the introduction of this bill.

Getting back to your point about the provinces, we know that they fully supported this bill. At the same time, we know that the provinces will have to make investments. We can’t simply bring in a bill without investing in our communities. We’ve heard that British Columbia plans to make investments, but other provinces may not. This debate could lead to inconsistencies.

The time for debate has expired.

Would the senator take a question?

Thank you. As you would expect, the government supports this amendment because it returns the bill to the form that it was when it was passed in the other place with the support of all provinces and territorial governments, who have responsibility for the administration of justice and know something about public safety. I’d like your comments on two things we heard at committee, senator.

First, from the B.C. Attorney General, Niki Sharma. I quote from her testimony before the committee:

. . . I hear from vulnerable women in particular who are victims of repeat violent offenders when they are out on bail. . . . It is my view that there are times in the criminal justice system where it tips over to protecting the community, and this reverse onus is capturing that.

The second piece of testimony that I’d like your views on came from the Native Women’s Association of Canada in their brief to the committee, where they wrote, “Protecting them from their abusers between when charges are laid and a hearing is an important concern.”

There was testimony, as you know, to that effect, indicating that the second charge is often the tip of the iceberg and, indeed, the first charge may have been as well.

Are you not concerned that, with the best of intentions, removing this amendment actually does put vulnerable victims at risk?

Would the senator take a question?

Honourable senators, I think an important clarification needs to be made. We are studying a bill that deals with domestic violence involving a firearm. It does not address all cases of domestic violence, only those committed with a firearm.

Madam Senator, don’t you think that when a woman is assaulted, if the man, the assailant, has used a firearm, we’re looking at one of the most violent cases?

Senator Simons, in your speech, you primarily referred to absolute discharges. Would you concede that conditional discharges are also included in this same framework and so this would eliminate conditional discharges as well? The types of conditional discharges — as I’m sure you know well from the kinds of cases you reported on — can involve weapons and firearms prohibitions, probation and non‑contact orders for those types of interpersonal violence, which is very common and that can be, of course, more than one.

As well, a discharge involves a finding of guilt, and then a discharge is the type of sanction that the judge chooses for it. That is not the least bad of anything. They have been found guilty of the criminal offence, and this is simply the sanction that has been chosen.

Senator Simons, you’ve said on a couple of occasions that you object if it’s the only brush with the law. There’s evidence both before the committee and more generally that very often intimate partner violence does not get reported. Complaints are withdrawn, and charges may or may not be laid.

How do you square your phrase with the fact that it is clear that women are often victims of violence for protracted periods of time before the law gets involved and that the risk increases once charges are laid?

The time for debate has expired.

Is leave granted?

Are honourable senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

All those in favour of the motion will please say “yea.”

Those opposed to the motion will please say “nay.”

I think the nays have it.

I see two senators standing. Do we have agreement on the bell?

The vote will be deferred to the next sitting of the Senate.

Pursuant to rule 9-10 of the standing order, the vote will be at 4:15 p.m. during the next sitting of the Senate and the bells will ring at 4 p.m.