Standing committee on Justice and Social Policy
1st session, 37th Parliament | 1re session, 37e législature
Tue 31 Oct 2000 / Mar 31 oct 2000
Tuesday 31 October 2000
Domestic Violence Protection Act, 2000, Bill 88, Mr Flaherty / Loi de 2000 sur la protection contre la violence familiale, projet de loi 88, 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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--
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.
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.
The committee adjourned 1749.
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