Standing committee on Justice and Social Policy


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

Mon 27 Nov 2000 / Lun 27 nov 2000


CONTENTS

Monday 27 November 2000

Domestic Violence Protection Act, Bill 117, Mr Flaherty / Loi de 2000 sur la protection contre la violence familiale, projet de loi 117, M. Flaherty

STANDING COMMITTEE ON JUSTICE AND SOCIAL POLICY

Chair / Présidente
Ms Marilyn Mushinski (Scarborough Centre / -Centre PC)

Vice-Chair / Vice-Président
Mr Carl DeFaria (Mississauga East / -Est PC)

Mr Marcel Beaubien (Lambton-Kent-Middlesex PC)
Mr Michael Bryant (St Paul's L)
Mr Carl DeFaria (Mississauga East / -Est PC)
Mrs Brenda Elliott (Guelph-Wellington PC)
Mr Garry J. Guzzo (Ottawa West-Nepean / Ottawa-Ouest-Nepean PC)
Mr Peter Kormos (Niagara Centre / -Centre ND)
Mrs Lyn McLeod (Thunder Bay-Atikokan L)
Ms Marilyn Mushinski (Scarborough Centre / -Centre PC)

Substitutions / Membres remplaçants

Mr Michael Gravelle (Thunder Bay-Superior North / -Nord L)
Mrs Tina R. Molinari (Thornhill PC)
Mr David Tilson (Dufferin-Peel-Wellington-Grey PC)

Also taking part / Autres participants et participantes
Ms Anne-Marie Predko, counsel, Ministry of the Attorney General

Clerk / Greffier
Mr Tom Prins

Staff / Personnel
Ms Susan Klein, Legislative Counsel Services


The committee met at 1548 in room 151.

DOMESTIC VIOLENCE PROTECTION ACT, 2000 / LOI DE 2000 SUR LA PROTECTION CONTRE LA VIOLENCE FAMILIALE

Consideration of Bill 117, An Act to better protect victims of domestic violence / Projet de loi 117, Loi visant à mieux protéger les victimes de violence familiale.

The Chair (Ms Marilyn Mushinski): I call the meeting to order. Good afternoon, ladies and gentlemen. This is a continuation of the committee hearing on Bill 117, An Act to better protect victims of domestic violence.

Committee members, unfortunately I was not present at the last meeting, but my understanding is that we are considering subsection 3(2), paragraph 7. Is there further consideration of this? Who wishes to speak? Mr Bryant?

Mr Michael Bryant (St Paul's): I think Mr Kormos is next in line.

The Chair: We would normally go to the Liberal side first, but it's up to you.

Mr Bryant: I understand the government has an amendment at some point. We can either deal with my amendment now or with the government's amendment.

The Chair: What is the wish of committee?

Mr David Tilson (Dufferin-Peel-Wellington-Grey): The amendment I will be proposing, subject to what happens here, comes a little later, in section 4. It's not this section.

The Chair: Actually, Mr Tilson, my understanding is that the committee was considering the amendment I read out, so we have to deal with that amendment before moving to another amendment.

Mr Tilson: I'm just responding to Mr Bryant; he's absolutely right.

Mr Bryant: Thank you, Mr Tilson. What we're debating here is the amendment to subsection 3(2), paragraph 7, and just to remind the committee, this was a Liberal motion tabled on November 9, the purpose of which was to get rid of what we are calling the Charlton Heston clause in the domestic violence protection bill.

The amendment reads, "I move that paragraph 7 of subsection 3(2) of the bill be struck out and the following substituted:" The new paragraph would read, "7. Requiring a peace officer to seize any weapons and any documents that authorize the respondent to own, possess or control a weapon."

At the time, there was some concern expressed by the Ministry of the Attorney General to the effect that this amendment might be overly broad. I offered to amend it in a manner that met with those concerns, and along those lines drastically carved up the scope of my original amendment and said, "If you're worried about steak knives and other weapons being under the purview of a judge for the purposes of seizure, then I'll narrow my amendment to address that concern."

I don't regret it. It was really to make the point that it doesn't matter what I've tabled, the government is going to strike it down. The amended amendment said, "Fine, the judge can only seize firearms and not scissors and steak knives." Where did scissors and steak knives come in? That was sort of an ingenious argument forwarded by the parliamentary assistant, to the effect that weapons might be too broad and you might have people's weedeaters being seized by judges. Beside the fact that it's incredibly unlikely a judge would do that, the real concern is whether or not people who have a history of violence and who qualify to be on the other end of an emergency intervention order or an intervention order should be able to keep their weapons, whether they be firearms, machetes or any dangerous weapons.

The provision as it now reads is if the abuser uses the weapon against the applicant--in other words, the domestic violence victim--or threatens to use the weapon against the domestic violence victim. Out of that grew a debate, and the Attorney General said in the House and outside in media scrums that having the threat there, having a provision that said if someone threatened to use a weapon opened up ample discretion to the judge to intervene.

Let me be clear that we're not debating the propriety of whether or not a judge should be able to use this legal tool to take weapons away from abusers. I think we should leave as much discretion as we possibly can with the judge. Why? Just look at the history of many of the instances of domestic violence that we've heard of through either a coroner's inquest or the Baldwin committee report, or through the submissions that were brought before the committee during the hearings.

Many domestic violence abusers can be quite cagey and get to know the law very well and skirt very close to the edge, knowing very well that if they cross that edge, then they may find themselves subject to a restraining order. Many of them have restraining orders against them and it doesn't mean anything to them. That's why we had, tragically, as many deaths of family members as we did over the last summer. We learned that four more people have died since the domestic violence bill was introduced, brutal murders.

This is a matter that was brought to the Attorney General's attention last week in a meeting with a group of representatives of a coalition, and they also met with two other ministers in the government. They were not very happy with the meeting, but let's just leave that aside for now.

If a restraining order is not going to deter this person from proceeding with further violence, you've obviously got a real anarchy problem. We can pass laws. That's all we can do. We can try and make them as effective as possible. We can try and create as tough remedies as possible. Along those lines, is there a way to give judges tools so we can try and prevent violence?

Here's one: let's take away a weapon from somebody who might otherwise ignore a restraining order. It's one thing for them to ignore a restraining order; they can't ignore the fact that their weapons are being seized. They're gone. We were told during the committee hearings that most of these abusers who kill do use a weapon; some do not but many do. It defies reason to suggest that someone who's a known abuser--again, the judge makes this call. The judge looks at the circumstances and sees a pattern of violence. The person may start out with verbal threats and then actually start hitting her. The assaults become aggravated assaults. Then restraining orders come out and they ignore the restraining orders. Property is damaged. The kids are brought in. The kids are threatened. There are more restraining orders. Violence increases.

In these circumstances--this is not a hypothetical case; this happens all the time--this person should not have a gun in the house, however legally obtained and registered. Why? Because this is the kind of person, we know, who is probably going to take the next step in their pattern of domestic violence. Do we really want to take the chance that the person's a bad shot?

If the person threatens to use the gun, yes, then the current provision captures and gives the ability to the judge to seize the gun. What if the person knows very well that if he or she says, "I'm going to kill you," as opposed to, "I'm going to shoot you," he or she can keep his or her gun? What if we don't get to the point of the threat and the person just picks up the weapon and uses it? There are some things we can control and there are some things we can't. Sometimes we do all we can as legislators and we just can't prevent something from happening. But what about situations where we can, where we have a history of violence, where the judge makes that finding, and in the judge's discretion, "Let's remove the weapon"?

It's a fairly modest proposal I think, not a radical departure from the provision as it stands right now. Unfortunately some of the arguments made in defense of the provision fall back on, with all due respect, stereotypes. The parliamentary assistant said, "That's not going to work in rural areas." Hindsight is 20/20. He might agree that that argument cannot possibly stand, for the simple reason that domestic violence in rural areas is as culpable as domestic violence in urban areas. We can't have a situation where because of a rural culture being more accustomed to having weapons--I'm not being critical of that--we should somehow turn the system on its head and not give judges the power to seize weapons, knives and guns, whatever it takes, to prevent the violence.

"OK," said the Attorney General and the Deputy Premier in question period, "how about this?" Mr Eves said on November 16 that under section 111 of the Criminal Code of Canada, a judge may "prohibit any accused abuser from possessing any firearms whatsoever." If that provision applied to Bill 117, then there would be no need for an amendment. That was the gist of the government's argument.

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There are a bunch of problems with this argument. Number one, I read the section of the Criminal Code, and under section 111, the applicant is a "peace officer, firearms officer or chief firearms officer." So there's problem number one, because under Bill 117 you don't need the police involved. The applicant would bring an application under this bill. That was part of the utility of the bill, we were told by the Attorney General, that you don't necessarily have to get the police involved. You can go, on your behalf, and bring an application yourself. So an application is brought by the victim and that victim doesn't need to have a police officer involved. That's problem number one. It's a big problem, because as we've heard time and time again in the committee hearings, the vast majority of domestic violence cases do not end up in the criminal justice system.

I've heard Minister Runciman express dismay over this reality. The gist of his argument was, "We can't accept that we need to get more women using the tools of the criminal justice system." I would love it if more women used the tools of the criminal justice system. But the problem with Mr Runciman's observation, and it may be shared by Mr Tilson and Minister Flaherty, is that it seems to be complaining about the weather.

The reality is that the vast majority of women are not turning to the criminal justice system. Perhaps if the domestic violence bill works more effectively they'll be more inclined to get more involved with public tools that are available. For now, that's just the reality and there are a number of reasons, some fair, some unfair, conclusions reached by these victims to the effect that the last place they want to go is to the police. Some of it is based on bad experience, maybe not the policeman's or policewoman's fault, maybe because of the result at the end of the proceeding, but in any event they don't.

Anybody who thinks domestic violence is going to be solved by police-related measures alone is really missing the point. You just don't get it, if that's the argument. Your head's in the sand. We've got all the statistics. It's patently obvious that most are not turning to the criminal justice system. So section 111 is of no help whatsoever. That's problem number one with turning to section 111, that you need a police officer.

Here's the second problem: the whole point of Bill 117 was that you could get yourself before a justice of the peace 24-7, said the Attorney General. I don't think he ever said one-stop shopping, but the idea was that you could go before one judicial officer and get all the remedies you needed: the intervention orders, the emergency intervention orders, the order with respect to weapons, all the remedies set out in Bill 117. You go before one JP and off you go.

Here's the problem: section 111 does not permit you to go to a justice of the peace. It says right here that you have to bring him before a provincial court judge. Granted, arguably you could bring it before a provincial court judge under the domestic violence protection bill, except that if you look under the non-emergency intervention orders, as I understand it, and I can be corrected by counsel, you bring that before a Superior Court judge. Perhaps counsel can explain that a Superior Court judge could take that jurisdiction of a provincial court judge.

Let's be clear: section 111 of the Criminal Code says you need a "peace officer, firearms officer or chief firearms officer," and you have to bring it before a provincial court judge. There's a Supreme Court of Canada decision by Justice Sopinka that outlines a typical section 111 application. It's in a case called Zeolkowski. The judgment's in 1989. Obviously I'm not going to get into the case other than to describe what happened. It was a hearing before a provincial court judge in which Sergeant Edward Koch of the Winnipeg police department made an application under the Criminal Code for an order prohibiting the respondent from possessing any firearms or ammunition or explosives. The judge makes some constitutional findings and also has questions about evidence and hearsay and what works. The test under section 111 is not unlike the test under Bill 117.

The Chair: Mr Bryant, you have about two minutes.

Mr Bryant: My concern is that the whole point of Bill 117 was streamlined access to justice by the victims, that they could get themselves before a justice of the peace without a police officer, without a crown, bring that application and get that result. Section 111 doesn't address that; you need to get the police involved. Moreover, if they're going to make a section 111 application before a provincial court judge, that judge who's hearing the domestic violence application, either in the Superior Court or in the provincial court, is going to say, "What's going on in the other court?" More often than not the matter is going to be stood down because they want to hear what they're going to do on this ruling before they do something on that ruling. The victims themselves are going to be bogged down.

Rather than trying to make a painful effort to avoid adopting a Liberal amendment, why, oh why, would the government not simply give a similar tool to the judges whom they want to empower to give orders under Bill 117? In other words, give the JPs and the Superior Court judges the power under Bill 117, subsection 3(2), paragraph 7, that you would get under section 111.

There's no rational argument why you would say the Criminal Code has a monopoly over this when you're trying to create remedies for victims under 117. You're making it harder for victims under 117. You didn't accept a single Liberal amendment, notwithstanding the suggestion by the parliamentary assistant that they were open to amendments. You wouldn't even accept an amendment to the amendment. It leaves me thinking that regardless of what the motives of the ministry are, it would appear you are digging in your heels and refusing to accept an amendment because it comes from the official opposition.

I would urge all committee members to think about what we are doing here. We are trying to give judges tools to prevent domestic violence. Why on earth we wouldn't give them this tool is beyond me, when this one could save lives.

The Chair: Mr Kormos.

Mr Peter Kormos (Niagara Centre): Thank you, Madam Chair. First, let me tell you that we understand you were unavoidably not here last time this committee sat on this. Your colleague did his best to fill your shoes, but we are glad you're back. He made his best effort, but you're the Chair. I appreciate that.

The first one doesn't speak to the--

The Chair: Mr Tilson, did you have a point or order?

Mr Tilson: No, I don't. I just wanted you to put me on the list to speak.

The Chair: Oh, sorry.

Mr Kormos: He was agreeing with what I said about the Chair. I hope he was.

I indicated, and I indicate again, that while I appreciate the amendment may not be worded as thoroughly as one might desire, take note and understand that the list of things enumerated in paragraphs 1 through 13 are things that a justice, a justice of the peace, a judge "may" include in an order. A justice, a justice of the peace, a judge isn't necessarily required to include any or all of those things, but is restricted to those things. That's number one.

Number two, clearly the government wanted to address the issue of firearms or else they wouldn't have included point 7. Chair, you should've been here. Mr Tilson was quick on his feet. He quickly pointed out that weapons could include anything from a baseball bat to a steak knife; a butter knife could be a weapon.

Heck, I bet you Mr Bryant has read case law where even some of the most innocent things have been converted to weapons by virtue of the intent of the possessor. I admit Mr Bryant isn't shaking his head furiously at me. This is for the purpose of things like assault by weapon. But that's not what the drafters of the legislation, and I'm sure that's not what the government, was thinking of, because when you take a look at paragraph 7, not only do they talk about weapons but then they go on to the second subparagraph, "any documents that authorize the respondent to own, possess or control a weapon."

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Come on guys, clearly we're talking about firearms here. That's the only weapon I'm aware of that requires a document before you can obtain or possess it. You've got a whole list of--what do they call them, Mr Bryant?--prohibited weapons like nunchakus and brass knuckles. If Mr Bryant were consulted he would tell us those are prohibited weapons. You can't get a piece of paper to own those. They're not the sort of thing a judge has to rely upon Bill 117 to deny because they're prima facie illegal--boom, you haven't got a snowball's hope in Hades of ever getting permission to own those sort of things. There's a whole list of prohibited weapons, the list gets longer every year, and that's under the Criminal Code.

Although the word "weapons" is brought out to cover a wide range of things--knives, baseball bats, the whole nine yards--the people who wrote this, friends, were pretty clearly focusing on firearms or else they wouldn't have contemplated adding subparagraph ii to paragraph 7, making reference to documents that you need to either acquire or maintain your possession of it.

At the end of the day, although the section can include a broad range of things--as it should, because you don't want to restrict it to firearms because it would be silly for a respondent to say, "But I only beat my partner half to death with a baseball bat and all you can seize is firearms." That would be nuts. However, look at the reverse of that. What do they call that, the corollary of that? If the respondent similarly has beaten his wife half to death--I got an e-mail saying I shouldn't just be referring to wives. OK, I understand that, because this bill encompasses a broad range of violence that can occur in intimate and semi-intimate relationships. It could be sibling violence; I understand that.

To those people who wrote me e-mails saying, "Ah, but you didn't include cases of sibling violence," please, I understand that but when you get down to the nitty-gritty, you're talking about, by and large, women getting the daylights kicked out of them by men. Look, in any of the numerous cases where firearms have been used to shoot women to death, I'll bet dollars to doughnuts, here and now, and quite frankly the research confirms this, that wasn't the first time violence was used against a woman.

As a matter of fact, it's not hard to understand that the violence usually follows a pretty--this is oftentimes casebook kind of stuff. It starts with the verbal abuse and the control and then extends, and this has been the whole problem in dealing with this kind of violence. You even had some judges who were ranking the violence on a scale of 1 to 10 and trivializing, judges who would say, "Oh well, it was only a slap." Thank God we've moved beyond that point of view where we trivialize it and try to diminish it by saying, "But it was only a...."

The other reality is that in all the cases that most of us are aware of, almost inevitably you see the progression of violence. Was the gun the first choice in terms of the first instance of violence? No, but--and Mr Bryant talks about--"You better miss," it almost inevitably is the final choice because it becomes the most deadly weapon. Yes, I can see it and I'm not quite as Allan Rock gun control as some of my colleagues are.

Mr Bryant: You're Anne McLellan on gun control?

Mr Kormos: No, I come from a mixed community of rural and urban. I also come from a community that has, as I suppose any other has, a huge component of both conservationists and hunters. I even think I belong, not surprisingly, to the Wild Turkey Federation, people who promote the hunting of wild turkeys. Of all the ones I should belong to, there you go. No wonder they gave me a guest membership; they knew what I did for a living.

These people are my friends, my neighbours. They are in my community. These people, by and large, are among the most responsible gun handlers in the community. They are not my first suspicion when I hear of a corner gas station being knocked over in an armed robbery late at night, or a corner store, where a firearm was used. They are not my first suspects, the people I know who are hunters and other outdoors people. So I'm not as rabid as some--I'm sorry, as determined as some.

But having said that, I do understand that there is no fixed profile of a woman-beater. Again, I appreciate that the bill covers women who beat men. We heard, blah, blah, blah, all about that. But there isn't a fixed profile. People who present themselves to their neighbours and to their family members and to their coworkers as perfectly rational, healthy people are among the people who perform serious acts of violence and/or who kill women: their spouses, their girlfriends etc.

I've got to tell the parliamentary assistant, I've talked to folks in the community and somehow people insist that they have watched segments of this committee debate, and watched it the last time we gathered, when the issue first came up. I've had people over the course of the weekends at home back down in Niagara say, "Please explain this," because the scenario, friends, is this: that a person, the respondent, can be portrayed--the one troubling thing about the judgment in the Zeolkowski case is the reference to the fact that section 111 could be very useful in cases of recurring violence. Now, let's be fair and indicate that that decision took place in 1989. But take a look at what's happening. Sopinka is a very experienced, highly regarded member of the bench, but there a Supreme Court judge is saying the prohibition on ownership of guns can be useful in recurring cases of violence. I'm not being critical of that judge, because, if anything, his comment probably reflected very much the attitude that prevailed even as recently as 1989 that somehow, after somebody has beat the daylights out of their spouse, girlfriend, wife, partner, then you might consider bringing an application.

The parliamentary assistant, the last time, tried his best. He raised the business of farmers, rural people, and their guns. They're not the target, but quite frankly, if a person who happens to own a gun or a rifle, a firearm, because they live out in the country becomes dangerous to his spouse, they should be no more immune--because we're not talking about punishment here. This isn't a matter of punishment. Nobody is suggesting that, and I think the parliamentary assistant or any of his staff would be loath to say that parts 1 to 13 are punishment. No, these are preventive, these are prophylactic in their nature, which is what the whole bill is all about. It's about saving women's lives. None of this is penalties. None of this is punishment for what the perpetrator of violence may or may not have done, and it's not to be construed as that. I'll bet the bank that the first time a justice or a justice of the peace, what have you, makes comments that somehow indicate that he or she is imposing any of these conditions as punishment, the supervising court to which you make the application of appeal will jump all over that judge or justice of the peace.

I make it quite clear that these are not penalties. It never was the intention. It rotted my socks, it just blew me away, when I listened to the Deputy Premier of the day stand up in response to the question put to him and rely on section--what is it?--111. Please, read the act, read the Criminal Code. Of course I distributed copies of section 111 to all the press gallery immediately, because section 111 requires that an application be made that a date for a hearing be set. It is totally outside of the interests that are being addressed by this bill. Again, it is designed to be done very specifically by police, I must say, almost inevitably, through a crown attorney's office.

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I dare say, the police would be loathe to embark on one of these applications without involving the crown's office and involving the crown attorney. I'm suggesting that, other than some very remote areas where a crown attorney may not be available--even then the police would be reluctant--we're talking about involving crown's offices.

One of the problems is that our provincial courts are backlogged. For the purpose of this argument, I'm not going to get into a partisan argument blaming anybody at this point. Provincial judges are backlogged. You take your place in line when it comes time for an application like that to be made. Quite frankly, it is too late by the time the attempted murder or, indeed, homicide charge has been laid because the firearm was in fact used.

The Liberal amendment that we are debating is worded in such a way--"Requiring a peace officer to seize any weapons and any documents that authorize the respondent to own, possess or control a weapon"--that I believe a JP, judge, justice, what have you, can say, "Part of, all of, none of the weapons." In other words, it isn't some sort of blanket seizure of all weapons. Part of the argument, as I recall it, from the parliamentary assistant was that you wouldn't want a blanket seizure of weapons. That would mean the old steak knife. Is that reductio ad absurdum? I think it might be. We are going to take the steak knives? No. Please. Let's not get silly about this. It is serious business.

The amendment puts a JP, judge--look at the incredible pressure. There are going to be real issues arising. This stuff is going to be litigated, no two ways about it. Superior courts are going to be supervising the JPs etc. I suspect it'll be a relatively speedy process if they start refining the standards and exactly what the bill means. They're going to be setting down guidelines. But look at how we are handcuffing the justice of the peace, who can sit there as a good JP, as a competent JP, as a committed and diligent JP, who can hear evidence that satisfies that JP to the standard established in the bill, maybe even satisfies him or her beyond the balance of probabilities, almost to the point where there's no doubt that you've got some guy who has demonstrated a pattern of escalating violence.

The evidence in front of that JP is also that this guy not only subscribes to all--have you seen those magazines?--the gun collector magazines. I'm not talking about the turkey hunters' magazines or the outdoors people's magazines; I'm talking about the gun magazines, the American ones. Take a look at some of those someday. There's pretty wild stuff in terms of the content and in terms of some of the types of people who have a fascination with these magazines.

They are not talking about how to reblue grandpa's old shotgun; they're talking about how to take military-style automatic weaponry and high-power weaponry and either convert it so you just skirt around the law, be it in the United States or Canada, or so that you convert it notwithstanding the law, be it in the United States or Canada. We are not talking about magazines that are catering to nimrods; we are talking about magazines that are catering to people who have an obsession with firepower.

One of the things the police are particularly concerned about--look at the pressure the police are under. They've received a call for assistance with respect to a guy who has become increasingly irrational and violent. They think, "That's the one whose victim we took in front of a JP a month ago. She testified, and he didn't rebut or in any way reject the evidence that this guy has half a dozen handguns, high-powered rifles, sights"--not for hunting deer; for hunting people--"and we've got to go to that call and try to bust this guy for breaching his Bill 117 order?" You've got a couple of cops in a cruiser sure as heck wishing that this bill had given the JP the power, not necessarily to order but so that the JP may order that that respondent surrender that arsenal. It is appealable. There's no two ways about it.

Right here we are talking about, "with notice to the respondent," so the respondent has every capacity to make his or her case in front of the presiding judge. That just boggles the mind, that the government members won't cede that the amendment here is a fair one and an appropriate one and one that will protect women and protect cops. If this bill is going to do anything, it should be doing that.

The argument about intruding on criminal turf is baloney, because there is no punitive element in any of this. This isn't punishment. Nobody is talking about anybody committing an offence and being punished by having their weapons forfeited. That's done in a criminal court. I understand that; all of us, I think, by this point, do. But we are talking about giving a JP the power to keep women alive and, yes, to keep cops alive.

The Police Association of Ontario, when they lobbied here, found it incredible that the bill is written the way it is and that a JP couldn't order forfeiture of firearms or surrender of firearms. They found it incredible. The same police association lobbyists that I spoke with found it incredible that the motion moving the amendment wasn't accepted, especially when I told them that we had agreed to defer this matter for a week or two, however long you want, because if the government wasn't happy with the exact wording of the Liberal amendment, let the government write its own, with its own staff. The police association lobbyists I talked to thought it was nuts that this wouldn't be a part of this bill. I find this a very troubling exercise, when a government has decided somehow to dig its heels in on this particular amendment. I've spoken to others, and there's more to come, but it's extremely troubling.

I feel almost creepy in terms of suggesting that this may haunt this committee at some point in the relatively near future. I hope to God that never comes true, but also knowing what's going on out there, having a reasonably good sense of what's going on in terms of violence against women and the fact that firearms are the weapon of choice when it comes to shooting a woman, I'm afraid that with the predictability of the extreme omission here in paragraph 7 it is pretty sound that we are going to see a case in short order where a woman-beater is allowed to keep his arsenal because his lawyer says, "No, Judge, you've got to read the bill. You can only order that gun forfeited if my client used it to threaten his wife, and he just beat the crap out of her with his fists and his boots." He never threatened to shoot her; he just threatened to kill her while he was pounding her to the ground with his fists and then stomping on her with his boots. It is a sad omission, friends.

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Mr Tilson: Just to respond to my friends Mr Kormos and Mr Bryant, of course, the last time this committee met was two weeks ago. This amendment, of course, has been taken to our caucus and we have spent some time dealing with this issue. We have treated it very seriously.

The issues of this bill, when we're concerned with the different types of applicants, as has been reiterated, which comes under section 2--I won't repeat them. There are five different categories. I would agree with my friends that the bulk of them would be violence by men against women, but not necessarily so. There are a number of situations where there might be different categories of domestic violence. When that occurs as defined by the act, there are two areas, two occurrences. One is outlined in section 4, which talks about an emergency intervention order. An emergency intervention order can be granted by a justice or a designated judge, which is a justice of the peace.

The second way, of course, is a more permanent--and just returning to section 4, that can be done ex parte; that can be done without notice. That application can be made from sections 1 through 7 of subsection 3(2). One of them, of course, is the issue that's before the committee now as requiring a police officer to seize weapons. There are other items which the designated justice can look at. Just taking one at random, the very first one, the justice can stop the respondent from attending at or near or entering any place that is attended regularly by the applicant. Going on further, they must stay away from the applicant's residence. There are others, 8 to 13, where it must be made by a justice under section 3. So it's not just section 7; these are different suggestions that could be made.

I might add that I don't want the committee to lose sight of the fact that weapons can be permitted through this legislation, this Domestic Violence Protection Act, or through the Criminal Code. My friends have referred to section 111 of the Criminal Code, which the Deputy Premier referred to in response to a question. I haven't read this Zeolkowski case, although I notice from the annotation in the Criminal Code that it was decided under the predecessor of section 111, so that may or may not mean anything.

I also want the committee to look at section 117.04. That section talks about an application for a warrant to search and seize. I'm going to read portions of it. This is section 117.04(1) under the Criminal Code:

"Where, pursuant to an application made by a peace officer with respect to any person, a justice is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive device," the justice may issue a warrant authorizing a peace officer to search for and seize any such thing and any authorization, licence or registration certificate and so on that is held by or in the possession of the person.

Then it goes into the actual seizure. The peace officer can seize these things without a warrant. You don't even need a warrant under subsection (2). I won't quote the first three lines, but it says, "the peace officer may, where the grounds for obtaining a warrant under subsection (1)," which I just read, "exist but, by reason of a possible danger to the safety of that person or any other person, it would not be practical to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration certificate" and so on.

Under section 3 or section 4 of the act that we're dealing with, the applicant or a peace officer must go to a designated judge or a justice in the case of section 4, and a justice in the case of section 3. Under 117.04(2), the police officer can act right there and then. If the peace officer thinks there's something very seriously going on in that crisis that he's in, he doesn't even have to get a warrant. That's under the Criminal Code of Canada. My understanding is that normally you look at that section first.

Then you look at section 111, which has been quoted, I believe, where the peace officer and others can apply to a provincial judge to prohibit a person from having certain weapons, and it goes on. That section's been quoted. So you look at both those sections. I've distributed an amendment, which could be made later--it doesn't really apply to this section--which I hope my three friends in the opposition will agree is a compromise, because we want this bill to pass, as they've indicated they want it to pass too. Domestic violence is a real problem, and if we get stuck on this thing, it's not going to pass. I guess I want to assure the members of the committee that when you look at this, at the protection that's being offered under the Criminal Code, section 117.04(2) goes even further. You don't even need a warrant.

Mr Bryant has talked about that the applicant may not be a police officer, and that's quite true. However, that applicant must go--whether it's under an intervention order or whether it's under an emergency order, you've got to go to a judge. You've got to go to a designated judge or you've got to go to a judge; it doesn't matter. So I don't understand, quite frankly, the rationale, whether it's the applicant or whether it's the peace officer.

Mr Kormos made the comment, "Well, you know, we're really thinking of firearms." No, we're thinking of all weapons. Yes, I'm going to refer to section 2 of the Criminal Code, which defines weapons--which we've referred to in this bill--which means anything. It could be absolutely anything. No, I'm not being silly when I talk about the seriousness if there are dangerous weapons in a house, that this bill, the Criminal Code, applies to all weapons.

We're serious about domestic violence on our side. I believe the opposition is too. I would hope they would allow this to go through. We have spent a great deal of time in our caucus, we've spent a great deal of time in this committee, on this particular section. My records show that last week, Madam Chair, there were over 30 minutes spent by Mr Kormos debating it. Mr Bryant and Mr Kormos have each spent 20 minutes today. I don't know how long I've spent. But I believe we've debated this as far as we would go and I would ask that the question be put. I move that the question be put.

Mr Kormos: Chair, if I may, I'll be asking for a recorded vote and I will be requesting a 20-minute adjournment pursuant to the standing orders.

The Chair: Mr Tilson has moved that the question be put.

Mr Kormos: A recorded vote. And a 20-minute adjournment, please.

The Chair: We'll deal with the recorded vote first, Mr Kormos.

Mr Kormos: If I may, Chair, we have the adjournment as of right before the vote.

The Chair: Yes. I understand that.

Before we put the question, I just want to read the following. Before we proceed to the vote on the closure motion I would like to clarify for the committee the implications of the motion at hand. Standing order 47 states, "A motion for closure ... shall preclude all amendment of the main question." It further states that if it is passed, the original "question shall be put forthwith and decided without amendment or debate."

The motion currently under consideration, ie, subsection 3(2), paragraph 7--there are further amendments to this section which have been filed. The interpretation of the term "main question" as set out in the standing orders and in our precedence is that the question is on the section as amended to this point and not on the amendment under consideration, nor on any amendments which have yet to be moved. I would make it clear to all members that if the closure motion carries, it will mean that the next question put would be, "Shall section 3 carry?" Understood? OK.

Mr Kormos has requested a 20-minute recess and we will put the question when we return.

The committee recessed from 1642 to 1701.

The Chair: Mr Kormos has requested a recorded vote of the time allocation motion.

AYES

Beaubien, Elliott, Molinari, Tilson.

NAYS

Bryant, Gravelle, Kormos.

The Chair: That carries.

Shall section 3--

Mr Kormos: Chair, a recorded vote, and I'm requesting a 20-minute recess as per the standing orders.

The Chair: We will have a 20-minute recess.

The committee recessed from 1702 to 1721.

The Chair: Shall section 3 carry?

AYES

Beaubien, Elliott, Molinari, Tilson.

NAYS

Bryant, Gravelle, Kormos.

The Chair: That carries.

Section 4.

Mr Marcel Beaubien (Lambton-Kent-Middlesex): Chair, I request a one-minute recess.

The Chair: We have a motion. Are you moving a one-minute recess?

Mr Kormos: A recorded vote; 20-minute recess please.

Mr Tilson: On a point of order, Madam Chair: I don't believe that was a motion. I think it was a request.

The Chair: I don't believe that the request for a one-minute recess or a 20-minute recess really helps the proceedings of this committee. We're going to proceed to section 4.

Mr Kormos: This is the part of the bill where I have some questions that, with the co-operation of staff, I'd like to put to them. Once again, as I understand, this is the emergency--if I could ask the staff, please: how do they contemplate people will be pursuing these emergency orders, to wit, with or without counsel? There was a suggestion--

Mr Tilson: On a point of order, Madam Chair: My understanding is that in the proceedings before us now there is one motion the committee has received notice of and that is by Mr Bryant. Isn't it more appropriate that Mr Bryant read his amendment and we debate on that amendment as opposed to--

The Chair: If that's what committee would--

Mr Tilson: But Mr Kormos is jumping right into something else.

The Chair: No. Mr Tilson, I did suggest that we move to section 4. Mr Kormos, if you would prefer that Mr Bryant read the amendment, we will deal with the amendment.

Mr Kormos: My apologies, ma'am. Quite appropriate. I will be speaking to his amendments.

The Chair: That's fine. Mr Bryant.

Mr Bryant: I move that subsection 4(1) of the bill be struck out and the following substituted:

"Emergency intervention order

"(1) On application without notice to the respondent, the court or a designated judge or justice may make an emergency intervention order if the court or designated judge or justice is satisfied on a balance of probabilities that the matter must be dealt with on an urgent and temporary basis and that,

"(a) domestic violence has occurred; or

"(b) a person or property is at risk of harm or damage."

I'll speak to this now.

This speaks to an issue we touched on in a previous section. It attempts, instead of having three hoops to jump through before an emergency intervention order be provided, that we consolidate the self-evident criterion, which is "that the matter ... be dealt with on an urgent and temporary basis" for the protection of the "person or property" that "is at risk of harm or damage." If the government wants to propose an amendment to amend my amendment--I put it under subsection (1) for the simple reason that any emergency intervention order is only going to be sought where there is an emergency. It didn't make sense to me and I was concerned that when you add a third prong to a test, you always end up putting the other two prongs out of context, when in fact the whole point of an emergency intervention order is to consider the urgent basis of the order and the temporary basis of the order. It would go without saying that it was urgent and temporary, so I didn't understand why that would be the third hoop that had to be jumped through.

But the more important and substantive change is back to this point: in circumstances in which there is a balance of probability that a matter must be dealt with on an urgent and temporary basis, I don't think we should have to wait for domestic violence to have occurred. I don't know if this was the intention of the government, to be reactive to domestic violence. I've made that charge generally, but quite specifically with respect to this section I don't quite understand it. Generally speaking, the approach I've been advocating has been one of prevention, and I have said, with all due respect, that the approach of the government seems to be solely reactive.

Leaving aside that general charge, in this particular provision under this particular measure it is unfortunate that the government has, in my view, only gone halfway. This is an opportunity to go that step further. We are talking about a very small part of dealing with domestic violence. This bill isn't dealing with second-stage housing. This bill isn't dealing with all those emergency measures that have been called for by the Baldwin committee report. It is only dealing with the criminal justice side. So given that we're only dealing with a small component of preventing domestic violence, my point is, let's at least within this component actually prevent it.

In many ways my concern with this provision is similar to my concern with the previous amendment, and that is, why is it that we have to wait until an offence has occurred before the government is willing to step in and apply these orders? Again, this is an emergency intervention order. These are urgent circumstances and the evidence is before the judge. The judge is not going to just take somebody's word for it. Evidence is going to have to be adduced by the applicant, and if it can be established on a balance of probabilities that the matter is an urgent one, then let's prevent the domestic violence from occurring.

Now, if it has occurred, then clearly we know from not only the committee hearings, which were all too short I think for everybody's liking, especially given the perspectives that were provided--it seemed not enough victims were heard from. We heard a lot from men who were protesting about a gender-neutral piece of legislation. In any event, we have heard time and time again--at least I have heard time and time again and I'm sure the Attorney General heard this as well in his meetings of last week with the coalition--that once there is a pattern of domestic violence, it just gets worse in the absence of some interventions to try and turn things around and make them better.

So if the point here is to intervene, then fine, yes. If domestic violence has occurred and you're appearing before a judge, it's too late, unfortunately, to get the emergency intervention order. Again, as legislators, we can do all we can to try and prevent this violence. At least let's intervene on that basis. But on top of that, there is a second prong that must be established before an emergency intervention order may be within the discretion of a judge and that is if also a person or property is at risk of harm or damage. I'm obviously suggesting that the criteria be in the alternative; not together, but in the alternative.

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Again, we've already established that it is an emergency. We've already established, on a balance of probabilities, that the matter must be dealt with on an urgent basis. If in fact domestic violence has occurred, surely that's enough evidence for a judge to intervene. I mean, how many times do we have to wait before we intervene? But again, while yes, there's a preventive aspect to that because you're preventing further violence, you're not stopping the domestic violence before it can start. I know that the vast majority of domestic violence cases see recidivism in the civil context and the criminal context, but that said, surely we should give judges the tools to intervene in circumstances when domestic violence has not yet occurred. How would we do that? We would permit an urgent temporary emergency intervention where a person or property is at risk of harm or damage.

I have no doubt that there may be means under the Criminal Code to obtain an order to try and intervene where a person or property is at risk of harm or damage. The Advocates' Society and the Canadian Bar Association basically made submissions to the effect that yes, there is, and as a result there are jurisdictional problems with this act and with this section. I am not concerned with that at all.

I am concerned that this has not been run through the section 91-92 wringer to make sure that it is as constitutionally sound as possible so that victims of domestic violence don't end up having to foot the bill for the better drafting of this act. I am concerned about that and that's why I object to rushing through this process. We might as well get it right, in other words, because if we have judges striking down and carving up the provisions, it is going to be at the expense of victims. They're going to be the ones footing the bills because they're the applicants under this act.

Leaving that aside, imagining that this is constitutionally sound--and I want to proceed on that basis because I have confidence in the counsel who's before us that they have put it through the 91-92 wringer; I'm concerned that the CBA and the Advocates' Society think otherwise. Regardless of that, why not give a judge a tool to intervene on an emergency basis if a person is at risk of harm or damage? To me, that seems like a modest amendment, does not seem like a radical departure from what the government purports to be doing in this bill and under this section. To establish that both domestic violence has occurred and that there is risk of harm and damage means that we are back to the business of reacting.

If the government wants to say to me, "Sorry, official opposition, but that's just not going to pass constitutional muster," then I would love to hear those arguments. The same may have been true of the previous amendment. If the intellectually honest argument is that this is not constitutionally sound, the Liberal amendment then and the Liberal amendment now, then I'd love to hear that. But I have not heard that.

With respect to the Charlton Heston clause, I heard, "Well, you can use section 111 of the Criminal Code." The answer, as you've already heard, is that you can't in the same way. A police officer is not the same as an applicant, and getting a police officer involves a whole new procedure. Maybe most importantly with respect to 111, you're going to have bifurcated proceedings. The whole point of Bill 117 was that we were going to have one proceeding. We were going to go to court, go to the JP or the provincial court judge or the Superior Court judge and get an order, not to several different courts. Here, the government's answer is to go back to several different courts, raising jurisdictional problems.

The parliamentary secretary has said, "I don't understand." It concerns me that he says he doesn't understand why we wouldn't just accept 111, because it would suggest to me that he doesn't understand that the vast majority of domestic violence victims do not get themselves involved with the criminal justice system and, as a result, the police are not going to get involved.

"No," they said, "let's wait until they threaten to use the weapon or use the weapon." As far as I'm concerned, although it is roughly equivalent, it's the same rationale here in this section. Why are we waiting for domestic violence to occur before we're imposing this emergency intervention order? Why are we waiting, if there is a finding that a person or a property is at risk of harm or damage and there's an emergency? If a civil libertarian in this room wants to add some additional checks on that to ensure it's not overly broad, obviously we're open to that. Nobody here has, I hope, a monopoly over legislative drafting. I'm suggesting that as it stands right now this provision really isn't going to do much at all to prevent domestic violence until after it has occurred.

Lastly, we've had this debate mutatis mutandis with the previous provision, and here we are back with it again. I look forward to hearing from Mr Kormos as to whether he still thinks the Liberal amendment would be overly broad or otherwise unworkable, and I'd be happy to entertain any amendments to this. But why are we throwing so many hoops in front of a judge? Why are we not just giving judges the tools they need to prevent domestic violence?

Mr Kormos: The amendment is interesting, because it's consistent with the amendment that was proposed to section 3. However, we should all take a close look at the drafting of the bill, because you'll note that section 4 is not drafted in the same way as section 3. Section 3 clearly says "and" between paragraphs (a) and (b). The "and" is omitted in section 4. The only "and" is between (b) and (c).

Far be it from me to suggest I know anything about statutory interpretation, but I recall it having been suggested to me that in terms of the interpretation, if you have similar sections like 3 and 4, you put them side by each, and if one omits something the other has, clearly it means something other than what the other says. So it seems pretty clear: the objection around section 3 was the "and," clearly a conjunctive "and" as compared to the exegetical "or" suggested by Mr Bryant for section 3. The conjunctive "and" is there; it's omitted in section 4.

I then suggest there will be some counsel who will be arguing that the omission of "and" in section 4 in fact means "or," because "and" is included in section 3 but not in section 4. The only "and" in section 4--clearly the requirements (a) and (b) are conjoined with that the matter must be dealt with promptly on an urgent and temporary basis. The "and" is there, and it's arguable that the "and" applies both to (a) and (b).

I'm saying that even if this amendment doesn't pass, the drafters of the bill have created something in section 4 that is distinct from section 3. Section 3 clearly has an "and" between paragraphs (a) and (b), conjoining them. In other words, both those tests have to be met before the court can acquire jurisdiction. The omission of "and" in section 4 implies that it's some test other than the test in section 3, and that it's going to be very open. Do you understand what I'm saying? I welcome counsel to argue that the omission of "and" means it doesn't mean the same thing as it does in section 3, where clearly both have to be met before the court acquires jurisdiction. The only thing that is compulsory, the only thing that's conjoined in section 4 is that the matter must be dealt with speedily and hastily, that there is a sense of urgency.

Having said that, Mr Bryant's amendment clarifies that and puts it in a specific way. Without Mr Bryant's amendment it remains ambiguous, especially in the absence of any amendment from the government. The government isn't moving to amend it to include "and," so frankly, no matter which way you cut it, you've created an interesting opportunity here for applicants to meet a lower test, which we argued on behalf of with respect to section 3, and which really, when you get down to it, would have been as suitable in section 3, because there you're not dealing with an ex parte hearing, you're not dealing with a hearing without notice.

One of the problems is that I recall asking early on, when the bill was first being dealt with by this committee some time ago, about balance of probabilities versus--because we are also dealing with that in subsection 1--reasonable and probable grounds. They are two different phrases. Interestingly, Zeolkowski deals with that distinction as well.

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The Criminal Code test is "reasonable and probable grounds to believe." The court goes on to say that the purpose of the court hearing is to determine whether or not there were objective grounds upon which to base reasonable and probable grounds, but then goes on to say--what that does, then, is make the trier, the judge, have to determine whether, on a balance of probabilities--part of that suggests to me that Sopinka is using "reasonable and probable grounds" and "balance of probabilities" as the same thing. Although I'm hard-pressed in view of what very well learned and experienced staff had to say when someone suggested what was my suspicion, that there's got to be something distinctive, one versus the other, they could well in fact be the same thing.

The incredible problem, in the absence of a clear "or," is that an applicant can establish that domestic violence has occurred. Again, granted, these are undefended. These are ex parte. There's not likely to be somebody there on behalf of the respondent raising stumbling blocks or hurdles for the applicant, but you can have conscientious judges, JPs and justices on their own saying, "Well, this is...," because it is a little bit extraordinary.

As I understand it, judges exercise that much more caution when doing an ex parte because of course the respondent isn't there, one, to defend himself or herself from the allegations, nor is the person there to make submissions about the type of order that would be appropriate, appreciating that the order under section 4 is somewhat more limited than the order under section 3 because it doesn't contain the last six points, 8 through 13, that are contained in section 3; specifically, granting the applicant exclusive possession. In other words, exclusive possession can't be granted under an emergency order.

It is interesting that you stopped at paragraph 7 and didn't go on to paragraph 8, because exclusive possession--I suppose you would deal with it with an earlier "restraining the respondent from attending at or near." In other words, if you wanted to get a violent person out of the same household, you could use paragraph 1, because exclusive possession--and granted, exclusive possession would be the sort of stuff that is dealt with in family court applications, where you've got not just ordering an abusive or violent person to stay away but actually giving some sort of tenure to the other party, to the applicant.

I can anticipate conscientious JPs, judges, justices, without the "or" and with nobody to suggest that by the omission of "and," the government really means "or"--which is what I suspect. If that's not the government's intention, then the government should be amending this section. If they want to persist, if they really don't agree, they should either be adopting Mr Bryant's position or they should be bringing their own amendment to place the word "and" after "(a) domestic violence has occurred."

Ms Anne-Marie Predko: Would you like a response to that?

Mr Kormos: No. In around 12 minutes I'll be asking for the response. The Chair will let me know when I'm due for a response.

Mr Beaubien: What did Bob Rae call you once?

Mr Kormos: Oh, and he was dead on. Yes. That's one thing I agree with him on.

It is troubling because the approach when this bill was introduced--and again, understand that it was received positively by both opposition parties, who were pleased that the government was going to provide a speedy process whereby--and again, I appreciate it; I'm in the same boat as Mr Tilson. To all those people who want to object, yes, from time to time there will be applicants for these types of orders who are men. But the bottom line is that most of the applicants are women. It's women who are getting killed; it's women who are getting the daylights beaten out of them, not once in a while, but the sort of women--because the other argument is true. The woman who's going to come forward as a result of an act of violence, you can bet your boots that it is probably not the first time she's been assaulted, threatened, beaten, or had coercive means used against her by way of trashing her property, what have you.

This is where the government starts to stray from that. We all adopted the premise that this was going to provide a way where you get enforceable orders. The argument was that the other orders weren't being enforced. What the government's trying to do is design an order that the police can use the Criminal Code to enforce. It doesn't address the matter of availability of police officers. It doesn't address the matter of the willingness of police services boards to get involved in what will still be perceived by many of them as a civil procedure.

How many times have any number of people around this table in this committee, gotten the call, be it at 11 at night or at 3 in the morning, from somebody who's called the police in an effort to have the police intervene? I say, "Put the police officer on the phone." The police officer legitimately, genuinely, is saying, "Well, look, I don't know. It's a civil order. I'm not going to put my career at risk. I'm not sure whether I can or not." Quite frankly, notwithstanding the section here that directs police to comply with these, I've heard the same thing. These aren't police officers who are derelict in their duty; they are just uncertain about what their jurisdiction is, what their powers are and whether they are putting themselves and their police services board at risk by going where they shouldn't.

The mere fact that the bill says "police officers shall" isn't going to change the tone. Police officers are used to dealing with criminal law. That's been part of the problem. Police officers don't like enforcing custody orders or access orders, especially ambiguous ones. All of us have gotten calls from non-custodial parents--the absent parent--who have called on the police to enforce the access order because their partner won't release the kids to them on that Saturday or that Sunday. We understand the police are not going to--"Go back to court and apply for your contempt citation," which is a lengthy, drawn-out process.

By leaving the legislation as it is, friends, you're maintaining a very ambiguous and confusing standard or test. You can resolve it either by accepting the Bryant amendment, which clearly says "or," or, if you persist in saying that even on the emergency, even on the ex parte, the application without notice, the justice of the peace or judge--in view of the fact that their powers are seriously restricted merely to imposing conditions from paragraph 1 through to paragraph 7, if you really believe that a lesser standard than what is in section 3 is appropriate, which appears to be what you're saying--that's how it appears to be drafted, with the "and" that's contained in section 3.

The problem as well is that the regulatory power--I've moved ahead several sections in the bill--doesn't appear to make regulations that are going to be of any assistance to a JP, judge or justice down the road. The JP, judge or justice, because there's no regulatory power included in the bill that appears to address this issue, is going to be left on his or her own. JPs, judges and justices are independent. They are not bound by policy directives from the government. Policy directives don't count. As a matter of fact, a JP, judge or justice would probably be out of line or out of order if they were to allow a policy directive to guide them in applying any legislation, because that would imply, among other things, political interference. It would be a direct attack on the independence of that particular member of the judiciary.

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Mr Bryant: Don't offend the Chair.

Mr Kormos: I'm not offending the Chair.

Interjection.

Mr Kormos: I'm sorry. All of us have our own views on that. I'm an advocate of judicial independence, and I think we have been well served by it. Just take a look, for a brief second--

Interjection.

Mr Kormos: I'm sorry, ma'am?

The Chair: So am I.

Mr Kormos: Just take a look at what has happened in the United States, where you've now got lawyers deciding who the next President is going to be, and you have the dilemma of saying, "He or she is a Republican judge," or "He or she is a Democratic judge." Look at the problems that creates.

Mr Beaubien: They should get Canadian judges.

Mr Kormos: For the first time this afternoon Mr Beaubien raises his voice. No, he made a motion for a one-minute adjournment a while ago.

Mr Beaubien: I didn't.

Mr Kormos: Well, I heard the crack of the whip and you quickly decided that that was not going to be a motion, with the subsequent vote.

But, once again, they should get Canadian judges. We've got a judiciary that works very hard and, as you know, Mr Beaubien, has actually litigated to defend its independence, both justices of the peace and provincial judges. I'm not sure whether federally appointed judges have done the same in terms of litigating, but the JPs and provincial judges--it's interesting that only those with provincial appointments have had to litigate to protect their independence. Far be it from me to suggest that in itself implies anything.

I want to make it clear that I support the amendment. I think the amendment does not alter the intent of the legislation but merely clarifies it. I think the intent is clear, as it's written now, that that is to be an implied "or," that there is an exegetical relationship between paragraphs (a) and (b), that a justice of a peace, a judge or a justice can choose one or the other as compared to what is clearly the intent in section 3, where the person has to meet both hurdles.

The problem is that a woman, in this case, can establish that domestic violence has occurred--again, let's recall what Mr Justice Sopinka said in Zeolkowski. He was dealing with the section 111 reasonable and probable grounds, which appear to be capable of being transferred over to the standard here on the balance of probabilities. He had to determine whether there were objective grounds, objective reasons by which that police officer had reasonable and probable grounds to form his fear about that person--in other words, the respondent in that application--possessing firearms. Here the applicant not only has to establish that she--in this case she--has been a victim of violence but that she is at risk of harm or damage.

The converse could equally be true. A person may not yet have been--and the problem goes back to the fact the government refused, in its definition of domestic violence, to say "includes." I read some of the submissions that had been made in writing, and some of them hit the nail right on the head when they said, "Putting 'means' and making that less restrictive, making it exhaustive, was a terrible mistake." Some of those submissions--they were delivered to all the members of the committee from some very legitimate groups that have a strong interest in protecting women against violence--said, "Don't say 'means,' say 'includes.'" Without the word "or," once a judge, a justice or a JP goes through that list and cannot find that the conduct fits squarely within that definition of domestic violence, it's over. It's not open to that justice, JP or judge to consider whether a person or property is at risk of harm or damage as a result of anything that may have happened.

That's not to say a judge or a justice would impose the same order or the same terms in the order if only one were found to be the case as compared to both or the other. Clearly the judge is being called upon to use his or her discretion to tailor, to design an order that fits the circumstances of the case but very clearly has as its end, as its sole objective, the protection of the woman who is the applicant. If that's what this is all about, then let's treat this seriously.

I entered this committee process, and even the introduction of the bill, with great enthusiasm. I find my enthusiasm waning as the bill becomes subject to more and more thorough scrutiny. I want to hear government members agree to support the amendment that is on the table.

Mr Tilson: I must say I'm disappointed that we are almost at the end of this day of this committee. This is the second day of the committee, when all House leaders agreed that not only would the bill be supported by all three sides--the three members have indicated they would support the bill--but these clause-by-clause discussions would end not today but two weeks ago. Now we risk the whole existence of the bill. In my view it runs the risk of not passing as a result of those delays.

The government will not be supporting this amendment, basically for the same reasons it didn't support the amendments to subsection 3(1). We don't support this amendment because it removes from the test the requirement that domestic violence has occurred. A finding of domestic violence is the backbone of this proposed test.

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 emergency intervention order as long as the judge or justice was satisfied that the matter was urgent. The three-part test, which my two friends have spent some time on, is a necessary step in doing two things: it balances swift protection of the victim with due process of the person bound by the order.

Mr Kormos has spent a great deal of time with respect to the grammatical difference between sections 3 and 4, whether the word "and" should or should not be there. Frankly I don't see the problem. I think anyone who has gone through grammar school would understand that. I know I shouldn't be saying it like that, but I'm going to ask the legislative counsel to give her comments.

Ms Susan Klein: I think it's standard Ontario drafting practice that when there is a series of clauses, the conjunction only appears between the last two. The difference between sections 3 and 4 is that subsection 3(1) has two clauses and subsection 4(1) has three. The "and" between (a), (b) and (c) applies to all three. It implies (a) and (b) and (c).

Mr Kormos: I appreciate that interpretation. Of course it remains to be seen what prevails.

The Chair: Mr Tilson has the floor.

Mr Tilson: The opposition can continue with delaying tactics on this bill. I simply hope they'll let us vote on this amendment now. It's not a motion; it's just a hope they will let us do that.

The Chair: Well, the debate can continue, but it's six o'clock, so I'm going to have to adjourn the meeting.

The committee adjourned at 1800.


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