http://www.ontla.on.ca/hansard/37_parl/session1/committees/justice/J027_1.htm (The text is not longer online at that address. WHS) Standing committee on Justice and Social Policy 1st session, 37th Parliament | 1re session, 37e législature

Tue 31 Oct 2000 / Mar 31 oct 2000

Senator Anne Cools. Honourable members, I come here to ask for fairness, balance and equilibrium in this law. I do this because the legal and social condition around domestic violence is one that I can only describe as a heart of darkness. This condition is rendered more difficult by official government disinclination to accept the obvious fact that violence and aggression are human problems, not gender problems. I shall ask you to examine the proposition that men and women are equally capable of vice and equally capable of virtue, and that virtue is a human characteristic, not a gender one. The committee, as a committee, must seek in legislation to reject any notion of the moral superiority of women and the moral inferiority of men, or that men are somehow morally defective. The proposition of women's inherent virtue and men's inherent vice has dominated family and criminal law for the past decade. It has wreaked havoc and has bequeathed tragedy. I ask committee members to examine the data, to examine the empirical evidence in respect of violence within intimate relationships, and to consider the possibility that the issue of domestic violence has been falsely framed or wrongly framed as violence against women. Bill 117 tells us that it is about the protection of the life and limb of persons who are described as victims of domestic violence. On September 27, Attorney General Flaherty told the assembly that Bill 117 is "to support and protect people, primarily women and children, who are at risk of domestic violence." He said, "We are committed to ensuring that abusers are held accountable for their crimes." Mr Flaherty has clearly thought about crimes. Mr Flaherty has used the term "crimes." I note that the term "crime" is very clear here. Bill 117 is entering into a foray in criminal legislation.[1] This bill is about the strength of allegations. I assert that this new proposed intervention order is not a strengthened restraining order as suggested but is a totally new form of order. It is a new constitutional creature unknown to our constitutional order and it is innocently titled an "intervention order." I would submit to you that there is no such legal entity. This intervention order confers exceptional, drastic and unprecedented powers on a judge, without clear statutory enactments to found, enable and create the power. This new intervention order will marry existing restraining orders under the powers of the obligation of citizens to keep the peace and observe the law in respect of life and limb, that is, the Queen's peace, to an unknown constitutional power to expropriate a person's property rights and to attribute those rights to another. In particular, I speak of the contents of the intervention order section, subsection 3(2), paragraphs 8, 9, 10 and 11. Paragraph 8 provides for intervention orders to grant exclusive possession, stating, "Granting the applicant exclusive possession of the residence shared by the applicant and the respondent, regardless of ownership." Bill 117 will circumvent the Family Law Act and give applicants a shortcut to the acquisition of family law property rights. It will vest a legal estate, a property interest, in the applicant to the exclusive possession of the residence. And they say "residence" in the bill, in sharp distinction from the language "matrimonial home" in the Family Law Act. The Family Law Act vests a joint legal estate in the matrimonial home in both spouses and allows either spouse to obtain exclusive possession of the matrimonial home by virtue of its provisions of limiting the other spouse's exercise of their right to possession of the matrimonial home. The authority for that exclusive possession is based in the joint legal estate of both the parties. This bill has no such joint legal estate and further supersedes the concept of the matrimonial home. This is totally new. The effect of this bill, I will propose, is a modern revival of the ancient power named the law of forfeiture. I would ask honourable members to wrap their minds around that particular proposition. In 1971, Erin Pizzey started the first shelter in the world for women affected by domestic violence in Chiswick, England. In 1974, she wrote the very first book on domestic violence, called Scream Quietly or the Neighbours Will Hear. Erin Pizzey, in a 1998 article in the UK's Observer newspaper, wrote the following, talking about her first experiences at her refuge. She said, "Of the first 100 women coming into the refuge, 62 were as violent as the partners they had left. Not only did they admit their violence in the mutual abuse that took place in their homes, but the women were abusive to their children." Erin Pizzey has written about women, and also men, who are prone to violence, or violence-prone. Many are disinclined to receive the evidence that women are violent, yet we all know that infanticide is an exclusively female crime, as the Criminal Code in section 233 tells us. This disinclination shields female violence from treatment and therapy, from correction and prosecution. The effect is to cloak women in innocence--a successful strategy for claims in courts of law. The American scholars on domestic violence, including Drs Murray Straus, Richard Gelles, Suzanne Steinmetz and Jan Stets, all tell us that the domestic assault rates of men and women are equal and that mutuality, symmetry and reciprocity are the norm. Men and women hit each other at equal rates. Men and women initiate violence against each other at roughly equal rates. These studies have been replicated in Canada by the Canadian scholars Drs Kim Bartholomew, Merlin Brinkerhoff, Donald Dutton, Eugen Lupri and Reena Sommer.[*] Dr Dutton appeared before the special joint Senate-Commons committee on child custody and access on May 19, 1998, and he testified at page 25:53, "I wrote a paper in 1994 called Patriarchy and Wife Assault: The Ecological Fallacy. In that paper I essentially criticized sociological and feminist views of wife assault and of family violence." Dr Dutton further told the committee, "I also called attention to the fact that in research that had been done on homosexual relationships, and particularly on lesbian relationships, the abuse rates for physical assault, sexual violence, sexual abuse and psychological abuse were all higher than those reported in heterosexual relationships, and that this was a difficult finding to reconcile with a feminist point of view, since we're dealing obviously here with relationships between women." I would like to place a case before you for your consideration. This is a 1998 case of Regina v Ghanem in the Provincial Court of Alberta. Mr Ghanem had been charged with assaulting his wife--a domestic assault. He was tried and acquitted of this particular charge. This case is very relevant because under Bill 117 he would find himself back in court after an acquittal. Mr Ghanem's wife charged him in an effort to imperil him in the divorce proceeding; this is very well documented in the judgment. About the defendant's alibi, because he was elsewhere when the assault was supposed to have taken place, Judge Fraser stated at paragraph 2, "It was also disclosed to the police officer immediately upon being told of the allegations. The officer chose not to investigate the alibi and instead just laid the charge. Apparently he didn't feel he had any responsibility to do so." Judge Fraser stated his reasons for acquitting Mr Ghanem. He said, "I find the evidence of the complainant and her mother to be contradictory, confusing, contrary, conflicting, irreconcilable and quite frankly, false." About the zero tolerance policy, Judge Fraser stated at paragraph 21, "I want to make two further comments because one is curious as to how a man could be falsely accused in these circumstances right up to and including a trial. The reasons are quite clear to me and disturbing. First, the police apparently have a policy of zero tolerance in domestic assault cases. Any zero tolerance policy is dangerous. It is especially dangerous when it is not properly applied." I have copies of that judgment if honourable members would be interested. 1730 Honourable members of the committee, I have done a lot of work on the question of false accusation. The particular issue around false accusation that has preoccupied my mind, and it deeply disturbs me because it is such a painful and terrible thing, has been the fact that within child custody and access disputes, quite often, as a strategy for obtaining sole custody, there has been a plethora over the last 10 years of the use of false accusation as a strategy. I submit to you that exclusive possession of the home, custody of the children, spousal and child support are sufficiently desirable and profitable to sometimes found deceit, deception and deviance. I would like to offer the committee the findings of the 1995 Ontario Civil Justice Review and also the Manitoba Civil Justice Review of 1996 in respect of their findings on family law. I have this material here before me if the committee is interested. In Manitoba, for example, the task force report stated: "The task force heard horror stories about the traumatic impact on the accused person, on the immediate family and children affected by malicious false allegations designed to achieve sole custody, prohibit or restrict visiting privileges, and to punish the other parent." Here at home, we had the Ontario Civil Justice Review, co-chaired by Mr Justice Robert Blair. These same sorts of concerns are flagged and raised. As a matter of fact, Mr Justice Blair at one point said that civil justice in Ontario is in a crisis. I have studied this matter and I have reviewed some 52 cases, which I will be quite happy to share with you. I have here in my hands a list of 52 judgments from across the country of confirmed false allegations--not false allegations that were made, but false allegations that were found. These accusations are of mostly child sexual and physical abuse, mostly made by mothers, mostly against fathers, and the context, again, is mostly child custody and access proceedings. [**]

Honourable Senators--honourable members-- Mr Kormos: We have elections. Senator Cools: Do you? I want you to know that we do too. Mr Kormos: Mr Gallaway does. Senator Cools: I know who loves an election. Mr Guzzo: It's just a matter of time for you, Mr Kormos. Senator Cools: Very good. Mr Guzzo is-- Interjections. The Chair: Order, please. That was a caution to committee members, not to you, Senator Cools. Senator Cools: Thank you. Mr Guzzo: She just doesn't look at us when she scolds us. Senator Cools: I think she only scolds you when you need to be scolded. Anyway, these are 52 cases. I have listed the cases, case by case, by court, by judge, and even by date of the judgment. I tell you, some of these judgments are chilling. I would like to read a statement from one of the judges because it is at home here in Ontario. The judge is Judge Fisher. In the 1995 case of A.L.J.R. v. H.C.G.R., Judge Fisher stated at paragraph 17: "I find that the father committed no physical or sexual abuse and the mother programmed her child to give fictitious complaints." At paragraph 23, the judge confessed: "When, in the past, I have read evidence of alleged abuse, I have decided to err on the side of caution and order supervised access. Judges often do this. I confess to have been taken in by the mother's evidence." Honourable members, I think that's quite a staggering admission and a confession for a judge to make. The condition that I spoke about around these accusations is essentially the condition that women must always be believed and that men must always be doubted, because women are virtuous truth tellers and men are liars of dubious character, all lurking to hurt, maim, rape and kill their wives and their children. In a decade, we moved from "father knows best" to "fathers molest." [In the US, there are an estimated 520,000 false rape allegations a year  98.1% of all reported cases.  Eeva Sodhi, Debunking Domestic Violence Statistics; Rape] Honourable members, I would like to conclude by saying that Bill 117 seeks to deny women's violence. It cloaks women in innocence, and vests mere allegations of domestic violence with aspects of criminal findings, while it stealthily vests the accuser with new property entitlements and also new child custody and access entitlements. It then attempts, under the disguise of a prohibition, to vest the accuser with a potential immunity, by section 16, from prosecution for perjury. This extraordinary power is legislatively achieved by virtue of a novel judicial order call[ed] an intervention order, sometimes obtained without notice, which can then oust--the bill says "prevail," but in parliamentary language the term is "oust"--orders made under the Divorce Act, the Family Law Act and the Children's Law Reform Act. As I said before, such a judicial order, such a power, is unknown to the law in Canada. Further, no provincial statute can oust the Divorce Act. That is a jurisdictional question that was raised earlier. This bill is a monumental foray into criminal law. Simultaneously, it lacks the protection of due process and the higher standard of the burden of proof required by criminal law. It lacks the protection owed to one accused of violence. Violence is clearly an offence in criminal law, not civil. In addition, by subsection 1(2), the definition of "domestic violence" is so broad, contrary to our constitutional framework, which usually requires that offences be defined precisely and narrowly. Further, subsection 1(3) tells us that on a balance of probabilities, a finding of domestic violence can be made without a criminal investigation, without a criminal finding or without a criminal test of credibility, and even sometimes without a police investigation. Bill 117 is about criminal law and the consequential forfeiture of and the creation of new property rights. As a consequence of allegations of crime made and found without criminal due process, the ancient law of forfeiture is revived. An accused forfeits property rights and cedes them to an accuser. This legal scheme, as I said before, is unknown to constitutional governance in Canada. I think the committee and the Attorney General should exercise some pause and some caution and slow this bill down, receive counsel and find out exactly what is going on in this bill. My worry about this bill is that it will not do very much to protect genuine victims who are in pain and anguish and who are suffering, and will do a lot to strengthen opportunities for what I would call unscrupulous individuals who will want to use the law in some unscrupulous way. The heart of darkness, as I said before, that results in the twin tragedies of murder and suicide--and let us remember that suicide, after all, is self-murder--needs light. It really needs very serious study and needs a lot of light. I would submit to you that it needs no additional darkness. I have spent my life working on this subject matter. I know a lot about domestic violence and I know a lot about human beings when they are wrapped in these conflicts, buttressed quite often by hosts of other entanglements and pathologies. I would also submit to you that there are many different forms of domestic violence. The most frightening and the most terrifying form of domestic violence is the one where, unfortunately, within all of these other conflicts, homicidal or suicidal impulses also come into play. I tell you, I mean it when I say this is the heart of darkness. I thank you. The Chair: We have about eight minutes for questions. 1740 Mr Tilson: You've indicated that this legislation is an encroachment upon the Criminal Code, although I draw to your attention that there are other provincial jurisdictions and provincial-type jurisdictions around the world that have similar legislation to that being proposed under Bill 117, namely, Manitoba, Alberta, Prince Edward Island, Saskatchewan and the Yukon, many American states, New Zealand and Australia. I don't know whether you're aware of those, but you might want to check those out. Both of you have said that you've spent a considerable number of years reviewing the topic of domestic violence. Can you tell me what new recent legislation the federal government has undertaken with respect to the topic of domestic violence? Senator Cools: What new legislation? Mr Tilson: Yes. Mr Gallaway: I think the basic question you're asking begs the question, is the present legislation adequate? I cited one example, and I don't want to be anecdotal about it, but I would say to you that the present legislation is adequate, provided the resources are given to police and crown attorneys to get on with these allegations, which I would suggest to you, Mr Tilson, are in fact criminal offences. Just because a new law is put forward, whether it be in Ottawa or in a provincial capital, does not by definition say it is in fact an improvement. It's just yet another law. Mr Tilson: Senator Cools has spent a great deal of time talking about domestic violence. I agree; I believe we do have a problem with domestic violence, and it's not just men against women. It's men against women; it's women against men; it's date rape; it's the issue of elder abuse. Very few people in these hearings have referred to the topic of elder abuse. There's all kinds of it. I just asked a simple question: with your experience--and I appreciate that--what draft legislation is being proposed by the federal government to deal with any of these issues?[***] Mr Gallaway: As you know, the House is dissolved. There is no draft legislation. Mr Tilson: I understand that. Mr Kormos: Gentlemen, will you both lower your hind legs? Senator Cools: Mine are in pretty good shape. Mr Tilson: Am I still on the air? Senator Cools: The real question is that the current position of the federal government obviously is that the Criminal Code is alive and well and working quite adequately. That would be the position. I do not speak for the government, so I do not feel that I have to excuse or apologize. But that would be the position of the federal government. The question that is hidden in yours is, why is there a need for a new amendment to the Criminal Code? You have not satisfied me that there is. This particular bill does not satisfy me that there's any need for a new addition to the Criminal Code. You inform me that there's similar legislation to this in other provinces. I am here to speak about this particular legislation. Yes, I am pretty well informed on legislation in the other provinces, but I was speaking to this one, and I say to you that this particular one is insufficient because it has clearly trenched on federal territory. Mr Bryant: You've raised an empirical question. You can't be expected to have been here for it, but earlier one of the submissions, by the Metropolitan Action Committee on Violence Against Women and Children, cited a Stats Canada study to the effect that 86% to 93% of victims of violence are women and 90% of the perpetrators are men. We can ask legislative research to find the year of the StatsCan study. Stats Canada is hardly-- Senator Cools: Are you speaking about the 1993 so-called violence against women survey? Is that the particular study? Stats Canada puts out these studies quite frequently. Which one are you referring to? Mr Bryant: I'm sorry. The study was referred to in a previous submission. Let me put this to you: What do you say to those numbers? Senator Cools: I don't know. You would have to cite for me the particular study-- Mr Bryant: Fair enough.[****] Senator Cools: What I would say to you is that domestic violence is a problem that affects a small minority of couples in this country. What I would also say to you is that the strongest predictors of domestic violence are usually youth and common-law relationships, chronic unemployment and usually other sets of social and emotional problems. I would also say to you that at least 75% of men are not violent in their intimate relationships. When we are looking at deviance, I think we have to be crystal clear that we are looking at deviance and focus in on deviance. I guess that is what I'm trying to say. If one wants to deal with deviance--and there is very real deviance. I was on the National Parole Board. I tell you, I've read a lot of cases on deviance. Let us make sure that we draw the law narrowly enough and brilliantly enough to capture in that net the deviance we're wanting to capture and to leave out the rest of the majority of ordinary citizens. I would submit to you that the majority of men and women involved in divorce and custody and access disputes are not in that small group of people whom we would call violent couples. The Chair: You have one more minute. Mr Bryant: You're obviously familiar with the bill. Senator Cools: Yes, I read it quite carefully. Mr Kormos: Mr Bryant can have my time. Mr Bryant: There's no section in the bill that's gender-specific, is there? Senator Cools: That is the interesting thing. It doesn't have to be, because the Attorney General has said it is and all the witnesses have been saying it. It is very clear that what has happened in Alberta and what has happened in the other provinces where similar legislation has been introduced is that the weight of the law will be felt by the male in the relationship. Mr Bryant: I heard that submission-- Senator Cools: I think we can all agree-- Mr Bryant: --but there is no gender-specific reference in the bill, is there? Senator Cools: It is unnecessary to do it because there's a culture, which is the point I was trying to make. Mr Bryant: I'll take that as a "no." Senator Cools: I was trying to appeal to you to say that this bill is being administered on those grounds and there's a culture that is going on. Believe you me, if you've ever counselled or sat between one of those couples, it is very frightening. The Chair: Thank you, Ms Cools. Mr Guzzo: Madam Chair, may I just say on behalf of the committee, we thank you both very much for being here. I know you're both busy. Mr Gallaway, I'm sure you have other things on your mind that you could be handling today and it's very much appreciated that you would take the time to be here. Mr Gallaway: Thank you, Mr Guzzo. I want to say how pleased I am that this all occurred on Halloween evening. It would be very difficult to campaign tonight. Senator Cools: I would like to close by saying that one lauds every effort to correct social problems, but I think we have to be crystal clear that we're defining the problems adequately. I notice nobody responded to the question that I raised--but that's all right--about the exceptional power, invoking the old powers under the law of forfeiture, because, for those of you who may be setting out to try to correct or amend it, what is really wrong with this bill is the marriage between the criminal powers and the civil powers. If the restraining orders had been strengthened in respect of protecting life and limb, it would be an entirely different matter, but the real problem with this bill is throwing in the additional property considerations. Thank you very much. The Chair: Thank you both, Senator Cools and Mr Gallaway, for being here. Ladies and gentlemen, that does conclude the public delegation portion of the committee deliberations. I would ask committee members to please remember that November 7 at noon is the deadline for amendments and there will be clause-by-clause consideration on November 14 at 3:30 in this room. Thank you for your patience. The committee adjourned 1749.