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.
1630
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.
1730
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.
1740
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.
1750
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.
