Moved second reading of Bill C-332, An Act to amend the Criminal Code (coercive control of intimate partner).

She said: Honourable senators, it is my privilege to begin second reading debate on Bill C-332, which deals with coercive control of an intimate partner.

I told the sponsor of the bill in the House of Commons, MP Laurel Collins, that I would sponsor her initiative in the Senate because this insidious form of violence has concerned me for years.

Much progress has already been made since Bill C-332 was unanimously adopted by the House of Commons on June 12, after having been amended and improved in several respects by a series of substantial amendments. I will come back to this, but first, a few words about context.

Intimate partner violence against women is a tragedy. A woman is killed every six days in Canada by an act of domestic violence, and, as University of New Brunswick expert Professor Carmen Gill explains, our Criminal Code is outdated because it considers this violence as isolated and one-time events.

I quote her:

. . . the Canadian criminal justice system primarily places emphasis on evidence of physical violence, first responders are to find evidence of such violence. Consequently, there is a neglect to question the context of the abuse and the harm caused within these situations, which results in coercive control being unaddressed or dismissed. It is almost impossible for a police officer to recognize the deprivation of rights to freedom, the obstruction of liberty and the dynamic of power and control when they are intervening.

So what is coercive control, the notion at the heart of Bill C-332? It is the abuser’s use of repetitive tactics, such as exploitation, humiliation, manipulation, isolation, and the micro‑regulation of the daily life of his intimate partner. It is, therefore, not a single behaviour but a wide range of behaviours that when taken separately are not necessarily criminal in nature but through their repetition are transformed into coercive control.

This is the heart of Bill C-332, which creates a new offence of coercive control of an intimate partner, punishable by up to 10 years in prison.

Women’s advocacy groups have long realized that there is a host of controlling behaviour that is separate from beatings or even, in the worst cases, separate from femicide.

Ninety-five per cent of victims of physical violence also report the presence of coercive control. What’s more, that violence is gendered. Women and girls represent 79% of the victims of intimate partner violence reported to the police. The public inquiry into the mass shooting in Nova Scotia established that the shooter had a history of coercive behaviour and that he had shot the tires of his partner’s car to prevent her from leaving. The night of the shooting, he attacked and confined her.

In Quebec, the Regroupement des maisons pour femmes victimes de violence conjugale has done a lot of work in the past three years on coercive control by training more than 6,200 stakeholders in police, judicial and health care settings. Even in the absence of legislation, awareness of coercive control can help stakeholders identify a woman in distress. This training is based on the 13-year hell experienced by a mother who I will call Marie, who agreed to share her ordeal with me in detail.

At first, he was a caring partner, but he gradually began to isolate her. He was always keeping track of her and was obsessively jealous. After the birth of their first child, he “screamed and yelled at her” — those are her words — until she curled up in a ball on the floor to protect her baby who was wailing. Marie said that her partner drank and that he began yelling more and more. He was extremely aggressive, but he didn’t hit her because, as he said, he didn’t want to leave marks.

Marie, who was financially dependent on her partner, lived in fear of the next crisis and she ended up fleeing her home after her mother told her that she was going to end up dead. The situation was so stressful that a series of medical problems left her with brain damage. Since coercive control is not yet an offence, the former partner of another survivor, Brigitte, was convicted for only one aspect of all the violence she suffered: stalking. He was not convicted for all of his ongoing controlling behaviour or for the psychological abuse he inflicted on her for nine years; rather, he was convicted because, after they separated, she recorded their telephone conversations about the custody of their child for six months. The judge read some of these violent and denigrating remarks to the court. I will quote a few of them: “When I look at you, you’re dead, lifeless. I don’t understand why you aren’t sick. You’re good for nothing.” “You’re going to shut your damn mouth. You’re no good. You’re retarded.”

He called her a stupid, worthless bitch.

Once, he said, “I don’t give a shit what you say. I can do whatever I want with her. Stop asking her how she feels about having supper at my place.” He was talking about his daughter.

The accused was sentenced to 30 days served at home, one day a week.

Brigitte explained that there wasn’t much physical violence. It took her a while to realize what was going on. In between blackmailing her, preventing her from interacting with her friends, threatening, manipulating and insulting her, he gave her gifts.

That’s why, in order to help women, to help mothers like Marie and Brigitte, it’s time we made coercive control a criminal offence. It’s not an easy concept to pin down, though.

See, the original bill was radically altered in the other place’s committee. Justice Canada added 14 amendments informed by input from the provinces and territories, stakeholders, and especially the Scottish law on coercive control, which has been in force since 2019.

The proposed offence includes two distinct elements that are psychological in nature.

264.‍01 (1) Everyone commits an offence who engages in a pattern of conduct referred to in subsection (2)

(a) with intent to cause their intimate partner to believe that the intimate partner’s safety is threatened; or

(b) being reckless as to whether that pattern could cause their intimate partner to believe that the intimate partner’s safety is threatened.

One major strength of this legislation is that it includes a non‑exhaustive list of about ten identified and repeated patterns of conduct. Specifically, these include using or attempting to use, or threatening to use violence against the intimate partner, a child or an animal; coercing or attempting to coerce the intimate partner to engage in sexual activity; controlling, attempting to control or monitoring the intimate partner’s actions, movements or social interactions or the manner in which the intimate partner cares for a child; controlling or attempting to control any matter related to the intimate partner’s employment or education, property, finances, expression of gender, physical appearance, manner of dress, and so on.

A number of expert witnesses called for this kind of list during the committee study to help the legal system understand the kinds of conduct that might constitute an offence.

Another amendment that was passed states that the analysis has to be objective, in other words, it has to pass the “reasonable person” test.

I would ask lawyers to listen to the following. This approach reduces the risk of revictimization by ensuring that the evidence before the court isn’t based solely on the victim’s testimony or perceptions. The idea is to focus the court’s analysis on the behaviour of the accused.

The key question is this: Is it reasonable, given the context, to expect the intimate partner to believe that her safety or that of someone she knows is in on the line? This objective test allows for the protection of a victim who can’t name the threat, when the conduct of the accused is objectively likely to cause fear. It also allows for the protection of an accused whose conduct would not objectively likely cause fear, even in the victim’s own circumstances.

Other significant improvements to the bill are also worth mentioning.

A clarification was added, saying, and I quote, “For the purposes of this section, and for greater certainty, a person’s safety includes their psychological safety.”

The idea here is obviously to emphasize the fact that violence, and therefore a person’s safety, is not just physical.

In another important addition, the bill states that we must take into account, and I quote, “the nature of the relationship between the accused and the intimate partner, in particular whether the intimate partner is in a position of vulnerability in relation to the accused.”

We’re talking here about the word “vulnerability.”

Why was this added? It was added so that the justice system will take into account the power imbalance when the aggressor tries to turn the complaint of coercive control against his or her intimate partner. In such cases, the vulnerability analysis will enable the court to identify who the real victim is, rather than using false equivalencies.

This bill drew criticism as soon as it was introduced.

Some groups are worried that making coercive control into a new criminal offence will negatively impact Indigenous people and racialized and marginalized communities that are already over-represented in prisons.

Others are concerned that this new offence could be turned against women who are trying to protect their children from their spouse’s violence. Still others think that the concept of coercive control is too broad and that it could be challenged or misinterpreted.

These criticisms are legitimate, but they were made before the bill was significantly amended. The Senate committee will have to determine whether the government’s amendments resolved these issues in a reasonable manner.

We will also need to have conversations with the communities that are most concerned about this before Bill C-332 comes into force. We have the flexibility to hold such consultations because there’s no maximum deadline for the coming into force of this bill.

I would add that there are ways of limiting the risks of errors.

First, everyone agrees that the secret to success is raising awareness and training stakeholders who are in contact with the victims to properly detect coercive control.

For example, police officers need more time and there needs to be new, longer and more detailed questionnaires for those who file complaints. According to Karine Barrette, lawyer and project manager at Regroupement des maisons pour femmes victimes de violence conjugale, the Nova Scotia experience shows that when the dynamic and patterns of coercive control are mastered, prosecutors and police officers find it easier to prove coercive control than the isolated incidents of physical violence. When people understand what coercive control is, they are better able to identify who the main attacker is, including when there are intersecting complaints by both partners. It seems that, in Great Britain at least, the offence of coercive control hasn’t backfired against the victims so far.

A delegation made up of two jurists and one police officer from Quebec went to Scotland and England last May to see what they could learn from their experience. Members of the delegation reported that, although there were some difficulties, British and Scottish police officers, prosecutors and victim assistance groups would never go back. They don’t have conclusive evidence yet — the whole COVID thing delayed implementation of the act — but Scotland believes it’s on the right track, partly because everyone was trained before the law came into effect.

In conclusion, contrary to what some people claim, Bill C-332 will not transform everything into coercive control. This is really about behavioural tendencies over long periods of time. No single act constitutes coercive control.

According to Professor Carmen Gill, an expert on this issue, passing Bill C-332 is crucial. She said:

It is important to reinforce women’s safety. . . . An offence of coercive control would clearly recognize the fact that IPV is a pattern of control and power over the victim and would legitimize victims’ experiences. Such an offence may also prevent intimate partner homicide.

What we don’t want anymore is for victims of coercive control to avoid seeking help because they believe that what they’re going through isn’t that serious or doesn’t break the law. That’s what happened to Marie for 13 years. We also want to make sure that these women are taken seriously when they bring a complaint even though they have no bruises. It’s also important to keep in mind that the harassment often continues after a separation, like it did in Brigitte’s case, who went through three years of violence after her separation.

I want to acknowledge the courage of these two survivors, who told me about the trap that slowly swallowed them up. Marie and Brigitte, I wish you a better life.

Having said that, esteemed colleagues, I look forward to hearing your respective opinions on Bill C-332. I sincerely hope that this bill, awaited by many women, will receive serious consideration in committee as soon as possible. Thank you.

Senator Miville-Dechêne, would you take some questions?

Certainly.

I want to thank my colleague for bringing this very important bill forward. I very much look forward to the debate and the study of this bill, which proposes a very significant new criminal charge. When we are looking at criminal charges, we have to be very careful, because we already have a fair degree of what some of us would believe is an over-incarceration in our country.

You know that I am very sympathetic. I spoke in this chamber about Shanna Borden Desmond, Anna Maria Tremonti and Lisa Banfield. All three were victims of coercive control in my province of Nova Scotia. We also know that coercive control can lead to intimate partner homicide. As we’ve seen in the Nova Scotia case, it can also lead to homicide more generally, so this is serious.

I want to ask about other remedies, more than just incarceration. What are the other considerations that have been looked at by those who are studying coercive control to prevent it and to address it? Are there other things that have been brought forward as remedies for this, other than incarceration?

I will answer you in French. I understand, and I mentioned that this bill raises important issues because people who are marginalized, racialized and discriminated against are generally overrepresented in prisons. It’s clear that we will have to have some serious conversations with these communities before the bill comes into force.

There’s no opposition in all of these circles, because, obviously, such violence exists. What I can tell you is that everyone that I’ve spoken to who works in this field says that, even without legislation, we have to make sure that we train anyone who is working with these victims so that they can detect coercive control, because that’s the most important thing. If those who are experiencing coercive control — usually it’s women — don’t realize what is happening, then it’s much harder for them to get out of the situation, because they think that it is normal, that it is a personality thing, that it is their fault and that they didn’t do the right thing. All of this can be spotted by people working in hospitals and help centres, but that requires training.

What I think is incredible about the shelters in Quebec is that they weren’t expecting the legislation. They have been providing training for three years and they say that there is already a better understanding. Soon there will be a website available and some documents are being translated so that everyone can have access to a simple explanation of this phenomenon.

I would say that this idea of training and raising public awareness is without a doubt the important part that precedes the legislation. However, none of the people I spoke to at length believe that the situation could be resolved without legislation. It is very good to raise awareness, it is very good to train police officers, but without legislation, if we don’t amend the Criminal Code, we won’t see the result of this hard work.

I know that incarceration is not the only solution; I am well aware of that, but at the end of the day, to prevent impunity, I personally feel that coercive control needs to be a criminal offence.

Yes.

That’s not how I understand the definition of “intimate partner” that already exists in the Criminal Code. Clearly, to use violence against any person who is 18 years old and is the child of the intimate partner . . . In fact, a child can be involved in coercive control to the extent that he or she can become the victim of one of the intimate partners, but there has to be an intimate partner relationship, either past or present, in other words a relationship that was once intimate for the concept of coercive control to be used.

You’ve hit the nail on the head. This is a new offence that’s hard to define. No one is denying that a certain degree of judgment will have to be used. I think the important word is repetition. A one-time thing, a tantrum or screaming fit, is different than repeated behaviour that becomes a way of being. There’s obviously a difference. Not all sexual violence offences are easy to prove. This offence won’t necessarily be any different from sexual assault, which, as you know, aren’t easy to prove. Many cases never make it to court because prosecutors feel they don’t have enough independent evidence. It’s never going to be easy. These things often happen in private, but there may be witnesses, including children, relatives or close friends.

Yes, this is a leap of faith, but Scotland and England have done it, and they’re satisfied insofar as this is one more tool they can use to detect violence against women in general. Of course, the opposite can happen too, but this is gendered violence. The idea is to create one more tool to help these women. Yes, we need social services and so on, but this idea, this new offence, reflects reality. For decades now, women’s groups have been saying that, alongside physical violence, there’s something much more insidious: coercive control. In my opinion, opting to do nothing because it’s complicated is not the right approach.

Yes, this is a relatively complex offence. That’s why putting examples right in the bill helps the justice system. It helps everyone. The first version of the bill was two and a half pages long and contained no examples. This version is better. It’s now six pages long. I’ve talked to several stakeholders about the amendments, and they make sense. They’re the kind of thing a number of witnesses asked for in committee.

I think this bill is relatively solid in the sense that, as you said, this offence will undoubtedly be tricky to pin down, but that will get easier as awareness grows and people understand the phenomenon better.

Thank you for sponsoring this bill, it’s an important issue. As you know from my inquiry, I have an interest in this issue and have for a long time.

I wanted to just point out that Ontario and Quebec are doing very similar things from the policing perspective in terms of the amount of oversight and training around these sorts of issues on risk assessment.

I would ask when the committee looks at this — and I’m asking if you think this is important — to also look at the other services available, somewhat in line with Senator Coyle. At least in the province I’m in — and the inquiry from Renfrew would tell you this — totally unfunded and poorly funded services that should be in place to support this.

The second issue is when you have high-risk offenders who are repeat offenders with different victims, the penalties they have already received, the sentences they’ve already received, probation and the direction to take anger management they’ve received is never followed up on. I would ask, as you lead this with the committee, to take a look at the range of issues that fall around this so that we don’t find ourselves with basically a new legislation that has no effect because the resources around it are not effective.

Thank you for these comments. It is true that, in many cases, there aren’t enough resources to implement new laws. In this case, I wouldn’t support an approach that would only criminalize behaviour. The whole system has to change. The same goes for all other forms of violence.

I would say that it’s a truly systemic problem. Laws have to be passed, of course, but implementing them and changing things is just as necessary. I must tell you that many of the laws that I’ve carefully studied — including legislation on prostitution — failed to get the necessary framework that would allow women to withdraw from this activity if they want to, provide them with guidance and organize awareness campaigns so that the people who procure sexual services know that prostitution is sexual exploitation. Attitudes need to be changed. Social services are needed to address this, and the same goes for coercive control.

As someone who has worked for about 35 years with women’s organizations from gender-based violence and all that that entails, I am happy to see the attention that this will bring. I have some surrounding concerns around the application of it, and how folks particularly from Black, Indigenous, and racialized communities will be protected.

You mentioned that the changes since then have been put in place. I’d love to learn more about that. Forgive me, it’s my first day back, so I’m not as up to speed as I should be, but I’d like to learn how that is working because in current legislation, it’s happening. I would not like to see new legislation introduced that then compounds the issue that is already in place.

I’d like to just learn more about that and maybe ask the committee to be very specific about how that is being mitigated. Thank you.

Thank you for the question. If I understand you well, are you saying that in the justice system we’re already taking into consideration coercive control? Or did I miss something? I’m sorry?

Thank you. No. I’m saying that in current criminalization legislation, the laws that are currently being used already are discriminating in terms of their application, so how will that be mitigated with this new piece of legislation?

Yes, it’s my mistake, I didn’t understand well.

It’s a vast and highly complex question. Criminalization doesn’t have the same effect on every segment of the population. I mention it because it came up in committee. I would never presume to speak on behalf of racialized communities, with a disproportionate number of their members imprisoned, but in this particular case, it seems to me that allowing some time for conversations before the legislation takes effect would at least provide an opportunity to hear from these communities and see things through their eyes.

Is a consultation enough? I’m not a clairvoyant, and I don’t want to make any promises. This is a problem in a society where there are blatant inequalities and where the laws are supposed to apply equally to everyone. That is not the case. I understand all of these issues of systemic discrimination.

Does that mean that, because of that, we can’t create new offences that address a reality? I wouldn’t go that far. However, we have to take serious precautions. What I find somewhat reassuring is that the amendments strengthen the bill. The Senate committee will be able to look at the context surrounding this new offence. I believe that enough of my colleagues on the Legal and Constitutional Affairs Committee have sufficient awareness of this issue that they will be able to raise it and have witnesses come and talk about it.