44th Parl. 1st Sess.
December 4, 2023
- 04:21:04 p.m.
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If you look at proposed subsection 515(3.1), what it does is facilitate an interaction between the prosecutor and the justice, who will make a recognizance determination, so more information is actually helpful for the process. That's how you have an equitable outcome.
I don't see any racial disparities here whatsoever. In fact, I see that this clause would allow the prosecutor to communicate with victim services, and the victim could choose to provide that information or not. It ensures that the victim's situation is taken into account when bail terms are set by the judge.
I think it's very informative and useful for the judge to have that information in their deliberation process. This also ensures that the conditions of recognizance are commensurate with the gravity of the offence, because without this information, the judge would basically just be exercising their discretion and granting bail terms based on what they see fit, not taking into account the protection of the victim, which is the gravamen of this bill.
Therefore, taking it out would actually be doing a disservice to women and to victims, because the judge would not be able to contemplate what their position is and what their safety needs are. It clearly says that the judge “must ask the prosecutor whether the intimate partner of the accused has been consulted”.
This is a duty to consult, and it is a very important duty. If we understand the legal interpretation of this clause, the duty to consult women who are victims of intimate partner violence is essential, and to remove this is basically to negate the bill.
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- 04:23:25 p.m.
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- 04:23:27 p.m.
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I'm not quite as eloquent and as legal-savvy as my colleague Ms. Lewis. She definitely knows the legal terminology significantly better than I do.
To Ms. Gazan's point, this isn't about seeing the attacker. It's about being consulted. That is the key in this messaging here. I am certain, after spending as much time as I have in FEWO, that there is nobody on this committee who doesn't understand that value. The justice “must ask the prosecutor whether the intimate partner of the accused has been consulted about their safety and security needs.” This is not putting them in front of their attacker. This is not asking them to do any of that.
I'm actually stunned right now that you guys want to remove this. This is the whole point of the bill. It's about consulting the victim. It's about putting the victim first. It has nothing to do with putting them in place with the attacker. I just wanted to clarify that.
To Ms. Gazan's point, I understand what you're saying, wholeheartedly. You don't want to retraumatize.... They don't want to see that attacker or be put in the same room. They don't want to do that. That is not what this is saying. It is ensuring that the victim is consulted about their safety and security needs.
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- 04:24:44 p.m.
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- 04:24:47 p.m.
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I find it quite disturbing that one would invoke racial connotations to say that this will somehow bias people based on race when a woman who has been abused is consulted about her safety. Oftentimes, men are making determinations about how this woman will be kept safe. That they should not have any information about that woman and about what she feels she needs to be safe in this context....
To remove this is a violation of every woman who has been a victim of intimate violence, and to not recognize the importance of a judge having an opinion of what that woman feels she needs to be safe is to rob that woman of her agency.
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- 04:25:49 p.m.
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Are there any other questions or comments?
Go ahead, Anna.
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- 04:25:52 p.m.
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I'm listening to Leslyn. Are we not the status of women committee, and are we not here to protect women? How many times have we heard from witnesses that their accuser was let out of jail, and by the time they were informed it was too late and they were revictimized?
I'm sorry, but I guess that's what I'm confused about.
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- 04:26:20 p.m.
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Just taking out my membership, honestly, I know I'm just one of the votes, but at the end of the day I think this is about what we studied. We heard a lot about consultation, a lot about speaking to victims so the victims' voices were heard, and whether or not, during the criminal trial process, during all of these things leading up to that, people have been consulted. Consulting this intimate partner is the key detail to this. Consultation is the piece.
I'll be quiet for a minute.
Are there any other speakers?
Go ahead, Sonia.
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- 04:27:03 p.m.
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Madam Chair, I think we already dealt with this in Bill C-233. I already spoke on that. That is, I think, on the first part.
We talked about the bail hearing, which elevated intimate partner violence as a crime for which electronic monitoring should be specially considered. We did this with Bill C-233.
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- 04:27:36 p.m.
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I just want to take a moment to throw the ball down to Chelsea and Julia.
I just want to ensure...because this obviously is one of the big pieces, if it is already existing in our Criminal Code. If not, what happens if there is a duplication, because something is already occurring here in this bill if it's a duplicate?
If I could pass that on to Julia and Chelsea and get some answers, that would be great.
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- 04:28:01 p.m.
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Just to clarify, the motion G-1 would actually remove two proposals from this bill. I believe that might be a source of some of the confusion.
The first proposal that would be removed is the proposal to ask the prosecutor if the victim has been consulted, and the second proposal that would be removed is the proposal regarding electronic monitoring. They both fall under the first clause. The one motion deals with both proposals at the same time.
On electronic monitoring, as the committee is certainly aware, there was a specific condition added to the Criminal Code that, at bail, judges must consider imposing a condition of electronic monitoring in cases of intimate partner violence and other cases—other serious charges. That did receive royal assent in former Bill C-233. That's with respect to the second proposal.
The first proposal, with respect to the obligation to ask the prosecutor if they've consulted the victim about their safety and security, is not currently in the Criminal Code; however, there are a few related provisions, which have a similar intent to this proposal and would be added by Bill C-48, which was adopted by both Houses last week.
Hopefully that clarifies a little. I think there's been some discussion about both proposals, maybe mixing the discussion together, so I just wanted to clarify that there are two different ones.
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- 04:29:41 p.m.
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That's why we need you here, Chelsea.
I'll take it back to Leslyn, followed by Andréanne.
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- 04:29:46 p.m.
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- 04:29:47 p.m.
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- 04:29:48 p.m.
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Thank you, Madam Chair.
Ms. Moore, I gather from your comments that it would be appropriate to keep the part that says the justice must consult the prosecutor.
Is that right?
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- 04:30:08 p.m.
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It really depends on what factors you'll consider when applying this provision. I can provide other factors to consider, if you want.
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- 04:30:31 p.m.
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- 04:30:35 p.m.
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I'll switch to English, if that's okay.
The effect of the first proposal, which would remove the consultation piece, is that it would require the bail court to ask the prosecutor if the victims had been consulted about their safety needs. In practice, this could translate into a conversation between the prosecutor and the bail justice in the courtroom about the victims' safety concerns. Some victims might welcome having their safety concerns discussed in this way, but others might feel uncomfortable with these kinds of conversations being discussed in an open court and in the accused's presence.
The current practice of bail hearings is to hear the allegations before the court and look at the past violent behaviour of the accused to determine whether bail would be appropriate based on a number of considerations, including public safety and the safety of the victim. The Crown does make submissions on the conditions to be imposed, and it's quite standard to seek out conditions to keep the accused away from the victim, such as no contact and not going to a specific place or area. Currently, there is no discussion at the bail hearing about the broader security needs of the victim. That tends to take place with victim services personnel, who sort of screen what government services they need to contact in order to establish the safety of the victim. The specific security needs of the victim are not currently discussed in open court.
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- 04:32:19 p.m.
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I have a quick question for you. Would there be an option for her to do it privately? I hear you talking about those conditions and security in court. Would there be an opportunity for somebody to do that outside of court in an informal conversation, so it's not in the public realm but somewhere where the victim would feel safe?
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- 04:32:39 p.m.
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Victims don't typically appear at a bail hearing, so they wouldn't necessarily be present. It is possible, but it's uncommon, because a bail hearing takes place within 24 hours. It's sort of a cooling-off period to separate the two parties, so the victims don't usually show up.
If the Crown feels that there's a sensitive or delicate issue with respect to a victim's discussing their security needs in court, the Crown can always ask to go into chambers with the lawyer for the accused and the judge to speak about it privately. That is an option, but it wouldn't necessarily be an option for a self-represented accused.
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