Third reading of Bill C-3, An Act to amend the Judges Act and the Criminal Code—Amendment by Senator Boisvenu

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond: Honourable senators, I want to congratulate Senator Boisvenu on his Bill S-231, for which he gave the first speech at second reading yesterday, and on his dedication to helping women who are victims of violence, including intimate partner violence. This issue matters very much to me and to the many other Quebecers with whom I marched on Friday, April 2, in Montreal.

According to an increasing number of studies, intimate partner violence is often associated with the abuser’s desire to control the victim. Moreover, if the couple separates, the abuser is more likely than any other member of society to murder their spouse.

The latest femicide numbers for Quebec show that this phenomenon calls for a joint federal-provincial strategy supported by experts in the field, including those responsible for resources that help violent individuals and those involved in supporting victims, such as shelters for women who are victims of abuse and violence.

I want to highlight two Quebec reports that were released last December. First there was the report of the Domestic Violence Death Review Committee headed up by the Quebec coroner’s office, which includes 28 recommendations, and then we had the report of the Expert committee on support for victims of sexual assault and domestic violence, entitled Rebuilding Trust, which contains 190 recommendations, including providing training for all social and judicial actors. Both reports and their recommendations target actors involved in the judicial process as well as governments and lay out the complexity of the problem.

Earlier today, the Government of Quebec announced a budget of $71 million to promote better care for victims of domestic violence and ensure enhanced monitoring of offenders.

For now, the fact remains that the sad reality of domestic violence is part of the social context that every actor, including those involved in the judicial process, must consider.

Senator Boisvenu’s proposed amendment seeks to indicate to the Canadian Judicial Council that Parliament wishes to include domestic violence in the development of mandatory training for new judges and in the training for those already in place.

In light of the proposed amendment, we must ask ourselves two things: First, what is to be gained from adding these words and, second, what would be the consequences to the coming into force of a bill that has been moving through the parliamentary process for more than four years?

As I mentioned earlier, domestic violence is an unfortunate part of the social context in Canada and part of the reality of too many women. It cannot be ignored by anybody, including all the actors involved in the judicial process, such as police officers, lawyers and judges.

In Michel v. Graydon, rendered on September 18, 2020 — a case involving family law issues — the Supreme Court made some comments relevant to our discussions today:

Women in relationships are more likely to suffer intimate partner violence than their male counterparts . . . As a result, they are more like to leave their home and belongings — and their financial security — behind and to seek shelter or become homeless. . . . The impact of a history of violence on a person’s emotional health and their consequent potential fear, unwillingness to engage with their past abuser, or inability to do so are just as apparent. In addition to this, “some abusive fathers may use the child support process as a way to continue to exercise dominance and control over their ex‑wives. . . .”

Given the gender dynamics in child support law, legal rules cannot ignore the realities that shape women’s lives and opens them up to experiences and risks less likely to be experienced by men: like intimate partner violence, a higher proportion of unpaid domestic work accompanied by less work experience and lower wages, and the burden of most childcare obligations.

In other words, domestic violence is part of the social context that judges — all judges — must take into consideration when dealing with cases before them, be it in family law, in civil law or in criminal law.

For this reason, in addition to the $6 million allocated to judicial training generally every year, on April 26, 2017, the then-Minister of Justice and Attorney General of Canada, the Honourable Jody Wilson-Raybould, announced almost $100,000 in additional funding per year to the National Judicial Institute to:

. . . develop training for both federally and provincially appointed judges that will focus on gender-based violence, including sexual assault and domestic violence.

When Justice Adèle Kent from the National Judicial Institute appeared before the Senate committee earlier this year, she referred to the fact that they have delivered 21 training sessions on sexual assault cases, domestic violence, human trafficking, victim rights and trauma-informed treatment. She went on to say that, recently, the National Judicial Institute has issued material dedicated entirely to the psychology and law of domestic and intimate partner violence.

In other words, domestic violence is part of the training and material now offered to judges. Maybe it’s coming late, but it has come, and more has to be done, I’m sure.

Judicial training on domestic violence is now imperative since it is a key focus of the new Divorce Act that came into force on March 1 of this year.

Unsurprisingly, judges are increasingly more familiar with domestic violence and the need to stop and prevent it. For example, a few weeks ago, the Court of Appeal of Quebec, in a case called R. v. Davidson, allowed an appeal by the Crown to double the sentence imposed on a man who, while drunk, violently assaulted his intimate partner to force her to repay some money that he had lent to her child. In this case, the Court of Appeal of Quebec reversed the judgment rendered by a provincially appointed judge, who will not be subject to this law, unfortunately. Allow me to quote some excerpts from this judgment:

. . . the Court has emphasized on several occasions the added weight that must be given to the objectives of denunciation and deterrence in the context of domestic violence. Indeed, sentencing in these matters pursues two main imperatives: to denounce the unacceptable and criminal character of domestic violence and to enhance the confidence of the victims and the public in the administration of justice.

. . . even when an accused shows encouraging signs of rehabilitation, the objective of rehabilitation should not take precedence over the objectives of deterrence and denunciation in matters of domestic violence.

Let me add that trial judges have not been spared.

An August 2020 article in Droit-Inc. quotes Justice Buffoni of the Quebec Superior Court, who said the following:

The time when women were the property of men is over, but unfortunately, that belief continues to prevail.

In another ruling quoted in the same article, his colleague, Justice Hélène di Salvo of the Quebec Superior Court said the following:

Too many women are murdered by a jealous partner who is unable to accept the breakup.

As we know, in Quebec, 98% of criminal cases are tried before judges of the Court of Quebec, who are appointed by the provincial, not the federal, government. When faced with criminal law cases, Quebec Court judges have also focused on the importance of addressing family violence.

Similarly, I would like to quote some very recent rulings of the Court of Quebec, which also focused on the importance of addressing family violence.

In R. v. Michel, which was rendered in March 2021, Justice Julie Riendeau wrote, and I quote:

 . . . in this case, a sentence other than incarceration would obscure . . . the need to express that domestic violence is not tolerated . . . .

On March 26, 2021, a newspaper reported that her colleague, Justice David Bouchard, said the following to an abuser in another case:

You and you alone are responsible for your actions . . . .

Society is increasingly condemning this kind of behaviour. It is important to condemn [this] behaviour and to dissuade you from reoffending . . . .

The next day, March 27, the daily La Presse quoted Justice Érick Vanchestein in R. v. Cormier, as follows:

 . . . the increase in the number of domestic violence cases over the past year and a series of femicides since the beginning of 2021 illustrate the importance of this social issue.

Accordingly, while not overlooking the objectives of rehabilitation and social reintegration, this case demands that the court give primary consideration to the objectives of denunciation and deterrence.

In other words, the judiciary is demonstrating that it is now very aware of the social context of domestic violence.

Commenting on these decisions, Manon Monastesse, the executive director of the Fédération des maisons d’hébergement pour femmes du Québec, called it a sign of the times and said it was encouraging.

All of this must factor into our assessment of whether the proposed amendment is absolutely necessary or not.

It should also be noted that today is May 6, and there are only a few weeks left on the parliamentary calendar before the adjournment, currently scheduled for June 23. Many bills, including budget measures, will need to be passed in this short period of time.

If we amend Bill C-3, a message will have to be sent to the House of Commons, and the Minister of Justice will have to come up with a response after cabinet makes a decision. He will then have to ask the House of Commons to endorse that response, but, as everyone knows, the government does not have a majority and seems to be having a hard time controlling the agenda.

During her Senate committee appearance on March 31, the Honourable Rona Ambrose, who is well aware of all that, urged us not to amend the bill further but to hasten passage at third reading.

Now I, too, would urge you to pass this bill, which has been going through the process for more than four years. Thank you for your attention. Meegwetch.

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