Senator Simons: Do I still have time?

Senator Simons: As I have said, I would trust that the responsible members of the judiciary would not give out conditional sentences like Halloween candy. Those would be reserved for the very specific fact-based cases where they were appropriate. In no way would I suggest that somebody who breaks into a house and is in the house unlawfully to menace the residents of the house should be treated in the same way as somebody who gets lost in the woods in the winter and breaks into a cabin to not freeze to death.

[Translation]

Senator Simons: Yes, if you like.

Hon. Paula Simons: Honourable senators, I want to begin by expressing my deep appreciation for the work that Senator Boisvenu has done over many years to support the rights of women who are living in situations of domestic violence. Just today, at the Standing Senate Committee on Legal and Constitutional Affairs, we heard about his Senate public bill that is also dealing with some of these same issues. I don’t think anyone in this chamber would want to deny to Senator Boisvenu the kudos he rightly deserves for his long-standing commitment to this question of social justice.

In the last few days in this chamber, we have heard remarkable speeches from our colleagues, including Senator Boniface, Senator Hartling and Senator Manning, dealing with this same issue. The scourge of domestic violence, whether intimate partner violence or violence between parents and adult children in this country, is a tremendous burden on the soul of the nation and on our criminal justice system. As a journalist working at the Edmonton Journal, I covered countless heartbreaking stories of families destroyed by the domestic violence. I had the privilege of being able to interview Dr. Alan Benson, the very proud husband of Senator LaBoucane-Benson, who dedicated much of his career to working in this field and serving on the Family Violence Death Review Committee in the province of Alberta that dealt with some of the most horrific incidents.

I don’t want anyone in this chamber to mistake me as somebody who is soft on domestic violence. It is true that conditional sentences need to be applied extremely carefully in cases where a domestic abuser is in the same community as the victim. That should be obvious. You obviously don’t want to have a catch-and-release system where you let someone — who is a very present danger — out on the street so that he can harass, stalk, assault and kill victims in the worst incidents.

That being said, I believe that the list contained in Senator Boisvenu’s amendment is far too broad and casts far too wide a net for offences that we would wish to exclude from the potential of a conditional sentence.

I want to go through some of them. The first one listed in the amendment is section 221: causing bodily harm by criminal negligence.

In my years covering court cases in Alberta, I saw an extraordinary range of cases that involved criminal negligence. In some cases, that criminal negligence is so atrocious, so thoughtless, so selfish and so mean-spirited that it rises to the very highest standard of an atrocious crime.

But, in other cases, criminal negligence can be something far less morally repugnant. Before we would add something like criminal negligence to a list, we need to understand that there’s a continuum. There is a spectrum, and this kind of criminal negligence may be perfectly well-suited to a conditional sentence, while other kinds of criminal negligence call out for jail time.

Section 264 touches upon criminal harassment. Now, anyone who is a politician in public life, anyone who has lived in Ottawa through the last 10 months, knows what criminal harassment can be at its most minor, and potentially at its most dire.

We can all imagine a case where criminal harassment is an outrageous shock to the conscience, and the person involved is rightly deserving of jail time. We can all also imagine that the best thing for someone found guilty of criminal negligence might be to leave them under house arrest and take all their computers away.

Again, we don’t want to cast so broad a net that we deny judges the discretion to use a conditional sentence where warranted.

Section 267 relates to assault with a weapon or causing bodily harm. If someone is shot, or attacked with a knife, and caused that kind of bodily harm, clearly a custodial sentence might be the right solution. You can also imagine assault with a weapon being somebody who is hit — I’ve seen some things in the courts, and I would think, “That’s a weapon?” But the court considers it a weapon, and that might include Senator Gold’s favourite, pepper spray, or it might include hitting somebody with a garden implement.

Section 270.01 relates the same, specifically for assaulting a peace officer, which should outrage the conscience of the nation. We can all imagine a situation where someone who assaulted a peace officer should go away to jail for a very long time. We can also imagine police officers trying to break up some scuffle, or melee, and being hit over the head with a placard, and maybe we would not consider that something that needs custodial time.

I don’t want to bore us by going through the list, but I will go to the last one. Section 349 relates to being unlawfully in a dwelling-house. If you have trespassed into someone’s home to assault them, absolutely, but being unlawfully in a dwelling‑house can also be a Criminal Code offence if you are squatting in a home, squatting in an abandoned building to use drugs, or taking shelter in an abandoned home to protect yourself while living on the streets.

When my daughter was at law school, she had an imaginary case where someone got lost while camping on the beach and broke into somebody’s summer cabin to stay warm. I believe she was acting for the prosecution in the moot court and demanded the maximum penalty, but I suggested to her that if somebody was really in distress and lost in the woods, breaking into a cabin for the night was not the worst of offences.

I take notice of Senator Boisvenu’s completely correct point that we must not be frivolous in the use of conditional sentences, especially in cases involving domestic violence and domestic harassment. But, with the greatest of respect, I would ask us not to support this amendment, because I do not think it will accomplish what Senator Boisvenu wishes it to do. It will, instead, deny the judges autonomy, discretion and responsibility to apply conditional sentences when warranted and where necessary.

Senator Simons: Senator Batters, you’re a lawyer, and I am not; I’ve been an observer in courtrooms for a long time.

In terms of sexual assault, it’s my understanding — and please correct me if I am wrong, because I don’t have your legal background — that a sexual assault can be anything from a violent, heinous rape to someone exposing themselves in the park. I think we need to understand that sexual assault covers a whole spectrum of the human condition and of human sin. It’s really important that we not impose a cookie-cutter solution, because the sexual assault committed by a rapist who jumps out at you in the parking lot and assaults you viciously is quite different, I think, from the kind of sexual assault when a guy who feels you up in the bar. I don’t care to be felt up in the bar. Actually, it has been a long time since it happened. Sorry — I went for low-hanging fruit. That was not a tasteful joke, and I apologize.

My point is there is a wide variety of offences that can be deemed sexual assault.

For kidnapping, there is a difference between a kidnapping for ransom and for custodial interference, which is often charged as kidnapping. Again, I’m not excusing a parent who abducts a child in violation of a custody order, but, again, that is a different thing from an armed ransom attempt.

These are all very difficult questions, and I, in no way, want to minimize the dangers that criminals pose in our society. I, in no way, want to minimize the dangers in domestic situations where people are often trapped by economic and social circumstances. And when justice finally steps in, they need the courts to be there to protect them. I just feel that this particular amendment casts too wide a net.

Senator Simons: I don’t know the source of that figure. If it’s true, it curls my hair, and I’ve got curly hair.

I agree with you. I don’t think that men who have been a violent menace to their spouses should just be — as I said, I used the phrase “catch and release” before. It’s very important, especially when a man is showing the signals that his behaviour could escalate, that we deal with that properly. I just don’t think this particular amendment gets to the heart of what you are trying to do, and I absolutely agree with what you’re trying to do.

[Translation]

Senator Simons: I think a clear message does need to be sent to society that we will not tolerate domestic violence and we will not tolerate the minimizing of domestic violence. I think Senator Manning’s speech the other day was profoundly moving. The stories he told from his own community — I don’t want to say they should inspire us — should move us to stand with you, with Senator Boniface, with Senator Hartling, with Senator Audette and with all the senators who have dedicated their lives to fighting domestic violence. I think that this is a time on this topic when we can wisely put aside any kind of ideological or party/partisan politics and speak with one voice in this Senate that this is something we will not condone and will not tolerate.

(On motion of Senator Duncan, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Duncan, seconded by the Honourable Senator Clement, for the third reading of Bill S-236, An Act to amend the Employment Insurance Act and the Employment Insurance Regulations (Prince Edward Island), as amended.

And on the motion in amendment of the Honourable Senator Ringuette, seconded by the Honourable Senator Petitclerc:

That Bill S-236, an Act to amend the Employment Insurance Act and the Employment Insurance Regulations (Prince Edward Island), as amended, be not read a third time, but that it be referred back to the Standing Senate Committee on Agriculture and Forestry to hear from the Parliamentary Budget Officer concerning his office’s fiscal analysis on the bill; and

That the committee report to the Senate no later than November 15, 2022.

And on the subamendment of the Honourable Senator Black, seconded by the Honourable Senator Dagenais:

That the motion in amendment be not now adopted, but that it be amended by:

1.adding the words “additional witnesses, including” between the words “to hear from” and “Parliamentary Budget Officer” in the first paragraph; and

2.by deleting the final paragraph.