Second reading of Bill C-233, An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner)

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond moved second reading of Bill C-233, An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner).

He said: Honourable senators, today, I have the honour to commence second reading of Bill C-233, An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner).

This bill was introduced in the House of Commons on February 7, 2022, by Anju Dhillon, the member for Dorval—Lachine— LaSalle and a family and criminal lawyer, in cooperation with Pam Damoff, the member for Oakville-North—Burlington and Parliamentary Secretary to the Minister of Public Safety, and with Ya’ara Saks, the member for York Centre and Parliamentary Secretary to the Minister of Families, Children and Social Development.

It was changed slightly by the Standing Committee on the Status of Women and then unanimously passed by 326 MPs on June 1. Unfortunately, this bill arrived in the Senate when we were working exclusively on government bills.

Although it consists of only four provisions, including one on the coming into force of the act, Bill C-233 proposes two measures that should help reduce incidents of violence, including femicide, against women who want to end a toxic relationship.

First, Bill C-233 proposes to amend the Criminal Code where an accused is charged with an offence against an intimate partner. Before making a release order, this change would require a justice to consider whether it is desirable — regarding the safety and security of any person — to include that the accused wear an electronic monitoring device as a condition of the bail order.

Second, Bill C-233 proposes to amend the Judges Act to signal to the Canadian Judicial Council the importance of continuing education seminars for judges on matters related to intimate partner violence and coercive control in intimate partner and family relationships.

I will start with the two proposed amendments to the Judges Act.

Those of you who were here in 2017, 2018 and 2019 remember the failed attempts in this chamber to reach a final vote on Bill C-337 introduced by the former leader of the Conservative Party, the Honourable Rona Ambrose. That bill aimed to improve judges’ knowledge relating to sexual assault law and social context by inviting the Canadian Judicial Council to establish seminars on these issues.

In September 2020, the government introduced a bill to the same effect, Bill C-3, that included social context, systemic racism and systemic discrimination. That bill was adopted by the Senate and became law on May 6, 2021.

Bill C-233 proposes that the Canadian Judicial Council be invited to offer seminars to judges on the following subjects: intimate partner violence and coercive control in intimate partner and family relationships.

Thus paragraph 60(2)(b) of the Judges Act would read that, “In furtherance of its objects, the Council may”:

. . . establish seminars for the continuing education of judges, including seminars on matters related to sexual assault law, intimate partner violence, coercive control in intimate partner and family relationships and social context, which includes systemic racism and systemic discrimination . . . .

With this proposed change, Parliament will signal to the Canadian Judicial Council and to judges the high importance that our society places on intimate partner violence and coercive control.

Notably, Parliament would signal the necessity of protecting all family members from becoming the victims of the father exercising coercive control. In addition, Parliament will invite the Canadian Judicial Council to provide information on its annual reports on seminars offered on all the matters indicated in paragraph 60(2)(b), which I just read.

This part of Bill C-233 is described as “Keira’s Law,” in memory of Keira Kagan, a four-year-old girl killed in Milton, Ontario, by her violent father in what was likely a murder-suicide in February 2020.

Despite serious allegations by the mother that the father was a violent husband, the Ontario Superior Court of Justice granted him access rights. In fact, it seems that the judges tasked in 2018 and 2019 with deciding on access rights had assumed that the violence manifested by the husband against his wife did not mean that he could not be a good father and that he should, therefore, be denied access rights to their daughter, Keira.

Since this tragic event, the mother, Dr. Jennifer Kagan-Viater, and her spouse, Philip Viater, a lawyer who practises family law, have been working relentlessly to ensure other families do not suffer the pain of losing a child killed by a violent parent. Among the measures they seek is more training for all those involved in family law cases, including judges, about the importance of considering indicia of violence before deciding matters of custody and access rights.

Those proposed additions to the Judges Act will encourage the Canadian Judicial Council to continue and even expand its efforts to train judges on intimate partner violence and controlling spouses.

In the last two years, the Canadian Judicial Council has authorized numerous conferences, seminars and tools for judges, all provided by the National Judicial Institute. Those initiatives are funded by public money. The annual budget of the council exceeds $30 million, including over $6 million for education and assistance tools for judges.

As you might remember, in the 2019 budget, Parliament authorized the government to increase the amount allocated to judicial education by $5 million over the following 10 years.

Let me give you some examples of the programs currently offered.

One is a mandatory 10-day course for newly appointed judges that is intended to provide them with the essential knowledge, skills and understanding of social contexts to succeed in their new role. The course includes training on sexual assault trials, and on the myths and stereotypes that might arise in those trials. It also includes training on the importance of considering violence in family law matters.

As for sitting judges, they must attend two courses called Judging in Your First Five Years: Criminal Law. One is related to criminal law and the other one to family law. In addition, as part of their continuing education plan, sitting judges are invited to participate in national seminars and conferences in family law, criminal law, access to justice for children, jury trials, gender-based violence and similar topics.

Furthermore, appeal courts and superior courts organize annual general meetings that include training. Since January 2018, 50 live-education programs have been offered during these annual meetings, dealing in whole or in part with issues related to intimate partner, domestic or family violence; sexual assault trials; and social contexts.

Digital resources are also made available to judges on sexual assault, Indigenous people’s issues, intimate partner and family violence, evidence, family law and jury instructions.

As said previously in this chamber, studies have shown that violence against a parent harms the children of the family. In fact, a violent husband cannot be a father who is able to act in the best interests of the children.

That is why Parliament adopted substantial amendments to the Divorce Act in 2019. Those changes were designed to identify violent acts and to force all those involved in divorce proceedings, including lawyers, social workers, psychologists and judges, to consider such acts in reports, agreements and decisions relating to sharing parental time and responsibilities.

The ultimate goal of those amendments has been to protect the ex-spouse and the children against further violence following separation, especially from husbands who have exercised coercive control over their spouses. Studies show that despite a separation, such husbands will often resort to violent acts to try to resume coercive control, including harassment, threats, assaults and even murder.

Since the coming into force of the reformed Divorce Act on March 1, 2021, we have seen a shift in the jurisprudence. A growing number of rulings handed down by the lower courts, appeals courts and the Supreme Court of Canada are noting the importance of considering incidents of family violence, assuming they are against the best interests of any child and putting measures in place to ensure that the former spouse or the children are no longer exposed to violence.

On May 20, in Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court of Canada stated, and I quote:

The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis: s. 16(3)(j) and (4). The Divorce Act broadly defines family violence in s. 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.

That is a clear and unequivocal message from the Supreme Court to every judge and member of the judicial system and the law societies.

I could also quote numerous rulings handed down by provincial criminal court judges, superior family court judges and appeal courts across the country that confirm that Canadian courts now take family violence and intimate partner violence very seriously.

In my view, this change in attitude is the result of several factors. These include the aforementioned amendments to the Divorce Act and the Criminal Code relating to intimate partner violence, the importance that media and society have placed on the issue of spousal violence, and the increased knowledge within the justice system of the serious consequences associated with spousal and family violence. This growing awareness in the court system needs to be further encouraged, specifically through training for judges and lawyers.

I will now move on to the amendments to the Criminal Code.

Bill C-233 proposes to amend section 515 of the Criminal Code that deals with judicial interim release, called bail orders.

When a person is arrested and charged, the principle is that the accused should be released without conditions pending the completion of the judicial process, unless the Crown shows that the detention of the accused is justified or that the release order should be accompanied by conditions.

There are some exceptions to that rule. For example, further to the adoption of Bill C-75 in 2019, when the accused has been previously found guilty of a violent offence against an intimate partner, it is up to the accused to show that their release could be managed safely for the alleged victim. Bill C-233 proposes to add that when the person is accused of an offence involving violence against an intimate partner, the judge can impose as a condition of release that the accused must wear an electronic monitoring device if the attorney general of the province makes the request.

In our digital and connected world, there are two types of devices. It could be a bracelet, worn by an accused, which is connected by radio frequency to a telephone line in the place of residence in order to indicate to a monitor in real time that the person is always in the place of residence. For example, if a convicted person has been released under the condition of staying at home at all times, such a device ensures compliance or at least serves as evidence of a breach of compliance.

A second type of device allows for the geolocation of a person at any time. In cases of intimate partner violence, such a device could be ordered for a convicted person when the release order includes the condition to maintain a certain distance from the house or place of work of the victim. A breach of the order could automatically be signalled to a monitoring centre that could alert the victim and dispatch the police. A more sophisticated system provides a corresponding electronic device to the victim that will automatically signal the presence of the accused if they are within a certain range.

Under the current provisions of the Criminal Code, a judge could order an accused person to wear an electronic bracelet as a condition of a bail order, assuming that it is available in the place of residence of the accused. This condition is often offered by the accused to show his desire to comply with the bail order and willingness to assume the associated costs.

One of the main providers is Recovery Science Corporation of Bradford, Ontario. According to its website, since 2010 over 800 people across Canada have been granted pre-trial release when including its GPS program as part of their plan of supervision. The company then enters into an agreement with each participant that includes a comprehensive waiver of confidentiality that enables it to report violations and share monitoring data with police, as well as the payment of over $600 per month for the service.

Incidentally, in a case before the Superior Court of Quebec in November 2021, this company acknowledged that with a good pair of scissors it was possible to cut off the bracelet, and that it had happened about 130 times so far, which is, more or less, about 15% of the cases.

It is also worth noting that wearing a bracelet may be ordered currently pursuant to the Immigration and Refugee Protection Act and the Corrections and Conditional Release Act to monitor compliance with conditions such as house arrest, curfew or not leaving a certain area. Bill C-233 proposes to make it clear to the Crown, the accused, the victim and the judiciary that such a condition in a bail order should be considered as a way to not only deter non-compliance but also protect the alleged victim in cases of domestic and intimate partner violence, pending criminal proceedings.

The sponsor of the bill in the other place has chosen to focus on bail orders because it is in the first 18 months post-separation that many women or children are killed. Statistics show that the post-separation period is an enhanced period of danger for the victims of violent partners. Of course, adopting this bill won’t prevent Parliament from providing for monitoring devices in other circumstances, such as those contemplated in Bill S-205 proposed by Senator Boisvenu.

In all cases, it must be clear that reliance on electronic monitoring devices depends on the existence of proper infrastructure to provide a reliable device, constant monitoring and a timely response if triggered, including from the police. Otherwise, the victims may live with a false sense of security. That’s why it is proposed that such a bail order condition can be imposed by a judge only at the request of the attorney general of the province. Hopefully, this should create an impetus for provincial governments to establish the required infrastructure for such monitoring systems.

On that note, I want to highlight the important initiatives undertaken in my part of the country, Quebec, to establish a monitoring device system. The Government of Quebec is acting on recommendation 84 of a report entitled Rebuilding Trust, which was tabled on December 25, 2020, by the expert committee on support for victims of sexual assault and domestic violence. Recommendation 84 states the following:

Where appropriate, consider requiring the accused to wear an electronic bracelet as a means of further protecting the victim.

This committee also recommended that victims have free-of-charge access to rapid intervention tools, such as emergency telephones, and encouraged the use of other technological methods for keeping victims safe, all at no charge to them.

In response to this report, Quebec adopted various measures. For example, the National Assembly passed Bill 24 in the spring. This bill amends the Act Respecting the Québec Correctional System and authorizes the director of a provincial prison or the Quebec parole board to require, as a condition of release, an offender convicted of domestic violence and sentenced to less than two years to wear a monitoring device that tracks their whereabouts at all times.

Of course, in order for an electronic monitoring device to fulfill its function, the victim’s location must also be known at all times. Therefore, this release condition can only be imposed with the victim’s consent. Quebec correctional services provide victims with the necessary equipment, such as cellphone software that tells the victim when the offender is within a certain distance of her. This is all at no cost to victims. These devices can only be imposed if the judge has ordered it for the accused as part of an application for release.

A budget of $41 million over five years has been allocated to implementing this system. This budget includes funding to train stakeholders in assessing abusive partners, and to cover the cost of equipment and the monitoring of the system. Incidentally, continuous monitoring of these electronic devices has been entrusted to a non-profit security company, the Commissionnaires du Québec, which includes former members of the Armed Forces and the RCMP.

On May 20, 2022, the Quebec government announced the launch of a pilot project in Quebec City. This will be followed by a gradual rollout across Quebec, with four regions to be added this fall, followed by eight more in the spring and, finally, the rest of Quebec in the fall of 2023.

The Quebec Ministry of Public Security estimates that 500 electronic monitoring devices should meet the requirements when the program is implemented across the province. Three devices have been ordered so far as part of the pilot project.

This initiative is in addition to others introduced by Quebec, in particular the creation of courts specialized in sexual violence and domestic violence, the allocation of financial assistance to 11 municipal police forces for the hiring of staff specialized in the fight against domestic violence and femicide, and the provision of funding of treatment services for offenders.

I would remind colleagues that 26 women were murdered in Quebec in 2021, the majority in the context of domestic violence.

The monitoring device is therefore an interesting tool. We hope that, based on the Quebec experience, the National Parole Board will consider requiring offenders involved in intimate partner violence to wear a monitoring device while noting that the effectiveness of this device requires not only the consent of the victim but an adequate system of supervision.

That said, I believe it’s important to point out that to address intimate partner violence we need a comprehensive strategy as demonstrated by the Spanish experience after the adoption in 2004 of legislation addressing intimate partner violence that integrates an approach based on the victim, often a women, as is the case here in Canada, in approximately 80% of cases.

I would like to highlight five features of the Spanish system: specialized courts; specially trained police officers; an effective public awareness campaign on domestic violence — a survey found that eight out of 10 women in Spain are aware of these programs; an information platform called VioGén, maintained by police officers and the various institutions that care for abused women; and an electronic surveillance command centre, connected to the Spain’s department of health, social services and equality, which is responsible for 24-hour monitoring of the bracelets in use.

The use of monitoring bracelets in protection orders increased by 800% between 2009 and 2018, going from 166 to 970, which represents 5.6% of all violence-related orders issued in Spain. In fact, Spain is a leader among democratic countries in terms of the number of bracelets per capita.

These measures seem to be working. In fact, since the 2004 law, the number of femicides in Spain has decreased by 25%.

According to researchers and numerous scholarly articles, documented violations of these orders have been very scarce.

Some of the research also indicates that some victims of domestic violence are resistant to the use of electronic monitoring because this reminds them too much of the dynamic experience when they were living with their controlling partner. They felt monitored at all times. However, the feeling of security and confidence in the system has increased over time, according to Spanish police. It seems that more and more victims are satisfied with the system and that the number of false alarms is decreasing.

Several jurisdictions have followed Spain’s example: Portugal, France, Italy, the United Kingdom, Puerto Rico, Mexico, Chile and Japan.

Electronic monitoring bracelets were implemented in France in 2019. The French government announced an operational capacity of 1,000 units nationwide. As of April 1, 2022, French judges had ordered 995 electronic bracelets to be worn.

In that country, the imposition of an electronic bracelet, which is also referred to as being “placed under electronic monitoring,” may be applied before conviction or as part of the sentence.

What is more, a family court judge may issue a protection order to shelter a woman who is a victim of domestic violence, independently from any criminal proceedings.

Nevertheless, some victims feel that electronic monitoring devices are inadequate because they are not automatically ordered by judges.

It should also be noted that emergency telephones are another device that are recommended for Quebec. France implemented them in 2014, five years before the electronic bracelets. The device consists of a cellphone with a specific button that the victim can press to quickly alert the help line, which is informed of the call and the victim’s geographic location at that precise moment. This service dispatches law enforcement officers who are connected to the service through a special line, either with local police or with the national police force.

According to the French justice department, 3,512 of these phones were available on French territory as of March 1, 2022; 2,566 of them were assigned. That means another 1,000 are available for use.

However, in 2021, some associations criticized the fact that these phones were being handed out so sparingly.

According to the French justice department’s website, the electronic monitoring device is a more versatile tool than the emergency telephone.

There seems to be a big difference between outcomes in Spain and those in France, largely due to the funding allocated to other measures enabling women to get away from violent partners. For example, Spain has 8,600 specialized shelter spaces compared to 5,000 in France, even though France’s population is 30% bigger.

In conclusion, I want to thank the sponsor of Bill C-233, MP Anju Dhillon, and all members of the House of Commons for having unanimously adopted Bill C-233. It contains two interesting measures that could effectively help protect against further domestic and intimate partner violence. Thus, I invite you to adopt the bill at second reading as soon as possible and to send it to committee for review.

However, it should remain clear that the incremental steps contained in Bill C-233, though useful, are insufficient to end intimate partner and domestic violence. A comprehensive strategy must be developed. It must include help for aggressors — especially men — access to resources for victims, including shelters, public education and training for all those asked to intervene, such as police officers, social workers and judges.

Thank you for your attention. Meegwetch.

Hon. Senators: Hear, hear!

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