Domestic Violence
Protection Act, 2000, Bill 117, Mr Flaherty /
Loi de 2000 sur la protection contre la violence
familiale, projet de loi 117, M. Flaherty
Ministry of the
Attorney General
Ms Anne Marie Predko, counsel, policy branch
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 Toby Barrett (Haldimand-Norfolk-Brant PC)
Mr Ted Chudleigh (Halton PC)
Mrs Tina R. Molinari (Thornhill PC)
Mr David Tilson (Dufferin-Peel-Wellington-Grey PC)
Clerk of the Committee
(Mr Tom Prins): Honourable members, it is my duty to
call upon you to elect an Acting Chair. Are there any
nominations?
Mr Toby Barrett
(Haldimand-Norfolk-Brant): My understanding is that both
the permanent Chair and Vice-Chair are absent. I wish to make a
motion. I wish to nominate MPP Marcel Beaubien to chair this
committee.
Clerk of the
Committee: Are there any further nominations?
Mr Peter Kormos
(Niagara Centre): Yes. I want to nominate Tina Molinari,
who has been an outstanding member of this committee and who
deserves the extra stipend that a Chair is paid, the extra
$10,000 or $11,000 a year on top of the $78,000, which this
government wants to increase by 42%.
Have they offered those same
sort of salary increases to any of the staff at Queen's Park?
Have they offered them to the people working downstairs in the
cafeteria for close to minimum wage? I think not. If I could
nominate one of those cafeteria staff for Chair, I would, but
under the circumstances, and as a reflection of my confidence in
and my affection for Ms Molinari, I want to nominate Ms Molinari,
and I ask members of the committee to give careful consideration
in terms of how they cast their ballot.
Clerk of the
Committee: Do you accept the nomination?
Mrs Tina R. Molinari
(Thornhill): Thank you, but I decline.
Clerk of the
Committee: Are there any further nominations? There
being no further nominations, I declare the nominations closed
and that Mr Beaubien be elected as Chair.
Mr Kormos:
Now you're into the big bucks, Marcel.
The Acting Chair (Mr
Marcel Beaubien): Good afternoon, everyone. Thank you
very much for your overwhelming, confidence in appointing me as
the Chair of this committee. You'll have to bear with me here,
but I guess the first order of business will be to-
Mr Kormos:
On a point of order, Mr Chair: First, I want to congratulate you
on your election, but I also want to lend my support to the
proposition that you should be paid the stipend that is normally
accorded a Chair, which is substantial, in addition to your
minimum wage of $78,000.
The Acting
Chair: Mr Kormos, if I may?
Mr Kormos:
One moment. I move before this committee that this committee
recommend that you be paid such stipend in view of your
performance of these duties today.
The Acting
Chair: Mr Kormos, I would like to point out that I
already chair the standing committee on finance and economic
affairs, so I'm already paid as a Chair. I will gladly decline
your offer. I don't think there is any procedure with this
but-
Mr Kormos:
Mr Chair, you won't be the first Tory to double dip.
1540
SUBCOMMITTEE REPORT
The Acting
Chair: I will take the order of business task here
today, and I think the first order of business is to read in the
report of the subcommittee.
Mr Michael Bryant (St
Paul's): I could submit it to the clerk if you wish it
to be dispensed.
The Acting
Chair: It probably should be read, I think.
Mr Bryant:
OK, done.
Your subcommittee met on
Wednesday, November l, 2000, to consider the method of proceeding
on Bill 128, An Act respecting social housing, and recommends the
following:
(1) That the committee meet
in Toronto on November 20 and 21 for the purpose of holding
public hearings and that the committee will meet on November 28,
2000, for clause-by-clause consideration of the bill.
(2) That there will not be
any ministerial presentations or opening remarks.
(3) That scheduling will be
accomplished by means of three lists. Each party will prepare a
prioritized list of proposed witnesses and provide this list to
the clerk by noon on Wednesday, November 8, 2000. The clerk will
ensure that each party has an equal number of witnesses.
(4) That the clerk have an
advertisement placed on the Ontario parliamentary channel and on
the Internet.
(5) That individuals will be
offered 10 minutes to make a presentation and organizations will
be offered 20 minutes to make a presentation.
(6) That the legislative
research officer will prepare a summary of recommendations.
(7) That there will be an
opportunity for each party to take 10 minutes to make opening
comments at the beginning of the clause-by-clause process.
(8) That the deadline for written submissions is
Thursday, November 23, 2000, at 12 noon.
(9) That amendments should be
filed with the clerk by Thursday, November 23, 2000, at 12
noon.
(10) That the clerk has the
authority to begin implementing these decisions immediately.
(11) That the information
contained in this subcommittee report may be given out to
interested parties immediately, as opposed to after the committee
has voted on it.
(12) That the Chair, in
consultation with the clerk, will make any other decisions
necessary with respect to this bill.
The Acting
Chair: Any further debate on the minutes of the
subcommittee?
Mr Kormos:
First let me comment on paragraph (11) "That the information
contained in this subcommittee report may be given out to
interested parties immediately, as opposed to after the committee
has voted on it." I appreciate that that in itself isn't invalid,
but it presupposes, if you're giving it out for the purpose of
information, that that's what the committee is going to pass.
It's an unfortunate turn of phrase, and I would hope that
subcommittees in the future would refrain from that specific type
of language, because it's kind of strange that you haven't voted
on it but you're authorizing it to be released as if it had been
voted on. Yet I understand the intention of releasing it is to
let people know what the terms are going to be for the committee
hearings. It's just one of those weird little things.
The Acting
Chair: Any further comments on the subcommittee
report?
Mr Kormos: I
wasn't at this subcommittee, because Rosario Marchese from the
NDP caucus is going to be dealing with this issue in the
committee and, as I understand it-or at least I assume, which is
always dangerous-he was there. I appreciate that I wasn't there
and he was. But again, I find (1) that two days of committee
hearings in Toronto only, in view of the fact that the issues
around social housing impact in every community in this province
and that many of the people impacted by these decisions are
people who, for a number of reasons, are ill able to travel to
Toronto-notwithstanding that the committee is prepared, I
presume, to subsidize appropriate applicants for subsidy-is
problematic.
(2) Two days, in view of the
magnitude of the impact of this, is quite frankly objectionable.
I will not support the subcommittee report.
Also, the third issue is of
course the advertising. The parliamentary channel and the
Internet: sorry, the parliamentary channel relies upon people
having cable television, and there are still huge parts of
Ontario where people don't have access to cable or, my friend,
where people simply can't afford cable.
Interjection.
Mr Kormos:
Well, who simply can't afford it, and the Chair says he can't
afford it. I suppose that's one of his motives for seeking this
42% salary increase.
The other issue is the
Internet. I understand the widespread use of the Internet, but I
tell you there are a whole lot of families out there who don't
have Internet hookups.
I am really concerned about
what's become almost the steady practice of restricting
advertising, and then of course committee clerks are compelled to
report, "There wasn't much response to this bill." Well, no
wonder, because the bill wasn't well publicized.
I recall a time here at
Queen's Park, while appreciating the huge cost of advertising,
when bills were well publicized via local newspaper
advertisements. I've got to tell you that the public response was
phenomenal, people with a genuine interest.
Those are concerns that I
very specifically have about this, and it's for those reasons
that I will be voting against it, notwithstanding that Mr
Marchese may or may not have agreed to it, and if he did agree to
it, notwithstanding the fact that he felt compelled to agree to
it because of the nature of the leverage that the government has
in any event.
Mrs Lyn McLeod
(Thunder Bay-Atikokan): I also want to express my
concerns about the subcommittee report, not as a criticism of the
work the subcommittee did-and our housing critic, Mr Caplan, was
sitting in on that subcommittee-but with the restrictions that
the government has placed on the ability of the subcommittee to
look at any further hearings.
I am particularly concerned
about the limited amount of time. I think the restricted
advertising concern that Mr Kormos has raised is a legitimate
one. I don't think there will be any difficulty filling two days
of hearings, because there's a great deal of concern about this
bill.
My primary concerns are the
limitation on the number of days of hearings and, second, the
fact that it cannot go to communities outside of Toronto. I know
the answer given to the subcommittee, because I did attend a part
of that meeting, was that you cannot travel outside of Toronto
when the House is in session. I do not believe that there is a
compelling reason why this legislation has to be passed in this
session. I know the government will feel differently about it,
but if they wanted this implementation date of January 1, they
had ample time to bring in this legislation so that the committee
could have travelled in the summer, in that intersession, so that
it could have reached other communities.
This social housing
legislation has significant impact, Mr Chairman, on virtually
every community across this province. I think it is a real denial
of the opportunity to develop legislation that responds to a
variety of needs in different communities that the legislation is
being put through at a time when the committee is not able to
travel.
Mr David Tilson
(Dufferin-Peel-Wellington-Grey): I just want to draw to
the attention of the opposition members that, first of all, the
opposition members who attended that subcommittee, as I
understand it, and I was not a member of the subcommittee but I
am advised that the opposition members did not ask for additional
advertising and, second,
that the three House leaders from the New Democratic caucus, the
Liberal caucus and the Conservative caucus agreed to these
minutes.
Mr Kormos:
Mr Chair, a quick response: that's exactly why the subcommittee
report goes to committee before it's approved. Otherwise, we
wouldn't need committee approval; the House leaders could just
decide it or the subcommittee reps could just decide it.
Mr Tilson:
I'm just drawing it to your attention.
Mr Kormos:
No, quite right, and this is why this committee's deliberation of
the subcommittee report is so important, because we're a little
bit of a check and balance on some of the machinations that go on
in House leaders' meetings where leverage is applied.
The Acting
Chair: Any further discussion?
Mrs McLeod:
I wouldn't have spoken again except for the intervention of the
parliamentary assistant. I believe it's the parliamentary
assistant to the Attorney General, as opposed to the minister
responsible for housing. I do want to make it absolutely clear
that if the alternative to two days of hearings in Toronto is no
days of hearings at all on this very important legislation, then
of course we're going to agree to at least two days of hearings
in Toronto.
That doesn't take away from
the concern that this legislation should have been presented at
such a time as it was possible for the committee to hold hearings
in communities that are very strongly affected by the potential
passage of this legislation.
The Acting
Chair: No further discussion? If not, all those in
favour of the subcommittee report?
Mr Kormos: A
recorded vote, please.
The Acting
Chair: Mr Kormos requests a recorded vote.
AYES
Barrett, Chudleigh, Molinari,
Tilson.
NAYS
Bryant, Kormos, McLeod.
The Acting
Chair: The motion is carried.
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 Acting
Chair: We'll now proceed to the clause-by-clause reading
of Bill 117, An Act to better protect victims of domestic
violence.
I see that under section 1
there is a Liberal motion submitted by Mr Bryant.
Mr Tilson:
Point of order, Mr Chairman: I ask for the committee's
permission-I trust they have no concerns that I'm sitting here
along with two staff members from the Attorney General's office,
who I'd like to identify to the committee-
The Acting
Chair: You certainly may.
Mr Tilson:
-and who may assist me if any members of the committee ask of me
any questions of a technical nature that I feel perhaps it might
be more appropriate for them to answer.
Immediately to my right is
Anne Marie Predko, who is the policy counsel with the Ministry of
the Attorney General. To her right is Joana Kuras, the executive
lead in victims' services of the Ministry of the Attorney
General.
The Acting
Chair: Thank you, Mr Tilson. Mr Bryant, you can proceed
with the-
Mr Bryant:
Mr Chair, I believe we were going to do our five minutes at the
beginning.
The Acting
Chair: Five minutes, OK. I'm sorry.
Mr Bryant:
We'll do it now?
The Acting
Chair: We'll start with you, Mr Bryant.
1550
Mr Bryant:
When the Attorney General first introduced this legislation, a
ministerial statement was provided on September 27th. He said
what we all knew to be true, that the legislation was to a large
extent in response to some of the domestic violence tragedies
that had taken place in the spring and summer. He said, "Everyone
in this House is familiar with media reports of tragedies that
have occurred as a result of domestic violence. As individuals
and as legislators, we have a responsibility to do all that we
can to prevent these tragedies and to keep families safe. That is
why earlier today I introduced the Domestic Violence Protection
Act."
The first reaction of the
official opposition was, "Yes, of course we'll support any
effort, however minuscule, to try and assist in fulfilling our
responsibilities to prevent these tragedies and keep families
safe, but this had better not be it." In particular, the concern
was, and it's a concern that I still have frankly, that the
Attorney General is using the tools at the Attorney General's
disposal to address himself to these issues, but in fact what is
needed is a far more comprehensive approach, as I know the
Attorney General and the Premier know, all of which is
incorporated in a report submitted to him in August 1999, the
report by the Joint Committee on Domestic Violence, Working
Towards a Seamless Community and Justice Response to Domestic
Violence.
Our concern is that this is
it. If this is it, then it is certainly no alternative to
investments in community-based services, including emergency
shelters, rape crisis lines and counselling services. So while,
yes, we support this bill at second reading and, yes, I will have
amendments which try to address what we heard in the committee
hearings, I just want to again say that it is really the
government's responsibility to implement this report. It is not being implemented, I believe
we heard during the committee hearings, and in any event this
certainly is no response to this crisis in and of itself.
Next, Mr Chair, we heard from
the Advocates' Society, who wrote a letter on October 23, 2000,
and together with the family law and criminal law committees of
the Advocates' Society and the Criminal Lawyers' Association,
made a submission. The gist of it was, "Wait, because there's a
lot of problems in this act." We often, I know, hear from counsel
that there are problems in legislation, constitutional or
otherwise, but this is what they said, and I was surprised to
hear this, "We are distressed," the letter from Marlys Edwardh
and Francine Sherkin reads, "at the speed with which this
legislation has been introduced and the fact that there has been
virtually no consultation with the criminal and family law
bars."
I hope that either now or
before this goes to third reading there is going to be that
consultation and we are going to address it, because here's the
concern-I don't know how much time I have left of my five
minutes.
The Acting
Chair: I'll let you know when you have one minute
left.
Mr Bryant:
The concern is this: There are always going to be charter and
federalist issues that confront any piece of legislation,
particularly one that impacts liberty, security of the person, as
this does. But in this case we heard and I think there's no doubt
that this rings true, that it's going to be the victims
themselves who are going to have to bear the burden of basically
ensuring that this act is constitutional because it's going to be
the victims themselves who are going to be dragged through the
courts during the constitutional vetting of it all. At the very
least, let's get it to the point where groups such as the
Advocates' Society are of the view that we have charter-proofed
it as much as possible. One suggestion was made by myself:
perhaps we should send this us for a reference in advance so that
we aren't in fact having the victims of domestic violence pay for
any errors, foreseen or unforeseen, that are found in this bill.
By errors, I mean provisions that end up being struck down.
Those are the concerns. I
have tabled some amendments which don't attempt to address these
concerns but rather try to reflect the changes that were made to
give more discretion to the judges in order to assist the victims
through the tools that are provided, however minimal, within this
legislation.
The Acting
Chair: You have one minute left.
Mr Bryant:
I'm done.
The Acting
Chair: Mr Kormos, and I'll let you know when you have
one minute left.
Mr Bryant:
I'll give my extra minute to Mr Kormos.
Mr Kormos:
Thank you very kindly. First-
Mr Tilson:
That's not fair.
Mr Kormos:
A lot about life isn't fair, Mr Tilson.
First, let's make it clear
that New Democrats again join in any effort to resolve the
dilemma that's been demonstrated time after time about the
so-called ineffectiveness of restraining orders, of other orders
that are designed to protect victims of domestic violence, be it
violence against their person, most serious, or violence against
property, or efforts to, for instance, destroy property or
dissipate property that could impact on a claimant's right to
ever regain control of that property.
It's of some comfort that
the legislation appears to be modelled on existing legislation
from other jurisdictions. It's also a great concern that not only
has there not been an adequate and thorough analysis of the bill
in the committee with the assistance of any number of
organizations and experts that are prepared to come forward-and
if it is a duplication of other jurisdictions' legislation, my
same comment would go to them.
It appears to have been
rather, with respect, not hastily put together-I can't say that;
it might have taken a whole long time-but put together without
consideration of the context in the province of Ontario that
prevails. Of course, we've talked about the difficulties in terms
of, let's say, accessing justices of the peace or other
designated judges, the lack of support for persons seeking,
especially, emergency intervention orders-they being designed to
be available 24 hours a day, seven days a week-when there are
already huge stresses on the justice system in terms of JPs and
judges.
During the course of
submissions by any number of groups I had occasion to comment on
concerns about any number of sections in the bill, and I'll raise
those just to make sure they're on record as the bill progresses
through clause-by-clause. I am disappointed that the government
did not see fit by way of amendments to address any of those
concerns, and I think that signals a very strong message that the
government wants this bill to pass as is.
The bill was going to pass
in any event. I don't think there was any major opposition
expressed toward the spirit of the bill. But let's understand,
this bill very much appears-if it isn't, so be it-to be a
response to the murder of Ms Hadley, and the fact that her
murderer was released on, as I'm told, three release orders, one
by the officer in charge at the station under the Criminal Code
and then at least one judicial interim release order, possibly
two. The argument then is, "Oh, these release orders are
unenforceable. Therefore we'll create a provincial statute that
somehow will be more enforceable."
Au contraire. The judicial
interim release order under the Criminal Code is one that's
enforced by police as well and has criminal and penal
consequences. The other point then could be made, "Well, this
bill"-and it appears it is because of the amendments to the
Family Law Act, among other things-"appears to replace those
restraining orders" that are contained in the civil orders by
what we lay people call civil judges as compared to criminal
judges.
Again, it's acknowledged
that oftentimes police are reluctant to enforce an order
contained in a judgment from a family court judge, or even a
unified family court judge or a superior court judge, that is
part of an interim custody and support order. The police are
caught between a rock and a hard place. They're uncertain about
their responsibility to
do it, and also many police forces are simply stressed in terms
of dealing with other things and don't have the resources, or at
least feel they don't have the resources, to respond.
I appreciate that this bill
may be an effort to accommodate that and to clarify the nature of
the order such that the Criminal Code penalty section or offence
section that deals with breaching a court order applies more
directly, more specifically. Good and fair and well, but my
problem is that if the police are having difficulty enforcing
judicial interim release orders made by a judicial official, be
it a JP or a judge, one way or the other, I don't find anything
in this bill that will make it any easier for the police to
enforce these orders.
1600
The Acting
Chair: You have one minute to wrap it up.
Mr Kormos:
Thank you, sir.
It's also strange the way
the order goes well beyond orders which would directly protect
the security of the victim of domestic violence and move into
some of the areas of perhaps broader civil jurisdiction.
The other interesting
thing, and I'm going to ask the staff about this when we get to
it, is the distinction between an interim order, which can be
obtained before a JP or designated judge, as compared to a
full-time order, which can be obtained only in front of a
Superior Court judge, if I read this correctly-the fact that
there is no time limit put on those interim orders. In other
words, you've got 30 days within which to appeal, and you go to
the same judge or the same level of judge; it doesn't have to be
the same judge. But it's strange that there's no time limit on
the interim order such that the applicant for the interim order,
having gotten it ex parte-and if I'm wrong, I want this clarified
for me-then has to go and guarantee that there is an order on
notice. It may end up being without the respondent defending
himself or herself-but that he or she isn't required to go to
Superior Court.
So there are problems with
it. The problems are not in the spirit or intent; the problems
are in some of this very specific drafting. The problems are that
it is being imposed on policing communities without giving those
policing communities the resources to respond to it; it's imposed
on legal communities without giving those communities an
opportunity to respond-in other words, beefed-up access to legal
aid; and it's being imposed on the judiciary-I appreciate that
you folks don't appoint Superior Court judges-which is already
incredibly stressed. We've got huge backups, I'm told, in some of
the Superior Courts. We've also got huge backups and backlogs by
JPs and judges.
The Acting
Chair: Thank you very much, Mr Kormos, but I've given
you ample time.
Mr Kormos:
You've been very generous, very liberal.
The Acting
Chair: I've been very fair. Thank you. On the government
side, Mr Tilson.
Mr Tilson:
This bill is in response to one of the most disturbing and
insidious crimes we have today, and that's domestic violence.
It's a crime we can't ignore. In the time that's allotted to me I
want to respond to a couple of issues that have been raised
during the hearings and in fact today. Before I do that, I want
to tell you that I think all members of the committee appreciate
those members of the public who have written to us with comments
about the bill as well as the members of the public and
organizations that have come to us and made presentations a
couple of weeks ago.
I'd like to respond to two
items. One is with respect to the comment about consultations,
which two groups-the Advocates' Society and the Canadian Bar
Association I think were two that came forward and indicated that
they wanted an opportunity to discuss that with us. There is no
question that the government intends to proceed to get into-
Mr Chairman, a point of
order: Someone here is taking pictures. Is that in order?
Mr Kormos:
A precedent was set, unfortunately.
The Acting
Chair: Usually, if there's no flash used-I've seen
pictures taken in committee and it has never been ruled against.
If it's disruptive-
Mr Tilson:
I just draw it to your attention. I find it unusual.
If I could continue, there
is no question that many of the details of this legislation will
have to be worked out and, as we all know, much of that is done
through regulation. I invite members of this committee,
opposition members, government members or anyone else, for that
matter, if they have suggestions as to how to make this bill work
better with respect to the regulations, to correspond with the
Attorney General's office and they will take those suggestions
under advisement. The Attorney General is certainly open to
suggestions from MPPs of all sides.
One of the comments that
has been made particularly by members of the opposition portion
of the committee is with respect to the Joint Committee on
Domestic Violence. It has been submitted that the government
really hasn't delivered on that report, which was delivered in
the fall of 1999. It proposed a five-year implementation plan. I
want an opportunity to briefly respond to some of the comments
that have been made by certain members of the committee. Many of
these recommendations that have been made-
The Acting
Chair: You have one minute to wrap it up.
Mr Tilson:
OK-require systemic changes that will involve several ministries.
It won't just be the Ministry of the Attorney General. This will
require time. In the first year, 70% of the committee's
recommendations have been implemented fully or partially or are
in progress or will be implemented. The government formed a task
group on restraining orders. The task group's recommendations
have resulted in the introduction of the Domestic Violence
Protection Act, which is this act, which, if passed, would create
a new domestic violence intervention order to replace the current
family law restraining orders that would be enforceable according
to the provisions of the Criminal Code.
The Ministry of the Solicitor General has
distributed to all police services a model police response to
domestic violence that would provide police with new tools to
protect victims, which include guidelines on domestic violence
occurrences, bail and violent crime, criminal harassment and
preventing and responding to occurrences involving firearms. As
part of the model on police response, the Ministry of the
Solicitor General developed and distributed a new supplementary
police report form which includes a risk indicator tool for
front-line police officers. The use of this form will ensure that
all critical information about the abuser's background and safety
concerns of the victim are included in a standard crown brief
prior to a bail hearing. Police services are now implementing the
model and must have procedures in place by January 2001.
The Acting
Chair: Thank you, Mr Tilson. Your time has expired. Now
we shall proceed to the usual clause-by-clause. I think, Mr
Bryant, you wish to move a motion under section 1(2).
Mr Bryant:
I move that subsection 1(2) of the bill be amended by:
(a) striking out "causes
the applicant to fear for his or her safety" in paragraph 3 and
substituting "causes the applicant to fear for his or her safety,
the safety of a relative of the applicant or the safety of any
child"; and
(b) striking out "causes
the applicant to fear for his or her safety" in paragraph 6 and
substituting "causes the applicant to fear for his or her safety,
the safety of a relative of the applicant or the safety of any
child."
Is it appropriate to make
comments?
The Acting
Chair: You certainly may.
Mr Bryant:
The point here is just to open it up to include not only the
concept of an abuser abusing the spouse, but also we were told
during committee that sometimes the abuser gets to the spouse
through a family member or a child. That too has to be, in my
view, included under the concept of domestic violence. It's just
to make sure that we include that other indirect way, you might
say, of abusing the spouse, but certainly a direct way of abusing
the domestic family.
Mr Kormos:
I support the amendment. It would draw people's attention to
subsection 2(2) where the government has appeared pretty adamant
about keeping the age threshold for an applicant to 16 or over.
You see, part of this amendment wouldn't be necessary had the
government been prepared to eliminate subsection 2(2). It doesn't
deal with the relative issue but it would allow a child to be an
applicant without the necessity of including children of the
aggrieved or victimized party. As to relatives, take note also of
2(1), where a relative is referred to, but that's only as a
respondent, however, or claimant, and that only deals in the case
where that relative is the direct party, that is to say the
perpetrator of the acts which would justify an order.
I think this is a good
amendment which, in view of the failure to eliminate 2(2)-and the
government appears adamant that they won't-is essential. Look, I
don't want to appear melodramatic, but you've got strange,
strange scenarios going on out there. Harassment of an immediate
family member who may or may not be living with the applicant can
be used to effectively hold that applicant hostage or force that
applicant into doing things that she or he shouldn't be forced to
do. So I support the amendment. I think it's a thoughtful
one.
1610
Mr Tilson:
This is an amendment to the definition section of domestic
violence. The government has difficulty with the amendment
because they feel it's unnecessary in that the bill already makes
it clear that the acts against relatives or children can cause
the applicant to fear for his or her safety.
The words that are
submitted in the proposed amendment, we submit, would add little
and in fact would make the definition of domestic violence more
complex for purposes of interpretation by the courts, so the
government has difficulty with this amendment.
Mr Kormos:
With respect, Mr Tilson, please. Subsection 1(2) clearly says,
"committed against an applicant, an applicant's relative or any
child ... that causes the applicant to fear for his or her
safety." Now, what does a 14-year-old child of a spouse who's
being victimized indirectly through that child, where the only
apprehension is to be the safety of that child-do you understand
what I'm saying, Chair? It's not the safety of the applicant. In
other words, the respondent is hands-off with the applicant, but
to exercise coercion the victimizer is causing a child of that
person to fear for himself or herself.
The applicant can say, "I
know he or she is not going to hurt me, I know that, but they're
going after my mother. I know he wouldn't dare touch me or she
wouldn't dare touch me, but he's going after my mother" or "she's
going after my mother." That's exactly the sort of scenario I
think the amendment addresses-and I appreciate what you're
saying-but the courts are going to be sitting down, and
especially when you have not "includes" but "means" in your
subsection 1(2), definition of domestic violence, the courts are
going to be called upon by respondents' lawyers to interpret this
very restrictively and to the letter of the law because you've
worded it in such a way that it's this list, boom, that's it. If
it falls even that much outside this list, then it doesn't count.
What we're doing is creating, again, gaps, whereas to close those
gaps isn't going to cause any hardship.
Who would suggest that if
somebody was bona fide threatening or causing fear of harm to a
relative where the harm to the relative can't reasonably-you know
the defences to threatening charges in the criminal courts. If
the accused's lawyer can get the victim to acknowledge that they
really weren't fearful, that sure somebody threatened to blow
their head off but they're not afraid of that person, no way,
then that makes it very difficult for a judge to convict. I'm
putting that in a very loosey-goosey way. I hear what you're
saying, sir, but the amendment addresses something beyond
that.
Mr Bryant:
Just very briefly, under the principles of statutory
interpretation, clearly this amendment provides alternatives. You're keeping the
cause of the applicant to fear for his or her safety, which is
the government's drafting, but you're expanding that to include
two alternative examples of domestic violence, in other words, or
the safety of a relative of an applicant or the safety of any
other child.
It doesn't make it more
complicated; it makes it broader. I don't want a court to narrow
this to exclude those circumstances. I'd be surprised if the
government would want a court to narrow it to exclude those
circumstances. This isn't complicating it at all; it is opening
it up and attempting to clarify it.
If the official opposition
was proposing amendments which would add additional steps, then
the point would be well taken. It would be further complicating
it, but it's not. These are alternative instances of domestic
violence.
Mr Tilson:
I can't add anything to Mr Bryant's comments. I think I've stated
the government's position.
With respect to Mr Kormos's
comments, he gave the example of children. I believe that those
situations he described, if I heard him correctly, and I think I
did, would be dealt with in other legislation. There's
legislation under the Child and Family Services Act that would
protect the type of situation that he's described.
Mrs
Molinari: My question, I think, may have been answered.
It was, where else are these covered in either this legislation
or any other? It was more of a technical question, just
confirming that the protection of a relative and the safety of a
child are covered within other legislation.
The Acting
Chair: You're asking the question to?
Mrs
Molinari: I'm asking the question to staff.
Ms Anne Marie
Predko: In terms of children under the age of 16, they
would be covered by the Child and Family Services Act.
In terms of relatives, the
relative, if they qualified under this act, could obviously apply
on their own behalf if that's what they chose to do. They also
have available to them section 810 found under the Criminal Code
if that's what the relative chose to do.
Mr Tilson:
Paragraph 2(1)5 would probably anticipate the section on a
relative.
The Acting
Chair: Does that answer your question?
Mrs
Molinari: Sort of. That says, "A relative of the
respondent who resides with the respondent," so I don't think it
really covers what this amendment would cover, because we're not
talking about a relative who resides with the respondent. I think
this is more open; it's just any other relative. But I understand
that it may be covered in other legislation and that the relative
can, themselves, file a complaint. I think I'm satisfied that
it's covered.
The Acting
Chair: OK, thank you. Mr Kormos.
Mr Kormos:
Ms McLeod was first.
The Acting
Chair: I had you first, but go ahead.
Mrs
McLeod: I'm looking now for some clarification, and
perhaps you can help me with my memory of the Child and Family
Services Act. My recollection is that if there is a risk to the
child, the Child and Family Services Act allows police, or more
likely the children's aid society, to move in and to seize the
child. The whole purpose of this legislation is, among other
purposes, to expand the circumstances in which the risk can be
minimized by removing the abuser or potential abuser from the
home.
It seems to me that the
Child and Family Services Act does exactly the opposite when it
comes to children. If I'm correct in my memory of that, if
there's no provision in the Child and Family Services Act that
allows a potential abuser to be removed before there can be harm
to the child, then it would strengthen the case for support for
Mr Bryant's amendment. Surely when you've got a child at risk in
a home, you don't want to add to that risk to the child by
removing the child.
Mr Kormos:
(1) Reinforcing the comments regarding the appropriateness of the
Child and Family Services Act; and (2) where you make reference
to 2(1)5, it's "A relative of the respondent who resides with the
respondent." You see, "The following persons may apply for an
intervention order ... a relative of the respondent who resides
with the respondent." What that is supposed to cover is siblings
living together, and I suppose it encompasses elder abuse, but it
doesn't deal with what we've been talking about or what it
appears the amendment talks about.
First of all, even if the
child lives with the applicant-because of course the respondent
may not always live with the applicant-there's nothing here where
threats against that child-if the applicant has to say, "No, I'm
confident that the respondent wouldn't harm me; the history is
such. However, the history is also such that I know that
respondent uses my child as a way to coerce me, as a way to get
me to sign over my paycheque," or what have you. Let's say it's
my mother-in-law or my mother living with me, whichever the case
may be, not an uncommon scenario-or rather, not living with me,
because you wouldn't have a relative living with the respondent,
but this respondent terrorizes my mother-in-law. He or she
doesn't have the wherewithal to go after me but goes after my
weak and vulnerable elderly mother-in-law and uses that to get me
to do things I wouldn't normally do: sign over my paycheque,
agree to drop the assault charges or what have you. Those are not
unrealistic scenarios. Are they the vast majority? Probably not;
I hope not. But they are not unreasonable.
1620
So what's going to happen
on an application, not the ex parte interim application but the
Superior Court of Justice application, is that the lawyer for the
respondent is going to get the applicant to acknowledge: "But you
have no fear, do you? You know that so-and-so has never assaulted
or threatened you. You are saying he's coerced you by causing
your child or your parent to be fearful, but never you." A child
can't make the application, because the child is under 16, and if
the child is over 16 but isn't living in the home, to wit, living
with the respondent-that's what paragraph 5 of subsection 2(1)
does: you've got to live with that person if you're merely
a relative. So the child
could be 17 years old, or 16, and on their own. A 16- or
17-year-old who doesn't live with the victimizing party has no
rights under this bill; it's not designed to cover that.
Ms Predko:
I want to clarify that point: A child is defined as any person
under the age of 18 years. So any act against any child in
subsection 1(2) can be the act or omission that causes the person
to fear for their safety.
Mr Kormos:
Fair enough. Good for you. I've got to change it, then, to 18 or
over, right? You're right; you're covered to the age of 18,
because it doesn't require living in the same place. But not
living in the same place at the age of 18, you've got the
scenario I've described. Very good; you're right. But 18 and
over, it doesn't apply. Is that fair?
Mr Tilson:
You've also got the words "an applicant's relative." An
applicant's relative can be part of that process.
Ms Predko:
Your child over the age of 18 years would be your relative for
purposes of subsection 1(2).
Mr Kormos:
We're getting good now. This has progressed to the point where
you're saying for the record-because people litigating this are
going to want to read this Hansard-that "committed against ... an
applicant's relative" encompasses all the people we're talking
about. So a court would be wrong if it said a mother or
mother-in-law being threatened with violence or however domestic
violence contains this and satisfies what the amendment purports
to do?
Ms Predko:
I'm not sure I understand the question.
Mr Kormos:
You're saying that the amendment proposed is met by the
definition contained in subsection 1(2).
Ms Predko:
There is a difference between the amendment proposed and what is
in place in subsection 1(2).
Mr Kormos:
What's the difference? What fails to be caught by 1(2) that is
contained in the amendment?
Ms Predko:
I can tell you the difference, from my perspective, between those
two sections. I don't think I can tell you what fails to be
caught. Between those two sections, 1(2) states that for the
purposes of this act any of the activity can occur against the
applicant, the applicant's child or a relative of the applicant.
The amendment takes that further and says the fear that that
activity causes can be a fear for the safety of the applicant,
the applicant's child or any relative of the applicant.
Mr Kormos:
Because subsection (2) includes "applicant, applicant's relative
or any child," but it's the applicant who has to have the fear of
harm done to them. I'm saying to you that I have been in however
many scenarios in courtrooms where I've seen lawyers
manoeuvre-and I can anticipate it here-where a lawyer gets an
applicant to say, "But, no, I don't fear for myself." The
critical test here is that at the end of the day the applicant
must still fear for himself or herself, even though the violence
was directed against a relative or a child. That's the problem
here, and that's what Bryant is speaking to. Again, that's what
you're not including. It's the applicant who has to feel fear. I
may feel fear for my child, but the test here is that the
applicant has to fear for himself or herself, as I read it. So
you miss out on those instances. I'm asking the caucus members to
please listen carefully. I don't disbelieve anything you say, but
the point you just made is the point.
Mrs
McLeod: Before it gets more and more confusing, if I
could sort of take it down to the bottom line: As it relates to a
child under the age of 18, this act would only apply to provide
protection if the applicant feared harm to himself or herself and
would not apply if the applicant feared harm to a child. If the
applicant fears harm to a child, then the only protection that's
available, according to the response of the government earlier,
is under the Child and Family Services Act. Have I understood it
correctly?
Ms Predko:
It's a little more complex than that, because young people of the
age of 16 or 17 can be applicants under this act. So it's only in
the case of a child under the age of 16.
Mrs
McLeod: Let me restrict it to that, then. When we get at
fear of risk to a child, let's talk about children under the age
of 16. For children under the age of 16, if it's not an actual
activity but a fear of harm, then the only protection available
is under the Child and Family Services Act. Is that a correct
statement?
Ms Predko:
There are six components to this definition, and we're talking
about two of them. If an assault has occurred against a child, it
would be covered by section 1. If an intentional or reckless act
which caused bodily harm to a child occurred, it would be covered
under section 2. If a child had been forcibly physically confined
without lawful authority, it would be covered under section 4. If
a child had been sexually assaulted, sexually exploited or
sexually molested, it would be covered under 5. Also, under 6, a
series of acts-again it could occur to the child if it caused the
applicant to fear for their safety.
Mrs
McLeod: But fear of harm or threat would not qualify for
action under this act, in which case you would have to resort, as
the only protection that currently exists for the child under 16,
to the Child and Family Services Act.
Ms Predko:
Fear of harm to a child under 16 would need to be proceeded under
the Child and Family Services Act.
Mrs
McLeod: Could I then ask for clarification of whether my
recollection of that act is correct, that the only recourse for
protection under that act in terms of actual removal of the risk
is to remove the child and take the child into custody?
Ms Predko:
It's certainly not called "custody" under the act, but yes, it
would be an apprehension of the child or another form of
intervention in the family; for example, a supervision order or
voluntary agreement with the family.
1630
Mrs
McLeod: In which case I really don't think the argument
the government has put forward, that children are sufficiently protected under
the Child and Family Services Act and therefore don't need to be
covered under the terms of this act, in accordance with Mr
Bryant's amendment, really holds.
We're still talking about a
court decision about whether or not an individual is at risk.
From my perspective it's an important one in that it protects a
partner in such a situation. I fail to see why the government
would not feel that same protection, as determined by the courts,
should be extended to a child in a domestic situation where there
is a risk.
The Acting
Chair: Any further discussion? If not, Mr Bryant has
moved an amendment under subsection 1(2).
Mr Kormos:
Recorded vote, please.
AYES
Bryant, Kormos, McLeod.
NAYS
Barrett, Chudleigh,
Molinari, Tilson.
The Acting
Chair: The amendment is lost.
Shall section 1-
Mr Kormos:
We still have debate on section 1.
The Acting
Chair: Yes. Go ahead.
Mr Kormos:
Very quickly, the committee will know that I expressed concern in
subsection 1(2) where the list, 1 through 6, is exhaustive rather
than merely demonstrative. I had hoped the instead of saying
"means the following acts" it would read "includes the following
acts."
It would do basically this:
it would permit a court to interpret domestic violence without
the restrictions of its having to be only those things in 1
through 6. I'm not saying 1 through 6 aren't in themselves pretty
illustrative; what I'm saying is that the courts have to have, in
my view, some flexibility around this. Lawyers arguing for
respondents are going to suggest-and we'll see what the courts do
with that suggestion, and far be it from me to put words in their
mouths-"Well, Judge, or Justice or Your Worship, the statute says
what it says, and if it doesn't fit squarely into any one of
those six things"-appreciating that some of them, paragraphs 1
through 6, are rather broad in their own right-"if I can move it
even an inch outside of one of those paragraphs 1 through 6,"
then too bad, so sad; the applicant is out there without any sort
of intervention orders.
I personally, unlike the
Attorney General, who wants to criticize courts, most
recently-did you hear what he said about the Supreme Court of
Canada? He was dissing the Supreme Court of Canada because of
their Starr decision, when I doubt that he'd even read it. I read
it.
I find it very troubling
that the government stands firm on creating that restrictive list
and I think it's going to cause grief and it's going to unfairly
tie the hands of judges when judges want to be fair, equitable
and do the right thing.
Mr Bryant:
This is another way, I suppose, to address the amendment that was
brought by the official opposition. In other words, if we in the
opposition are right here, that that provision is going to be too
restrictively interpreted by judges, one way of remedying that
would be to have the word "includes" instead of "means." I
appreciate the expert opinion provided by counsel on this
particular issue. But in case we are wrong, this would be one way
of addressing it so that we aren't exhausting the definition of
domestic violence in a manner that would violate the spirit of
the legislation.
You know better than I do
that there are lots of instances, FACS situations, which come
before the courts not anticipated yet by committee members or by
legislators, that we all, once we heard them, would want
included. This would give the courts the discretion to include
them in that definition.
The Acting
Chair: Thank you. Any further discussion on section 1?
If not, shall section 1 carry? Carried.
You're asking people to
vote on it, so I'll ask: all those in favour, please indicate.
Those opposed?
Mr Kormos:
On a point of order, Chair: With respect, I understand what
you're saying. I am prepared to concede that when people say
"carried" and nobody says "no," that means carried.
The Acting
Chair: I prefer the indication so that then there's no
debate, in my mind.
Those in favour have
indicated. Those opposed?
Section 1 carries.
Section 2: there is no
amendment under section 2.
Shall section 2 carry?
Mr Kormos:
That's why the Chairs make the big bucks, Mr Beaubien.
The Acting
Chair: I'm fair, so if you want to-
Mr Kormos:
I know you are.
The committee knows my
concern about subsection 2(2), the age restriction. I know the
commentary made in response to my concern by staff. I find it
troublesome and I predict that we're going to encounter
scenarios. You talk about family and children's services having
jurisdiction by people under 16. As a matter of practical reality
out there, once kids, for instance, who are wards of FACS reach
the age of 15 or 15½, FACS for any number of reasons, some
better, some worse, says, "You're on your own."
I can anticipate again. The
usual one? Of course not. Sometimes seeming bizarre? Of course,
but is the prospect of a young woman who is 15½ years old
living under the control of, let's say, a pimp an unrealistic
one? Sadly, I put to you that it's not. I put to you that there's
a scenario. I use "pimp" of course to be perhaps strong in the
kind of language. I find it disturbing that a young woman who is
15½ years old who's in a spousal relationship, if you will,
with a 17- or 18-year-old male-it's happening out there, for
better or worse-or a young woman who is 15¾ years old cannot
get an order under this bill.
It's just extremely
disturbing, because the reality is that a young woman who is 15
years and 11 months old-look what we're saying here: a young woman
who is 15 years, 11 months and 28 days old, admittedly a child,
cannot apply for an intervention order against somebody who may
be beating the crap out of her or shooting her up with drugs.
I find that just
remarkable, when it would be so easy simply to delete this and
resolve that dilemma. This is supposed to be part of a speedy
intervention, where you can intervene rapidly and prevent some
guy-I use "guy," or gal, but the fact is that's the usual
frequency-some 17- or 18-year-old from going after-again I go
back to pimping. You say the court judicial interim release
orders. Somebody is busted for pimping a young woman who is 15
years, 11 months and 28 days old may or may not be released under
a judicial interim release order. If they are released, the order
would undoubtedly say, "Don't have any contact with the young
woman."
Mrs Molinari, please, I
think you're sympathetic to what I'm talking about. I'm
serious.
Mrs
Molinari: I'm listening.
Mr Kormos:
The court may impose that order, but that's why this bill is
here: we're saying the court orders, the judicial interim release
orders, aren't getting the attention they deserve.
I'm saying what we're doing
with this age restriction here is preventing the young victim,
who is 15 years and 11 months old, of a pimp who's shooting her
up and has beaten the crap out of her, from applying on the same
24-hours-a-day, seven-days-a-week basis to get this creep
isolated from her under risk or fear of arrest. That's very
difficult to swallow. I don't know how you respond to that. Is
that the most frequent case? I hope not, but is it a possible
case? I'm afraid it is.
1640
The Acting
Chair: Any further discussion under section 2? If not,
shall section 2 carry? Those in favour? Those opposed? It
carries.
Section 3. Mr Bryant, I
think you wish to move an amendment?
Mr Bryant:
I move that clause 3(1)(a) of the bill be amended by striking out
the word "and" at the end of the clause and substituting the word
"or."
I'm going to call this the
Kormos-Bryant amendment. Mr Kormos raised this matter before,
during the hearings and otherwise. Right now, to make an
intervention order a Superior Court judge has to be satisfied of
two things: firstly, that domestic violence has occurred and,
secondly, that "a person or property may be at risk of harm."
What I'm suggesting here is that we try to strengthen the section
by including the amendment.
Mr Kormos:
Call the question.
The Acting
Chair: Further discussion?
Mr Ted Chudleigh
(Halton): Can we have a five-minute recess?
The Acting
Chair: Just a moment. Mr Tilson had his hand up
first.
Mr Tilson:
I'd like to give some comments of the government.
Interjection.
Mr Kormos:
It's too late now. Go ahead.
Mr Tilson:
Of course, this section deals with how a court can make a
temporary or final intervention order. Taking away the word "and"
and replacing it with "or," we believe, would remove the
requirement that domestic violence has occurred. In other words,
you don't need to establish that there's been any domestic
violence.
Our submission is that the
finding of domestic violence is the backbone of the proposed
test. This amendment takes that away. Without the requirement
that domestic violence has occurred, any risk of harm or damage
to a person or property would be sufficient to trigger an
intervention order. That's all that would be required; nothing
else.
The part that states "a
person ... may be at risk of harm or damage" is necessary to
distinguish situations where the domestic violence would be so
remote from the current circumstances that a judge could not
conclude there was any current risk. For those reasons, the
government has a lot of difficulty with this proposed
amendment.
Mr Kormos:
I appreciate Mr Bryant's generosity of spirit when he indicates
that we share this concern.
Look, sir, before an order
can be made, it has to be found, one, that domestic violence as
defined in subsection 1(2) has occurred and, two, "a person or
property may be at risk of harm or damage." Clearly, that implies
yet more harm or damage. It doesn't rely on the harm or damage
that has occurred to date.
That's why I find your
argument confusing, because what you're really trying to say, and
I don't want to make your argument for you, is that the-
Mr Tilson:
I need help.
Mr Kormos:
-first test is that "a person or property may be at risk of harm
or damage." That's really the first test, and that domestic
violence has occurred. Your argument would be stronger, quite
frankly, if the two paragraphs were reversed in order, because
clearly if a person isn't at risk, then whether or not domestic
violence has occurred is irrelevant. I appreciate you used the
word "may," which is, I suppose, pretty generous. It's not a
tight word, but I find it of concern that an applicant "may" be
able to establish that "a person or property may be at risk of
harm or damage."
Let me run this scenario
past you. What if I discover on the part of my spouse, my
girlfriend, boyfriend, dating relationship, what have you, a
letter that says on such and such date-appreciating that
paragraph 3, the "threatened act or omission," somebody may try
to cover it. What if I find a letter saying, "I'm going to shoot
somebody on such and such date," you know, somebody who falls
within the scope of people. No domestic violence has occurred,
unless you can fit it in under paragraph 3 of the definition of
domestic violence. I appreciate "act or omission that causes the
applicant to fear for his or her safety."
What if I've got a
relationship with somebody who, when they were a bad drunk or a
bad drug addict or other kind of drug addict, was beating the
crap out of me, they've been on the wagon or straight and narrow
for X number of years
but I see them-now again you're going to say that falls under
paragraph 3 after "omission." I don't know. That starts to get
pretty loosey-goosey.
I'm just concerned about it
because I can envision cases-because if you had used "include"
instead of "means" in the definition of "domestic violence," then
this would be OK, because then the court would have power to
expand their definition of domestic violence within the context
of the intent of those six paragraphs so that if domestic
violence has occurred, they could be a little more flexible and
subjective about it. But you haven't. You said "means," so it's
got to be one of those six things right within the four corners
there of what it says, you know right to the letter of the law
and "may be at risk."
I don't know why you don't
want to accept this amendment. I think the amendment's an
appropriate one. I think it enhances the bill. I think judges are
going to find it frustrating and, again, I think lawyers arguing
for respondents-this is going to be highlighted for them. They're
going to get those highlighters out in their version of this bill
and they're going to say, "Oh, this is defence number one, this
conjunctive `and.'"
I wish committee members,
other than Ms McLeod, Mr Bryant, myself and Mr Tilson, were
joining in the debate and I wish, with respect, that the
government members-look, parliamentary assistant, you have a
professional background that deals with law; Mr Bryant does; many
years ago I went to law school as well. You and I both know that
failure to think in a very intense way about these things as
we're going through-and some of you folks over there in the
government caucus may find this stuff mundane and trivial and
that we're being picky. I'm sorry, but we had better be picky now
because everybody here has already agreed that the intent of the
bill should be given effect to, that the bill in itself serves
good purposes.
Quite frankly, this bill
has been addressed in a most non-partisan way, in my view, by
both opposition caucuses. We're trying to raise issues and this
committee process means diddly-squat if government members merely
take their marching orders from the parliamentary assistant and
wait for him to give the nay or yea to any of the proposals here
in any of the discussion. You'll get paid the same, I suppose,
but at the end of the day you could make a difference to somebody
in understanding that-look, none of the commentary on this
amendment has been a rant against the government. During the
brief committee hearings on this bill, we're trying very
carefully to go through what's been highlighted for us, that has
been red-flagged as problem areas. I think the amendment should
be supported.
1650
Mr Bryant:
I'd just return to the statement by the Attorney General on
September 27. The cornerstone, if you like, of this legislation
is these intervention orders. He said in his statement to the
Legislature, "We propose to replace restraining orders which
obviously weren't working, and are not working, with clear and
more effective intervention orders." So intervention orders are
really the guts of this bill. They are certainly the part of the
bill the Attorney General placed emphasis upon.
So, off we go to court to
try to get one of these intervention orders, and all the
definitions of domestic violence we just discussed before, which
include a threat to the person-and I want to include a threat to
the victim's child or relative-are not captured by these
intervention orders. In fact, it has to be a
super-domestic-violence situation where both domestic violence,
which includes threats and, I would hope, indirect violence to
the victim has occurred, and a person or property may be at risk
of harm. Being at risk of harm is obviously quite a serious test,
and it's not going to capture a number of instances of domestic
violence. I just say to the committee that including "and" in
there makes the test that much tougher.
If the government wants to
explain why and make civil libertarian arguments, then fair
enough. But if the government wants to say, "Let's take (b) out,"
because the backbone of the intervention order is that domestic
violence occurs, then fine, take (b) out. I'm just
concerned-well, there's no concern; I know-that there's a
two-part test. Not only must domestic violence occur, but there
must be a risk of harm to the person or to property, which
obviously makes it that much tougher to get an intervention order
from a judge.
I thought the whole point
of this exercise and of this legislation was that we would have,
in the words of the Attorney General, clearer and more effective
intervention orders. I'm trying to make this intervention order
more effective, and the government is saying, "No, we're not
going to make this intervention order more effective. We're going
to make it tougher to get them."
I say the only
counter-argument to that is a civil libertarian argument to the
effect that we don't want to be giving out intervention orders in
circumstances unless there's actual risk of harm to the person. I
say domestic violence encompasses so much more than just harm to
the person and to property that we should in fact embody that in
the intervention orders for the sake of the victims.
Mrs
Molinari: I think we're getting into semantics here. If
domestic violence has occurred and a person or property is at
risk of harm or damage, then a person is at risk of harm or
damage. So why not leave it? It's just semantics; it's not going
to make a great deal of difference. I would not support the
amendment, because I don't think it adds anything.
The Acting
Chair: Any further discussion? If not, Mr Bryant has
moved under clause 3(1)(a) that the bill be amended by striking
out "and" and substituting "or".
Mr Kormos:
Recorded vote, please.
The Acting
Chair: Recorded vote.
AYES
Bryant, Kormos, McLeod.
NAYS
Barrett, Chudleigh,
Molinari, Tilson
The Chair: The amendment is
lost.
Mr Bryant, I think you
moved another amendment under subsection 3?
Mr Bryant:
Yes. I move that subsection 3(2) of the bill be amended by
striking out "that the court considers appropriate in the
circumstances for the protection of any person or property that
may be at risk of harm or damage or for the assistance of the
applicant or any child" in the portion before paragraph 1 and
substituting "that the court considers appropriate in the
circumstances."
Again, the point here is to
take out the extra hurdles that need to be obtained by the
applicant and give discretion to the judge, who can consider all
the evidence and can consider all the circumstances and in fact
will not be handcuffed by these extra hurdles added under
subsection 3(2) that I move be amended and be substituted,
rather. So the court considers all of these considerations and is
in no way handcuffed by these considerations, again, for the sake
of the victims to ensure that we do get clear and effective
intervention orders instead of all these extra hurdles that are
thrown in, that are not semantics, that in fact will result in
fewer intervention orders being ordered and fewer victims being
protected.
Mr Kormos:
It's an interesting amendment. I want to ask, if I may, Mr
Bryant, because I'm a little concerned about it and I don't want
to be doing-just watch. I'm going to be expressing concern about
this and the parliamentary assistant is going to say it's a great
amendment. Maybe that's the way to get these amendments passed,
for me to be critical of them.
The statute as it's written
relates back to the purpose of the statute and makes it quite
clear that a court isn't, for instance, to be punitive in
imposing these orders. In other words, this isn't a criminal
court, where they're saying, "You've been a real horrible person,
therefore I'm going to do X, Y and Z, and I'm just going to do it
because you're a horrid enough person"-and I think that's part of
our emotional makeup-"to warrant having this done to you." I'm
asking Mr Bryant, if I may, what about the language in the bill
that's overly restrictive? My sense is that it's designed to
contain the remedies the court invokes so that they serve the
purposes of the bill rather than any other purpose. If a court
considers it appropriate in the circumstance, I can see a
judge-not unreasonably, if they've got a victim-saying, "It may
or may not be necessary to do any one of 1 to 13, but just
because you're so despicable, I'm going to make you do one or two
of them anyway." My question is, doesn't your amendment open the
doors to that, as compared to keeping it restricted so that it
solely meets the purposes of the bill?
The Acting
Chair: Mr Bryant, if you wish to reply, it's up to
you.
Mr Bryant:
It does open up that possibility, Mr Kormos, but I would suggest
that any punitive measure being brought in through the back door
of this amendment would not be appropriate in the circumstances
and it wouldn't be appropriate for a judge to exercise some
punitive or other discretion. I don't think we should or ought to
assume that would happen. My concern is, to answer your question,
that in fact fulfilling all of these enumerated purposes may end
up restricting and tying the court's hands. I prefer, generally
speaking, to provide that kind of discretion to the judge in the
absence of any suggestion other than the real concern that this
has actually happened.
Mr Kormos:
It's time to call the question now, anyway, isn't it?
Mr Bryant:
It's time to call the question.
The Acting
Chair: Any further comments?
Mr Tilson:
I'm going to agree with Mr Kormos, his comments. When you read
the section, it directs the decision-maker or the judge to
consider all of the various provisions of the sections, 1 through
13, and which of these provisions-and there may be one or there
may be more than one-fit the unique circumstances of the
particular application that's before the court. As Mr Kormos has
indicated, these words in the section make the purpose of the
order perfectly clear. They're not punitive orders. They're
orders for the protection and assistance of victims. For once I'm
going to agree with Mr Kormos. I don't think it's an appropriate
amendment.
Mr
Chudleigh: Could I call a five-minute recess?
The Acting
Chair: You certainly may.
Mr Kormos:
On a point of order, Mr Chair: No, he can't, not until the vote
has been called.
Mr
Chudleigh: I don't think we need the five-minute
recess.
The Acting
Chair: I think we'll take a five-minute recess, because
I need a break too.
The committee recessed
from 1701 to 1707.
The Acting
Chair: Is there any further discussion with regard to
the motion under subsection 3(2) on page 3 in front of you? Have
you requested a recorded vote?
Mr Tilson:
Which amendment?
The Acting
Chair: This is the amendment on page 3.
Mr Bryant:
The Tilson-Kormos amendment?
The Acting
Chair: Yes. All those in favour of the amendment?
Opposed? The amendment is lost.
Mr Bryant, on page 4 you
have an amendment under subsection 3(2).
Mr Bryant:
Yes. If the previous one was the Kormos amendment, I'm going to
call this the Charleton Heston amendment.
I move that paragraph 7 of
subsection 3(2) of the bill be struck out and the following
substituted:
"7. Requiring a peace
officer to seize any weapons and any documents that authorize the
respondent to own, possess or control a weapon."
I was surprised when we saw
this provision because, the way it is now drafted, the only
weapon that could be confiscated would be one that was used or
threatened to be used to commit domestic violence. I don't think
that abusers should have weapons or the documents that authorize
them to own, possess or control a weapon in a domestic violence
situation. Talk about after-the-fact, ineffective responses to
the threat of violence. I would think this is a serious matter, the question of
an abuser or, under the test, a potential abuser where there's a
risk of harm. Should that person have weapons? No. I think that
under this provision the court should be able to order that the
police confiscate the weapon from such a person immediately, not
just a weapon that has already been used against the victim.
Mr Kormos:
I think this is a very carefully worded amendment. The author has
said "any weapons" as compared to "all weapons." So there is
still discretion on the part of the judge conducting the hearing.
"Any" implies such weapons as may be in the possession of. It
doesn't say "all weapons" willy-nilly. Surely that's what Mr
Bryant intended. It addresses the real flaw in the equally
carefully worded provisions of paragraph 7.
Let's look at some real
case scenarios. Let's face it, with most spouses who get shot
dead or shot and wounded, it's not as if they've been shot three
or four times already. Usually our experience, our knowledge of
this indicates that-you've got in this case a spouse, but any of
the people you talk about; it could be victims of domestic
violence who have had the crap kicked out of them, who have been
abused in any other way-more often than not it's the last time
there is an assault on that victim because the weapon kills them
dead, to wit, a gun or rifle. It could be a perfectly legitimate
rifle, in other words legally owned and possessed. So it's just
very straightforward.
If you want some reference,
you people have the material before you, but as I recall the
Criminal Code provisions, upon a conviction for assaults, at
least assaults of certain types, not necessarily assaults with a
weapon, there is a requirement that a judge order a weapons ban
on that person. That seems to be a not unreasonable proposition.
In other words, if you demonstrate a violent propensity, what the
hell do we want people who demonstrate a violent propensity
within their home to have weapons for? To make it easier, so that
with one pull of the trigger they can blow away their partner,
compared to saying, "We'll wait until you point that gun at your
spouse, in anger or in whatever crazed state you've got to be,
and then we'll give the judge the power to consider pulling that
weapon from you"?
Don't forget, it applies to
the interim orders too. This is where there's an intervention
order with notice to the other party. So it's not as if you're
not giving the other party a chance to make their case, to make
their argument. I think it's even more critical when we get to
section 4, the interim orders. Here again you're tying the
judge's hands. You're saying, "Judge, you can have an application
before you with notice," so the respondent has every chance to
call witnesses, to cross-examine the applicant, to do all that
stuff, and he or she can have an arsenal in their possession.
Yet, unless one of those guns was used to threaten, or used,
that's the only circumstance under which a judge can pull the gun
or guns.
The amendment says "any,"
as compared to "all," which I suspect might be given the
interpretation that a judge could say, "OK, you can still keep
your Jim Bowie knife if you're so inclined." I'm not sure whether
that would be reasonable, but the judge can distinguish, because
we're talking about weapons as defined in the Criminal Code.
Again I say to the
government members that this is an eminently sensible amendment.
I'll tell you right now there are going to be judges sitting
there, champing at the bit. Many of them will reflect to
themselves but more than a few will comment out loud, "What in
God's name is the provincial Legislature doing when they prevent
me from ordering forfeiture of guns, for example, from a guy
whose violence has been escalating to the point where he's
putting the boots to his spouse?"
What are we talking about?
If we have been at all serious-all of us have sat in that
Legislature and reflected with incredible regret and sorrow on
the casualties among women, in this province and nationally, yet
what is an incredibly fair proposition is not going to be
accepted by this committee. This is the last chance. If this bill
isn't amended now, when it goes to the Legislature for third
reading, that's as good as it gets.
I would do this: I would be
prepared to suggest that we move on with other clauses in the
bill and defer this amendment, because the government may be
concerned about some of the precise language here. Fair enough. I
would be prepared to defer consideration of sections 3 and 4, as
far as the interim, and move on with the rest of the bill, where
I doubt we're going to have any real stumbling blocks. I'll be
prepared-and I'm confident others will join me in this-to come
back here for five minutes at any time or point, whenever you
want, to readdress this and then pass the bill and get it into
the House for third reading.
This is going to haunt this
committee. When you've got somebody who has demonstrated
violence, what is the public going to say when the bill is being
touted, not unreasonably, as a whole new mechanism whereby people
can protect themselves, purportedly with more effective
restraining orders, or orders, and the judge wasn't given the
power to pull weapons out of a violent person's hands? What is
the public going to say? The public will be as outraged as
they've been over however many years, and even in the recent
past, in terms of the incredible lapses in the criminal justice
system, for example.
I ask the parliamentary
assistant, in all sincerity, and I ask government members, to
consider not dealing with sections 3 and 4 here and now and
moving on with the rest of the bill. I don't anticipate any
similar major or radical concerns. So far, you know where I've
been on the amendments and I know where you've been. To be fair,
there's an argument to be made for your position and there's an
argument to be made for the opposition's position.
At the end of the day,
we're dealing with things that cause us concern, but this one
glares. This one just stands out so dramatically. It might have
been something that was duplicated from another jurisdiction's
legislation, but I can't believe that it's nothing more than an
oversight. I can't believe that the legislative or bureaucratic
staff who wrote this
actually intended that scenario, especially when you make that
reference to the Criminal Code, where a mere conviction for
assault can result in a ban against weapons even if no weapon was
used in the assault. Am I correct in that interpretation of the
code? I don't have the Criminal Code with me. There seems to be a
logic to that, and we applaud judges who take that step, but
we're denying a judge-and I'll argue the same case even more
dramatically for the interim hearings under section 4, where the
person has a chance within 30 days to go back and say, "No, no,
taking my guns or my other weapons was certainly not warranted,"
and it can be reviewed.
This seems to be a very
serious matter, and I dread-again, witness Ms Hadley, when
everybody in this province and in this country went through the
what-ifs. What if the sergeant or the officer in charge hadn't
released him the first time? What if the justice of the peace at
the bail hearing had more time or more evidence so as to hold him
in custody the second time? That person might still be alive.
1720
Mr Tilson:
I can't agree with what Mr Kormos has just stated. If one reads
clause 7, it asks the decision-maker or judge to do two things:
which weapons were used or threatened to be used and, if
appropriate, order their removal. That's what this clause says.
The amendment goes much further than that and, I believe, is
overly broad.
I can think of situations,
for example, in rural communities. I look at the three opposition
members and I don't think they come from rural communities.
Interjection.
Mr Tilson:
Mr Kormos says he does. He comes from everywhere. But I can tell
you that there are situations where the amendment that's been
suggested by Mr Bryant wouldn't be applicable because it simply
would not happen. We're saying that the amendment, as suggested,
is overly broad.
The Acting
Chair: Mr Kormos, in order to refer sections 3 and 4, I
need unanimous consent to do that.
Mr Kormos:
Quite right. I'll remove that from the table-
The Acting
Chair: But you have the floor. You're next to speak.
Mr Kormos:
I understand that.
I say to Mr Tilson that the
riding of Niagara Centre contains a lot of farmland and
agricultural land in terms of livestock, poultry, fruit farming
and other crop farming. Huge chunks of where I come from down in
the Niagara region are rural, and I'm intimate with rural life,
not just in Niagara but in other parts of the province as
well.
With your indulgence,
Chair, I want to ask the staff, in terms of how clause 7
reads-because this is how I'm reading it, and I infer that this
is how other opposition members are reading it.
Mr Bryant:
That's not how we described it. That's how Mr Tilson described
it.
Mr Kormos:
Well, I'm not sure. It says that before you can require a police
officer to seize a weapon, that weapon either has to be used to
commit domestic violence-in other words, I have to point that gun
at my victim or shoot at my victim-or I have to say, "I'm going
to get my gun and shoot you and blow your head off." If I haven't
done either of those two things, if I haven't actually used it to
shoot you-bang, you're shot-or pointed it at you, which I agree
is probably using it and it's an offence under the code, or if I
haven't said, "I'm going to get my gun and I'm going to get you,"
or "Next time I'm going to use the gun on you," then the test for
paragraph 7 hasn't been met. Is that accurate?
Ms Predko:
That's correct. I would also like to point out that the
definition of "weapon" goes beyond firearms.
Ms Predko:
Anything that can be used for the purpose of injuring.
Mr Kormos:
Yes, a broken beer bottle-I remember that case.
I'm glad we've got the
clarification, because that's exactly the point. With all due
respect to the many farmers I know and represent, I don't give a
tinker's damn if it's a farmer who is going to use his gun to
shoot his wife or spouse-I should be more gender-neutral, but the
fact is it's usually women who get the beatings. I don't give a
tinker's damn whether it's a farmer or a person who needs the gun
for his or her occupation or profession-and there are professions
in our province that require that-if you've got somebody who is
demonstrating violence to the point where they fall within these
definitions of domestic violence, I want a judge hearing the
matter to have the power. It's not mandatory; all these things
are discretionary, huh?
Ms Predko:
That's correct.
Mr Kormos:
It doesn't compel the judge to do it; it says it's within the
judge's power. But this severely restricts his power. Similarly,
the Bryant amendment would merely put it within the judge's
power.
Mr Bryant:
Charlton Heston.
Mr Kormos:
OK. It would merely put it within the range of things the judge
considers. We're handcuffing the judge. We're saying that even if
that judge-somebody who is terribly biased-wanted to say, "I'm
sorry, you haven't quite reached the point where you've pointed
your gun or shot your spouse yet," or "You haven't quite reached
the point where you threaten to go and get the gun. That means I
can't take away the gun or the other weapon." I think I know how
the Criminal Code defines weapons. But most dramatically here,
the fact is you don't need a document to possess a machete.
Clearly, the conjunction of that document part implies that the
real focus here is guns. It implies that because it talks about
seizing the documents that allow you to have one.
I hear what you're saying.
I say again to the parliamentary assistant-
Mr Tilson:
How far would you go, though? The definition of "weapon" in the
Criminal Code is pretty broad. You could go into a kitchen and find all
kinds of weapons. Do you clean out the kitchen?
Mr Kormos:
No, but you know that a kitchen knife or a steak knife is not
prima facie a weapon. It's only a weapon once it becomes intended
to be used as a weapon, whereas a firearm-
Mr Tilson:
It's a definition of "weapon."
Mr Kormos:
-is a weapon prima facie.
Mr Tilson:
That isn't what the section refers to.
The Acting
Chair: Mr Tilson, one person at a time.
Mr Tilson:
Sorry, Mr Chair.
Mr Kormos:
I hear you, but I want the judge to have the discretion. I don't
want that judge, him or her, to only be able to order seizure of
a weapon, and that's why the phrase "any weapons," in my view,
lets the judge cherry-pick, if you will. It lets the judge
decide: not "all weapons" or "all potential weapons" but very
specifically. Again, I'm not talking about the farmer with a .22,
although a .22 owned by a farmer can be lethal if it's used in an
improper way. I know households where there are arsenals of
perfectly legal weapons. I'm not talking about guys with illegal
guns.
Why are we approaching this
from the point of view that somehow-I think part of this
misunderstands domestic violence. Domestic violence is committed
by doctors, lawyers, architects and politicians: people who are
otherwise seen by the public as very law-abiding. Preachers-I
don't want to miss any profession or occupation-the whole nine
yards. You don't have a stereotype of who can commit domestic
violence. Domestic violence can be committed by people who don't
own firearms or other obvious weapons, as well as by people who
do.
I'm not suggesting that
people who acquire firearms acquire them for the purpose of
shooting their spouse. But the reality is that when a firearm is
there it becomes, in the incredibly volatile context of a
domestic beating of someone-again, however perverse the sad,
almost pathological expressions of anger that are inherent in
domestic abuse, anger at any number of things other than the
victim.
I'm going to cede the floor
to others who may wish to make comments, but once again I want to
raise referring sections 3 and 4, because I think this warrants
the government looking at this. If you don't like Bryant's
amendment, if you think it doesn't quite hit it on the head and
you want to change it and come back with, "Requiring a peace
officer to seize any weapon as specified," to make it clearer
that you're not talking omnibus "every weapon"-but give the judge
that power.
It becomes, quite frankly,
even more critical on an ex parte, where a judge or JP is making
only an ex parte which can be intervened within 30 days by the
respondent. But where the judge or JP doesn't have all the facts,
I want people to err on the side of caution. I want JPs, judges,
Superior Court judges to be able to err on the side of caution,
because if the goal here is to save lives and protect victims of
violence from more violence or escalated violence, we've got to
err on the side of caution. I'm prepared to let a judge use that
discretion, if only we gave it to them. The bill doesn't give it
to them, and I appreciate the staff's confirmation of what I
understand the bill to say.
1730
Mrs
McLeod: I must admit I'm completely confounded by the
government's opposition to this amendment, and I particularly
don't understand why the application of any law dealing with
domestic violence isn't as applicable in any rural setting as it
is in any urban setting.
Mr Tilson asks how far we
would go. This isn't a question of us going anywhere, it's a
question of discretion, as Mr Kormos and Mr Bryant have both
said, discretion being given to the judge in cases of
court-determined violence or risk of violence to be able to take
the actions that the court, the judge, feel are necessary. I
don't understand why the government would feel that it needs to
in any way limit the discretion of the court. Mr Tilson is quite
right: the Criminal Code clearly has a broad definition of a
weapon. It's there in order to give the court some discretion in
dealing with the potential for a weapon to be used for
intimidation or for actual abuse. I think we have to come back to
the fact that this is about court-determined domestic
violence.
Not dealing with this
particular amendment, but part of this bill allows threat or
intimidation to be termed "domestic violence" and to become
grounds for removing an abuser, someone who commits this act of
domestic violence to be removed from the home. When I proposed
something similar as part of a platform in 1995, Mr Tilson I'm
sure will remember there was a big headline that said, "Yell at
Your Spouse, Lose Your House." That was never what was involved.
It was always court-determined abuse that was at issue. The same
thing is true here. This is not a subjective judgment; this is
not some kind of surreptitious way of getting at expanded gun
control. This is action allowed to the courts where there is
court-determined domestic violence, an act of domestic violence,
as defined by the government's own bill. I'm pleased to see this
bill here. I think it should be used to the greatest extent
possible to do exactly what the government's intent is in
bringing it forward.
I guess I just want to come
back, finally, to what this is all about and why it matters so
much. When the bill was being debated, the New Democrats provided
us in the Legislature with a list of some 43 women who have been
murdered in domestic situations since the May-Iles
recommendations were made. These are women whose names are known
and are a matter of the public record and in most cases where we
know the cause of death. More than half of those women were
murdered with the use of either a knife or a gun. That's really
what this is about. It shouldn't have to reach the point where
somebody has been murdered with a gun or a knife before the court
is allowed to take action that the court believes is
appropriate.
Mr Bryant:
If the government were serious about their concerns about this
section being over-broad, I would encourage the government to-well, they've
had this amendment since November 9, so it's not as if this is a
surprise to them. But if they do have a concern as to
over-breadth, then I would welcome any suggestions so that we can
make this as tough as possible with respect to firearms and then
I guess close off any preposterous hypotheticals with respect to
steak knives. I would submit, with all due respect to the
parliamentary assistant, that that was hardly a bona fide
argument. The absurd should not govern the way we judge a
particular provision or amendment, and that is an absurd, if you
like-logical but nonetheless absurd-deduction to be drawn from
the idea that a judge would seize any weapon.
If you want to circumscribe
it to firearms and then address it to weapons, fine, but as it
reads right now the gist of this provision is, if the abuser
missed when he first shot at her, then we'll confiscate the
weapon, but if he doesn't miss it's going to be too late. Surely
even the government would agree that gun control as applied to
abusers, whether they be in a rural or an urban setting or a
suburban setting, ought to be exercised. This is the worst-case
scenario. I would have thought that the government would have
been open to at least considering or refining an amendment,
because as it stands right now the section is practically
worthless and would not have prevented any of the deaths that
were the subject of the Attorney General's ministerial statement
to the Legislature.
I would just say that if
the members are concerned about the time we have left, if you
want to discuss this further, my amendment to subsection 4(1),
while I still think it's worthy, to some extent is going to be
swallowed up by previous arguments made. So I think this section
is worth dwelling upon. If the government is serious about the
statement Mr Tilson made at the beginning of his comments-in his
opening five minutes he said, "We're open to amendments"-I would
say you haven't been open to amendments yet. This one is clearly
going to make a difference in people's lives and their safety. I
urge committee members, no matter what constituency you
represent, to reconsider this, because you don't want this to
come back and haunt us.
Mr Tilson:
I just want to repeat again what I said at the outset in response
to Mr Bryant, that this amendment is overly broad, and the
reference to weapons, it does cover-I get the impression that
both Mr Bryant and Mr Kormos are referring to firearms-
Mr Bryant:
No. Machetes, weapons, anything that may cause harm.
Mr Tilson:
In other words, you acknowledge that-I won't read the definition
in the Criminal Code, but it talks about any thing; it could be a
thing, anything.
Mr Bryant:
If a judge wants to confiscate that thing, in his judgment, then
yes.
Mr Tilson:
Absolutely. Return to the section as to what it says. It refers
to "where the weapons have been used or have been threatened to
be used." That goes pretty far. If the applicant comes forward
and says that the person involved, a man or woman-and I agree
it's probably going to be a man, but it may not necessarily
be-"has threatened me with this particular thing," whether it be
a stick or a gun or a knife or anything, the judge or the
decision-maker has the jurisdiction to invoke paragraph 7. That's
pretty good protection to that person if they come forward with
that evidence, as opposed to your section, which says anything,
anything in the house, for example, which could be defined as a
weapon, if I read your amendment; it could be anything.
I'm not trying to say, to
use your word, that your suggestion is absurd. I believe you
generally believe what you're saying, but I will only repeat what
I said at the outset, that the amendment is overly broad in its
application, and we cannot support it.
Mr Kormos:
Mr Chair, I ask that this section be stood down so that the
government can consider its position and perhaps draft an
amendment which meets the spirit of the amendment on the floor
that is more in line with its request for less broadness.
The Acting
Chair: So your request is to stand down section 3?
Mr Kormos:
Yes, sir.
The Acting
Chair: I need unanimous consent. All those in favour? I
have no unanimous consent. Any further discussion?
Mrs
McLeod: Again I am confounded by the concern of the
parliamentary assistant in terms of breadth. We're not talking
about some kind of wholesale search and seizure of every kitchen
knife in the province of Ontario. We're talking about a judge's
discretion to take a weapon away from somebody who has committed
an act of violence as defined by the government's own bill. I
just don't see where the breadth is involved here that the
parliamentary assistant is so concerned about. I really regret
that there is no openness to at least consider this.
1740
Mr Tilson:
Just to respond to that, that's exactly what the section says. If
it's been used or threatened to be used, section 7 applies.
Mrs
McLeod: That intervention order cannot apply unless the
court has found that this individual has committed an act of
domestic violence, according to your bill. It's not a wholesale
search and seizure. It is somebody who has committed a violent
act. Let's not forget that's who we're dealing with here.
Mr Bryant:
If the concerns about over-breadth are directed at the kitchen
knife scenario, then I will amend my amendment to say "dangerous
weapons" or I will amend my amendment to say "firearms," but I
suspect that that still isn't going to be good enough for the
government.
Mr Chair, I seek to amend
my amendment to take out the word "weapons" and therefore deal
with the issue of over-breadth, and insert the word "firearms."
If the government doesn't like amending on the fly, fair enough.
Let us stand this down and try to come up with an amendment that
deals with the issue of over-breadth.
The Acting
Chair: You're proposing an amendment to your
amendment?
Mr Bryant: That's right.
The Acting
Chair: So you're proposing "Requiring a peace officer to
seize any firearms and any documents that authorize the
respondent to own, possess or control a weapon"?
Mr Bryant:
"A firearm."
The Acting
Chair: OK, "a firearm."
You've heard the motion by
Mr Bryant to amend his amendment.
All those in favour of that
amendment? Opposed? The amendment is defeated.
So the original amendment
is still on the floor. Mr Kormos, I think you have the floor.
Mr Kormos:
At the onset, I had assured Mr Tilson, with reasonable
anticipation of accuracy, that we'd be able to get through this
bill this afternoon. Look, there have been times when I've been
obstructive and I think the phrase is "dilatory" with certain
goals. I'm telling you, though, I am again incredibly concerned
about what is happening in terms of the stonewalling on the
propositions regarding some critical pieces of the legislation.
Both opposition caucuses have already requested that the section
be stood down to let the government, if it doesn't like the
amendment proposed, draft its own amendment.
I've never been a big fan
of committees because they end up too often-not always, but too
often-meaning so little. But this is the one chance where members
of the Legislature can have some real direct power and some real
meaningfulness in terms of what they do here. I
understand-believe it or not, I was in a government caucus once
too-that the government caucus and its members try not to
contradict what appears to be the government's intention or the
government policy. I never felt constrained by those sorts of
things, but clearly most government members, whatever government
it is, do.
We've stumbled across a
serious shortcoming in the legislation. I don't even think it
ever accurately reflected any distinct-policy decision. I'm not
convinced there was ever a political/policy decision made to do
what this paragraph 7 in fact does. I believe that one of two
things happened: either it was just picked willy-nilly, cut and
pasted from legislation from another jurisdiction without there
being adequate consideration of the impact of it, or the wording
was put together and, again, it got overlooked.
I think this is a very
frightening paragraph because of the way it handcuffs. Again, in
the whole context of law and order, you don't get to the stage of
this hearing-in fact, you don't get to the point of a judge
deciding which of these, what is it, 13 things he or she is going
to impose-
The Acting
Chair: Mr Kormos, I will have to adjourn the meeting
because the bell is ringing. We do have a vote. However, if I can
have unanimous consent, we can come back after the vote. It's up
to the committee.
Mr Kormos:
The committee only sits until 6.
The Acting
Chair: It's up to the committee. If I get unanimous
consent, we can come back after 6. No? OK. We will now
adjourn.
