Standing committee on Justice and Social Policy

1st session, 37th Parliament | 1re session, 37e législature

Tue 14 Nov 2000 / Mar 14 nov 2000


Tuesday 14 November 2000

Subcommittee report

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

Ministry of the Attorney General
Ms Anne Marie Predko, counsel, policy branch


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

Mr Toby Barrett (Haldimand-Norfolk-Brant PC)
Mr Ted Chudleigh (Halton PC)
Mrs Tina R. Molinari (Thornhill PC)
Mr David Tilson (Dufferin-Peel-Wellington-Grey PC)

Clerk / Greffier
Mr Tom Prins

Staff / Personnel
Mr Doug Beecroft, Legislative Counsel Services

The committee met at 1535 in room 151.

Clerk of the Committee (Mr Tom Prins): Honourable members, it is my duty to call upon you to elect an Acting Chair. Are there any nominations?

Mr Toby Barrett (Haldimand-Norfolk-Brant): My understanding is that both the permanent Chair and Vice-Chair are absent. I wish to make a motion. I wish to nominate MPP Marcel Beaubien to chair this committee.

Clerk of the Committee: Are there any further nominations?

Mr Peter Kormos (Niagara Centre): Yes. I want to nominate Tina Molinari, who has been an outstanding member of this committee and who deserves the extra stipend that a Chair is paid, the extra $10,000 or $11,000 a year on top of the $78,000, which this government wants to increase by 42%.

Have they offered those same sort of salary increases to any of the staff at Queen's Park? Have they offered them to the people working downstairs in the cafeteria for close to minimum wage? I think not. If I could nominate one of those cafeteria staff for Chair, I would, but under the circumstances, and as a reflection of my confidence in and my affection for Ms Molinari, I want to nominate Ms Molinari, and I ask members of the committee to give careful consideration in terms of how they cast their ballot.

Clerk of the Committee: Do you accept the nomination?

Mrs Tina R. Molinari (Thornhill): Thank you, but I decline.

Clerk of the Committee: Are there any further nominations? There being no further nominations, I declare the nominations closed and that Mr Beaubien be elected as Chair.

Mr Kormos: Now you're into the big bucks, Marcel.

The Acting Chair (Mr Marcel Beaubien): Good afternoon, everyone. Thank you very much for your overwhelming, confidence in appointing me as the Chair of this committee. You'll have to bear with me here, but I guess the first order of business will be to--

Mr Kormos: On a point of order, Mr Chair: First, I want to congratulate you on your election, but I also want to lend my support to the proposition that you should be paid the stipend that is normally accorded a Chair, which is substantial, in addition to your minimum wage of $78,000.

The Acting Chair: Mr Kormos, if I may?

Mr Kormos: One moment. I move before this committee that this committee recommend that you be paid such stipend in view of your performance of these duties today.

The Acting Chair: Mr Kormos, I would like to point out that I already chair the standing committee on finance and economic affairs, so I'm already paid as a Chair. I will gladly decline your offer. I don't think there is any procedure with this but--

Mr Kormos: Mr Chair, you won't be the first Tory to double dip.


The Acting Chair: I will take the order of business task here today, and I think the first order of business is to read in the report of the subcommittee.

Mr Michael Bryant (St Paul's): I could submit it to the clerk if you wish it to be dispensed.

The Acting Chair: It probably should be read, I think.

Mr Bryant: OK, done.

Your subcommittee met on Wednesday, November l, 2000, to consider the method of proceeding on Bill 128, An Act respecting social housing, and recommends the following:

(1) That the committee meet in Toronto on November 20 and 21 for the purpose of holding public hearings and that the committee will meet on November 28, 2000, for clause-by-clause consideration of the bill.

(2) That there will not be any ministerial presentations or opening remarks.

(3) That scheduling will be accomplished by means of three lists. Each party will prepare a prioritized list of proposed witnesses and provide this list to the clerk by noon on Wednesday, November 8, 2000. The clerk will ensure that each party has an equal number of witnesses.

(4) That the clerk have an advertisement placed on the Ontario parliamentary channel and on the Internet.

(5) That individuals will be offered 10 minutes to make a presentation and organizations will be offered 20 minutes to make a presentation.

(6) That the legislative research officer will prepare a summary of recommendations.

(7) That there will be an opportunity for each party to take 10 minutes to make opening comments at the beginning of the clause-by-clause process.

(8) That the deadline for written submissions is Thursday, November 23, 2000, at 12 noon.

(9) That amendments should be filed with the clerk by Thursday, November 23, 2000, at 12 noon.

(10) That the clerk has the authority to begin implementing these decisions immediately.

(11) That the information contained in this subcommittee report may be given out to interested parties immediately, as opposed to after the committee has voted on it.

(12) That the Chair, in consultation with the clerk, will make any other decisions necessary with respect to this bill.

The Acting Chair: Any further debate on the minutes of the subcommittee?

Mr Kormos: First let me comment on paragraph (11) "That the information contained in this subcommittee report may be given out to interested parties immediately, as opposed to after the committee has voted on it." I appreciate that that in itself isn't invalid, but it presupposes, if you're giving it out for the purpose of information, that that's what the committee is going to pass. It's an unfortunate turn of phrase, and I would hope that subcommittees in the future would refrain from that specific type of language, because it's kind of strange that you haven't voted on it but you're authorizing it to be released as if it had been voted on. Yet I understand the intention of releasing it is to let people know what the terms are going to be for the committee hearings. It's just one of those weird little things.

The Acting Chair: Any further comments on the subcommittee report?

Mr Kormos: I wasn't at this subcommittee, because Rosario Marchese from the NDP caucus is going to be dealing with this issue in the committee and, as I understand it--or at least I assume, which is always dangerous--he was there. I appreciate that I wasn't there and he was. But again, I find (1) that two days of committee hearings in Toronto only, in view of the fact that the issues around social housing impact in every community in this province and that many of the people impacted by these decisions are people who, for a number of reasons, are ill able to travel to Toronto--notwithstanding that the committee is prepared, I presume, to subsidize appropriate applicants for subsidy--is problematic.

(2) Two days, in view of the magnitude of the impact of this, is quite frankly objectionable. I will not support the subcommittee report.

Also, the third issue is of course the advertising. The parliamentary channel and the Internet: sorry, the parliamentary channel relies upon people having cable television, and there are still huge parts of Ontario where people don't have access to cable or, my friend, where people simply can't afford cable.


Mr Kormos: Well, who simply can't afford it, and the Chair says he can't afford it. I suppose that's one of his motives for seeking this 42% salary increase.

The other issue is the Internet. I understand the widespread use of the Internet, but I tell you there are a whole lot of families out there who don't have Internet hookups.

I am really concerned about what's become almost the steady practice of restricting advertising, and then of course committee clerks are compelled to report, "There wasn't much response to this bill." Well, no wonder, because the bill wasn't well publicized.

I recall a time here at Queen's Park, while appreciating the huge cost of advertising, when bills were well publicized via local newspaper advertisements. I've got to tell you that the public response was phenomenal, people with a genuine interest.

Those are concerns that I very specifically have about this, and it's for those reasons that I will be voting against it, notwithstanding that Mr Marchese may or may not have agreed to it, and if he did agree to it, notwithstanding the fact that he felt compelled to agree to it because of the nature of the leverage that the government has in any event.

Mrs Lyn McLeod (Thunder Bay-Atikokan): I also want to express my concerns about the subcommittee report, not as a criticism of the work the subcommittee did--and our housing critic, Mr Caplan, was sitting in on that subcommittee--but with the restrictions that the government has placed on the ability of the subcommittee to look at any further hearings.

I am particularly concerned about the limited amount of time. I think the restricted advertising concern that Mr Kormos has raised is a legitimate one. I don't think there will be any difficulty filling two days of hearings, because there's a great deal of concern about this bill.

My primary concerns are the limitation on the number of days of hearings and, second, the fact that it cannot go to communities outside of Toronto. I know the answer given to the subcommittee, because I did attend a part of that meeting, was that you cannot travel outside of Toronto when the House is in session. I do not believe that there is a compelling reason why this legislation has to be passed in this session. I know the government will feel differently about it, but if they wanted this implementation date of January 1, they had ample time to bring in this legislation so that the committee could have travelled in the summer, in that intersession, so that it could have reached other communities.

This social housing legislation has significant impact, Mr Chairman, on virtually every community across this province. I think it is a real denial of the opportunity to develop legislation that responds to a variety of needs in different communities that the legislation is being put through at a time when the committee is not able to travel.

Mr David Tilson (Dufferin-Peel-Wellington-Grey): I just want to draw to the attention of the opposition members that, first of all, the opposition members who attended that subcommittee, as I understand it, and I was not a member of the subcommittee but I am advised that the opposition members did not ask for additional advertising and, second, that the three House leaders from the New Democratic caucus, the Liberal caucus and the Conservative caucus agreed to these minutes.

Mr Kormos: Mr Chair, a quick response: that's exactly why the subcommittee report goes to committee before it's approved. Otherwise, we wouldn't need committee approval; the House leaders could just decide it or the subcommittee reps could just decide it.

Mr Tilson: I'm just drawing it to your attention.

Mr Kormos: No, quite right, and this is why this committee's deliberation of the subcommittee report is so important, because we're a little bit of a check and balance on some of the machinations that go on in House leaders' meetings where leverage is applied.

The Acting Chair: Any further discussion?

Mrs McLeod: I wouldn't have spoken again except for the intervention of the parliamentary assistant. I believe it's the parliamentary assistant to the Attorney General, as opposed to the minister responsible for housing. I do want to make it absolutely clear that if the alternative to two days of hearings in Toronto is no days of hearings at all on this very important legislation, then of course we're going to agree to at least two days of hearings in Toronto.

That doesn't take away from the concern that this legislation should have been presented at such a time as it was possible for the committee to hold hearings in communities that are very strongly affected by the potential passage of this legislation.

The Acting Chair: No further discussion? If not, all those in favour of the subcommittee report?

Mr Kormos: A recorded vote, please.

The Acting Chair: Mr Kormos requests a recorded vote.


Barrett, Chudleigh, Molinari, Tilson.


Bryant, Kormos, McLeod.

The Acting Chair: The motion is carried.


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 Acting Chair: We'll now proceed to the clause-by-clause reading of Bill 117, An Act to better protect victims of domestic violence.

I see that under section 1 there is a Liberal motion submitted by Mr Bryant.

Mr Tilson: Point of order, Mr Chairman: I ask for the committee's permission--I trust they have no concerns that I'm sitting here along with two staff members from the Attorney General's office, who I'd like to identify to the committee--

The Acting Chair: You certainly may.

Mr Tilson: --and who may assist me if any members of the committee ask of me any questions of a technical nature that I feel perhaps it might be more appropriate for them to answer.

Immediately to my right is Anne Marie Predko, who is the policy counsel with the Ministry of the Attorney General. To her right is Joana Kuras, the executive lead in victims' services of the Ministry of the Attorney General.

The Acting Chair: Thank you, Mr Tilson. Mr Bryant, you can proceed with the--

Mr Bryant: Mr Chair, I believe we were going to do our five minutes at the beginning.

The Acting Chair: Five minutes, OK. I'm sorry.

Mr Bryant: We'll do it now?

The Acting Chair: We'll start with you, Mr Bryant.


Mr Bryant: When the Attorney General first introduced this legislation, a ministerial statement was provided on September 27th. He said what we all knew to be true, that the legislation was to a large extent in response to some of the domestic violence tragedies that had taken place in the spring and summer. He said, "Everyone in this House is familiar with media reports of tragedies that have occurred as a result of domestic violence. As individuals and as legislators, we have a responsibility to do all that we can to prevent these tragedies and to keep families safe. That is why earlier today I introduced the Domestic Violence Protection Act."

The first reaction of the official opposition was, "Yes, of course we'll support any effort, however minuscule, to try and assist in fulfilling our responsibilities to prevent these tragedies and keep families safe, but this had better not be it." In particular, the concern was, and it's a concern that I still have frankly, that the Attorney General is using the tools at the Attorney General's disposal to address himself to these issues, but in fact what is needed is a far more comprehensive approach, as I know the Attorney General and the Premier know, all of which is incorporated in a report submitted to him in August 1999, the report by the Joint Committee on Domestic Violence, Working Towards a Seamless Community and Justice Response to Domestic Violence.

Our concern is that this is it. If this is it, then it is certainly no alternative to investments in community-based services, including emergency shelters, rape crisis lines and counselling services. So while, yes, we support this bill at second reading and, yes, I will have amendments which try to address what we heard in the committee hearings, I just want to again say that it is really the government's responsibility to implement this report. It is not being implemented, I believe we heard during the committee hearings, and in any event this certainly is no response to this crisis in and of itself.

Next, Mr Chair, we heard from the Advocates' Society, who wrote a letter on October 23, 2000, and together with the family law and criminal law committees of the Advocates' Society and the Criminal Lawyers' Association, made a submission. The gist of it was, "Wait, because there's a lot of problems in this act." We often, I know, hear from counsel that there are problems in legislation, constitutional or otherwise, but this is what they said, and I was surprised to hear this, "We are distressed," the letter from Marlys Edwardh and Francine Sherkin reads, "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."

I hope that either now or before this goes to third reading there is going to be that consultation and we are going to address it, because here's the concern--I don't know how much time I have left of my five minutes.

The Acting Chair: I'll let you know when you have one minute left.

Mr Bryant: The concern is this: There are always going to be charter and federalist issues that confront any piece of legislation, particularly one that impacts liberty, security of the person, as this does. But in this case we heard and I think there's no doubt that this rings true, that it's going to be the victims themselves who are going to have to bear the burden of basically ensuring that this act is constitutional because it's going to be the victims themselves who are going to be dragged through the courts during the constitutional vetting of it all. At the very least, let's get it to the point where groups such as the Advocates' Society are of the view that we have charter-proofed it as much as possible. One suggestion was made by myself: perhaps we should send this us for a reference in advance so that we aren't in fact having the victims of domestic violence pay for any errors, foreseen or unforeseen, that are found in this bill. By errors, I mean provisions that end up being struck down.

Those are the concerns. I have tabled some amendments which don't attempt to address these concerns but rather try to reflect the changes that were made to give more discretion to the judges in order to assist the victims through the tools that are provided, however minimal, within this legislation.

The Acting Chair: You have one minute left.

Mr Bryant: I'm done.

The Acting Chair: Mr Kormos, and I'll let you know when you have one minute left.

Mr Bryant: I'll give my extra minute to Mr Kormos.

Mr Kormos: Thank you very kindly. First--

Mr Tilson: That's not fair.

Mr Kormos: A lot about life isn't fair, Mr Tilson.

First, let's make it clear that New Democrats again join in any effort to resolve the dilemma that's been demonstrated time after time about the so-called ineffectiveness of restraining orders, of other orders that are designed to protect victims of domestic violence, be it violence against their person, most serious, or violence against property, or efforts to, for instance, destroy property or dissipate property that could impact on a claimant's right to ever regain control of that property.

It's of some comfort that the legislation appears to be modelled on existing legislation from other jurisdictions. It's also a great concern that not only has there not been an adequate and thorough analysis of the bill in the committee with the assistance of any number of organizations and experts that are prepared to come forward--and if it is a duplication of other jurisdictions' legislation, my same comment would go to them.

It appears to have been rather, with respect, not hastily put together--I can't say that; it might have taken a whole long time--but put together without consideration of the context in the province of Ontario that prevails. Of course, we've talked about the difficulties in terms of, let's say, accessing justices of the peace or other designated judges, the lack of support for persons seeking, especially, emergency intervention orders--they being designed to be available 24 hours a day, seven days a week--when there are already huge stresses on the justice system in terms of JPs and judges.

During the course of submissions by any number of groups I had occasion to comment on concerns about any number of sections in the bill, and I'll raise those just to make sure they're on record as the bill progresses through clause-by-clause. I am disappointed that the government did not see fit by way of amendments to address any of those concerns, and I think that signals a very strong message that the government wants this bill to pass as is.

The bill was going to pass in any event. I don't think there was any major opposition expressed toward the spirit of the bill. But let's understand, this bill very much appears--if it isn't, so be it--to be a response to the murder of Ms Hadley, and the fact that her murderer was released on, as I'm told, three release orders, one by the officer in charge at the station under the Criminal Code and then at least one judicial interim release order, possibly two. The argument then is, "Oh, these release orders are unenforceable. Therefore we'll create a provincial statute that somehow will be more enforceable."

Au contraire. The judicial interim release order under the Criminal Code is one that's enforced by police as well and has criminal and penal consequences. The other point then could be made, "Well, this bill"--and it appears it is because of the amendments to the Family Law Act, among other things--"appears to replace those restraining orders" that are contained in the civil orders by what we lay people call civil judges as compared to criminal judges.

Again, it's acknowledged that oftentimes police are reluctant to enforce an order contained in a judgment from a family court judge, or even a unified family court judge or a superior court judge, that is part of an interim custody and support order. The police are caught between a rock and a hard place. They're uncertain about their responsibility to do it, and also many police forces are simply stressed in terms of dealing with other things and don't have the resources, or at least feel they don't have the resources, to respond.

I appreciate that this bill may be an effort to accommodate that and to clarify the nature of the order such that the Criminal Code penalty section or offence section that deals with breaching a court order applies more directly, more specifically. Good and fair and well, but my problem is that if the police are having difficulty enforcing judicial interim release orders made by a judicial official, be it a JP or a judge, one way or the other, I don't find anything in this bill that will make it any easier for the police to enforce these orders.


The Acting Chair: You have one minute to wrap it up.

Mr Kormos: Thank you, sir.

It's also strange the way the order goes well beyond orders which would directly protect the security of the victim of domestic violence and move into some of the areas of perhaps broader civil jurisdiction.

The other interesting thing, and I'm going to ask the staff about this when we get to it, is the distinction between an interim order, which can be obtained before a JP or designated judge, as compared to a full-time order, which can be obtained only in front of a Superior Court judge, if I read this correctly--the fact that there is no time limit put on those interim orders. In other words, you've got 30 days within which to appeal, and you go to the same judge or the same level of judge; it doesn't have to be the same judge. But it's strange that there's no time limit on the interim order such that the applicant for the interim order, having gotten it ex parte--and if I'm wrong, I want this clarified for me--then has to go and guarantee that there is an order on notice. It may end up being without the respondent defending himself or herself--but that he or she isn't required to go to Superior Court.

So there are problems with it. The problems are not in the spirit or intent; the problems are in some of this very specific drafting. The problems are that it is being imposed on policing communities without giving those policing communities the resources to respond to it; it's imposed on legal communities without giving those communities an opportunity to respond--in other words, beefed-up access to legal aid; and it's being imposed on the judiciary--I appreciate that you folks don't appoint Superior Court judges--which is already incredibly stressed. We've got huge backups, I'm told, in some of the Superior Courts. We've also got huge backups and backlogs by JPs and judges.

The Acting Chair: Thank you very much, Mr Kormos, but I've given you ample time.

Mr Kormos: You've been very generous, very liberal.

The Acting Chair: I've been very fair. Thank you. On the government side, Mr Tilson.

Mr Tilson: This bill is in response to one of the most disturbing and insidious crimes we have today, and that's domestic violence. It's a crime we can't ignore. In the time that's allotted to me I want to respond to a couple of issues that have been raised during the hearings and in fact today. Before I do that, I want to tell you that I think all members of the committee appreciate those members of the public who have written to us with comments about the bill as well as the members of the public and organizations that have come to us and made presentations a couple of weeks ago.

I'd like to respond to two items. One is with respect to the comment about consultations, which two groups--the Advocates' Society and the Canadian Bar Association I think were two that came forward and indicated that they wanted an opportunity to discuss that with us. There is no question that the government intends to proceed to get into--

Mr Chairman, a point of order: Someone here is taking pictures. Is that in order?

Mr Kormos: A precedent was set, unfortunately.

The Acting Chair: Usually, if there's no flash used--I've seen pictures taken in committee and it has never been ruled against. If it's disruptive--

Mr Tilson: I just draw it to your attention. I find it unusual.

If I could continue, there is no question that many of the details of this legislation will have to be worked out and, as we all know, much of that is done through regulation. I invite members of this committee, opposition members, government members or anyone else, for that matter, if they have suggestions as to how to make this bill work better with respect to the regulations, to correspond with the Attorney General's office and they will take those suggestions under advisement. The Attorney General is certainly open to suggestions from MPPs of all sides.

One of the comments that has been made particularly by members of the opposition portion of the committee is with respect to the Joint Committee on Domestic Violence. It has been submitted that the government really hasn't delivered on that report, which was delivered in the fall of 1999. It proposed a five-year implementation plan. I want an opportunity to briefly respond to some of the comments that have been made by certain members of the committee. Many of these recommendations that have been made--

The Acting Chair: You have one minute to wrap it up.

Mr Tilson: OK--require systemic changes that will involve several ministries. It won't just be the Ministry of the Attorney General. This will require time. In the first year, 70% of the committee's recommendations have been implemented fully or partially or are in progress or will be implemented. The government formed a task group on restraining orders. The task group's recommendations have resulted in the introduction of the Domestic Violence Protection Act, which is this act, which, if passed, would create a new domestic violence intervention order to replace the current family law restraining orders that would be enforceable according to the provisions of the Criminal Code.

The Ministry of the Solicitor General has distributed to all police services a model police response to domestic violence that would provide police with new tools to protect victims, which include guidelines on domestic violence occurrences, bail and violent crime, criminal harassment and preventing and responding to occurrences involving firearms. As part of the model on police response, the Ministry of the Solicitor General developed and distributed a new supplementary police report form which includes a risk indicator tool for front-line police officers. The use of this form will ensure that all critical information about the abuser's background and safety concerns of the victim are included in a standard crown brief prior to a bail hearing. Police services are now implementing the model and must have procedures in place by January 2001.

The Acting Chair: Thank you, Mr Tilson. Your time has expired. Now we shall proceed to the usual clause-by-clause. I think, Mr Bryant, you wish to move a motion under section 1(2).

Mr Bryant: I move that subsection 1(2) of the bill be amended by:

(a) striking out "causes the applicant to fear for his or her safety" in paragraph 3 and substituting "causes the applicant to fear for his or her safety, the safety of a relative of the applicant or the safety of any child"; and

(b) striking out "causes the applicant to fear for his or her safety" in paragraph 6 and substituting "causes the applicant to fear for his or her safety, the safety of a relative of the applicant or the safety of any child."

Is it appropriate to make comments?

The Acting Chair: You certainly may.

Mr Bryant: The point here is just to open it up to include not only the concept of an abuser abusing the spouse, but also we were told during committee that sometimes the abuser gets to the spouse through a family member or a child. That too has to be, in my view, included under the concept of domestic violence. It's just to make sure that we include that other indirect way, you might say, of abusing the spouse, but certainly a direct way of abusing the domestic family.

Mr Kormos: I support the amendment. It would draw people's attention to subsection 2(2) where the government has appeared pretty adamant about keeping the age threshold for an applicant to 16 or over. You see, part of this amendment wouldn't be necessary had the government been prepared to eliminate subsection 2(2). It doesn't deal with the relative issue but it would allow a child to be an applicant without the necessity of including children of the aggrieved or victimized party. As to relatives, take note also of 2(1), where a relative is referred to, but that's only as a respondent, however, or claimant, and that only deals in the case where that relative is the direct party, that is to say the perpetrator of the acts which would justify an order.

I think this is a good amendment which, in view of the failure to eliminate 2(2)--and the government appears adamant that they won't--is essential. Look, I don't want to appear melodramatic, but you've got strange, strange scenarios going on out there. Harassment of an immediate family member who may or may not be living with the applicant can be used to effectively hold that applicant hostage or force that applicant into doing things that she or he shouldn't be forced to do. So I support the amendment. I think it's a thoughtful one.


Mr Tilson: This is an amendment to the definition section of domestic violence. The government has difficulty with the amendment because they feel it's unnecessary in that the bill already makes it clear that the acts against relatives or children can cause the applicant to fear for his or her safety.

The words that are submitted in the proposed amendment, we submit, would add little and in fact would make the definition of domestic violence more complex for purposes of interpretation by the courts, so the government has difficulty with this amendment.

Mr Kormos: With respect, Mr Tilson, please. Subsection 1(2) clearly says, "committed against an applicant, an applicant's relative or any child ... that causes the applicant to fear for his or her safety." Now, what does a 14-year-old child of a spouse who's being victimized indirectly through that child, where the only apprehension is to be the safety of that child--do you understand what I'm saying, Chair? It's not the safety of the applicant. In other words, the respondent is hands-off with the applicant, but to exercise coercion the victimizer is causing a child of that person to fear for himself or herself.

The applicant can say, "I know he or she is not going to hurt me, I know that, but they're going after my mother. I know he wouldn't dare touch me or she wouldn't dare touch me, but he's going after my mother" or "she's going after my mother." That's exactly the sort of scenario I think the amendment addresses--and I appreciate what you're saying--but the courts are going to be sitting down, and especially when you have not "includes" but "means" in your subsection 1(2), definition of domestic violence, the courts are going to be called upon by respondents' lawyers to interpret this very restrictively and to the letter of the law because you've worded it in such a way that it's this list, boom, that's it. If it falls even that much outside this list, then it doesn't count. What we're doing is creating, again, gaps, whereas to close those gaps isn't going to cause any hardship.

Who would suggest that if somebody was bona fide threatening or causing fear of harm to a relative where the harm to the relative can't reasonably--you know the defences to threatening charges in the criminal courts. If the accused's lawyer can get the victim to acknowledge that they really weren't fearful, that sure somebody threatened to blow their head off but they're not afraid of that person, no way, then that makes it very difficult for a judge to convict. I'm putting that in a very loosey-goosey way. I hear what you're saying, sir, but the amendment addresses something beyond that.

Mr Bryant: Just very briefly, under the principles of statutory interpretation, clearly this amendment provides alternatives. You're keeping the cause of the applicant to fear for his or her safety, which is the government's drafting, but you're expanding that to include two alternative examples of domestic violence, in other words, or the safety of a relative of an applicant or the safety of any other child.

It doesn't make it more complicated; it makes it broader. I don't want a court to narrow this to exclude those circumstances. I'd be surprised if the government would want a court to narrow it to exclude those circumstances. This isn't complicating it at all; it is opening it up and attempting to clarify it.

If the official opposition was proposing amendments which would add additional steps, then the point would be well taken. It would be further complicating it, but it's not. These are alternative instances of domestic violence.

Mr Tilson: I can't add anything to Mr Bryant's comments. I think I've stated the government's position.

With respect to Mr Kormos's comments, he gave the example of children. I believe that those situations he described, if I heard him correctly, and I think I did, would be dealt with in other legislation. There's legislation under the Child and Family Services Act that would protect the type of situation that he's described.

Mrs Molinari: My question, I think, may have been answered. It was, where else are these covered in either this legislation or any other? It was more of a technical question, just confirming that the protection of a relative and the safety of a child are covered within other legislation.

The Acting Chair: You're asking the question to?

Mrs Molinari: I'm asking the question to staff.

Ms Anne Marie Predko: In terms of children under the age of 16, they would be covered by the Child and Family Services Act.

In terms of relatives, the relative, if they qualified under this act, could obviously apply on their own behalf if that's what they chose to do. They also have available to them section 810 found under the Criminal Code if that's what the relative chose to do.

Mr Tilson: Paragraph 2(1)5 would probably anticipate the section on a relative.

The Acting Chair: Does that answer your question?

Mrs Molinari: Sort of. That says, "A relative of the respondent who resides with the respondent," so I don't think it really covers what this amendment would cover, because we're not talking about a relative who resides with the respondent. I think this is more open; it's just any other relative. But I understand that it may be covered in other legislation and that the relative can, themselves, file a complaint. I think I'm satisfied that it's covered.

The Acting Chair: OK, thank you. Mr Kormos.

Mr Kormos: Ms McLeod was first.

The Acting Chair: I had you first, but go ahead.

Mrs McLeod: I'm looking now for some clarification, and perhaps you can help me with my memory of the Child and Family Services Act. My recollection is that if there is a risk to the child, the Child and Family Services Act allows police, or more likely the children's aid society, to move in and to seize the child. The whole purpose of this legislation is, among other purposes, to expand the circumstances in which the risk can be minimized by removing the abuser or potential abuser from the home.

It seems to me that the Child and Family Services Act does exactly the opposite when it comes to children. If I'm correct in my memory of that, if there's no provision in the Child and Family Services Act that allows a potential abuser to be removed before there can be harm to the child, then it would strengthen the case for support for Mr Bryant's amendment. Surely when you've got a child at risk in a home, you don't want to add to that risk to the child by removing the child.

Mr Kormos: (1) Reinforcing the comments regarding the appropriateness of the Child and Family Services Act; and (2) where you make reference to 2(1)5, it's "A relative of the respondent who resides with the respondent." You see, "The following persons may apply for an intervention order ... a relative of the respondent who resides with the respondent." What that is supposed to cover is siblings living together, and I suppose it encompasses elder abuse, but it doesn't deal with what we've been talking about or what it appears the amendment talks about.

First of all, even if the child lives with the applicant--because of course the respondent may not always live with the applicant--there's nothing here where threats against that child--if the applicant has to say, "No, I'm confident that the respondent wouldn't harm me; the history is such. However, the history is also such that I know that respondent uses my child as a way to coerce me, as a way to get me to sign over my paycheque," or what have you. Let's say it's my mother-in-law or my mother living with me, whichever the case may be, not an uncommon scenario--or rather, not living with me, because you wouldn't have a relative living with the respondent, but this respondent terrorizes my mother-in-law. He or she doesn't have the wherewithal to go after me but goes after my weak and vulnerable elderly mother-in-law and uses that to get me to do things I wouldn't normally do: sign over my paycheque, agree to drop the assault charges or what have you. Those are not unrealistic scenarios. Are they the vast majority? Probably not; I hope not. But they are not unreasonable.


So what's going to happen on an application, not the ex parte interim application but the Superior Court of Justice application, is that the lawyer for the respondent is going to get the applicant to acknowledge: "But you have no fear, do you? You know that so-and-so has never assaulted or threatened you. You are saying he's coerced you by causing your child or your parent to be fearful, but never you." A child can't make the application, because the child is under 16, and if the child is over 16 but isn't living in the home, to wit, living with the respondent--that's what paragraph 5 of subsection 2(1) does: you've got to live with that person if you're merely a relative. So the child could be 17 years old, or 16, and on their own. A 16- or 17-year-old who doesn't live with the victimizing party has no rights under this bill; it's not designed to cover that.

Ms Predko: I want to clarify that point: A child is defined as any person under the age of 18 years. So any act against any child in subsection 1(2) can be the act or omission that causes the person to fear for their safety.

Mr Kormos: Fair enough. Good for you. I've got to change it, then, to 18 or over, right? You're right; you're covered to the age of 18, because it doesn't require living in the same place. But not living in the same place at the age of 18, you've got the scenario I've described. Very good; you're right. But 18 and over, it doesn't apply. Is that fair?

Mr Tilson: You've also got the words "an applicant's relative." An applicant's relative can be part of that process.

Ms Predko: Your child over the age of 18 years would be your relative for purposes of subsection 1(2).

Mr Kormos: We're getting good now. This has progressed to the point where you're saying for the record--because people litigating this are going to want to read this Hansard--that "committed against ... an applicant's relative" encompasses all the people we're talking about. So a court would be wrong if it said a mother or mother-in-law being threatened with violence or however domestic violence contains this and satisfies what the amendment purports to do?

Ms Predko: I'm not sure I understand the question.

Mr Kormos: You're saying that the amendment proposed is met by the definition contained in subsection 1(2).

Ms Predko: There is a difference between the amendment proposed and what is in place in subsection 1(2).

Mr Kormos: What's the difference? What fails to be caught by 1(2) that is contained in the amendment?

Ms Predko: I can tell you the difference, from my perspective, between those two sections. I don't think I can tell you what fails to be caught. Between those two sections, 1(2) states that for the purposes of this act any of the activity can occur against the applicant, the applicant's child or a relative of the applicant. The amendment takes that further and says the fear that that activity causes can be a fear for the safety of the applicant, the applicant's child or any relative of the applicant.

Mr Kormos: Because subsection (2) includes "applicant, applicant's relative or any child," but it's the applicant who has to have the fear of harm done to them. I'm saying to you that I have been in however many scenarios in courtrooms where I've seen lawyers manoeuvre--and I can anticipate it here--where a lawyer gets an applicant to say, "But, no, I don't fear for myself." The critical test here is that at the end of the day the applicant must still fear for himself or herself, even though the violence was directed against a relative or a child. That's the problem here, and that's what Bryant is speaking to. Again, that's what you're not including. It's the applicant who has to feel fear. I may feel fear for my child, but the test here is that the applicant has to fear for himself or herself, as I read it. So you miss out on those instances. I'm asking the caucus members to please listen carefully. I don't disbelieve anything you say, but the point you just made is the point.

Mrs McLeod: Before it gets more and more confusing, if I could sort of take it down to the bottom line: As it relates to a child under the age of 18, this act would only apply to provide protection if the applicant feared harm to himself or herself and would not apply if the applicant feared harm to a child. If the applicant fears harm to a child, then the only protection that's available, according to the response of the government earlier, is under the Child and Family Services Act. Have I understood it correctly?

Ms Predko: It's a little more complex than that, because young people of the age of 16 or 17 can be applicants under this act. So it's only in the case of a child under the age of 16.

Mrs McLeod: Let me restrict it to that, then. When we get at fear of risk to a child, let's talk about children under the age of 16. For children under the age of 16, if it's not an actual activity but a fear of harm, then the only protection available is under the Child and Family Services Act. Is that a correct statement?

Ms Predko: There are six components to this definition, and we're talking about two of them. If an assault has occurred against a child, it would be covered by section 1. If an intentional or reckless act which caused bodily harm to a child occurred, it would be covered under section 2. If a child had been forcibly physically confined without lawful authority, it would be covered under section 4. If a child had been sexually assaulted, sexually exploited or sexually molested, it would be covered under 5. Also, under 6, a series of acts--again it could occur to the child if it caused the applicant to fear for their safety.

Mrs McLeod: But fear of harm or threat would not qualify for action under this act, in which case you would have to resort, as the only protection that currently exists for the child under 16, to the Child and Family Services Act.

Ms Predko: Fear of harm to a child under 16 would need to be proceeded under the Child and Family Services Act.

Mrs McLeod: Could I then ask for clarification of whether my recollection of that act is correct, that the only recourse for protection under that act in terms of actual removal of the risk is to remove the child and take the child into custody?

Ms Predko: It's certainly not called "custody" under the act, but yes, it would be an apprehension of the child or another form of intervention in the family; for example, a supervision order or voluntary agreement with the family.


Mrs McLeod: In which case I really don't think the argument the government has put forward, that children are sufficiently protected under the Child and Family Services Act and therefore don't need to be covered under the terms of this act, in accordance with Mr Bryant's amendment, really holds.

We're still talking about a court decision about whether or not an individual is at risk. From my perspective it's an important one in that it protects a partner in such a situation. I fail to see why the government would not feel that same protection, as determined by the courts, should be extended to a child in a domestic situation where there is a risk.

The Acting Chair: Any further discussion? If not, Mr Bryant has moved an amendment under subsection 1(2).

Mr Kormos: Recorded vote, please.


Bryant, Kormos, McLeod.


Barrett, Chudleigh, Molinari, Tilson.

The Acting Chair: The amendment is lost.

Shall section 1--

Mr Kormos: We still have debate on section 1.

The Acting Chair: Yes. Go ahead.

Mr Kormos: Very quickly, the committee will know that I expressed concern in subsection 1(2) where the list, 1 through 6, is exhaustive rather than merely demonstrative. I had hoped the instead of saying "means the following acts" it would read "includes the following acts."

It would do basically this: it would permit a court to interpret domestic violence without the restrictions of its having to be only those things in 1 through 6. I'm not saying 1 through 6 aren't in themselves pretty illustrative; what I'm saying is that the courts have to have, in my view, some flexibility around this. Lawyers arguing for respondents are going to suggest--and we'll see what the courts do with that suggestion, and far be it from me to put words in their mouths--"Well, Judge, or Justice or Your Worship, the statute says what it says, and if it doesn't fit squarely into any one of those six things"--appreciating that some of them, paragraphs 1 through 6, are rather broad in their own right--"if I can move it even an inch outside of one of those paragraphs 1 through 6," then too bad, so sad; the applicant is out there without any sort of intervention orders.

I personally, unlike the Attorney General, who wants to criticize courts, most recently--did you hear what he said about the Supreme Court of Canada? He was dissing the Supreme Court of Canada because of their Starr decision, when I doubt that he'd even read it. I read it.

I find it very troubling that the government stands firm on creating that restrictive list and I think it's going to cause grief and it's going to unfairly tie the hands of judges when judges want to be fair, equitable and do the right thing.

Mr Bryant: This is another way, I suppose, to address the amendment that was brought by the official opposition. In other words, if we in the opposition are right here, that that provision is going to be too restrictively interpreted by judges, one way of remedying that would be to have the word "includes" instead of "means." I appreciate the expert opinion provided by counsel on this particular issue. But in case we are wrong, this would be one way of addressing it so that we aren't exhausting the definition of domestic violence in a manner that would violate the spirit of the legislation.

You know better than I do that there are lots of instances, FACS situations, which come before the courts not anticipated yet by committee members or by legislators, that we all, once we heard them, would want included. This would give the courts the discretion to include them in that definition.

The Acting Chair: Thank you. Any further discussion on section 1? If not, shall section 1 carry? Carried.

You're asking people to vote on it, so I'll ask: all those in favour, please indicate. Those opposed?

Mr Kormos: On a point of order, Chair: With respect, I understand what you're saying. I am prepared to concede that when people say "carried" and nobody says "no," that means carried.

The Acting Chair: I prefer the indication so that then there's no debate, in my mind.

Those in favour have indicated. Those opposed?

Section 1 carries.

Section 2: there is no amendment under section 2.

Shall section 2 carry?

Mr Kormos: That's why the Chairs make the big bucks, Mr Beaubien.

The Acting Chair: I'm fair, so if you want to--

Mr Kormos: I know you are.

The committee knows my concern about subsection 2(2), the age restriction. I know the commentary made in response to my concern by staff. I find it troublesome and I predict that we're going to encounter scenarios. You talk about family and children's services having jurisdiction by people under 16. As a matter of practical reality out there, once kids, for instance, who are wards of FACS reach the age of 15 or 151/2, FACS for any number of reasons, some better, some worse, says, "You're on your own."

I can anticipate again. The usual one? Of course not. Sometimes seeming bizarre? Of course, but is the prospect of a young woman who is 151/2 years old living under the control of, let's say, a pimp an unrealistic one? Sadly, I put to you that it's not. I put to you that there's a scenario. I use "pimp" of course to be perhaps strong in the kind of language. I find it disturbing that a young woman who is 151/2 years old who's in a spousal relationship, if you will, with a 17- or 18-year-old male--it's happening out there, for better or worse--or a young woman who is 153/4 years old cannot get an order under this bill.

It's just extremely disturbing, because the reality is that a young woman who is 15 years and 11 months old--look what we're saying here: a young woman who is 15 years, 11 months and 28 days old, admittedly a child, cannot apply for an intervention order against somebody who may be beating the crap out of her or shooting her up with drugs.

I find that just remarkable, when it would be so easy simply to delete this and resolve that dilemma. This is supposed to be part of a speedy intervention, where you can intervene rapidly and prevent some guy--I use "guy," or gal, but the fact is that's the usual frequency--some 17- or 18-year-old from going after--again I go back to pimping. You say the court judicial interim release orders. Somebody is busted for pimping a young woman who is 15 years, 11 months and 28 days old may or may not be released under a judicial interim release order. If they are released, the order would undoubtedly say, "Don't have any contact with the young woman."

Mrs Molinari, please, I think you're sympathetic to what I'm talking about. I'm serious.

Mrs Molinari: I'm listening.

Mr Kormos: The court may impose that order, but that's why this bill is here: we're saying the court orders, the judicial interim release orders, aren't getting the attention they deserve.

I'm saying what we're doing with this age restriction here is preventing the young victim, who is 15 years and 11 months old, of a pimp who's shooting her up and has beaten the crap out of her, from applying on the same 24-hours-a-day, seven-days-a-week basis to get this creep isolated from her under risk or fear of arrest. That's very difficult to swallow. I don't know how you respond to that. Is that the most frequent case? I hope not, but is it a possible case? I'm afraid it is.


The Acting Chair: Any further discussion under section 2? If not, shall section 2 carry? Those in favour? Those opposed? It carries.

Section 3. Mr Bryant, I think you wish to move an amendment?

Mr Bryant: I move that clause 3(1)(a) of the bill be amended by striking out the word "and" at the end of the clause and substituting the word "or."

I'm going to call this the Kormos-Bryant amendment. Mr Kormos raised this matter before, during the hearings and otherwise. Right now, to make an intervention order a Superior Court judge has to be satisfied of two things: firstly, that domestic violence has occurred and, secondly, that "a person or property may be at risk of harm." What I'm suggesting here is that we try to strengthen the section by including the amendment.

Mr Kormos: Call the question.

The Acting Chair: Further discussion?

Mr Ted Chudleigh (Halton): Can we have a five-minute recess?

The Acting Chair: Just a moment. Mr Tilson had his hand up first.

Mr Tilson: I'd like to give some comments of the government.


Mr Kormos: It's too late now. Go ahead.

Mr Tilson: Of course, this section deals with how a court can make a temporary or final intervention order. Taking away the word "and" and replacing it with "or," we believe, would remove the requirement that domestic violence has occurred. In other words, you don't need to establish that there's been any domestic violence.

Our submission is that the finding of domestic violence is the backbone of the proposed test. This amendment takes that away. Without the requirement that domestic violence has occurred, any risk of harm or damage to a person or property would be sufficient to trigger an intervention order. That's all that would be required; nothing else.

The part that states "a person ... may be at risk of harm or damage" is necessary to distinguish situations where the domestic violence would be so remote from the current circumstances that a judge could not conclude there was any current risk. For those reasons, the government has a lot of difficulty with this proposed amendment.

Mr Kormos: I appreciate Mr Bryant's generosity of spirit when he indicates that we share this concern.

Look, sir, before an order can be made, it has to be found, one, that domestic violence as defined in subsection 1(2) has occurred and, two, "a person or property may be at risk of harm or damage." Clearly, that implies yet more harm or damage. It doesn't rely on the harm or damage that has occurred to date.

That's why I find your argument confusing, because what you're really trying to say, and I don't want to make your argument for you, is that the--

Mr Tilson: I need help.

Mr Kormos: --first test is that "a person or property may be at risk of harm or damage." That's really the first test, and that domestic violence has occurred. Your argument would be stronger, quite frankly, if the two paragraphs were reversed in order, because clearly if a person isn't at risk, then whether or not domestic violence has occurred is irrelevant. I appreciate you used the word "may," which is, I suppose, pretty generous. It's not a tight word, but I find it of concern that an applicant "may" be able to establish that "a person or property may be at risk of harm or damage."

Let me run this scenario past you. What if I discover on the part of my spouse, my girlfriend, boyfriend, dating relationship, what have you, a letter that says on such and such date--appreciating that paragraph 3, the "threatened act or omission," somebody may try to cover it. What if I find a letter saying, "I'm going to shoot somebody on such and such date," you know, somebody who falls within the scope of people. No domestic violence has occurred, unless you can fit it in under paragraph 3 of the definition of domestic violence. I appreciate "act or omission that causes the applicant to fear for his or her safety."

What if I've got a relationship with somebody who, when they were a bad drunk or a bad drug addict or other kind of drug addict, was beating the crap out of me, they've been on the wagon or straight and narrow for X number of years but I see them--now again you're going to say that falls under paragraph 3 after "omission." I don't know. That starts to get pretty loosey-goosey.

I'm just concerned about it because I can envision cases--because if you had used "include" instead of "means" in the definition of "domestic violence," then this would be OK, because then the court would have power to expand their definition of domestic violence within the context of the intent of those six paragraphs so that if domestic violence has occurred, they could be a little more flexible and subjective about it. But you haven't. You said "means," so it's got to be one of those six things right within the four corners there of what it says, you know right to the letter of the law and "may be at risk."

I don't know why you don't want to accept this amendment. I think the amendment's an appropriate one. I think it enhances the bill. I think judges are going to find it frustrating and, again, I think lawyers arguing for respondents--this is going to be highlighted for them. They're going to get those highlighters out in their version of this bill and they're going to say, "Oh, this is defence number one, this conjunctive 'and.'"

I wish committee members, other than Ms McLeod, Mr Bryant, myself and Mr Tilson, were joining in the debate and I wish, with respect, that the government members--look, parliamentary assistant, you have a professional background that deals with law; Mr Bryant does; many years ago I went to law school as well. You and I both know that failure to think in a very intense way about these things as we're going through--and some of you folks over there in the government caucus may find this stuff mundane and trivial and that we're being picky. I'm sorry, but we had better be picky now because everybody here has already agreed that the intent of the bill should be given effect to, that the bill in itself serves good purposes.

Quite frankly, this bill has been addressed in a most non-partisan way, in my view, by both opposition caucuses. We're trying to raise issues and this committee process means diddly-squat if government members merely take their marching orders from the parliamentary assistant and wait for him to give the nay or yea to any of the proposals here in any of the discussion. You'll get paid the same, I suppose, but at the end of the day you could make a difference to somebody in understanding that--look, none of the commentary on this amendment has been a rant against the government. During the brief committee hearings on this bill, we're trying very carefully to go through what's been highlighted for us, that has been red-flagged as problem areas. I think the amendment should be supported.


Mr Bryant: I'd just return to the statement by the Attorney General on September 27. The cornerstone, if you like, of this legislation is these intervention orders. He said in his statement to the Legislature, "We propose to replace restraining orders which obviously weren't working, and are not working, with clear and more effective intervention orders." So intervention orders are really the guts of this bill. They are certainly the part of the bill the Attorney General placed emphasis upon.

So, off we go to court to try to get one of these intervention orders, and all the definitions of domestic violence we just discussed before, which include a threat to the person--and I want to include a threat to the victim's child or relative--are not captured by these intervention orders. In fact, it has to be a super-domestic-violence situation where both domestic violence, which includes threats and, I would hope, indirect violence to the victim has occurred, and a person or property may be at risk of harm. Being at risk of harm is obviously quite a serious test, and it's not going to capture a number of instances of domestic violence. I just say to the committee that including "and" in there makes the test that much tougher.

If the government wants to explain why and make civil libertarian arguments, then fair enough. But if the government wants to say, "Let's take (b) out," because the backbone of the intervention order is that domestic violence occurs, then fine, take (b) out. I'm just concerned--well, there's no concern; I know--that there's a two-part test. Not only must domestic violence occur, but there must be a risk of harm to the person or to property, which obviously makes it that much tougher to get an intervention order from a judge.

I thought the whole point of this exercise and of this legislation was that we would have, in the words of the Attorney General, clearer and more effective intervention orders. I'm trying to make this intervention order more effective, and the government is saying, "No, we're not going to make this intervention order more effective. We're going to make it tougher to get them."

I say the only counter-argument to that is a civil libertarian argument to the effect that we don't want to be giving out intervention orders in circumstances unless there's actual risk of harm to the person. I say domestic violence encompasses so much more than just harm to the person and to property that we should in fact embody that in the intervention orders for the sake of the victims.

Mrs Molinari: I think we're getting into semantics here. If domestic violence has occurred and a person or property is at risk of harm or damage, then a person is at risk of harm or damage. So why not leave it? It's just semantics; it's not going to make a great deal of difference. I would not support the amendment, because I don't think it adds anything.

The Acting Chair: Any further discussion? If not, Mr Bryant has moved under clause 3(1)(a) that the bill be amended by striking out "and" and substituting "or".

Mr Kormos: Recorded vote, please.

The Acting Chair: Recorded vote.


Bryant, Kormos, McLeod.


Barrett, Chudleigh, Molinari, Tilson

The Chair: The amendment is lost.

Mr Bryant, I think you moved another amendment under subsection 3?

Mr Bryant: Yes. I move that subsection 3(2) of the bill be amended by striking out "that the court considers appropriate in the circumstances for the protection of any person or property that may be at risk of harm or damage or for the assistance of the applicant or any child" in the portion before paragraph 1 and substituting "that the court considers appropriate in the circumstances."

Again, the point here is to take out the extra hurdles that need to be obtained by the applicant and give discretion to the judge, who can consider all the evidence and can consider all the circumstances and in fact will not be handcuffed by these extra hurdles added under subsection 3(2) that I move be amended and be substituted, rather. So the court considers all of these considerations and is in no way handcuffed by these considerations, again, for the sake of the victims to ensure that we do get clear and effective intervention orders instead of all these extra hurdles that are thrown in, that are not semantics, that in fact will result in fewer intervention orders being ordered and fewer victims being protected.

Mr Kormos: It's an interesting amendment. I want to ask, if I may, Mr Bryant, because I'm a little concerned about it and I don't want to be doing--just watch. I'm going to be expressing concern about this and the parliamentary assistant is going to say it's a great amendment. Maybe that's the way to get these amendments passed, for me to be critical of them.

The statute as it's written relates back to the purpose of the statute and makes it quite clear that a court isn't, for instance, to be punitive in imposing these orders. In other words, this isn't a criminal court, where they're saying, "You've been a real horrible person, therefore I'm going to do X, Y and Z, and I'm just going to do it because you're a horrid enough person"--and I think that's part of our emotional makeup--"to warrant having this done to you." I'm asking Mr Bryant, if I may, what about the language in the bill that's overly restrictive? My sense is that it's designed to contain the remedies the court invokes so that they serve the purposes of the bill rather than any other purpose. If a court considers it appropriate in the circumstance, I can see a judge--not unreasonably, if they've got a victim--saying, "It may or may not be necessary to do any one of 1 to 13, but just because you're so despicable, I'm going to make you do one or two of them anyway." My question is, doesn't your amendment open the doors to that, as compared to keeping it restricted so that it solely meets the purposes of the bill?

The Acting Chair: Mr Bryant, if you wish to reply, it's up to you.

Mr Bryant: It does open up that possibility, Mr Kormos, but I would suggest that any punitive measure being brought in through the back door of this amendment would not be appropriate in the circumstances and it wouldn't be appropriate for a judge to exercise some punitive or other discretion. I don't think we should or ought to assume that would happen. My concern is, to answer your question, that in fact fulfilling all of these enumerated purposes may end up restricting and tying the court's hands. I prefer, generally speaking, to provide that kind of discretion to the judge in the absence of any suggestion other than the real concern that this has actually happened.

Mr Kormos: It's time to call the question now, anyway, isn't it?

Mr Bryant: It's time to call the question.

The Acting Chair: Any further comments?

Mr Tilson: I'm going to agree with Mr Kormos, his comments. When you read the section, it directs the decision-maker or the judge to consider all of the various provisions of the sections, 1 through 13, and which of these provisions--and there may be one or there may be more than one--fit the unique circumstances of the particular application that's before the court. As Mr Kormos has indicated, these words in the section make the purpose of the order perfectly clear. They're not punitive orders. They're orders for the protection and assistance of victims. For once I'm going to agree with Mr Kormos. I don't think it's an appropriate amendment.

Mr Chudleigh: Could I call a five-minute recess?

The Acting Chair: You certainly may.

Mr Kormos: On a point of order, Mr Chair: No, he can't, not until the vote has been called.

Mr Chudleigh: I don't think we need the five-minute recess.

The Acting Chair: I think we'll take a five-minute recess, because I need a break too.

The committee recessed from 1701 to 1707.

The Acting Chair: Is there any further discussion with regard to the motion under subsection 3(2) on page 3 in front of you? Have you requested a recorded vote?

Mr Tilson: Which amendment?

The Acting Chair: This is the amendment on page 3.

Mr Bryant: The Tilson-Kormos amendment?

The Acting Chair: Yes. All those in favour of the amendment? Opposed? The amendment is lost.

Mr Bryant, on page 4 you have an amendment under subsection 3(2).

Mr Bryant: Yes. If the previous one was the Kormos amendment, I'm going to call this the Charleton Heston amendment.

I move that paragraph 7 of subsection 3(2) of the bill be struck out and the following substituted:

"7. Requiring a peace officer to seize any weapons and any documents that authorize the respondent to own, possess or control a weapon."

I was surprised when we saw this provision because, the way it is now drafted, the only weapon that could be confiscated would be one that was used or threatened to be used to commit domestic violence. I don't think that abusers should have weapons or the documents that authorize them to own, possess or control a weapon in a domestic violence situation. Talk about after-the-fact, ineffective responses to the threat of violence. I would think this is a serious matter, the question of an abuser or, under the test, a potential abuser where there's a risk of harm. Should that person have weapons? No. I think that under this provision the court should be able to order that the police confiscate the weapon from such a person immediately, not just a weapon that has already been used against the victim.

Mr Kormos: I think this is a very carefully worded amendment. The author has said "any weapons" as compared to "all weapons." So there is still discretion on the part of the judge conducting the hearing. "Any" implies such weapons as may be in the possession of. It doesn't say "all weapons" willy-nilly. Surely that's what Mr Bryant intended. It addresses the real flaw in the equally carefully worded provisions of paragraph 7.

Let's look at some real case scenarios. Let's face it, with most spouses who get shot dead or shot and wounded, it's not as if they've been shot three or four times already. Usually our experience, our knowledge of this indicates that--you've got in this case a spouse, but any of the people you talk about; it could be victims of domestic violence who have had the crap kicked out of them, who have been abused in any other way--more often than not it's the last time there is an assault on that victim because the weapon kills them dead, to wit, a gun or rifle. It could be a perfectly legitimate rifle, in other words legally owned and possessed. So it's just very straightforward.

If you want some reference, you people have the material before you, but as I recall the Criminal Code provisions, upon a conviction for assaults, at least assaults of certain types, not necessarily assaults with a weapon, there is a requirement that a judge order a weapons ban on that person. That seems to be a not unreasonable proposition. In other words, if you demonstrate a violent propensity, what the hell do we want people who demonstrate a violent propensity within their home to have weapons for? To make it easier, so that with one pull of the trigger they can blow away their partner, compared to saying, "We'll wait until you point that gun at your spouse, in anger or in whatever crazed state you've got to be, and then we'll give the judge the power to consider pulling that weapon from you"?

Don't forget, it applies to the interim orders too. This is where there's an intervention order with notice to the other party. So it's not as if you're not giving the other party a chance to make their case, to make their argument. I think it's even more critical when we get to section 4, the interim orders. Here again you're tying the judge's hands. You're saying, "Judge, you can have an application before you with notice," so the respondent has every chance to call witnesses, to cross-examine the applicant, to do all that stuff, and he or she can have an arsenal in their possession. Yet, unless one of those guns was used to threaten, or used, that's the only circumstance under which a judge can pull the gun or guns.

The amendment says "any," as compared to "all," which I suspect might be given the interpretation that a judge could say, "OK, you can still keep your Jim Bowie knife if you're so inclined." I'm not sure whether that would be reasonable, but the judge can distinguish, because we're talking about weapons as defined in the Criminal Code.

Again I say to the government members that this is an eminently sensible amendment. I'll tell you right now there are going to be judges sitting there, champing at the bit. Many of them will reflect to themselves but more than a few will comment out loud, "What in God's name is the provincial Legislature doing when they prevent me from ordering forfeiture of guns, for example, from a guy whose violence has been escalating to the point where he's putting the boots to his spouse?"

What are we talking about? If we have been at all serious--all of us have sat in that Legislature and reflected with incredible regret and sorrow on the casualties among women, in this province and nationally, yet what is an incredibly fair proposition is not going to be accepted by this committee. This is the last chance. If this bill isn't amended now, when it goes to the Legislature for third reading, that's as good as it gets.

I would do this: I would be prepared to suggest that we move on with other clauses in the bill and defer this amendment, because the government may be concerned about some of the precise language here. Fair enough. I would be prepared to defer consideration of sections 3 and 4, as far as the interim, and move on with the rest of the bill, where I doubt we're going to have any real stumbling blocks. I'll be prepared--and I'm confident others will join me in this--to come back here for five minutes at any time or point, whenever you want, to readdress this and then pass the bill and get it into the House for third reading.

This is going to haunt this committee. When you've got somebody who has demonstrated violence, what is the public going to say when the bill is being touted, not unreasonably, as a whole new mechanism whereby people can protect themselves, purportedly with more effective restraining orders, or orders, and the judge wasn't given the power to pull weapons out of a violent person's hands? What is the public going to say? The public will be as outraged as they've been over however many years, and even in the recent past, in terms of the incredible lapses in the criminal justice system, for example.

I ask the parliamentary assistant, in all sincerity, and I ask government members, to consider not dealing with sections 3 and 4 here and now and moving on with the rest of the bill. I don't anticipate any similar major or radical concerns. So far, you know where I've been on the amendments and I know where you've been. To be fair, there's an argument to be made for your position and there's an argument to be made for the opposition's position.

At the end of the day, we're dealing with things that cause us concern, but this one glares. This one just stands out so dramatically. It might have been something that was duplicated from another jurisdiction's legislation, but I can't believe that it's nothing more than an oversight. I can't believe that the legislative or bureaucratic staff who wrote this actually intended that scenario, especially when you make that reference to the Criminal Code, where a mere conviction for assault can result in a ban against weapons even if no weapon was used in the assault. Am I correct in that interpretation of the code? I don't have the Criminal Code with me. There seems to be a logic to that, and we applaud judges who take that step, but we're denying a judge--and I'll argue the same case even more dramatically for the interim hearings under section 4, where the person has a chance within 30 days to go back and say, "No, no, taking my guns or my other weapons was certainly not warranted," and it can be reviewed.

This seems to be a very serious matter, and I dread--again, witness Ms Hadley, when everybody in this province and in this country went through the what-ifs. What if the sergeant or the officer in charge hadn't released him the first time? What if the justice of the peace at the bail hearing had more time or more evidence so as to hold him in custody the second time? That person might still be alive.


Mr Tilson: I can't agree with what Mr Kormos has just stated. If one reads clause 7, it asks the decision-maker or judge to do two things: which weapons were used or threatened to be used and, if appropriate, order their removal. That's what this clause says. The amendment goes much further than that and, I believe, is overly broad.

I can think of situations, for example, in rural communities. I look at the three opposition members and I don't think they come from rural communities.


Mr Tilson: Mr Kormos says he does. He comes from everywhere. But I can tell you that there are situations where the amendment that's been suggested by Mr Bryant wouldn't be applicable because it simply would not happen. We're saying that the amendment, as suggested, is overly broad.

The Acting Chair: Mr Kormos, in order to refer sections 3 and 4, I need unanimous consent to do that.

Mr Kormos: Quite right. I'll remove that from the table--

The Acting Chair: But you have the floor. You're next to speak.

Mr Kormos: I understand that.

I say to Mr Tilson that the riding of Niagara Centre contains a lot of farmland and agricultural land in terms of livestock, poultry, fruit farming and other crop farming. Huge chunks of where I come from down in the Niagara region are rural, and I'm intimate with rural life, not just in Niagara but in other parts of the province as well.

With your indulgence, Chair, I want to ask the staff, in terms of how clause 7 reads--because this is how I'm reading it, and I infer that this is how other opposition members are reading it.

Mr Bryant: That's not how we described it. That's how Mr Tilson described it.

Mr Kormos: Well, I'm not sure. It says that before you can require a police officer to seize a weapon, that weapon either has to be used to commit domestic violence--in other words, I have to point that gun at my victim or shoot at my victim--or I have to say, "I'm going to get my gun and shoot you and blow your head off." If I haven't done either of those two things, if I haven't actually used it to shoot you--bang, you're shot--or pointed it at you, which I agree is probably using it and it's an offence under the code, or if I haven't said, "I'm going to get my gun and I'm going to get you," or "Next time I'm going to use the gun on you," then the test for paragraph 7 hasn't been met. Is that accurate?

Ms Predko: That's correct. I would also like to point out that the definition of "weapon" goes beyond firearms.

Mr Kormos: Quite right. Knives, prohibited weapons, cudgels--

Ms Predko: Anything that can be used for the purpose of injuring.

Mr Kormos: Yes, a broken beer bottle--I remember that case.

I'm glad we've got the clarification, because that's exactly the point. With all due respect to the many farmers I know and represent, I don't give a tinker's damn if it's a farmer who is going to use his gun to shoot his wife or spouse--I should be more gender-neutral, but the fact is it's usually women who get the beatings. I don't give a tinker's damn whether it's a farmer or a person who needs the gun for his or her occupation or profession--and there are professions in our province that require that--if you've got somebody who is demonstrating violence to the point where they fall within these definitions of domestic violence, I want a judge hearing the matter to have the power. It's not mandatory; all these things are discretionary, huh?

Ms Predko: That's correct.

Mr Kormos: It doesn't compel the judge to do it; it says it's within the judge's power. But this severely restricts his power. Similarly, the Bryant amendment would merely put it within the judge's power.

Mr Bryant: Charlton Heston.

Mr Kormos: OK. It would merely put it within the range of things the judge considers. We're handcuffing the judge. We're saying that even if that judge--somebody who is terribly biased--wanted to say, "I'm sorry, you haven't quite reached the point where you've pointed your gun or shot your spouse yet," or "You haven't quite reached the point where you threaten to go and get the gun. That means I can't take away the gun or the other weapon." I think I know how the Criminal Code defines weapons. But most dramatically here, the fact is you don't need a document to possess a machete. Clearly, the conjunction of that document part implies that the real focus here is guns. It implies that because it talks about seizing the documents that allow you to have one.

I hear what you're saying. I say again to the parliamentary assistant--

Mr Tilson: How far would you go, though? The definition of "weapon" in the Criminal Code is pretty broad. You could go into a kitchen and find all kinds of weapons. Do you clean out the kitchen?

Mr Kormos: No, but you know that a kitchen knife or a steak knife is not prima facie a weapon. It's only a weapon once it becomes intended to be used as a weapon, whereas a firearm--

Mr Tilson: It's a definition of "weapon."

Mr Kormos: --is a weapon prima facie.

Mr Tilson: That isn't what the section refers to.

The Acting Chair: Mr Tilson, one person at a time.

Mr Tilson: Sorry, Mr Chair.

Mr Kormos: I hear you, but I want the judge to have the discretion. I don't want that judge, him or her, to only be able to order seizure of a weapon, and that's why the phrase "any weapons," in my view, lets the judge cherry-pick, if you will. It lets the judge decide: not "all weapons" or "all potential weapons" but very specifically. Again, I'm not talking about the farmer with a .22, although a .22 owned by a farmer can be lethal if it's used in an improper way. I know households where there are arsenals of perfectly legal weapons. I'm not talking about guys with illegal guns.

Why are we approaching this from the point of view that somehow--I think part of this misunderstands domestic violence. Domestic violence is committed by doctors, lawyers, architects and politicians: people who are otherwise seen by the public as very law-abiding. Preachers--I don't want to miss any profession or occupation--the whole nine yards. You don't have a stereotype of who can commit domestic violence. Domestic violence can be committed by people who don't own firearms or other obvious weapons, as well as by people who do.

I'm not suggesting that people who acquire firearms acquire them for the purpose of shooting their spouse. But the reality is that when a firearm is there it becomes, in the incredibly volatile context of a domestic beating of someone--again, however perverse the sad, almost pathological expressions of anger that are inherent in domestic abuse, anger at any number of things other than the victim.

I'm going to cede the floor to others who may wish to make comments, but once again I want to raise referring sections 3 and 4, because I think this warrants the government looking at this. If you don't like Bryant's amendment, if you think it doesn't quite hit it on the head and you want to change it and come back with, "Requiring a peace officer to seize any weapon as specified," to make it clearer that you're not talking omnibus "every weapon"--but give the judge that power.

It becomes, quite frankly, even more critical on an ex parte, where a judge or JP is making only an ex parte which can be intervened within 30 days by the respondent. But where the judge or JP doesn't have all the facts, I want people to err on the side of caution. I want JPs, judges, Superior Court judges to be able to err on the side of caution, because if the goal here is to save lives and protect victims of violence from more violence or escalated violence, we've got to err on the side of caution. I'm prepared to let a judge use that discretion, if only we gave it to them. The bill doesn't give it to them, and I appreciate the staff's confirmation of what I understand the bill to say.


Mrs McLeod: I must admit I'm completely confounded by the government's opposition to this amendment, and I particularly don't understand why the application of any law dealing with domestic violence isn't as applicable in any rural setting as it is in any urban setting.

Mr Tilson asks how far we would go. This isn't a question of us going anywhere, it's a question of discretion, as Mr Kormos and Mr Bryant have both said, discretion being given to the judge in cases of court-determined violence or risk of violence to be able to take the actions that the court, the judge, feel are necessary. I don't understand why the government would feel that it needs to in any way limit the discretion of the court. Mr Tilson is quite right: the Criminal Code clearly has a broad definition of a weapon. It's there in order to give the court some discretion in dealing with the potential for a weapon to be used for intimidation or for actual abuse. I think we have to come back to the fact that this is about court-determined domestic violence.

Not dealing with this particular amendment, but part of this bill allows threat or intimidation to be termed "domestic violence" and to become grounds for removing an abuser, someone who commits this act of domestic violence to be removed from the home. When I proposed something similar as part of a platform in 1995, Mr Tilson I'm sure will remember there was a big headline that said, "Yell at Your Spouse, Lose Your House." That was never what was involved. It was always court-determined abuse that was at issue. The same thing is true here. This is not a subjective judgment; this is not some kind of surreptitious way of getting at expanded gun control. This is action allowed to the courts where there is court-determined domestic violence, an act of domestic violence, as defined by the government's own bill. I'm pleased to see this bill here. I think it should be used to the greatest extent possible to do exactly what the government's intent is in bringing it forward.

I guess I just want to come back, finally, to what this is all about and why it matters so much. When the bill was being debated, the New Democrats provided us in the Legislature with a list of some 43 women who have been murdered in domestic situations since the May-Iles recommendations were made. These are women whose names are known and are a matter of the public record and in most cases where we know the cause of death. More than half of those women were murdered with the use of either a knife or a gun. That's really what this is about. It shouldn't have to reach the point where somebody has been murdered with a gun or a knife before the court is allowed to take action that the court believes is appropriate.

Mr Bryant: If the government were serious about their concerns about this section being over-broad, I would encourage the government to--well, they've had this amendment since November 9, so it's not as if this is a surprise to them. But if they do have a concern as to over-breadth, then I would welcome any suggestions so that we can make this as tough as possible with respect to firearms and then I guess close off any preposterous hypotheticals with respect to steak knives. I would submit, with all due respect to the parliamentary assistant, that that was hardly a bona fide argument. The absurd should not govern the way we judge a particular provision or amendment, and that is an absurd, if you like--logical but nonetheless absurd--deduction to be drawn from the idea that a judge would seize any weapon.

If you want to circumscribe it to firearms and then address it to weapons, fine, but as it reads right now the gist of this provision is, if the abuser missed when he first shot at her, then we'll confiscate the weapon, but if he doesn't miss it's going to be too late. Surely even the government would agree that gun control as applied to abusers, whether they be in a rural or an urban setting or a suburban setting, ought to be exercised. This is the worst-case scenario. I would have thought that the government would have been open to at least considering or refining an amendment, because as it stands right now the section is practically worthless and would not have prevented any of the deaths that were the subject of the Attorney General's ministerial statement to the Legislature.

I would just say that if the members are concerned about the time we have left, if you want to discuss this further, my amendment to subsection 4(1), while I still think it's worthy, to some extent is going to be swallowed up by previous arguments made. So I think this section is worth dwelling upon. If the government is serious about the statement Mr Tilson made at the beginning of his comments--in his opening five minutes he said, "We're open to amendments"--I would say you haven't been open to amendments yet. This one is clearly going to make a difference in people's lives and their safety. I urge committee members, no matter what constituency you represent, to reconsider this, because you don't want this to come back and haunt us.

Mr Tilson: I just want to repeat again what I said at the outset in response to Mr Bryant, that this amendment is overly broad, and the reference to weapons, it does cover--I get the impression that both Mr Bryant and Mr Kormos are referring to firearms--

Mr Bryant: No. Machetes, weapons, anything that may cause harm.

Mr Tilson: In other words, you acknowledge that--I won't read the definition in the Criminal Code, but it talks about any thing; it could be a thing, anything.

Mr Bryant: If a judge wants to confiscate that thing, in his judgment, then yes.

Mr Tilson: Absolutely. Return to the section as to what it says. It refers to "where the weapons have been used or have been threatened to be used." That goes pretty far. If the applicant comes forward and says that the person involved, a man or woman--and I agree it's probably going to be a man, but it may not necessarily be--"has threatened me with this particular thing," whether it be a stick or a gun or a knife or anything, the judge or the decision-maker has the jurisdiction to invoke paragraph 7. That's pretty good protection to that person if they come forward with that evidence, as opposed to your section, which says anything, anything in the house, for example, which could be defined as a weapon, if I read your amendment; it could be anything.

I'm not trying to say, to use your word, that your suggestion is absurd. I believe you generally believe what you're saying, but I will only repeat what I said at the outset, that the amendment is overly broad in its application, and we cannot support it.

Mr Kormos: Mr Chair, I ask that this section be stood down so that the government can consider its position and perhaps draft an amendment which meets the spirit of the amendment on the floor that is more in line with its request for less broadness.

The Acting Chair: So your request is to stand down section 3?

Mr Kormos: Yes, sir.

The Acting Chair: I need unanimous consent. All those in favour? I have no unanimous consent. Any further discussion?

Mrs McLeod: Again I am confounded by the concern of the parliamentary assistant in terms of breadth. We're not talking about some kind of wholesale search and seizure of every kitchen knife in the province of Ontario. We're talking about a judge's discretion to take a weapon away from somebody who has committed an act of violence as defined by the government's own bill. I just don't see where the breadth is involved here that the parliamentary assistant is so concerned about. I really regret that there is no openness to at least consider this.


Mr Tilson: Just to respond to that, that's exactly what the section says. If it's been used or threatened to be used, section 7 applies.

Mrs McLeod: That intervention order cannot apply unless the court has found that this individual has committed an act of domestic violence, according to your bill. It's not a wholesale search and seizure. It is somebody who has committed a violent act. Let's not forget that's who we're dealing with here.

Mr Bryant: If the concerns about over-breadth are directed at the kitchen knife scenario, then I will amend my amendment to say "dangerous weapons" or I will amend my amendment to say "firearms," but I suspect that that still isn't going to be good enough for the government.

Mr Chair, I seek to amend my amendment to take out the word "weapons" and therefore deal with the issue of over-breadth, and insert the word "firearms." If the government doesn't like amending on the fly, fair enough. Let us stand this down and try to come up with an amendment that deals with the issue of over-breadth.

The Acting Chair: You're proposing an amendment to your amendment?

Mr Bryant: That's right.

The Acting Chair: So you're proposing "Requiring a peace officer to seize any firearms and any documents that authorize the respondent to own, possess or control a weapon"?

Mr Bryant: "A firearm."

The Acting Chair: OK, "a firearm."

You've heard the motion by Mr Bryant to amend his amendment.

All those in favour of that amendment? Opposed? The amendment is defeated.

So the original amendment is still on the floor. Mr Kormos, I think you have the floor.

Mr Kormos: At the onset, I had assured Mr Tilson, with reasonable anticipation of accuracy, that we'd be able to get through this bill this afternoon. Look, there have been times when I've been obstructive and I think the phrase is "dilatory" with certain goals. I'm telling you, though, I am again incredibly concerned about what is happening in terms of the stonewalling on the propositions regarding some critical pieces of the legislation. Both opposition caucuses have already requested that the section be stood down to let the government, if it doesn't like the amendment proposed, draft its own amendment.

I've never been a big fan of committees because they end up too often--not always, but too often--meaning so little. But this is the one chance where members of the Legislature can have some real direct power and some real meaningfulness in terms of what they do here. I understand--believe it or not, I was in a government caucus once too--that the government caucus and its members try not to contradict what appears to be the government's intention or the government policy. I never felt constrained by those sorts of things, but clearly most government members, whatever government it is, do.

We've stumbled across a serious shortcoming in the legislation. I don't even think it ever accurately reflected any distinct-policy decision. I'm not convinced there was ever a political/policy decision made to do what this paragraph 7 in fact does. I believe that one of two things happened: either it was just picked willy-nilly, cut and pasted from legislation from another jurisdiction without there being adequate consideration of the impact of it, or the wording was put together and, again, it got overlooked.

I think this is a very frightening paragraph because of the way it handcuffs. Again, in the whole context of law and order, you don't get to the stage of this hearing--in fact, you don't get to the point of a judge deciding which of these, what is it, 13 things he or she is going to impose--

The Acting Chair: Mr Kormos, I will have to adjourn the meeting because the bell is ringing. We do have a vote. However, if I can have unanimous consent, we can come back after the vote. It's up to the committee.

Mr Kormos: The committee only sits until 6.

The Acting Chair: It's up to the committee. If I get unanimous consent, we can come back after 6. No? OK. We will now adjourn.

The committee adjourned at 1746.

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