Domestic Violence
Protection Act, 2000, Bill 117, Mr Flaherty /
Loi de 2000 sur la protection contre la violence
familiale, projet de loi 117, M. Flaherty
Metropolitan Action
Committee on Violence Against Women and Children
Ms Pamela Cross
Freedom for
Kids
Mr David Osterman
Second Spouses of
Canada
Ms Dori Gospodaric
Canadian Bar
Association-Ontario
Ms Cynthia Wasser
Ms Judith Huddart
Family Lawyers'
Association
Ms Mary Reilly
Ms Melanie Sager
Advocates' Society;
Criminal Lawyers' Association
Ms Francine Sherkin
Mr Anthony Moustacalis
Anne Cools; Roger
Gallaway
STANDING COMMITTEE ON
JUSTICE AND SOCIAL POLICY
Chair /
Présidente
Ms Marilyn Mushinski (Scarborough Centre / -Centre
PC)
Vice-Chair / Vice-Président
Mr Carl DeFaria (Mississauga East / -Est PC)
Mr Marcel Beaubien (Lambton-Kent-Middlesex PC)
Mr Michael Bryant (St Paul's L)
Mr Carl DeFaria (Mississauga East / -Est PC)
Mrs Brenda Elliott (Guelph-Wellington PC)
Mr Garry J. Guzzo (Ottawa West-Nepean / Ottawa-Ouest-Nepean
PC)
Mr Peter Kormos (Niagara Centre / -Centre ND)
Mrs Lyn McLeod (Thunder Bay-Atikokan L)
Ms Marilyn Mushinski (Scarborough Centre / -Centre
PC)
Substitutions / Membres remplaçants
Mrs Marie Bountrogianni (Hamilton Mountain L)
Mr John O'Toole (Durham PC)
Mr David Tilson (Dufferin-Peel-Wellington-Grey PC)
Clerk / Greffier
Mr Tom Prins
Staff / Personnel
Mr Avrum Fenson, research officer,
Research and Information Services
The committee met at 1528 in room 151.
DOMESTIC VIOLENCE PROTECTION ACT, 2000 / LOI DE 2000
SUR LA PROTECTION CONTRE LA VIOLENCE FAMILIALE
Consideration of Bill 117, An
Act to better protect victims of domestic violence / Projet
de loi 117, Loi visant à mieux protéger les victimes de
violence familiale.
The Chair (Ms Marilyn
Mushinski): I'll call the meeting to order. Good
afternoon, ladies and gentlemen. This is a meeting of the
standing committee on justice and social policy to consider Bill
117, An Act to better protect victims of domestic violence.
Delegations have up to 20 minutes in which to speak and in which
questions may be asked by members of committee.
METROPOLITAN ACTION COMMITTEE ON VIOLENCE AGAINST
WOMEN AND CHILDREN
The Chair:
The first delegation this afternoon is the Metropolitan Action
Committee on Violence Against Women and Children; Pamela Cross,
legal director. Good afternoon, Ms Cross.
Ms Pamela
Cross: Good afternoon. First of all, let me thank the
committee for this opportunity to present you with my
organization's submission respecting this very important piece of
legislation.
My name is Pamela Cross. I am
the legal director of METRAC, which is the Metropolitan Action
Committee on Violence Against Women and Children. Let me briefly
review the history of this organization with you so that you can
understand the perspective we're bringing to this issue.
We came into existence in
1985. In 1984, there was a series of high-profile and
particularly vicious rapes and murders of women in Toronto. At
that time Metro Toronto was a legal entity, and the then
commissioner, Paul Godfrey, was approached by a committee of
concerned citizens, that had itself called the Pink Ribbon
Committee, with the request that Metro establish a task force to
look at the issue of public safety of women and children. That
task force was struck and, as a result of its work, METRAC was
created, that being one of the many recommendations that came out
of the work of the task force.
At that time, the mandate for
METRAC was to reduce and eventually eliminate all forms of public
violence against women and children. In the intervening 15 years,
we have only expanded that mandate to include all forms of
violence, both public and private. Certainly in terms of the bill
this committee is looking at right now, it is much more within
the field of private violence as opposed to public violence.
In working to fulfill our
mandate, we've been involved in a wide variety of activities,
including government consultations with respect to a wide variety
of new legislation such as the criminal harassment legislation,
gun control and sexual assault laws. We've also been involved
extensively in community collaboration in the area of public
safety audits. For instance, it's as a result of METRAC's work
that the TTC has created designated waiting areas in subway
stations and offers in-between stops for women during the night
on its bus routes.
We've also been involved in
the production of public education material on many topics
relating to the issue of violence against women and children. We
continue to collaborate in a very positive way with the Toronto
Police Service, particularly with respect to the issue of
criminal harassment. In fact, we just held a second highly
successful conference last week, co-sponsored with the Toronto
Police Service, with about 120 people participating, both
front-line police officers and community advocates, where we
looked at the whole issue of criminal harassment, how well the
law works, how it could better be enforced and so on.
As I've already indicated,
over the years we have expanded our focus to include the issue of
violence within the family, specifically the abuse of women by
their male partners. I want to say right now that none of us in
our work at METRAC denies the fact that violence perpetrated by
women against their male partners also exists. However, there are
no stats in the world that make it clearer than those presented
by Statistics Canada over the year that show that between 86% and
93% of victims of family violence are women, and that in about
90% of the cases the perpetrators are men. So it's very
important, when we do our work, to apply that gendered analysis
to the issue. There are women who abuse their male partners; they
are in a very small minority. There are women who abuse their
female partners in same-sex relationships; those too make up a very small
minority of the cases of family violence that come before the
courts, that come to the attention of the police and so on.
In addition to METRAC's work
in the area of family violence, I have a particular personal
interest in the issue. Prior to my work with METRAC, I had a law
practice in eastern Ontario that focused almost exclusively on
women who had experienced violence. It was my opinion, based on
the experiences of my clients and my observations of the court
processes, that the law did not yet adequately understand the
very real problems faced by women who were experiencing abuse at
the hands of their partners or their former partners. My clients,
unfortunately, were frequently disbelieved by everyone they met
in the court process, from duty counsel to court clerks to legal
aid representatives to the judges. Their stories of abuse were
too often dismissed as a "ploy" to try to get the sympathy of the
court with respect to a custody or support application, and this
just wasn't the case. These were women with true cases of serious
abuse, whether physical, verbal, emotional or a combination or
those, and they were consistently disbelieved as they tried to
put that information in front of the court.
Women who have experienced
abuse and violence within their intimate relationships have long
felt misunderstood and dismissed by the legal systems available
to them. The creation of this new legislation is an important
first step in the process of making wife abuse both visible and
legitimate. I don't mean that to sound as though I think that
wife abuse is legitimate. I mean that we need to legitimize the
experience of women who have suffered through that kind of
situation.
There is much in the
legislation for which its writers should be commended. In
particular, I would like to note the following:
(1) The distinction in
section 1(2), paragraph l, between acts of aggression and acts of
self-defence is very important. Recent years have seen a marked
increase in the number of cases where dual charges are laid.
That's where police arrive at the scene of a domestic call. They
are unable to easily and immediately determine which party was
the instigator of the incident, so they make the decision to
charge both adults. Often the woman has acted in self-defence and
should not face any criminal charges whatsoever. So we really
applaud the thinking of the crafters of this legislation in the
fact that they noted the importance to distinguish between acts
of aggression and acts of self-defence.
(2) Section 1(3) is a very
important acknowledgement that many women who are abused by their
partners never call the police. In fact, and you probably heard
this in the earlier days of these hearings, women are hit an
average of more than two dozen times before they make an initial
call for outside assistance or intervention. Even when the police
are called and a charge is laid, in a significant number of cases
those charges are dropped or pleas to lesser charges are entered
and accepted. In some cases the women, out of fear or coercion,
do not testify or recant their original statement to the police
when they do testify, with the result that no conviction is
obtained.
(3) Section 2(1), paragraph
4, is also very positive, inasmuch as it acknowledges that
intimate violence can happen within a dating relationship. Sadly,
the pattern of abuse is often set long before a couple marries or
decides to cohabit. It is important to allow women in these
situations to have access to the same protection as is available
to women who reside with their abuser.
(4) Finally, the availability
of both intervention and emergency intervention orders is
crucial.
As it is written and as far
as it goes, Bill 117 is a positive and very important step.
However, the government cannot introduce this piece of
legislation and believe that it has addressed the issue of
violence against women or ensured the safety of women. Without
complementary legislation and government directives to its
agencies and others, this legislation, regardless of how well it
is crafted, will be of little use to women in, or leaving,
abusive relationships. While it may be beyond the mandate of this
committee to deal with these corollary issues, I believe it is
imperative that I raise them with you because they are so truly
integral to the effectiveness of this bill.
Women must have fuller access
to legal representation. Many cannot afford to retain their own
lawyers and yet do not have access to legal aid coverage. There
absolutely has to be an expansion to the legal aid budget so that
it is available to all women who require it and so that lawyers
who wish to take legal aid certificates are not working for
almost nothing. Women seeking an intervention order or defending
an emergency order against an appeal will be at a distinct
disadvantage where the respondent is able to retain counsel. They
will not have the equal treatment under the law that is promised
in the Canadian Charter of Rights and Freedoms.
Passage and implementation of
this bill must be accompanied by mandatory police, lawyer and
judicial education. Without those who will be primarily
responsible for enforcing this legislation being properly
informed about it, it will be of no use.
The education must include
attention to the proper enforcement of restraining orders. I
never fail to be amazed at how many police officers are not aware
of the enforcement measures available to them now with respect to
family court restraining orders. If a new system of restraining
orders is introduced, as this bill suggests, police officers have
got to be trained. I'm not pointing a finger at the police. I've
looked at restraining orders they've been presented with and I
too would be confused about how to enforce them. So we need some
real skills training here for the lawyers who will craft the
draft orders, for the judges who will issue them and for the
police who ultimately will be called upon to enforce them.
It's not a pleasant position
to be in for an officer who is often called to the scene where
there are children present. The children may want to be seeing
the father or not, as the case may be, but it's very awkward for
the police to enforce these orders when they're not properly
written, or when they
haven't been properly educated and informed about what the
strength of the orders is and what options are open to them.
This legislation also must be
supported by other changes that will increase the community-based
services available to women. I'm sure you've also heard in the
past four days of hearings that 75% of women in abusive
relationships never interact with the legal or police systems at
all. We've got to do something so that more women are prepared to
make those calls that ultimately can save their lives and the
lives of their children. In order to do that, I think we need to
increase the funding to community-based services for women. One
of the reasons women don't invoke the law now is because they
don't feel they have any options other than to remain with their
abusers.
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This legislation offers
important protection to women. However, for it to be effective,
women must have access to community-based counselling and other
support services so they can begin to feel empowered enough to
use it. Women's centres and shelters need more financial support,
women require diversity in the services that are available to
them and, maybe most important, women need to feel that they and
their children can survive financially, indeed can flourish
financially, even if they take the step to separate themselves
from their abusers. So many women remain with an abusive partner
because they don't want to impose a reduced standard of living on
their children. I'm a mother; I can understand that. On the other
hand, no woman should have to jeopardize her life or her safety
in order to offer a decent standard of living to her
children.
Just last week, at the METRAC
and Toronto Police Service criminal harassment conference, I had
the opportunity to hear from a number of police officers and
lawyers working in the crown office. Without exception, they
commented that the law should be a last resort, not the first or
only resort, and that as a tool for dealing with this serious and
complex social problem it is probably the poorest. They felt that
while good laws that are well enforced are important-as do we,
and that's why we're supporting this bill-those laws should be
part of a many-faceted approach to solving the problem of wife
abuse. METRAC agrees absolutely.
Forty women a year die in
Ontario at the hands of their partners or former partners. This
legislation is an important beginning to bringing an end to those
murders. But without public education, for
children as well as adults, without access for women to financial
independence and without adequately funded community-based
services for women, women will continue to die.
I thank you for this
opportunity to make you aware of my organization's thoughts about
this bill. I invite you to work in collaboration with us and with
other women's anti-violence organizations to fine-tune this
legislative effort, as well as to develop a cross-sectoral
approach to the eradication of violence against women and
children.
I'm happy to take any
questions.
The Chair:
We have about four minutes for questions and we'll start with Ms
Bountrogianni.
Mrs Marie
Bountrogianni (Hamilton Mountain): Thank you for your
presentation. You stated that if these other services aren't in
place, public education and other services, women will continue
to be killed. Could you be more clear for the record, for the
Hansard, on what you mean by that, what the implications are?
Ms Cross:
While I think this bill is well written and important, it's of no
use if women don't use it, and that's my concern. Women who
already are not accessing the police or the law, if you want to
put it that way, are not necessarily going to jump up and do that
just because this piece of legislation is passed. Are they going
to know about it? Is somebody going to make them aware of it in a
way that they think it will actually help them? So many have been
frustrated in attempts they have made in the past to reach out
for help. I think that's where the public education comes into
it.
In terms of offering
corollary support services, a woman may read about this law and
think, "That's great, but once the initial period of that
intervention order is over, what's going to happen to me then? I
can't survive on the level of social assistance that's available
to me." Or she may be steps behind that and think, "I'm not
capable of surviving without this man to take care of me, abusive
though he may be." That's where the support to community-based
services for women is so important.
Mr Peter Kormos
(Niagara Centre): I appreciate your comments. I come
from down in the Niagara region, where rents aren't as high as
they are in Toronto but still far beyond what social assistance
permits. The rents in Toronto are just out of this world. Natural
gas is going up 45% this winter. Electricity is going up in most
communities 20% to 25%. I'm sure everybody's constituency offices
talk to women who say, "Is this the maximum?" and we have to
explain, because of the 21.6% cut, "That's it." So I appreciate
your point that this government's position on social services is
forcing women either to remain in violent and deadly situations
or, almost more dramatically, forcing them to return to them. A
woman who's come up with all the things you have to do to finally
say, "I'm out of here," and then to be forced to go back-I can
just imagine going back into an abusive relationship. The power
kick that must give the abuser must just be incredible. Is that a
fair observation?
Ms Cross:
Sure it is. There are a lot of reasons why women will return to
an abuser. Money isn't the only one, in all fairness, but it's a
significant one. They often will return because they're
frightened to remain away because of threats that he's issuing
about what will happen if she doesn't return, because the
children so desperately want to return. But economics is right up
there.
I come from eastern Ontario,
where rents are much lower than in Toronto, but we see the same
thing there. They make the initial attempt to leave-which is a
huge act of courage, as any of you who know someone in that
situation will know. It takes a huge act of courage to leave. To
come back because you can't pay the rent or you can't afford to put your kid in the hockey
that he or she is used to being in is just a tragedy.
So we've got to begin by
restoring social assistance levels to what they were five years
ago. That's a beginning. Then they need to go higher. We need to
restore funding to second-stage housing and we need to restore a
commitment, at all levels of government, to low-cost and
subsidized housing.
Mr David Tilson
(Dufferin-Peel-Wellington-Grey): Thank you very much, Ms
Cross. I assume you've had an opportunity to review the bill.
Ms Cross: I
have. I like the bill.
Mr Tilson:
You've commented extensively, and you've said that as well.
Ms Cross:
Yes.
Mr Tilson:
My question is whether you've got any suggestions for
improvements to the bill, amendments.
Ms Cross: I
think the bill itself reads very well. When I first sat down to
look at it a week ago, I had thought I would go through it and
say, "You need to do this; you need to do that." I think the bill
is well crafted as it is written.
What I and my organization
think is critical is to put into place to ensure somehow all of
the-I don't want to call them "peripheral" because it sounds like
they're not so important-satellite issues that I identified
briefly in my submission that are so important. Women have got to
have access to legal representation through this process. I don't
think that can form part of this bill necessarily.
Mr Tilson:
No.
Ms Cross: If
you think it could, I would certainly support putting it in
there.
Mr Tilson:
And the other-
The Chair:
I'm sorry; that's all the questions. Thank you very much, Ms
Cross.
Ms Cross:
Thank you.
FREEDOM FOR KIDS
The Chair:
The next speaker is Mr David Osterman, Freedom for Kids.
Mr David
Osterman: Good afternoon. I appear to be a last-minute
replacement for Chief Fantino, so I'm not as prepared as I should
be.
I also appear to be in the
unenviable position of being against the bill, which is purported
to be anti-violence, which would make me in the position of
seeming to be in a pro-violent mode. I'm against this bill
precisely because the fallout from this bill will be more likely
to be an increase in violence against women, and violence against
men as well.
The violence that is never
really addressed by these kinds of laws is third-party violence
or court-based violence. Third-party violence is where somebody
counsels somebody else to injure another party. Court-based
violence is using the court system, the process itself, as a way
to inflict damage. We forget that courts operate by the judicial
application of violence. An order is a coercive order. If it's
not obeyed, the police will arrest you and they will forcibly
confine you. They can bind you, they can use force, they can hit
you, etc. All of these things are permissible by the police
because they are doing their job. It's still violence.
The intervention orders that
are proposed in this bill, and which also exist already in family
law to some extent, also include a level of violence. Forcible
eviction from their home is something that's very similar to
unlawful confinement, because rather than preventing you from
leaving a particular location, you're prevented from going to
your home, which is the location that most people would prefer to
be able to go to.
1550
You also lose control over
who you can meet, who you can associate with, because when you
have a relationship with somebody you often share a large number
of friends. Since you can't necessarily communicate with these
friends because they can then communicate to their friends, who
are the people you are not allowed to communicate with, you can
lose a lot of your friends. You're prevented from seeing your
friends.
You also lose your finances
and your ability to defend yourself or even to survive. That's
pushing it maybe a little bit, but you do need money to live; you
need money to rent a place. If you don't have any friends and you
can't couch-surf, then you have to have a hotel somewhere, have
to have credit. All these things can be lost if you have no
control over your own bank account.
All these are violence, to
some extent-not necessarily direct, physical violence but they're
all included in the general category of abuse, at any rate.
I'd like to give you a little
scenario here. At 2 in the morning, a sleepy-eyed judge wakes up
and is asked to make an intervention order. If he makes an
intervention order, we know beyond a doubt-there's no doubt at
all-that domestic violence has occurred at that point. We know
that, but we don't know who the victim is and who the perpetrator
is. When he makes that order, the victim could be the woman in
the house and the perpetrator could be the man beating on her
who's being prevented from going into that house. Alternatively,
the victim could be the man who's innocent of this but now can't
see his children and can't live in his home, can't see his
friends, has no place to go. Women's groups have formed women's
shelters, which will accept a place for a woman to go to but a
man has no place to go, other than his friends. They
couch-surf.
Since it's based on a balance
of probabilities and only one side is presenting its story-like
the words from the AG office from Monday the 23 that were
presented to this committee-it should be easy to prove. Of course
it's unbalanced; only one side is presenting a story. So if it's
not easy to prove, why would they even bother with a phone call?
So what this tends to lead to is that it makes a very simple
first strike in a divorce custody dispute, because by removing
one parent from the family, the way family law seems to work,
you've basically established custody. The rest of the process is
just a matter of letting things run out and getting the official stamp of
approval on what is currently the status quo.
You are probably aware that a
whole bunch of Toronto's playgrounds were torn down not too long
ago. They were torn down because they might be unsafe. There was
a potential that there could be a problem. Not that there was
necessarily a problem; there was a potential that there was a
problem, so they were all demolished.
Well, here you have this
judge here, sleepy-eyed in the morning, and there might be a
problem so of course he's going to do the intervention order. Why
wouldn't he? If he's correct, then he's done the correct course
of action. If he's incorrect, the only thing that's going to
matter is that some poor man is going to be out on the street for
a while. He's going to assume that the man can take it. He's
going to assume that he won't react to it legally. He's going to
assume that there's not going to be a single men's group that's
going to fight for his rights and that there's plenty of women's
groups that will fight for the woman's rights, if he was wrong.
So the natural course of action would be to say, "Let's make the
order."
The judge will not receive
unfavourable criticism if only a man is harmed. Do we really
believe men are so worthless? We know they die six or seven years
younger than women do, and yet we don't put any additional
emphasis and research on men's health issues. We know there are
3,000 male suicides in Canada on an annual basis. Probably about
1,000 of those are in Ontario. Since divorce and relationship
breakdown is the highest grouping of suicides, we could probably
estimate-and there are no good studies on this; this is merely an
estimate-that about 300 of them kill themselves because of
relationship breakdown, and we're comparing that to 18 to 40
female homicides.
Women are not affected by
divorce as far as suicide goes. Their suicide rate doesn't
change. Suicide is the highest cause of death for men under 45.
The ratio is about 10 to 1 here. We're willing to allow 10 men to
suicide, roughly, for every woman who gets murdered. The Luft and
Hadley familicides can only be seen as suicides first. This is
what was happening in this summer of violence. Those men wanted
to kill themselves first, and only then did they think about,
"Who else should I take out with me?" Only when they were
deranged enough to start thinking about other weird things did
they go to that level and then kill those women and children.
They were suicides first, and that's because we don't care about
men.
In the 1980s, the US Marines
had a base in Beirut where one suicide bomber killed 300 Marines.
This was their home at the time, their base. It was their most
vital interest to protect, and yet 300 of them were killed by one
suicide bomber. You can't really stop a suicider who's got a
mission to kill what their demented mind says is their tormentor.
It's really hard. Similarly, recently the USS Cole was attacked
by a suicide bomber. It's really hard to stop. Even the Marines,
even the Navy, can't stop them.
Rather than stopping them,
it's better to prevent them. That way, you save the life of the
guy as well as the women and children, but because we are only
concerned, it seems, about saving women, we ignore this
simple-actually it's more difficult maybe, but this basic-concept
that by saving the men, you save the women.
If there was a funded and
advertised helpline for men, then these people who are being
overwhelmed by relationship breakdown because of the way they're
treated by the court system. They would have someone to turn to
and not feel so isolated. Incidentally, if you've ever phoned any
of the helplines, you'll quickly find that they have no concept
of what it's like to be a man in a divorce situation when your
wife has kidnapped your children, for all intents and
purposes.
What we need to do is reduce
violence overall, de-escalate the conflict. Bill 117 escalates
the conflict. It becomes the first strike. The intervention order
prohibits contact with the children and common friends. It wipes
out his informal social safety net. He becomes friendless and
isolated. These are all aspects of abuse, according to the Duluth
model.
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He looks to the legal system
for justice and finds he can't afford it. For most men, justice
isn't even affordable, and there's no legal aid they can use
because their income is higher than what legal aid will provide.
But if he can get a lawyer competent in family law, his chances
of getting custody of the kids are really low. With Bill 117, he
already knows he's been steamrollered with this first strike.
These kinds of things are what overwhelm and frustrate people,
and that's what leads to violence and suicide.
It's also common for men who
have had an intervention order against them to find that women
are quite willing to break the intervention order, and they do so
with impunity. They call them on the phone to arrange things,
things they forgot at their homes, things they would need, like
numbers or whatever, bank account numbers-who knows? If the
woman's staying at a women's shelter, she might return in order
to get stuff. I've seen this with a number of men.
The only reason why one woman
stayed overnight at her original residence rather than returning
to the women's shelter was that she had been out past the curfew
hour and then met another woman socially, not through any of
these groups. This was sort of surprising to me because she had
been to a women's shelter. I knew she had been divorced quite
some years ago and had a good relationship with her former
husband, but it turned out that she hadn't had a job for a while
and wanted to rent out her home and didn't have a place to live,
so she went to a women's shelter. She hated the place and
consequently left. I've also heard that all women who go to
women's shelters are abused, but she certainly wasn't.
The Chair:
Mr Osterman, could you wrap it up, please.
Mr Osterman:
I'll speed things up here.
Another thing I'd like to
mention is fear. Fear is an emotion that resides within our
person. Another person cannot possibly tell what the real state of mind
is. People have a fear of snakes. They have a fear of dirty
homeless men. But is this fear justified, and how do you
determine that?
In a divorce situation, both
people are afraid. They're afraid of change. They're afraid of
the unknown. We'd hope women would be mature enough to realize
that this is just a part of the process of living and not take it
out on their ex-partners as a fear of their ex-partner. The same
thing happens with sick, depressed and enraged people. They don't
need Bill 117. What they need is therapy, but at 2 am there's no
way for a judge to know that.
Non-custodial parents have a
common fear that they will not see their kids. At any time this
can happen. One therapist, in a case where a woman appeared to be
doggedly preventing access, just said, "Forget your kids." This
fear that non-custodial parents have is also a fear of abuse.
We live in a representational
democracy. We have a women's directorate, women's issues and
women's gender analysis, but we have no equivalent for men. No
men's group I know of had any input into this bill prior to these
hearings. Some government-funded studies will cut out pieces of
statistics that are about men. For example, Lupri is an academic
in western Canada who did a study on domestic violence, and his
stats on female-to-male violence were not permitted to be
published.
As far as recommendations for
this bill, it's not really a good bill, but if you're going
through with it, the balance of probability is far too weak. You
need something stronger because it's an ex parte motion; the
other side is not getting any kind of hearing. These orders need
to have time limits. They need to include in the definition of
domestic violence counselling others to commit violence, falsely
alleging violence to a court. Assault orders should be
mandatorily prosecuted. Most important, what we've really
forgotten is the Common Sense Revolution had a little article
that said that they would promote alternative dispute resolution
in family law, and that has been ignored all this time. It's
revising family law that will reduce violence.
The Chair:
Thank you, Mr Osterman.
Mr Osterman:
Do you have any questions?
The Chair:
No, we don't have any time for questions, unfortunately.
Is the Canadian Bar
Association here yet? We can wait. There is someone who is
willing to go now and we can hear from that delegation, if you
prefer to wait.
SECOND SPOUSES OF CANADA
The Chair:
Second Spouses of Canada, Dori Gospodaric. You have up to 20
minutes.
Ms Dori
Gospodaric: That's fine, thank you.
As the lady said, my name
is Dori Gospodaric and I am here to represent the tens of
thousands of women who are second spouses in Canada. I don't have
the actual number, but there are many of us. We are women you
don't usually hear from and we are women who strongly disagree
with you today. We know there are two sides of the story.
Second Spouses of Canada is
not a federally funded group. It's made up of women who have
found themselves in a situation which has horrified them. These
women, like me, have been shocked and disgusted at what they have
come to see is an epidemic, an epidemic of abuse.
We are hard-working women,
and we support our husbands. We support them emotionally and
financially. We witness their pain and devastation as we watch
them being denied their very own children. We pay a very high
price. We hear constantly about power imbalance and control and
abuse. I am here to tell you these are alive and well, and I'll
tell you why.
It's an interesting
conundrum, actually. Remember, we as second spouses are not only
women, but often mothers too. Look at what we have: mothers
fighting mothers; women against women. As second spouses, we
enter into a process called "guilty by association": false
allegations that are now made by one woman against another
woman.
Did you know that second
spouses, women, are also regularly falsely accused of being a bad
parent; accused of being a drug addict or alcoholic; accused of
not treating children properly; accused of allegedly hiding money
that the other mother wants? Second spouses are regularly
subjected to threats and harassment. Remember, we, as second
spouses, are also the same mothers that courts have sanctified
and sanctioned and considered sacrosanct.
Do you know how many of us
are actually hauled into court by other women? It happens
regularly. They want disclosure of financial statements. They
want proof of character. They want whatever they want when they
want it, and it never ends.
What's occurring with us
women is common, but never discussed, and yet we have these
national, federally funded female organizations who claim to
represent women. Do they? I have never heard them address the
issue of women being abused by other women. I am deeply
disappointed with these funded women's groups. We, women and
mothers, have been silenced. Do these funded women's groups come
here to talk about this? Did they tell you about the abuses
perpetrated by women? Are some women more equal than others?
The funded women's groups
and organizations claim to represent women. "Which women?" I ask.
I guess only certain women. I am a woman and a mother and I don't
care what the gender is of my abuser; I want it to stop. I want
to know, what are you going to do about this? You are funding
those women to abuse me. Why are we not hearing about this? The
system does not protect women; the system protects only certain
women. Why is it that those women's groups, funded all the way,
silence women's voices? This information has been suspiciously
absent by these women's groups.
1610
Bill 117 is clear to me,
another bill that snuck up on us, quietly and insidiously. It
calls for even tougher measures against perpetrators of domestic
violence. Despite the language, you and I both know that it's
really about men: men as the perpetrators and the women as the
victims. That's really all we're interested in.
I know you're in a quest to
conquer domestic violence, but there is one major flaw: you're
not separating the hype from the hope. That's the big difference:
hype from hope.
Do you all know the
definition of "insanity"? It's doing things the same way and
expecting different results. I have pointed out to you that there
is only one view that you seem to subscribe to, and that is that
men are the abusers and that women need to be protected from
them. The brainwashing continues. Figures commonly quoted in the
media always refer to males as being the problem, that's the
comfort zone, yet when Stats Canada recently reported that
domestic violence is caused almost equally by men and women, what
happened? Nothing, absolutely nothing. The media doesn't mention
it at all. When women are presented with this fact they brush it
aside. It makes them uncomfortable and very angry. Why is that?
Well, there is a great deal of the special interests in the
booming domestic violence industry. Publicity about domestic
violence against women has reached a point where I, along with
many women, feel it is a disservice to women. The hysteric
reaction to men is demeaning to me as a woman, it really is.
Feminists always wanted
equality among genders. That was the ultimate concept they wished
to achieve, and I agree. But now, when we've come a long way,
baby, women often don't like that equality and it's now bad when
it doesn't suit us. In common language, we want it both ways.
Women want to have their cake and eat it too.
Sure, females by the luck
of their biology are the bearers of children. But here's the big
news: being a mother does not make us sacrosanct; it does not
make us pure and does not make us morally superior. There is no
superiority of the uterus, I promise you. I can give birth, sure,
but what do I get in return? The winning prize: immense power,
and the belief that women never lie.
You have already provided
measures of protection for me. It's called our criminal justice
system. I also have all sorts of women's groups and shelters and
societal supports to run to. And you have provided for me that
ultimate weapon: a phone call. Any man in my life is simply one
phone call away from total destruction.
This Bill 117, as I read
it, is really only about money. It would more aptly be called a
seizure of assets bill. It's really not about abuse or violence
at all. We already have a domestic and divorce system that amply
sees to the transfer-of-wealth policy-you know, the winner takes
all-where the woman is assured custody of the children and the
financial subsidy from her husband for a very long time, if not
forever. You have already provided that whether I deserve it or
not.
Isn't it amazing that these
women who want to be independent turn into a bowl of Jell-O when
they're unhappy with their men? They appeal to society, welfare,
the politicians and the legislators for money. They can't manage
a thing. Their grief is always someone else's fault, and someone
else should fix it. They become helpless and they come crying to
you. Yet it is these very women, downtrodden and all, who are
entrusted to raise our children-pretty scary to me. Now, you'll
see to it that I can get all of this even more easily. All I have
to do is a moment of fast-fingering on the telephone and magic
happens: no questions asked. I am a victim because I say so.
You see, in your
comfortable concept of men being the abusers, you would know
exactly what to do: lock them up and throw away the key. But,
like I said earlier, it is women who are becoming the abusers in
more ways than one.
In my current circumstance
of being a wife, a second spouse, I am married to a man who is
also an ex-husband and a father. Let me tell you, 11 years later,
11 long years later, there is no end of insanity and allegations
and threats perpetrated by his ex-wife. If you believe that by
getting rid of the abusive husband, get him out of the house,
give her the children and the house and a subsidy for life that
this insanity will end, you are dead wrong. We women continue to
be victimized through our husbands. Being an ex-husband should
have ended it all, right, problem solved? Wrong. Like I said,
over 11 years later the abuse still continues. Getting rid of the
man has changed nothing.
My husband has been told by
his ex-wife, in front of the children, that nothing will make her
happy until she sees him dead. Eleven years later, she has
promised to report me to the authorities any time she feels like
it because I have no right to speak to her children. Eleven years
later she has attempted to have my husband arrested. She has
attempted to have me arrested. She has completely alienated all
three children from their father's life permanently and
completely-by the way, she's a teacher-$70,000 worth of court
orders for access later, but no one cares and it is never
enforced.
The Chair:
Ms Gospodaric, I wonder if I could just interrupt for a moment. I
do need to read a caution to you about parliamentary
privilege.
Ms
Gospodaric: All right.
The Chair:
While members enjoy parliamentary privileges and certain
protections pursuant to the Legislative Assembly Act, it is
unclear whether or not these privileges and protections extend to
witnesses who appear before committees. For example, it may very
well be that the testimony you have given or are about to give
could be used against you in a legal proceeding. I'm just
cautioning you to take this into consideration as you continue
making your comments.
Ms
Gospodaric: I'm not sure how-
Mr Kormos:
Don't worry about it. Truth is always a defence to slander.
Ms
Gospodaric: I have the truth on my side so I'm not
afraid.
Mr Garry J. Guzzo
(Ottawa West-Nepean): She has already filed the evidence
in writing so it's too late now.
The Chair: I'm just cautioning
you. This is something that has been raised in the past with
respect to parliamentary privilege.
Ms
Gospodaric: OK. These are facts.
The Chair:
You may continue.
Ms
Gospodaric: I'd be happy to attend a proper court and
talk to this if you needed to.
And yet we will enact a
bill to give women like this ex-wife further powers, 11 years
later, to give her more ammunition to make our lives a living
hell? I suppose I am provided an equal opportunity to torture my
ex-husband's wife in order to equalize my own torture, but is
this what you're aiming for? It's really insane.
The potential for abuse of
this bill is huge. I can tell you that with this bill, not one
violent act will be stopped. What I do suggest is that you will
promote further hatred and antagonism and very probably this will
flip you on the backside with a completely opposite effect.
When you back someone-that
is, one side-into an impossible corner, strip him dry, take away
all his rights, what do you think will happen? When men are so
degraded, devalued, belittled and blamed, what do you really
think will happen? When their children are permanently torn away
from them, what would you do? I know it would destroy me, and I
dread to think what I might do.
In my guilt by association,
I, along with thousands of other women, know only too well what
it's like to be slandered and reviled. We do want protection,
yes, but we want to be able to protect ourselves against other
women.
Not only am I worried about
myself, but I worry about my son. What do we all tell our sons?
That their father is bad and that men can't be trusted? That
mothers and women have all the rights and men none? They are
learning this at mother's knee. Girls, on the other hand, get to
learn how to use, abuse and manipulate the system. Do you see how
this perpetuates itself? It's a non-stop treadmill.
Don't you see the great
economic force that is pushing all this mass hysteria? There are
enormous special interests here: the women who run the shelters,
women who are hired and paid to run women's groups, the lawyers,
the social workers and the psychologists. There is great fervour
of the lobby groups; provocative ads showing women and children
being hit and beaten as factors behind demands for more money.
Trust me, there will never be enough money to make these women
happy. Their purpose will never, ever be achieved to their
satisfaction, because when you begin to hand out money for the
asking, there will never be enough.
Be careful what you wish
for, because you might just get it. For all the lofty ideals
purported in your domestic violence measures, you are further
creating the very problem you are claiming to correct. We women
are fed up with the abuse from other women. Woman against woman,
mother against mother, children against children. It never
ends.
Take pause, please. Stand
still for just a moment. Don't get caught in the political
expediency. Our families are paying a very heavy price. You are
contributing to hate and fear-mongering and disabling women from
self reliance and I, as a woman, am ashamed.
Where is the common sense?
I think we've lost all perspective. I repeat, if you continue to
do things the same way, don't expect different results. I ask you
to just stop for a moment and think. Thank you.
The Chair:
Thank you, Ms Gospodaric.
Ms
Gospodaric: My time is up?
The Chair:
Yes.
1620
CANADIAN BAR ASSOCIATION-ONTARIO
The Chair:
The Canadian Bar Association, Cynthia Wasser and Judith Huddart,
past chair of the family law section. You have up to 20 minutes
in which to make your submission and have questions asked if
there's time.
Ms Cynthia
Wasser: Thank you and good afternoon, ladies and
gentlemen. As indicated, my name is Cynthia Wasser. I am a
criminal defence lawyer practising in Toronto for about 15 years
now.
I also sit on the executive
of the criminal justice section of the Canadian Bar
Association-Ontario, and Judith sits on the family law section of
the Canadian Bar Association. We're here to represent the views
of our two sections.
I have reviewed Bill 117
and I have the following submissions to make to all of you, that
I ask you give very careful consideration to, from the
perspective of criminal defence lawyers and crown attorneys who
make up the executive to the criminal justice section.
In the explanatory note
attached to the bill, which I believe was also the statement of
the Attorney General, it is indicated that the purpose of this
bill is to provide for intervention in cases of domestic violence
beyond that which is allowed under the current law.
Clearly, the intent of this
bill is to address domestic violence, the cases that are
prosecuted in the criminal courts, and the bill indicates that it
will be enforced by peace officers under the Criminal Code. This
concerns those of us who practise in criminal law for the
following reasons.
First, if we look to the
definitions section, under subsections 1(2) and (3), domestic
violence is defined as having occurred whether or not a charge
has been laid, dismissed, withdrawn or a conviction has been or
could be obtained. In our view, this bill may very well be
creating a new criminal offence. This raises concerns about the
constitutionality of the bill, as the province, as we all know,
cannot legislate in the area of criminal law.
What the bill does is
create a framework whereby the applicant applies to a court for
an order, the breach of which is a criminal offence. It is not,
however, a prerequisite that the criminal offence has been or is
about to be committed. In fact, an accused person may have
been charged with an
assault and acquitted, vindicated even, and then the applicant
may still apply for an order based upon the very facts alleged at
the criminal trial. If the order is breached, that person is
subjected to another criminal trial.
Next, under subsection
3(1), the court may make the order if it is satisfied on a
balance of probabilities that domestic violence has occurred.
This utilizes, of course, the civil standard of proof to make a
finding of a criminal matter. This raises issues of
constitutionality as well.
It also concerns us that it
could create an abuse of the criminal court system. Further
evidence of this possibility of abuse is found in the definition
of domestic assault under subsection 1(2). It includes an
assortment of offences punishable under the Criminal Code
already. Assault causing bodily harm, threatening, physical
confinement, sexual assault, sexual exploitation and criminal
harassment are all currently found in the Criminal Code.
Therefore, the code covers all aspects of the definition of
domestic violence already. If the Criminal Code is not available
because the police do not have reasonable grounds to lay a charge
or the prosecutor does not feel there is a reasonable prospect of
conviction, then the use of provincial legislation may be ultra
vires and abusive.
There are other problems
with the definition section as well. Insofar as the bill creates
a statutory obligation to refrain from acting in a criminal
manner, it imposes as well an obligation to act positively in a
certain manner as domestic violence is very broadly defined to
include "omissions" that cause bodily harm or damage to property.
In the extreme examples, which would have to be litigated if an
applicant applied to court, you could find the abuse in court in
the following situations. If the respondent refuses to fix
something in the house and damage occurs, the section kicks in
because there is property damage. An order may not be obtained,
but parties would be forced to litigate. Does it also include the
threat of refusing to babysit by one partner, which could
therefore potentially cause bodily harm to the child if the other
is leaving the house?
It includes "omissions"
that cause the applicant to fear for his or her safety. What are
those? It includes a threat that causes the applicant to fear for
his or her safety. This creates a legislative framework for the
"yell at your spouse and lose your house" principle.
It also includes "sexual
molestation." This is not defined in the bill nor in the Criminal
Code. What is it?
It includes "recording" any
person in such a way as to cause them to fear for their safety.
"Recording" is not defined in the bill. The Criminal Code,
section 184, defines unlawful interceptions, but they do not
apply to someone who is part of the conversation and thereby
giving consent.
The definition of
"applicant" under section 2 causes concern. It is very broad. It
includes former spouses who may have already settled family asset
claims. It includes people who cohabited for any period of time,
even if they are not cohabiting at the time of the application.
Therefore if the respondent lived with someone for only one week
and it did not work out, that person is entitled to apply,
thereby causing abuse in the court system.
It includes those in dating
relationships or who were in dating relationships, but this is
not defined. So theoretically, the respondent may have dated
somebody a few times several months in the past and would find
themselves subjected to the litigation. On September 27 the
Attorney General indicated in announcing the bill that we would
also be the first province in Canada to expand the definition of
domestic violence to include people in dating relationships.
However, it is important to note that the Criminal Code of Canada
does not exclude dates from being victims of assault, sexual
assault or other offences.
The bill also includes
relatives of the respondent as applicants if they've lived with
the respondent, such as children-with an age restriction of 16
only. Therefore a teenager who wants something may use the act in
an abusive way.
The contents of the order,
under subsection 3(2), also concern us. These people are able to
obtain an order granting them temporary possession and exclusive
use of specified property. They can take over the family cottage,
credit cards, and bank accounts, even if they were only in a
dating relationship, or if they were children.
The bill grants the
applicant exclusive possession of the residence shared by the
applicant and the respondent regardless of ownership and
regardless of the length of the cohabitation period. These are
excessive.
Under subsection 4(7), the
bill says that it prevails over other civil orders, including the
Divorce Act, which is federal legislation. This may be
unconstitutional.
Under the Criminal Code, it
is believed that subsection 127(1) will be used to prosecute the
breach of order, although the bill does not specify this. Section
127 of the Criminal Code states that disobeying a lawful order
made by a court is an indictable offence that can be punished by
a term of imprisonment not exceeding two years. It excludes
orders for payment of money to be used under this section, so
that will not be enforceable under 127.
1630
The Attorney General's
announcement on September 27 states that these breaches will be
prosecuted in the domestic violence courts specifically created
by Ontario in the Ontario Court of Justice. However, section 127
is an indictable offence, and the accused is entitled to elect to
be tried by a court composed of a judge and jury in the Superior
Court of Justice. Accordingly, the trial will not take place in
the domestic violence court and it will take longer to prosecute
the breach, which I believe is not the intent. Because the term
of imprisonment is less than a two-year period if the breach is
not a violent one, a conditional sentence might be an option
pronounced upon the accused, if convicted.
At this particular time,
the Attorney General has directed the crown attorneys to oppose
conditional sentences in violent cases. If they do so, the
likelihood of resolution or a guilty plea is very poor.
I'm going to be brief because I understand that I
might be running out of time and Judith does wish to address
you.
I want to make it clear
that under the current legislation the breach is prosecuted as a
summary conviction offence in the Ontario Court of Justice, and
conditional sentences are not an option under the current law. By
using section 127 of the Criminal Code, that will be taken away.
It will take longer to prosecute and the jail sentences that
people may be looking for will not be available.
It is the view of the
criminal justice section that the current legislation can be
amended to address the concerns of the Attorney General in a more
fair and more efficient way for all people involved, including
the victims.
If I may now finish
addressing this committee and allow Judith to address you and
then I'll take questions.
Ms Judith
Huddart: As we've heard from the criminal law section,
they have a number of concerns. I think that's pretty clear.
Unfortunately, we too in the family law section have a number of
concerns. As I've indicated in the letter that I believe has been
circulated to you, we can't support the bill in its current form,
although we certainly do support the initiatives to deal with
domestic violence, and make no mistake about that.
We have some of the
concerns in the letter. Certainly the criminal issues have an
impact on our clients. If there are challenges to this
legislation, our clients will be dragged through the courts, and
we look at that as just another weapon for someone who has
already been victimized in the process.
We also question how many
women will apply to the courts for such orders, because they're
caught between domestic violence courts in some areas,
quasi-criminal courts in other areas and, of course, we deal with
them in the family law area, and that may be a whole other court.
The costs and the procedural difficulties that may happen with
this legislation are a big concern to us. Can our clients afford
it? Can they afford a criminal lawyer plus a family law lawyer?
These are real issues that I don't yet see being addressed.
That's another reason why I think we should hold back and have
further discussion.
We do wonder how this bill
would coexist with the current criminal law, as Cynthia has
indicated. We aren't sure when we would want to recommend an
intervention order as opposed to a criminal action. We can
envision that our client is not going to call a family law or
criminal law lawyer in the middle of the night. They're going to
call the cops if they have a problem. That will probably put them
in the criminal process directly. We're assuming assault charges
will be laid, and that takes them outside this process. If they
want some of the other benefits from this, they'll have to jump
back in at another point. That intersection is problematic, to
say the least.
We also are concerned that
we're going to possibly-well, we are, according to the current
draft, going to lose our civil restraining order remedies, which
have worked. They don't always work and there are problems with
these things, but we do have a system. We can get our orders
registered on CPIC with the police if it's necessary to enforce
them. Not all lawyers are as knowledgeable about the system, but
that's an educational question rather than a legislative
question. We don't want to be seen as not supporting any
initiative that will help address issues of domestic violence but
we want to see the other proposals go along with them.
The other mention in the
press release was that there would be other systems, including
counselling and continuing education, for police, court staff,
crowns, the bar. We would like to see justices of the peace get
some education in that process too because we know that there are
problems at that level.
This whole process is going
to take some time and in this process we would like to have some
input. We're happy to sit down and work with the Attorney General
to make sure that all the concerns, or at least as many as
possible, can be addressed and have a piece of legislation come
into effect for our clients, be they the victims in some cases or
the abusers in some cases, because we represent both as family
law lawyers-husbands and wives-that makes sure the system works
for them and that we put our money into an area where it can do
some good.
The Chair:
That's your submission?
Ms
Huddart: That's it.
The Chair:
Fine, then. We have about three minutes for questions. Mr Kormos,
you have just one minute, please.
Mr Kormos:
I know you're generous with me, Chair, consistently.
Thank you very much. Your
comments are very important. You're referring to the repeal of
section 35 of the Children's Law Reform Act and section 46 of the
Family Law Act when you make reference to deleting the orders
that could be obtained under those two statutes. You're concerned
about the confusion-for me, the apparent confusion-in terms of
subsection 4(7), and that is, the emergency intervention order
shall prevail over any other orders, yet subsequently in the act,
an emergency intervention order has the capacity to be deemed a
permanent order. That's where I get confused and perhaps the PA
will address this when we do clause-by-clause because I get
confused about whether its status overruling or overriding the
other orders is maintained when it's merely deemed, for instance,
by virtue of no contest.
I just read a recent
decision, Kassay by Judge Joe Quinn, down in my neck of the
woods, St Catharines. It was a family matter, an application for
contempt order in terms of non-access. Judge Quinn in the summary
of this new decision circumvented the long-standing rule that
contempt was only to be found as a last resort and said, "No way.
I'm finding this person in contempt. It's not enough to merely
purge it, and as a matter of fact, if there isn't compliance
there will be a 30-day jail sentence." So is that a positive
thing, that more aggressive use of contempt in terms of enforcing orders than what
you're seeing here in Bill 117, or can the two go hand in
hand?
Ms
Huddart: I think that to date, we've gone hand in hand
from the family law context and in the criminal law context in
terms of some of these. Now, again, it depends on how judges
apply the legislation and the powers that they already have.
You're right. There's been
a reluctance in most levels of court to impose a contempt which
brings with it a jail sentence, although we're seeing it now
under the Family Responsibility Office when there's constant
refusal to pay support. Now judges seem more willing to do it so
maybe that's moving over into access and custody issues.
I'm not aware of that case
that you're discussing. I don't know. Maybe Cynthia-
The Chair:
Mr Tilson?
Mr Kormos:
No, it was just summarized.
Mr Tilson:
It appears the lawyers think this will be challenged in the
constitutional courts, and I expect you are probably right,
although I believe that it will withstand those challenges, but
that's what these applications are all about. And too, the
criminal lawyer, Ms Wasser, one of your comments, for example,
with respect to sexual molestation, certainly it's not a novel
term, as you know. It's used in the Child and Family Services Act
in describing a child who may be in need of protection. But I
guess that's a debate that may end up in the courts.
My question really has to
do with the comment that this legislation will drag women through
the courts. I believe you, Ms Huddart, made that comment. We've
had dads' groups and men's groups that have come in and said
quite the contrary, that, for example, section 4, which is the
emergency intervention order, will do just the opposite; that
section will be abused by women.
1640
Ms
Huddart: It will be too swift. I was actually meaning
that in the context of challenges to the legislation. What I
perceive is that, yes, someone may get an emergency intervention
order but then I believe it's 30 days, at which point the alleged
abuser has the right to challenge that. If that person, assuming
a he, goes to a criminal law lawyer, such as Ms Wasser, they're
going to say, "Hey, you know what? There are problems with this
bill and I think maybe yours is the case where we're going to
deal with it." That person may be on legal aid, I don't know, and
maybe his spouse isn't on legal aid because she's not necessarily
in the same context as him, being charged-
The Chair:
Thank you, Mr Tilson.
Mr Tilson:
Thank you for your thoughts.
The Chair:
There is time to allow one question, Mr Bryant.
Mr Michael Bryant
(St Paul's): You've raised so much and I just wish that
we could have a lot more time. I hope you will follow up on your
offer to work with the Ministry of the Attorney General in order
to address the concerns you have.
There are always
constitutional concerns with some bills but I think what you've
raised is a serious concern because the purpose of the bill might
be violated if in fact what we do is make the victims fund any
flaws.
In addition to addressing
your concerns and trying to charter-proof the bill and also make
it consistent with federalist concerns, before we drag the victim
through the courts, what do you think of the idea of having the
Attorney General bring an application or a reference so that we
can rule upon these matters in advance of the specific
litigation?
Ms Wasser:
There's no reason why the Attorney General can't do that as an
option. The Attorney General acknowledges that he must seek the
approval of Parliament to amend the Criminal Code in order to
enforce this. Parliament, as we know, is dissolved right now and
not likely to be reinstated before the new year. So there's
plenty of time for more communication with the stakeholders, to
take our time to ensure that you are putting forward a solid bill
without sloppy drafting and by that, you should be having the
consultation process in a more democratic manner with those
stakeholders. All of us would love to have more time with the
Attorney General and his people to help draft it in a proper
way.
You should also know the
Criminal Code right now is taking care of the victims of violence
with the sections I've mentioned, as well as section 810 which
allows for a peace bond to be issued. It covers everything.
The Chair:
Thank you very much, Ms Wasser and Ms Huddart.
Mr Kormos:
Remember, the Attorney General doesn't have a very good track
record in court with this government, does he?
Ms Wasser:
If the committee wishes, my submissions can be put in writing and
sent to you by November 9.
The Chair:
That would be really appreciated. Actually, the deadline is
November 7. We did publish it as November 9, but it is November
7.
FAMILY LAWYERS' ASSOCIATION
The Chair:
The next delegation is Mary Reilly, who is the chair of the
Family Lawyers' Association. Good afternoon, Ms Reilly.
Ms Mary
Reilly: Good afternoon. Also with me is Melanie Sager.
Ms Sager will be addressing the issue as it relates to shelter
clients. She's done a lot of work with shelter clients in the
past.
Just as an introduction,
the Family Lawyers' Association was started back in 1994 as a
result of the legal aid crisis, and the purpose of our
association is to lobby, to look at policy on issues that relate
to family lawyers practising and how they affect our clients.
My remarks are going to
basically concern the legislation as it relates procedurally, my
reading on the legislation, and as I said, Ms Sager will be
addressing the issue as it relates to shelter clients.
Currently, restraining
orders and family law proceedings are granted pursuant to the
Family Law Act or the Children's Law Reform Act. The majority of
these orders in the city of Toronto and other jurisdictions that
do not have a unified
family court are granted in the Ontario Court of Justice. Bill
117 would eliminate the Ontario Court of Justice's ability to
make restraining orders on either a temporary or final basis.
It is the family law
lawyers' position that the enactment of this bill would increase
costs to individuals utilizing the system, either personally or
through the legal aid plan. The reason I'm addressing this is
that this legislation is not clear as to whether it's going to
end up in the criminal courts or the Superior Court of Justice,
the court over at 393 University Avenue that deals with family
law matters. My reading of this legislation, when I looked at it,
was that anybody seeking what used to be called a restraining
order would now have to go over to 393 University Avenue and into
the Family Court and deal with their procedure as opposed to
going to the Ontario Court of Justice and asking for a
restraining order in that court. That was my reading of this
legislation so that's how I'm addressing my remarks.
The current procedure in
Toronto at the Superior Court of Justice is paper-intensive and
in no way user-friendly. When you have an applicant who has this
temporary order-which is another problem, how the paper gets to
the court-having to go over to the Superior Court of Justice and
start an application, there is no assistance over there. There's
a little bit of duty counsel. But for those of us who have
practised in that court, it's hard enough for the lawyers to deal
with it. So I don't know how the unrepresented victim, who might
have to do this on his or her own, at least to start with after
that temporary order is actually given, will ever cope with the
court procedures, especially for the unrepresented. Those with
lawyers can cope better, but those who have no lawyer will find
the system very cumbersome and non-user-friendly.
The other thing this bill
could do is lead to a duplication of court process. Currently,
those parties who have no property issues will go to the Ontario
Court of Justice. One of their issues may be a restraining order.
They deal with custody, access and support issues. If there's an
issue of domestic violence, you're not going to have them in one
court dealing with three issues and off in the Superior Court
dealing with one issue. What I would do, as a practising lawyer,
is take all my issues to the Superior Court. But it's conceivable
that you could have a duplication of proceedings, where you've
got custody and access and child support and spousal support in
the lower court and the intervention restraining order in the
higher court, or those cases that normally should be in the lower
court will end up in the higher court. What will happen is that
you're going to increase the cost to individuals who are
paying-it's less costly down in the Ontario Court of Justice-or
you're going to increase the cost to the legal aid plan because
all those issues are going to be bumped up to the Superior
Court.
I would suggest that this
legislation really isn't providing the protection to the
individuals who need protection, by complicating the procedures.
When I read this legislation I'm trying to envision from a
practical point of view how it's going to be administered. It's 2
in the morning. Who's going to type the order for the JP or the
designated justice? Who's going to serve these orders? The
legislation says that if an applicant doesn't have a lawyer then
the court's going to serve them. The court resources are so
strapped right now, I just don't know how from a practical point
of view this is going to work, and it's not an effective order
until the respondent is served. Procedurally, how is the court
file created in the middle of the night? All these questions came
to me when I was reading this legislation. Again, if the courts
are open, the applicant can go down. But I know what the
procedure is like at the Superior Court; it's not user-friendly.
There are not people there to help people fill out paperwork, and
it's very difficult to get in front of a judge.
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The timelines in this
legislation are impossible. I believe it's in 30 days that you
have to go back to court and request a hearing, and then the
clerk says that within 14 days that hearing has to happen. The
courts don't move that quickly. The current procedure doesn't
provide for that, at least in my experience. From a very
practical point of view, I'm not sure how this legislation is
really going to work and protect the people who need protection.
I think it could actually make it worse than it is now. Again, in
the Unified Family Court and under the new family law rules
you've got the same problem because of the procedures in those
rules. They don't move that quickly. That's not the way the rules
work.
This bill will result in
increased cost to the government, to the victim and to the legal
aid system-that's the way I viewed it-and most likely will not
provide the protection required, which I know is the aim of this
bill. I don't view it as providing an expeditious access to
justice when as a practising lawyer I look inside the system and
how the system works.
Restraining orders can be
made. The courts make them under the Family Law Act and the
Children's Law Reform Act. Police forces need to be educated
about enforcing those orders if there's a problem. The police
have to determine who's going to be criminally charged, but they
should be vigilant in laying charges and not saying to people,
"Go off to Family Court and get a restraining order." But even
when a restraining order's been made in Family Court, I think the
police can be directed to enforce those orders, because they are
orders of this court.
Those are my submissions.
Ms Sager will address the issue as it relates to shelter
victims.
Ms Melanie
Sager: The previous speaker from the CBA made a very
important comment, in my opinion. She said that the current
manner in which restraining orders are made in the Family Court
generally works. There are some problems to be sorted out, but
generally it works. Ms Reilly is saying that this bill is just
going to overcomplicate the whole procedure and it's going to
create more problems than already exist now.
Ms Reilly finished by
addressing the police forces. The problems that the speaker from
the CBA referred to in
my opinion could be addressed effectively with the assistance and
co-operation of the police. Too many times the police are saying,
"Go to Family Court and get a restraining order," as opposed to
laying charges. They're saying, "This order is too old. We can't
enforce it. This order doesn't say that we have the authority to
enforce it." The issues around restraining orders and making them
effective, in my opinion from dealing with many women who are in
shelters for abused women, centre around the assistance, or lack
thereof, from the police. From my perspective, and that of women
who are residing in shelters, a lot of the problems that exist
with the current structure which are not that serious could be
resolved with the education of the police forces and what they
should and can do.
Ms Reilly covered a lot of
the comments I was going to make about the costs associated with
the new procedure being proposed. With respect to the costs Ms
Reilly spoke about, I just want to talk a bit about that because,
in my experience, I can confidently say that over 95% of my
clients who are in shelters are on legal aid. If they are going
to have to proceed potentially on two legal aid certificates,
depending on which court this interference order will have to be
obtained, I can't even begin to imagine the costs associated with
that. Most of my clients, and I am obviously speaking from my
experience, who are in shelters are asking me to proceed to court
to deal with custody and access and support issues and
potentially restraining orders. Most of those clients don't have
substantial property issues, so we don't go to the Superior Court
of Justice. If these women are going to have to apply for legal
aid and legal aid is going to accommodate them, I can't imagine
where that money is going to come from.
Furthermore, I can envision
it being suggested by lawyers, "Do you really need a restraining
order? Is this a serious issue? Are you really in danger?" I can
tell you, a lot of lawyers who accept legal aid do not like to go
to the Superior Court of Justice because the times granted to
them on legal aid certificates are maxed out long before anything
is done. The Ontario Court of Justice is far more efficient when
you're dealing with custody and access and support issues. So you
might have lawyers saying to the victim, "I don't know if we're
going to be successful. You should reconsider. Do you want it to
go really quickly? In the Ontario Court of Justice, where I can
hopefully get you custody really quickly, you're going to have to
give up that right to an intervention order." Now this will
happen. Lawyers do not particularly like going to the Superior
Court of Justice when their client is legally aided. Some of them
don't; maybe a lot. So that's going to be a big problem.
Then that raises the
question of putting the decision back in the hands of the victim,
which we were supposed to take out. The justice department years
ago tried to take that decision out of the victim's hands. The
abuser was to be arrested and charged, if appropriate, and
prosecuted with or without the assistance of the victim. Are we
putting that decision-making back into the victim's hands, which
is a huge step backwards? In terms of Ms Reilly saying that you
won't achieve what you're trying to achieve, that's a big
question you have to ask. With respect to women in shelters, are
they going to place the call? Who's going to place the call in
the middle of the night? Are the police going to dial the number
or are they going to offer that to the woman? Are they going to
say, "Would you like to do that?" Again, the directive was to
charge and prosecute abusers with or without the co-operation of
the victim. I think that this proposed legislation is definitely
taking a large step backwards with respect to that issue.
One other point I just
wanted to mention is that I also deal with a lot of women who
don't speak English as a first language and I'm dealing with a
lot of interpreters. In terms of emergency intervention orders,
will there be interpreters available? Who will make them
available? How will they possibly interpret over the telephone?
The same goes with respect to shelter staff. They're actively
involved in assisting these women. Are they going to be able to
speak to the justice or the judge on the phone or will that be
inappropriate under the circumstances? Again that goes back to
the issue of putting the decision back into the victim's hands,
whether you really want to do that. Those are my submissions.
The Chair:
Thank you very much. We have about three minutes for
questions.
Mr Tilson:
Clearly the system we have is not working. People have said that
it is working. Well, it's not working. We've had some horrific
situations that have gone on, even this past summer, just awful
scenes. One of the things that the federal legislation doesn't
do-in fact, there's no legislation-is deal with emergency
situations. That's one of several things that this legislation is
offering, the emergency seven days a week, 24 hours a day. Ms
Reilly has criticized that in a number of ways and the
government, in fact members of this committee, will take those
comments under advisement, although I will say that certainly
since the spring of 1999 the court has served all restraining
orders where the applicant was not represented and they are
already paying this through the court services division. On that
point alone, I'm surprised you're saying that this legislation is
a step backwards. For those emergency situations-Ms Reilly could
talk about how the courts are congested. Here, with a designated
justice of the peace, you can get an order just like that.
1700
Ms Reilly:
I guess one of my questions is, and it's more of a practical one,
who's going to type that order at 2 in the morning? Until that
order is created and served, it's not existing.
In terms of how the system
is working now, the problem is enforcement of the orders that are
being made. That's where I see the problem, in terms of the
orders being made in the Ontario Court of Justice where there
have been restraining orders made, and the enforcement. In terms
of the 24 hours, my comments were more from a practical point of
view. You don't have a court system that's working 24 hours a
day.
Mr Tilson: I don't mean to be
overly critical. You're obviously offering good suggestions and I
know those comments will be made, those practical comments. But I
am concerned when you say that the bill is a step backwards. I
can't agree with you on that. With these terrible situations that
have occurred which we have all read about in all of our
communities across Ontario, something has to be done and this
bill is a step. It's not the solution, but it's a step in the
right direction.
Ms Reilly:
But I think where the bill has problems, for me looking at it, is
that it's very complicated. You're dealing with someone who's
been victimized. They need a simple procedure and this is not
simple.
Mr Tilson:
There's no question that your comments about education are
legitimate. The government is going to have to figure out ways of
getting the police and peace officers educated, the lawyers
educated, the shelter people educated and the public educated.
Those are legitimate comments on these processes, and I hope the
shelters will be part of that process.
The Chair:
We have run out of time and we really are on a very short leash
this evening. Thank you for your presentation.
Mr Kormos:
Mr Tilson used our time?
The Chair:
Yes, Mr Tilson used your time, but I will make sure that you get
your time, Mr Kormos.
ADVOCATES' SOCIETY
CRIMINAL LAWYERS' ASSOCIATION
The Chair:
The next presenter is Ms Alexandra Chyczij, executive director of
the Advocates' Society. Good afternoon.
Ms Francine
Sherkin: I know for sure my name's not right there. I'm
Francine Sherkin. I'm on the board of directors of the Advocates'
Society and I'm here representing the family law section and the
criminal law section. Alexandra did send in our submissions that
hopefully everybody has a copy of and which I'm just going to
review today anyway.
Mr Kormos:
I'm sorry. Excuse me. The reference to the submission, that's
the-
Ms
Sherkin: We have a letter dated October 23.
The Chair:
It was handed out yesterday, Mr Kormos.
Mr Kormos:
OK, that's what you referred to. I just wanted to make sure.
Thanks.
Ms
Sherkin: With me is Anthony Moustacalis. He's from the
Criminal Lawyers' Association. I know you're tight on time, so
the good news is that we're going to be short. He's going to be
using part of the short amount of time that I have today.
As I mentioned, I am here
representing the family law and criminal law committees of the
Advocates' Society because we have a joint submission. I am a
lawyer who has been practising for 23 years in the litigation
area, mostly in family law.
As set out in the letter of
October 23, we are distressed at the speed with which this
legislation has been introduced and the fact that there has been
virtually no consultation with the criminal and family law bars.
We learned only recently that Bill 117 had been introduced on
September 27 and as of this date has already progressed through
second reading and several days of committee hearings. In light
of the importance-and we do see it as very important-and the
complexity of the issues and the legislation involved, it is
impossible for us to responsibly review the bill and to make
meaningful comments about it within such a short time frame.
There is no doubt that the
bill has progressive aspects, and we certainly applaud that, such
as the extension of protection to common-law and same-sex
spouses. However, there are difficulties with the bill which may
result in more problems than benefits. We are concerned about the
effect of the draft legislation on both parties to the proceeding
contemplated in the legislation. The bill is intended to protect
victims of domestic violence. It is our view that Bill 117 may
fall seriously short of this goal and may in fact make it more
difficult to make victims of violence safe. This is a shared view
of both the criminal law and the family law committees of the
Advocates' Society who represent both women in need of protection
and persons against whom such orders would be made. Because of
our concern about the far-reaching implications of this
legislation for the public, we would very much like to
participate in a meaningful consultation process. Unfortunately,
for us to date, this has not been such a process.
We are strongly of the view
that this legislation would benefit from detailed review and
input from both family and criminal law practitioners to make
sure that it's going to make things better and to make it work.
We are concerned that without greater co-ordination between the
two levels of court and without a balancing of the family and
criminal law areas, injustice will result to families, to
children and to litigants.
As Bill 117 presupposes
amendments to the Criminal Code of Canada, we submit that, in
light of the recent election call, such amendments will not be
forthcoming in the near future and therefore there is time to
have a better consultation process, a broader one. We
respectfully ask that you extend the time for the hearings of the
standing committee on justice and broaden the consultation with
the various stakeholders, such as our committees. We trust that
we will have further opportunities to be heard on this important
issue and hopefully look forward to the response.
The Chair:
Thank you, Ms Sherkin. Did you wish to add, Mr Moustacalis?
Mr Anthony
Moustacalis: Yes. This is echoed in the letter, if I can
just read it for the record. It's addressed to the Attorney
General of Ontario.
"Dear Mr Attorney:
"Re: Bill 117-Domestic
Violence Protection Act
"The Ontario Criminal
Lawyers' Association, is one of the largest specialty legal
organizations in Canada, comprising about 1,000 members. The
association is a strong
voice for criminal lawyers and everyone concerned with the
quality of criminal justice.
"The Criminal Lawyers'
Association would have liked an opportunity to explore the issues
raised by this important legislation and provide meaningful
input; however, we are unable to do so because of the shortness
of notice regarding hearings before the standing committee on
justice.
"We have reviewed the
letter dated October 23rd, 2000, from the Advocates' Society
criminal law committee chair and family law committee
co-chair"-which of course was just read to you-"and
wholeheartedly share their views. We would also respectfully
request that you extend the time for hearings of the standing
committee to allow for thorough review and consultation on this
legislation.
"Yours very truly,
"Alan D. Gold
"President."
That's our statement. Thank
you.
The Chair:
Thank you for being so brief. There may be questions. Mr
Bryant?
Mr
Moustacalis: I think we're going to decline questions
and just deal with our statement.
Mr Kormos:
Stick around. This will be the better part of these hearings.
Mr
Moustacalis: Thank you anyway.
Ms
Sherkin: We'd love to next time answer questions, but we
haven't had time.
Mr
Moustacalis: Our position is stated in the letter, that
we haven't had an opportunity-
Mr Kormos:
But by leaving, you deny us the time to take shots at the
government.
Mr Tilson:
And we you.
Ms
Sherkin: You can do that without us.
The Chair:
I shall make sure you have lots of time with the next two
delegates, Mr Kormos.
Thank you for being so
brief.
ANNE COOLS
ROGER GALLAWAY
The Chair:
The next delegate is Senator Anne Cools. We are a little early,
but if you are ready we'd love to hear from you. Good
afternoon.
Senator Anne
Cools: Good afternoon. I would just like to say that
it's a pleasure to be here. As you know, I'm a senator from
Ontario, so it's especially nice to be at home. Mr Gallaway and I
had very short notice to pull our thoughts together, but we
thought that if we engaged in some shared time we could perhaps
be a bit more effective. Having said that, I think Mr Gallaway
should proceed.
The Chair:
Before you do, I gather that you would like to combine your time
so that the two of you can speak for up to 40 minutes, including
questions to the Armstrong commission?
Senator
Cools: Yes, especially with questions.
The Chair:
Is that OK with members of the committee? No problem? Please
proceed.
1710
Mr Roger
Gallaway: I will start by saying my name is Roger
Gallaway and I'm the member of Parliament for the riding of
Sarnia-Lambton.
My presence here today and
my observations regarding this proposed legislation come not as
an expert in any particular discipline but rather as a member of
Parliament and the former co-chair of the special joint committee
of the House of Commons and Senate which was created in 1998 by
resolution of both chambers to study the issues of custody and
access. I have heard, I must say, an extensive number of
witnesses-more than 550-on this subject and related topics, and
to this day I continue to hear from hundreds of individuals.
First, I think I can say
that it goes without saying that domestic violence is a cruel and
sad fact of human relationships. Second, the Fraser Mustard
report commissioned by Premier Harris documented the evidence
that violence can have on children, especially those under the
age of four years. Finally, I'd like to say that society in
general and parliamentarians have a duty to protect all
Canadians-and I want to stress "all"-from this phenomenon.
There are two salient
questions which remain. The first is, what is the best mechanism
to effect this protection, and secondly, who are the perpetrators
and who are the victims?
The answer to question
1-what is the best mechanism of protection?-is, I presume, in
your opinion or in the opinion of some here, before us in Bill
117. Allow me to first state the obvious. We are in a federal
state which has defined divisions of power. It's clear and
certain that the federal Parliament has the right and authority
to legislate with respect to dissolution of marriage, that is,
divorce, and ancillary matters such as custody and access, as
well as criminal conduct. Similarly, provincial Legislatures can
legislate in matters such as common-law relationships, division
of property, whether a marriage has occurred or not, as well as
the custody of and access to children of common-law
relationships.
Having said the obvious, I
would also note that there was great pressure of a political
nature on the special joint committee to insert criminal
sanctions into amendments to the Divorce Act, yet that law was
never designated to be a branch of the criminal law. However, in
my opinion, Bill 117 has succumbed to this level of pressure
under the guise of the Family Law Act. In subsection 1(2),
paragraphs 1 through 6, there are various definitions of domestic
violence. All of these six definitions, if they did in fact
occur, are clearly criminal acts. For those who commit such acts,
the Criminal Code should be invoked to ensure an appropriate
penalty is applied.
Allow me to propose an
example. An individual calls a former spouse and threatens bodily
harm. That's the allegation. The police are alerted. The
individual is apprehended, charged and brought before a justice
of the peace for a bail
hearing. At that hearing, it is deemed that the accused is
high-risk and is kept in custody pending trial. I should tell you
that this is a real-life example of an individual who, nine
months after the charge has been laid, is still in custody in a
provincial jail pending trial. Without descending into the realm
of being absolutely anecdotal, it is clear in this case that
criminal law does and can work.
Allow me one further
example. An allegation of physical assault of a child is made in
the course of a divorce hearing involving custody. The allegation
is against one of the parents, made by the other parent. The
judge denies any contact between the child and the accused parent
until a hearing on the issue-that is, on the assault-can take
place. Such hearing eventually occurs, at which time the judge
finds that there is no proof whatsoever regarding the accusation.
He then orders that the parent be given access. That parent, in
attempting to exercise this court-ordered access, is again denied
visitation because a child protection worker said no. In fact,
the social worker, notwithstanding the court hearing, still
believes that one parent, the accused, committed what is a
criminal act.
The outcome of this
real-life matter has yet to be determined by the courts. However,
I think it does raise the issue of how other legislation, in this
case child protection legislation, can be used to frustrate the
process of the courts and the orders of the courts. Quite simply,
although a criminal allegation has been made but not found, a
provincial law designed to protect children has short-circuited
the entire process, all in the name of protecting someone from
alleged family violence.
These two examples
exemplify the two levels of protection of those who are said to
be victims. In the first case, the accused has been removed from
society pending a criminal trial, while in the second case, the
accused has been acquitted yet still found to be an accused, to
be subjected to yet another judicial process.
These two examples beg the
question: why, in the face of all this legislation which exists,
is yet another law necessary? Provincial Attorneys General have
the authority to issue directives in terms of policy to their
crown attorneys to become more stringent. Provincial Solicitors
General have the authority to issue directives by way of policy
statements to police forces to become more stringent. Why, then,
is the Criminal Code being swept aside in favour of this bill? Is
the weakness in the law as it is presently written, excluding
this bill, or is the weakness in the administration of justice? I
would suggest it's in the latter case.
The example of the
incarcerated former spouse given earlier leads me to ask yet
another question. Let us presume for discussion purposes that at
a criminal trial the accused is acquitted, that is, a court finds
there is no evidence whatsoever that such a threat occurred.
Under Bill 117 before you here, an application for a restraining
order could be made notwithstanding that acquittal. Unlike the
celebrated O.J. Simpson trial where a criminal acquittal was
followed by a civil action for damages, this law would give the
original complainant yet another avenue to pursue outside the
criminal law.
Allow me to ask a final
question. If that application for an intervention order is
denied, what remedy will the accused have? Quite simply, why do
you not devote the resources at the first level, that is, the
administration of justice, rather than creating a double-jeopardy
scenario?
With respect to the second
issue-who are the victims and who are the perpetrators?-I would
now defer to my colleague Senator Anne Cools.
Senator
Cools: I would like to begin by saying that I was deeply
impressed with the evidence of some of the previous witnesses, in
particular lawyers. I just thought perhaps I could add my voice
to support the wishes of Cynthia Wasser of the Canadian Bar
Association and the other lawyers who are essentially asking for
more time to consider this legislation with a lot more care. I
just thought perhaps my voice could add a little bit of influence
to that.
I have not had as much time
as I would have liked to prepare. However, what I offer to the
committee is some decades of experience on the ground in this
particular subject matter. As you know, Mr Gallaway and myself
served on the joint Senate-Commons committee in respect of child
custody and access, so there is a sizeable amount of experience
embodied between the two of us.
1720
Honourable members, I come
here to ask for fairness, balance and equilibrium in this law. I
do this because the legal and social condition around domestic
violence is one that I can only describe as a heart of darkness.
This condition is rendered more difficult by official government
disinclination to accept the obvious fact that violence and
aggression are human problems, not gender problems. I shall ask
you to examine the proposition that men and women are equally
capable of vice and equally capable of virtue, and that virtue is
a human characteristic, not a gender one.
The committee, as a
committee, must seek in legislation to reject any notion of the
moral superiority of women and the moral inferiority of men, or
that men are somehow morally defective. The proposition of
women's inherent virtue and men's inherent vice has dominated
family and criminal law for the past decade. It has wreaked havoc
and has bequeathed tragedy. I ask committee members to examine
the data, to examine the empirical evidence in respect of
violence within intimate relationships, and to consider the
possibility that the issue of domestic violence has been falsely
framed or wrongly framed as violence against women.
Bill 117 tells us that it
is about the protection of the life and limb of persons who are
described as victims of domestic violence. On September 27,
Attorney General Flaherty told the assembly that Bill 117 is "to
support and protect people, primarily women and children, who are
at risk of domestic violence." He said, "We are committed to
ensuring that abusers are held accountable for their crimes." Mr
Flaherty has clearly thought about crimes. Mr Flaherty has used
the term "crimes." I note that the term "crime" is very clear here. Bill
117 is entering into a foray in criminal legislation.
This bill is about the
strength of allegations. I assert that this new proposed
intervention order is not a strengthened restraining order as
suggested but is a totally new form of order. It is a new
constitutional creature unknown to our constitutional order and
it is innocently titled an "intervention order." I would submit
to you that there is no such legal entity. This intervention
order confers exceptional, drastic and unprecedented powers on a
judge, without clear statutory enactments to found, enable and
create the power.
This new intervention order
will marry existing restraining orders under the powers of the
obligation of citizens to keep the peace and observe the law in
respect of life and limb, that is, the Queen's peace, to an
unknown constitutional power to expropriate a person's property
rights and to attribute those rights to another. In particular, I
speak of the contents of the intervention order section,
subsection 3(2), paragraphs 8, 9, 10 and 11. Paragraph 8 provides
for intervention orders to grant exclusive possession, stating,
"Granting the applicant exclusive possession of the residence
shared by the applicant and the respondent, regardless of
ownership."
Bill 117 will circumvent
the Family Law Act and give applicants a shortcut to the
acquisition of family law property rights. It will vest a legal
estate, a property interest, in the applicant to the exclusive
possession of the residence. And they say "residence" in the
bill, in sharp distinction from the language "matrimonial home"
in the Family Law Act. The Family Law Act vests a joint legal
estate in the matrimonial home in both spouses and allows either
spouse to obtain exclusive possession of the matrimonial home by
virtue of its provisions of limiting the other spouse's exercise
of their right to possession of the matrimonial home. The
authority for that exclusive possession is based in the joint
legal estate of both the parties. This bill has no such joint
legal estate and further supersedes the concept of the
matrimonial home. This is totally new. The effect of this bill, I
will propose, is a modern revival of the ancient power named the
law of forfeiture. I would ask honourable members to wrap their
minds around that particular proposition.
In 1971, Erin Pizzey
started the first shelter in the world for women affected by
domestic violence in Chiswick, England. In 1974, she wrote the
very first book on domestic violence, called Scream Quietly or
the Neighbours Will Hear. Erin Pizzey, in a 1998 article in the
UK's Observer newspaper, wrote the following, talking about her
first experiences at her refuge. She said, "Of the first 100
women coming into the refuge, 62 were as violent as the partners
they had left. Not only did they admit their violence in the
mutual abuse that took place in their homes, but the women were
abusive to their children."
Erin Pizzey has written
about women, and also men, who are prone to violence, or
violence-prone. Many are disinclined to receive the evidence that
women are violent, yet we all know that infanticide is an
exclusively female crime, as the Criminal Code in section 233
tells us. This disinclination shields female violence from
treatment and therapy, from correction and prosecution. The
effect is to cloak women in innocence-a successful strategy for
claims in courts of law.
The American scholars on
domestic violence, including Drs Murray Straus, Richard Gelles,
Suzanne Steinmetz and Jan Stets, all tell us that the domestic
assault rates of men and women are equal and that mutuality,
symmetry and reciprocity are the norm. Men and women hit each
other at equal rates. Men and women initiate violence against
each other at roughly equal rates. These studies have been
replicated in Canada by the Canadian scholars Drs Kim
Bartholomew, Merlin Brinkerhoff, Donald Dutton, Eugen Lupri and
Reena Sommer. Dr Dutton appeared before the special joint
Senate-Commons committee on child custody and access on May 19,
1998, and he testified at page 25:53, "I wrote a paper in 1994
called Patriarchy and Wife Assault: The Ecological Fallacy. In
that paper I essentially criticized sociological and feminist
views of wife assault and of family violence."
Dr Dutton further told the
committee, "I also called attention to the fact that in research
that had been done on homosexual relationships, and particularly
on lesbian relationships, the abuse rates for physical assault,
sexual violence, sexual abuse and psychological abuse were all
higher than those reported in heterosexual relationships, and
that this was a difficult finding to reconcile with a feminist
point of view, since we're dealing obviously here with
relationships between women."
I would like to place a
case before you for your consideration. This is a 1998 case of
Regina v Ghanem in the Provincial Court of Alberta. Mr Ghanem had
been charged with assaulting his wife-a domestic assault. He was
tried and acquitted of this particular charge. This case is very
relevant because under Bill 117 he would find himself back in
court after an acquittal. Mr Ghanem's wife charged him in an
effort to imperil him in the divorce proceeding; this is very
well documented in the judgment. About the defendant's alibi,
because he was elsewhere when the assault was supposed to have
taken place, Judge Fraser stated at paragraph 2, "It was also
disclosed to the police officer immediately upon being told of
the allegations. The officer chose not to investigate the alibi
and instead just laid the charge. Apparently he didn't feel he
had any responsibility to do so."
Judge Fraser stated his
reasons for acquitting Mr Ghanem. He said, "I find the evidence
of the complainant and her mother to be contradictory, confusing,
contrary, conflicting, irreconcilable and quite frankly,
false."
About the zero tolerance
policy, Judge Fraser stated at paragraph 21, "I want to make two
further comments because one is curious as to how a man could be
falsely accused in these circumstances right up to and including
a trial. The reasons are quite clear to me and disturbing. First,
the police apparently have a policy of zero tolerance in domestic
assault cases. Any zero tolerance policy is dangerous. It is
especially dangerous when it is not properly applied." I have copies of that
judgment if honourable members would be interested.
1730
Honourable members of the
committee, I have done a lot of work on the question of false
accusation. The particular issue around false accusation that has
preoccupied my mind, and it deeply disturbs me because it is such
a painful and terrible thing, has been the fact that within child
custody and access disputes, quite often, as a strategy for
obtaining sole custody, there has been a plethora over the last
10 years of the use of false accusation as a strategy.
I submit to you that
exclusive possession of the home, custody of the children,
spousal and child support are sufficiently desirable and
profitable to sometimes found deceit, deception and deviance. I
would like to offer the committee the findings of the 1995
Ontario Civil Justice Review and also the Manitoba Civil Justice
Review of 1996 in respect of their findings on family law. I have
this material here before me if the committee is interested. In
Manitoba, for example, the task force report stated: "The task
force heard horror stories about the traumatic impact on the
accused person, on the immediate family and children affected by
malicious false allegations designed to achieve sole custody,
prohibit or restrict visiting privileges, and to punish the other
parent."
Here at home, we had the
Ontario Civil Justice Review, co-chaired by Mr Justice Robert
Blair. These same sorts of concerns are flagged and raised. As a
matter of fact, Mr Justice Blair at one point said that civil
justice in Ontario is in a crisis. I have studied this matter and
I have reviewed some 52 cases, which I will be quite happy to
share with you. I have here in my hands a list of 52 judgments
from across the country of confirmed false allegations-not false
allegations that were made, but false allegations that were
found. These accusations are of mostly child sexual and physical
abuse, mostly made by mothers, mostly against fathers, and the
context, again, is mostly child custody and access
proceedings.
Honourable
Senators-honourable members-
Mr Kormos:
We have elections.
Senator
Cools: Do you? I want you to know that we do too.
Mr Kormos:
Mr Gallaway does.
Senator
Cools: I know who loves an election.
Mr Guzzo:
It's just a matter of time for you, Mr Kormos.
Senator
Cools: Very good. Mr Guzzo is-
Interjections.
The Chair:
Order, please. That was a caution to committee members, not to
you, Senator Cools.
Senator
Cools: Thank you.
Mr Guzzo:
She just doesn't look at us when she scolds us.
Senator
Cools: I think she only scolds you when you need to be
scolded.
Anyway, these are 52 cases.
I have listed the cases, case by case, by court, by judge, and
even by date of the judgment. I tell you, some of these judgments
are chilling. I would like to read a statement from one of the
judges because it is at home here in Ontario. The judge is Judge
Fisher. In the 1995 case of A.L.J.R. v. H.C.G.R., Judge Fisher
stated at paragraph 17: "I find that the father committed no
physical or sexual abuse and the mother programmed her child to
give fictitious complaints."
At paragraph 23, the judge
confessed: "When, in the past, I have read evidence of alleged
abuse, I have decided to err on the side of caution and order
supervised access. Judges often do this. I confess to have been
taken in by the mother's evidence."
Honourable members, I think
that's quite a staggering admission and a confession for a judge
to make.
The condition that I spoke
about around these accusations is essentially the condition that
women must always be believed and that men must always be
doubted, because women are virtuous truth tellers and men are
liars of dubious character, all lurking to hurt, maim, rape and
kill their wives and their children. In a decade, we moved from
"father knows best" to "fathers molest."
Honourable members, I would
like to conclude by saying that Bill 117 seeks to deny women's
violence. It cloaks women in innocence, and vests mere
allegations of domestic violence with aspects of criminal
findings, while it stealthily vests the accuser with new property
entitlements and also new child custody and access entitlements.
It then attempts, under the disguise of a prohibition, to vest
the accuser with a potential immunity, by section 16, from
prosecution for perjury. This extraordinary power is
legislatively achieved by virtue of a novel judicial order call
an intervention order, sometimes obtained without notice, which
can then oust-the bill says "prevail," but in parliamentary
language the term is "oust"-orders made under the Divorce Act,
the Family Law Act and the Children's Law Reform Act. As I said
before, such a judicial order, such a power, is unknown to the
law in Canada. Further, no provincial statute can oust the
Divorce Act. That is a jurisdictional question that was raised
earlier.
This bill is a monumental
foray into criminal law. Simultaneously, it lacks the protection
of due process and the higher standard of the burden of proof
required by criminal law. It lacks the protection owed to one
accused of violence. Violence is clearly an offence in criminal
law, not civil. In addition, by subsection 1(2), the definition
of "domestic violence" is so broad, contrary to our
constitutional framework, which usually requires that offences be
defined precisely and narrowly. Further, subsection 1(3) tells us
that on a balance of probabilities, a finding of domestic
violence can be made without a criminal investigation, without a
criminal finding or without a criminal test of credibility, and
even sometimes without a police investigation.
Bill 117 is about criminal
law and the consequential forfeiture of and the creation of new
property rights. As a consequence of allegations of crime made
and found without criminal due process, the ancient law of
forfeiture is revived. An accused forfeits property rights and
cedes them to an
accuser. This legal scheme, as I said before, is unknown to
constitutional governance in Canada. I think the committee and
the Attorney General should exercise some pause and some caution
and slow this bill down, receive counsel and find out exactly
what is going on in this bill.
My worry about this bill is
that it will not do very much to protect genuine victims who are
in pain and anguish and who are suffering, and will do a lot to
strengthen opportunities for what I would call unscrupulous
individuals who will want to use the law in some unscrupulous
way.
The heart of darkness, as I
said before, that results in the twin tragedies of murder and
suicide-and let us remember that suicide, after all, is
self-murder-needs light. It really needs very serious study and
needs a lot of light. I would submit to you that it needs no
additional darkness.
I have spent my life
working on this subject matter. I know a lot about domestic
violence and I know a lot about human beings when they are
wrapped in these conflicts, buttressed quite often by hosts of
other entanglements and pathologies. I would also submit to you
that there are many different forms of domestic violence. The
most frightening and the most terrifying form of domestic
violence is the one where, unfortunately, within all of these
other conflicts, homicidal or suicidal impulses also come into
play. I tell you, I mean it when I say this is the heart of
darkness. I thank you.
The Chair:
We have about eight minutes for questions.
1740
Mr Tilson:
You've indicated that this legislation is an encroachment upon
the Criminal Code, although I draw to your attention that there
are other provincial jurisdictions and provincial-type
jurisdictions around the world that have similar legislation to
that being proposed under Bill 117, namely, Manitoba, Alberta,
Prince Edward Island, Saskatchewan and the Yukon, many American
states, New Zealand and Australia. I don't know whether you're
aware of those, but you might want to check those out.
Both of you have said that
you've spent a considerable number of years reviewing the topic
of domestic violence. Can you tell me what new recent legislation
the federal government has undertaken with respect to the topic
of domestic violence?
Senator
Cools: What new legislation?
Mr Tilson:
Yes.
Mr
Gallaway: I think the basic question you're asking begs
the question, is the present legislation adequate? I cited one
example, and I don't want to be anecdotal about it, but I would
say to you that the present legislation is adequate, provided the
resources are given to police and crown attorneys to get on with
these allegations, which I would suggest to you, Mr Tilson, are
in fact criminal offences.
Just because a new law is
put forward, whether it be in Ottawa or in a provincial capital,
does not by definition say it is in fact an improvement. It's
just yet another law.
Mr Tilson:
Senator Cools has spent a great deal of time talking about
domestic violence. I agree; I believe we do have a problem with
domestic violence, and it's not just men against women. It's men
against women; it's women against men; it's date rape; it's the
issue of elder abuse. Very few people in these hearings have
referred to the topic of elder abuse. There's all kinds of
it.
I just asked a simple
question: with your experience-and I appreciate that-what draft
legislation is being proposed by the federal government to deal
with any of these issues?
Mr
Gallaway: As you know, the House is dissolved. There is
no draft legislation.
Mr Tilson:
I understand that.
Mr Kormos:
Gentlemen, will you both lower your hind legs?
Senator
Cools: Mine are in pretty good shape.
Mr Tilson:
Am I still on the air?
Senator
Cools: The real question is that the current position of
the federal government obviously is that the Criminal Code is
alive and well and working quite adequately. That would be the
position. I do not speak for the government, so I do not feel
that I have to excuse or apologize. But that would be the
position of the federal government.
The question that is hidden
in yours is, why is there a need for a new amendment to the
Criminal Code? You have not satisfied me that there is. This
particular bill does not satisfy me that there's any need for a
new addition to the Criminal Code. You inform me that there's
similar legislation to this in other provinces. I am here to
speak about this particular legislation. Yes, I am pretty well
informed on legislation in the other provinces, but I was
speaking to this one, and I say to you that this particular one
is insufficient because it has clearly trenched on federal
territory.
Mr Bryant:
You've raised an empirical question. You can't be expected to
have been here for it, but earlier one of the submissions, by the
Metropolitan Action Committee on Violence Against Women and
Children, cited a Stats Canada study to the effect that 86% to
93% of victims of violence are women and 90% of the perpetrators
are men. We can ask legislative research to find the year of the
StatsCan study. Stats Canada is hardly-
Senator
Cools: Are you speaking about the 1993 so-called
violence against women survey? Is that the particular study?
Stats Canada puts out these studies quite frequently. Which one
are you referring to?
Mr Bryant:
I'm sorry. The study was referred to in a previous submission.
Let me put this to you: What do you say to those numbers?
Senator
Cools: I don't know. You would have to cite for me the
particular study-
Mr Bryant:
Fair enough.
Senator
Cools: What I would say to you is that domestic violence
is a problem that affects a small minority of couples in this
country. What I would also say to you is that the strongest
predictors of domestic violence are usually youth and common-law
relationships, chronic
unemployment and usually other sets of social and emotional
problems. I would also say to you that at least 75% of men are
not violent in their intimate relationships.
When we are looking at
deviance, I think we have to be crystal clear that we are looking
at deviance and focus in on deviance. I guess that is what I'm
trying to say. If one wants to deal with deviance-and there is
very real deviance. I was on the National Parole Board. I tell
you, I've read a lot of cases on deviance. Let us make sure that
we draw the law narrowly enough and brilliantly enough to capture
in that net the deviance we're wanting to capture and to leave
out the rest of the majority of ordinary citizens. I would submit
to you that the majority of men and women involved in divorce and
custody and access disputes are not in that small group of people
whom we would call violent couples.
The Chair:
You have one more minute.
Mr Bryant:
You're obviously familiar with the bill.
Senator
Cools: Yes, I read it quite carefully.
Mr Kormos:
Mr Bryant can have my time.
Mr Bryant:
There's no section in the bill that's gender-specific, is
there?
Senator
Cools: That is the interesting thing. It doesn't have to
be, because the Attorney General has said it is and all the
witnesses have been saying it. It is very clear that what has
happened in Alberta and what has happened in the other provinces
where similar legislation has been introduced is that the weight
of the law will be felt by the male in the relationship.
Mr Bryant:
I heard that submission-
Senator
Cools: I think we can all agree-
Mr Bryant:
-but there is no gender-specific reference in the bill, is
there?
Senator
Cools: It is unnecessary to do it because there's a
culture, which is the point I was trying to make.
Mr Bryant:
I'll take that as a "no."
Senator
Cools: I was trying to appeal to you to say that this
bill is being administered on those grounds and there's a culture
that is going on. Believe you me, if you've ever counselled or
sat between one of those couples, it is very frightening.
The Chair:
Thank you, Ms Cools.
Mr Guzzo:
Madam Chair, may I just say on behalf of the committee, we thank
you both very much for being here. I know you're both busy. Mr
Gallaway, I'm sure you have other things on your mind that you
could be handling today and it's very much appreciated that you
would take the time to be here.
Mr
Gallaway: Thank you, Mr Guzzo. I want to say how pleased
I am that this all occurred on Halloween evening. It would be
very difficult to campaign tonight.
Senator
Cools: I would like to close by saying that one lauds
every effort to correct social problems, but I think we have to
be crystal clear that we're defining the problems adequately. I
notice nobody responded to the question that I raised-but that's
all right-about the exceptional power, invoking the old powers
under the law of forfeiture, because, for those of you who may be
setting out to try to correct or amend it, what is really wrong
with this bill is the marriage between the criminal powers and
the civil powers. If the restraining orders had been strengthened
in respect of protecting life and limb, it would be an entirely
different matter, but the real problem with this bill is throwing
in the additional property considerations. Thank you very
much.
The Chair:
Thank you both, Senator Cools and Mr Gallaway, for being
here.
Ladies and gentlemen, that
does conclude the public delegation portion of the committee
deliberations. I would ask committee members to please remember
that November 7 at noon is the deadline for amendments and there
will be clause-by-clause consideration on November 14 at 3:30 in
this room. Thank you for your patience.
