Hon. Kim Pate: Would Senator Boisvenu take a question?

Senator Pate: Yes.

Senator Pate: My understanding is that they are not talking about mandatory treatment. They are talking about offering treatment as an alternative to the mechanisms that are currently used.

In my experience working with men convicted of sex offences, almost inevitably they will choose those options when they are available. The challenge is they are rarely available. We tend to go to a more so-called “law and order” response.

With respect, I don’t think we need a revolution. But I do think we need to have an honest assessment of what is being offered with this bill, and to identify that there are significant gaps when we say we are going to use electronic monitoring, and hope that will stop this.

In my discussions with women’s groups about your bill and about this approach, it’s very clear that some are looking at it as one of the only options being offered, and I agree that is an indictment of all of us if that’s all that is being offered to them. I am not in any way questioning your support or your desire to see an end to violence against women. I think, though, we need to be honest about how best we can achieve that. It is clear that one of the downsides of this bill is it will look as though something is being done and it may stop one or two men, but is unlikely to stop many, if any.

[Translation]

Senator Pate: I’m not sure there was a question, but I’m happy to add that I think it’s true. The challenge is, as you have already experienced in talking to those women, when the only response you provide is a criminal law response, women who have had a history of not having any kind of avenues to get support often will leap to that and cling to that, when in fact as you have already experienced, when you go and speak to them, that’s the last thing they want. They want a whole host of other supports and services to prevent them from ending up before the courts in the first place.

My concern is offering electronic monitoring as though it will solve the problem creates that false sense of security, and creates a sense that it actually will be effective when, as I hoped to lay out, in fact, there is ample evidence that is not true. If at the committee we take the opportunity to say, what should we be doing instead of this, I think that would be a fabulous opportunity, so thank you very much.

[Translation]

Hon. Kim Pate: Honourable senators, I rise to speak as critic of this bill. I agree that this is of the utmost importance and that we not resile from tackling the issue of violence against women. As underscored by Senator Dasko’s recent survey and by the Calls for Justice from the National Inquiry into Missing and Murdered Indigenous Women and Girls, violence against women, especially violence against Indigenous women, is dire and requires immediate and systematic actions by all levels of government.

Bill S-205 places an emphasis on the use of electronic monitoring devices for men who have committed violence against women. It’s a plan to use these devices when people are not in custody and is prescribed as a method of keeping women safe. Bill S-205 does not do the necessary work, however, of unweaving the fabric of misogyny, racism and class bias which fuels violence against women and which is perpetuated in and by the criminal justice and penal systems. Bill S-205 does not address the economic, social, racial and gender inequality which abandons women to violence, poverty and racism. Nor does it deconstruct the values and attitudes that reinforce it. Building services and approaches that enable safety and support must instead be prioritized.

Physical violence is only one aspect of a wider net of coercive and controlling conduct. The tactics used against women include intimidation, isolation and control, and these factors are more predictive of intimate homicide than the severity or frequency of physical violence.

Social and cultural messages that privilege patriarchal ideas and attitudes, the hyper-responsibilization of women from childhood to consider themselves responsible for preventing their own victimization, combined with behaviours that control, isolate or intimidate via emotional, physical, social or financial means, abuse of inequities, or a combination of these, contribute to gross underreporting of violence against women.

As studies of the use of electronic monitoring to address male violence against women in other jurisdictions reveal, one of the fundamental challenges of using this approach is the reality that:

Victims of domestic violence typically do not report to the police or leave abusive relationships as they recognize that it generally places them at a higher risk of assault.

The myth that women would leave if the abuse were really dangerous is debunked by the evidence. In a study that underscores the inability of electronic monitoring to prevent violence against women, data revealed that, in the year before they died, 75% of homicide victims and 85% of women who experienced severe but non-fatal violence had left or tried to leave their batterers.

Violence is of particular concern for women who are disadvantaged in intersectional ways, whether that is race, class, poverty, language, ability, sexual orientation or other forms of discrimination. Indigenous women are particularly at a high risk. In order to stem violence against women, we must disrupt and address the deeply rooted inequalities that are foundational to their oppression. Bill S-205 does not.

We put an enormous burden on women who experience violence. Too often their cries for help are not met with an adequate response from the criminal justice system. Victims describe how the violence and harassment they experience are minimized and even discounted. Research from Western University revealed a mere 25% of women who called police to report violence experienced “positive” interactions with police, whereas 45% indicated their experience was “negative.”

The Canadian Association of Elizabeth Fry Societies and the Native Women’s Association of Canada have documented that women — particularly those who are poor, racialized or have a disability, including a disabling mental health issue — are hyper-responsibilized by the legal system.

The Canadian legal system fails to adequately protect women. For example, if women report violence, there is a constant fear that it will be used against them in determining the safety and custody of their children. A report from 2008 found that being the victim of domestic abuse was used 46% of the time as a risk factor to legitimize child welfare interventions. Mental health issues, including those related to domestic violence, accounted for 27%.

Worse yet, police continue to charge women after effectively deputizing them to protect themselves and their children. When they respond to violence with physical resistance, they face the very “zero tolerance to violence policies” introduced under the guise of providing battered women with protection.

Bill S-205 calls for increased police intervention while doing nothing to address the issue of hyper-responsibilization for women or to improve their experiences with the legal system.

Senator Boisvenu indicates that women were the ones who requested — even wrote — Bill S-205. When women are only offered a criminal legal enforcement model, particularly in the face of millennia of inadequate responses, it should not surprise us that they may agree to grasp for the only option provided rather than effective and comprehensive approaches to addressing violence against women. This is a case where the inadequacy of options makes the illusion of choice and safety just that — illusory illusions.

There are a multitude of other approaches — evidence-based approaches — that could actually address and prevent violence against women far better than what is proposed by Bill S-205.

For example, Senator Boisvenu quoted expert Dr. Elizabeth Sheehy in his second reading speech but failed to include her perspective that:

Criminal law alone cannot prevent domestic violence: it is an after-the-fact response to violence that has already damaged, and sometimes ended, the lives of women and their children . . . .

What women urgently need are resources, such as safe housing, social welfare and legal advice to escape violence and navigate the criminal justice system. They need the family court and child protection systems to “see” the violence and coercive control that places them at risk and they need the police to respond effectively to keep violent men away from them.

The call from Dr. Sheehy is not simply for criminal law changes but for systemic change to prevent violence against women instead of inadequate after-the-fact efforts. We can prevent violence against women by transforming attitudes, beliefs and norms. We need change so that women who seek help from the police don’t have their complaints of violence minimized — change that does not require heavy sanctions but allows for prevention to keep women safe.

Women’s groups have long demanded that responses address root causes of violence against women. The legislative framework required to prevent and respond to violence against women must be framed to also recognize and redress women’s poverty and economic insecurity, which structures and shapes women’s experiences of violence, especially those of groups of women who are particularly vulnerable to violence against women in many forms. Ensuring that the historic and current context is well understood is essential to informing this analysis, particularly in relation to colonialism and the ongoing impacts of colonization, including how they impact violence against Indigenous women. Women’s groups have also noted that all violence against women law reform in Canada must respect and reflect intersectional feminist analyses and be grounded in human rights, specifically women’s human rights.

Any meaningful change must address the underlying cognitive and behavioural issues that lead to violence. Strapping an electronic monitor to a person’s ankle does nothing to stop a person from continually committing violence, both while the electronic monitor is attached to their ankle and after it is removed. Experts urge that we should not confuse technological aid with meaningful treatment. Meaningful treatment must address why a person commits violence in order to truly stamp out the root causes and break the cycle.

Addressing economic inequality of women is a critical aspect of reducing violence against women. As UN Women and the World Health Organization have noted, “The links between poverty and violence against women (VAW) are well established . . . .” According to research from the group Surviving Economic Abuse, 95% of British domestic abuse victims experience economic abuse. This is not a number that should be taken lightly. This means that nearly all victims of violence have had the common experience of economic abuse. In order to address the root of this issue, it is paramount that women have economic alternatives to remaining in dangerous family situations, economic alternatives and supports that, unlike current programs, are not threatened with removal should they seek help, and that meet the needs of themselves and their families.

The role of economic resources in facilitating access to physical safety is clear, underscoring the need for things like guaranteed livable basic income, which would reduce the financial burden on women and allow them to make decisions about how best to care for themselves and their families and look further than short-term safety. We need to first do everything possible to prevent violence instead of routinely focusing on inadequate after-attack interventions such as electronic monitoring. Access to meaningful choice afforded by things like guaranteed livable income is not only a matter of dignity and equality; for women who are trying to escape violence it is a matter of safety as well.

For decades, multiple recommendations have been tabled in efforts to empower women and provide supports to enhance independence and end relationships of violence. These include increasing resources and funding to established battered women’s shelters and other supports that enable women to safely extricate themselves from situations of violence.

In Quebec, a similar bill to Bill S-205 was recently tabled. During committee meetings on that bill, a representative from L’Alliance des maisons d’hébergement de 2e étape pour femmes et enfants victimes de violence conjugale advised that in Montréal alone, 75% of requests for shelter are refused due to lack of space. This means that three out of every four women who need safe and secure housing to escape violence have no access. A recent Globe and Mail article states that in Quebec:

. . . amid a surge in hotline calls and texts from victims seeking support this year, women are being turned away from shelters that are stretched beyond capacity.

This illustrates that even in Quebec, which Senator Boisvenu states supports Bill S-205, there is a drastic need for proper supports to truly end violence against women.

For those who can access these short-term shelters, a snapshot from April 18, 2018, provided by Statistics Canada shows that for 36% of women, either the facility or the women did not know where they were going upon departure from the facility. For 21% of women, returning to the residence where their abuser continued to live was the only option for them and their families. It has only worsened since then. Being in the same location as your abuser regardless of electronic monitoring will not make those women any safer.

Violence against women has further been defined to extend from being a violation of women’s rights to a public health issue. The World Health Organization clearly states the negative impact of violence on women is manifold. It affects women’s physical, mental, sexual and reproductive health. There are not the resources to help women deal with these health-related issues. It is essential that women have the resources to leave violent relationships, not that we merely attach inadequate band-aids after the fact. Chronic underfunding of services to women keeps women at increased risk and pushes them back into situations that are dangerous — too often lethally so — for themselves and their children. Again, Bill S-205 does not address this.

Electronic monitoring does not work. It most definitely does not protect women from violence when it is being used as a stand-alone solution, as proposed in this bill. Legislating increased statutory authority for imposing electronic monitoring is not the missing piece in preventing violence, nor is it effective. Electronic monitoring and other measures impact people differently. The negative impact of surveillance and control is particularly acute for individuals, their families and communities who are already marginalized, and particularly if they are racialized. Studies from the U.S. show the disproportionate use of electronic monitoring on racialized and poor people. This leads to increased incarceration and harm for those groups.

Indigenous peoples are overrepresented in the criminal legal system. The same issues that the National Inquiry into Missing and Murdered Indigenous Women and Girls documented, giving rise to Indigenous women being disappeared, murdered or rendered homeless at a much higher rate than the average person, are the same that led to Indigenous women being the fastest growing prison population, such that they now represent one in two women serving federal terms of imprisonment. Women, particularly Indigenous, Black and other racialized women, are less likely to experience state protection when they experience violence. Paradoxically, although they are essentially deputized to protect themselves and their children from violence perpetrated against them, they are also more like to be criminalized when they do so. Many end up being the ones charged with violent offences when they are trying to defend themselves. The Royal Commission on Aboriginal Peoples, the Truth and Reconciliation Commission and the Missing and Murdered Indigenous Women and Girls inquiry have all revealed the multi-generational systemic impacts of colonial racism, socio-economic marginalization and gender bias.

In the Systemic Racism in Policing in Canada report by the House of Commons Standing Committee on Public Safety and National Security, witnesses that represent various Indigenous groups identified racist policing, abuse of authority, failure to assist victims or inaction in cases of sexual violence, and much more. Chief Doris Bill of the Kwanlin Dün First Nation explains that citizens in the community experience strong distrust of police based on ongoing events.

The lack of support for Indigenous women in the criminal legal system persists. Their credibility and their worth as victims are often questioned. The Public Safety and National Security Committee report also noted how in some cases Indigenous women feel unsafe reporting their own victimization. This is well documented in the National Inquiry into Missing and Murdered Indigenous Women and Girls.

As the former president of the Canadian Advisory Council on the Status of Women, the late Dr. Glenda Simms, warned us:

Violence against women is the single most serious issue of our time. Do you realize that some Black women choose not to report the men who batter them because they know that Black men are victimized by racism and violence at all levels of the justice system? Who do you turn to when you don’t trust those entrusted with justice?

Bill S-205 will do nothing to address these issues for Indigenous, Black and other racialized women in Canada. Instead, it puts increased use on a system that is already distrusted, already failing many groups and asks that they simply trust this system.

At face value, the use of electronic monitoring to monitor violent men and protect women from abusive partners may sound appealing. It is vital to recognize, however, that electronic monitoring is far less effective than community-based supervision offered by such interventions as bail supervision or probation.

Some argue that other countries have made use of electronic monitoring devices with favourable results. It is imperative to recognize that in such instances, electronic monitoring devices were not used in isolation; rather, electronic monitoring was but one component of a multi-pronged approach to a complex issue. Studies actually demonstrate that electronic monitoring alone is not effective.

In a report on the use, challenges and successes of electronic monitoring, the Scottish government found that it was not an effective strategy to reduce reoffending but that it definitely contributed to net widening. In other words, it increases the numbers of those who are criminalized — usually those who are also most marginalized — but does not reduce violence against women.

A recent study out of Norway found that those released with electronic monitoring who received supervised community integration supports were less likely to recidivate. Unfortunately, however, it is impossible to say whether electronic monitoring was actually a factor, or if the success was due to the earlier release and the attendant advantages of supportive and supervised community integration.

There is also a presumption that electronic monitoring will somehow deter violence against women. This presumes that a man who has ignored all other social and legal norms will suddenly become compliant due to strapping a band around their ankle. A study in France concluded that electronic monitoring is mostly effective for individuals who know what is at stake should they reoffend. There is nothing in Bill S-205 that provides for such community value changes, much less individualized, enhanced rehabilitative resources or accountability mechanisms.

In 2012, the Standing Committee on Public Safety and National Security in the other place conducted a study on electronic monitoring and its usefulness.

After hearing the testimony of all 29 witnesses, including government representatives and multiple manufacturers of electronic monitoring devices used in Canada, the committee recommended that it never be used as a stand-alone measure and that, if used at all, it only be used when paired with adequate programming and as part of a more fulsome plan for community supervision and reintegration — not used as a stand-alone measure.

This is not a recommendation that should be ignored.

Bill S-205 ignores this recommendation and proposes stand-alone measures — the implementation of which, as we are already hearing, creates a false sense of security that it will result in the protection of women. The potential for inadequate and even horrific results is, quite frankly, terrifying.

Let us also examine the many technological issues with electronic monitoring devices.

A study in California found that the electronic monitoring devices used in half the state, ostensibly to monitor thousands of men convicted of sex offences, were so inaccurate and unreliable that they placed the public “in imminent danger.”

They found that batteries died early, cases cracked and that reported locations were off by as much as three miles. Officials also found that tampering alerts failed, and individuals were able to disappear by covering the devices with foil, deploying illegal GPS jammers or ducking into cars or buildings.

These alarming findings are made all the more so by the fact that in a lawsuit, corrections attorneys persuaded a judge to seal information about the failures, arguing that test results could show criminals how to avoid being tracked and give parole violators grounds to appeal convictions. They also argued that it would “erode public trust” in electronic monitoring programs and mitigate any deterrent effect on those wearing them if they knew how ineffective they were. So much for the focus being on the well-being and safety of women or addressing violence against women.

“Well, that’s the U.S.,” you might well say. But the company involved with that study, 3M, operates in Canada. Indeed, they were witnesses at the inquiry of the Standing Committee on Public Safety and National Security. In addition, they are not the sole providers, but they do provide services for electronic monitoring and they share the same issues.

Electronic monitoring devices use geolocation services in order to function. Many communities across Canada have limited or no access to the technology needed. While speaking to the Quebec national assembly about the bill, Quebec Native Women raised issues regarding the impact of poor access to geolocation technology in many remote locations, particularly for Indigenous women in Indigenous communities. They also pointed out that many Indigenous victims and perpetrators of violence live in the same community. Police responses and response times are already significant issues in those communities.

There are also connectivity issues and false alarms at the heart of these complications. When a person loses connectivity, a false alarm can be triggered that can be a danger to the wearer as well as to others. False alarms can lead to false arrests for breach of parole, officers arriving at the place of work of a wearer, or even dangerous or fatal incidents. There is also the well-documented history of false positive alerts leading to further decreases in police responses.

Studies out of Tennessee, Colorado and New York show that false alerts led to repeated missed or ignored alerts of device failures and no intervention in breaches of the law by those supposedly being electronically monitored. In the case of Florida, police and correctional authorities were so overwhelmed with alerts that one man not only broke his curfew 53 times without any intervention in one month but also then killed three people.

The issue of false positives is so problematic that in a 2019 review of such approaches, the Scottish government quoted findings from Germany where, on average, there were false alarms every three days for each person supposedly being supervised via electronic monitoring.

Moreover, persistent delays in responses by police and/or correctional authorities were found to nullify any suggestion of a deterrent effect of electronic monitoring. Most significantly, the research revealed that such persistent delays create risks for victims — most particularly when they fail to respond at all.

It is clear from these examples that Bill S-205’s encouragement of increased use of electronic monitoring is likely to have the opposite effect of what is intended — a very laudable intention — and may, however unintentionally, further overburden the system and consequently risk the further endangerment of women.

Senator Yussuff brought up the issue of the false sense of security that electronic monitoring can create. Having worked and advocated with and for countless victims of violence, I must underscore the very real and profound dangers of trusting in electronic monitoring to protect women and children from violence.

Passing Bill S-205 could risk endorsing the use of electronic monitoring. I cannot in good conscience do so, as it is tantamount to telling women to trust in this system. At best, it could bring false hope and risk endorsing an approach that, as the evidence reveals, fails more often than it succeeds. I consider this approach irresponsible and dangerous for those women.

Finally, let’s talk about another horrific paradox. In some jurisdictions, it is the victimized women who are then electronically monitored. In Spain, women were understandably hesitant to use the device because it further traumatized and harmed them — frequently triggering traumatic stress in abused women.

One of the largest shortcomings of electronic monitoring is the effect it has on the device wearer, their family and the ability of those parties to rehabilitate or reintegrate into the community in a positive way. To lower recidivism, it is crucial that a person have these types of supports. However, the use of electronic monitoring stigmatizes and impacts entire households, which inhibits this.

In Scotland, co-residents of those subject to electronic monitoring were made to feel they were responsible for ensuring that the monitored person complied with their conditions. The sense of responsibility caused anxiety, guilt and stress.

Research conducted in Winnipeg revealed that young people experienced isolation because their acquaintances refused to associate with them — not because of their actions, but because they feared the electronic monitoring device would mean they, too, may be subject to police surveillance and breaches of their privacy.

The importance of family to the re-entry to society and the decrease in recidivism is well documented. The removal or decrease of these support mechanisms during the police intervention, judicial interim release or bail, or the re-entry process can push people further to the margins and may consequently render them greater risks to public safety.

Electronic monitoring can also interfere with employment. A study conducted by the National Institute of Justice in 2011 noted that many individuals on electronic monitoring had to take breaks from work to reconnect lost signals; and 22% were fired or asked to leave their job due to ankle monitors.

Honourable colleagues, allow me to summarize the five main reasons why this bill will fail to achieve its sponsor’s and supporters’ worthy objectives.

First, as ineffective as it is as a tool to prevent violence against women, electronic monitoring is already available and used in some jurisdictions. This bill is not necessary and, in any event, adding statutory authority for imposing electronic monitoring is not the missing element or key to preventing violence against women.

Second, the bill ignores the continuing technological problems with electronic monitoring and thus runs the clear and predictable risk of promoting a false sense of security for those believing it might protect them.

Third, it ignores the inability of police to respond immediately — no matter how well-intentioned and how good the police force — when an alarm is triggered, be it due to geographical remoteness, insufficient police resources, competing emergencies and/or sometimes stereotypes, biases or conclusions regarding the efficacy of responding to situations where they may have had repeated calls, for instance, including some judged by authorities to be false alarms.

Fourth, it assumes that a man who has ignored all other social and legal norms will suddenly become compliant because we put a bracelet around their ankle or wrist.

Last, it does nothing to address the central systemic issues that give rise to and perpetuate misogynist violence, much less ensure modification of management of the rage and other factors that fuel individual men when they perpetrate acts of violence against women.

To conclude, thank you, Senator Boisvenu and colleagues, for your commitment to ending violence against women. There are several ways we could tackle the issue in ways that address the concerns raised here today. Regrettably, as I have already detailed, the approach proposed by this bill is not one best to pursue. Instead, let’s ensure that we address the issues, attitudes and ideas that fuel misogynist violence in society and our criminal, legal and penal systems, while simultaneously implementing the sorts of robust social, health and economic support systems that can truly assist women to avoid and escape violence. Meegwetch, thank you.

Senator Pate: I absolutely agree with going to committee. I think you know that in Manitoba alone, there are some incredible examples of where Indigenous communities have stepped in precisely because of what I have just spoken about and have taken the position that they will remove the men from homes and provide supports in the home for women and children. That impact, that approach has had hugely positive success, but it requires resourcing and requires supports for communities to do that. Looking at those sorts of approaches would absolutely be a fantastic opportunity, so thank you for suggesting that.

Senator Pate: Thank you, Senator Boisvenu, for both your speech and your ideas. I would love to work with you on that kind of initiative and I would welcome that opportunity. I am troubled, however, by your suggestion. Given that you know that there are many of us in this chamber who similarly have family members who have been murdered, sexually assaulted and victimized, as well as the fact that we know police organizations, women’s groups and victims’ groups do call into question the issue of mandatory minimum penalties, especially when it comes to the issues you ended your speech with, namely, Indigenous women — that is partly why it is one of the recommendations of the Royal Commission on Aboriginal Peoples, the Truth and Reconciliation Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls.

I am troubled by your suggestion that the bill would actually repeal mandatory minimum penalties. In fact, it is quite the opposite. You stress the importance of section 718.2(e) especially for racialized prisoners and, in particular, for Indigenous women. Yet, that is precisely what the impact, the import and the role of the bill would be. It would be to allow, in exceptional cases, those mandatory minimum penalties that the courts have already challenged, including the Supreme Court of Canada, when they said in R. v. Luxton that when considering the life sentence for murder, the only thing that saved it from being unconstitutional was the fact that there was a “faint hope clause,” and we now no longer have it.

Would you agree that you have perhaps overstated a bit the fact that this bill will repeal mandatory minimum penalties? In fact, it won’t do anything of the sort. In exceptional cases such as the ones discussed by a number of us in this chamber, it might provide judges an opportunity to give reasons as to why they would not utilize the mandatory minimum penalty.

[Translation]

Senator Pate: Perhaps you could point me to where, exactly, that provision is. I know you read out part of a decision, but that was regarding one mandatory minimum penalty saying the judges did not have to apply it. One of the challenges is there have now been at least 43 court decisions striking down mandatory minimum provisions. We now have a patchwork across the country of where the law applies, and where it doesn’t. In fact, there is no ruling that says judges do not have to not impose mandatory minimum penalties, hence the reason for Senator Jaffer’s bill. Would you not agree?

[Translation]