Hon. Julie Miville-Dechêne: Honourable senators, I rise in support of Bill C-62, which proposes a three-year extension to the temporary exclusion of medical assistance in dying eligibility for persons suffering solely from mental illness. In the interest of full disclosure, and specifically for the benefit of our recently arrived colleagues, I’d like to remind you that three years ago, I voted against the Senate amendment that extended MAID to psychiatric patients. At the time, there was no consensus among experts on this social issue, and that is still the case today.

Although defending minority rights is at the heart of our mandate, the Senate is not a court of law. While some may argue that denying access to MAID violates the constitutional rights of those with mental illness, this conclusion is far from clear. In its Charter statement, the Department of Justice spells out the competing rights and values at stake, including the autonomy of individuals versus the protection of vulnerable people from any incentive to end their lives. The Department of Justice adds:

 . . . feelings of hopelessness and the wish to die are common symptoms of some mental illnesses, which can make it difficult for even experienced practitioners to distinguish between a wish to die that is fully autonomous and well considered and one that is a symptom of a person’s illness.

After analyzing international science-based evidence for a year and a half, the Council of Canadian Academies’ expert panel found no evidence that the irremediability of mental illness could be predicted. Some mental disorders may even impair a person’s decision making and increase their risk of incapacity.

The fact that provincial governments aren’t ready is another compelling argument. We mustn’t forget that the provinces deliver medical care and have jurisdiction in this area. It would be a mistake to equate their serious concerns with an ideological objection to MAID in every case. Take Quebec, for example, a place I know better than others: It was a frontrunner in expanding medical assistance in dying and even holds the world record for this practice. Last year, MAID accounted for 5,200 or 6.8% of deaths in Quebec, a 42% increase in a single year. Of that number, a disturbing 16 cases failed to meet all the criteria specified in the act.

Last June, Quebec amended its Act Respecting End-of-Life Care to legalize advance requests related to cognitive illness leading to incapacity, but it excluded patients who exclusively suffer from a mental disorder. This decision was based on a report by Quebec’s end-of-life care commission, published in December 2021, which concluded, and I quote:

Medical aid in dying is care of last resort for persons whose illness cannot be cured and whose decline in capability is irreversible. Given the lack of consensus in the medical community on the incurability and irreversibility of mental disorders, a strong doubt remains as to whether medical aid in dying is appropriate care. In this context, the risk that this gesture be premature appears very real to us. We are faced here with the grim prospect of individuals obtaining medical aid in dying rather than appropriate medical follow-up that would favour a fully satisfying life.

I share those very same concerns. Some have argued the following — and I’m quoting the report of the Special Joint Committee on Medical Assistance in Dying:

 . . . there is no consensus on many existing medical practices, and that this is not generally considered a justification for prohibition.

I think that it’s inappropriate to equate MAID with a simple medical practice, as though this were about a hormone treatment or taking antibiotics. We have to have the honesty or lucidity to come to grips with this. This is about helping a person to die. It is irremediable.

Another sensitive aspect is the fact that, in the report of the Special Joint Committee on Medical Assistance in Dying, witnesses observed that the eligibility criteria for MAID didn’t require people with mental disorders to have exhausted all reasonable treatment options. Bill C-7 only required that the patient be informed of treatment options. In theory, this would mean that the patient could receive MAID even if he or she hasn’t had access to adequate care. This is particularly worrying in a country like ours, where the shortage of psychiatric care is an established fact.

In Belgium and the Netherlands, where psychiatric patients have access to MAID, more robust safeguards exist.

According to the submission of Professor Scott Kim from the University of Michigan, 1,150 applications for MAID were made in the Netherlands in 2022, which is quite a lot. However, only 5% to 10% were granted. Belgian and Dutch laws require doctors to agree with the fact that there are no options other than MAID in each case, so MAID really is a last resort. I’m aware that the right to refuse all treatment is well established in our country, and it is a paramount right, but it seems to me that the exercise of this right, combined with a life-ending medical intervention, is a sensitive issue that warrants further consideration.

Bill C-62 will do just that. It will allow time for such careful consideration of the state of our knowledge and the scientific and ethical grey areas.

Obviously, I’m aware that there is intolerable mental suffering that is as great if not greater than the suffering associated with physical illnesses, but we can’t expand access to MAID any further until we’re able to confidently assess the applicant’s incurability, the irremediability of their condition, their capacity and their suicidal tendencies.

The severe shortage of psychiatric care and services must be at the heart of this reflection on the health care systems’ state of readiness, or at least that’s what I think. We can’t focus solely on the fact that there are protocols for administering MAID. That is not enough.

Finally, the precautionary principle applies when lives are at stake. Thank you.

[English]

Senator Miville-Dechêne: That’s a difficult question. I don’t think politics is a perfect science. I think we’re all trying to find the right way forward in dealing with the very difficult issue that is MAID, broadly speaking.

I think there are specific criteria for psychiatric illnesses that make irremediable consequences generally more difficult to establish than for physical illnesses. I’m not saying, Senator Kutcher, that this is absolute. I’m saying that, based on what I’ve read and on the discussions I’ve had, this is part of the difficulty.

I also think that the safeguards need to be robust. I understand that it is difficult and, as you know, our opinions on this issue differ. I understand that there are people who are waiting for this help and who are suffering, but I believe that what happened in Belgium and the Netherlands shows us that once we open MAID up to those with psychiatric problems... When 1,150 people are requesting MAID in a country that is smaller than Canada, that’s a lot of people. You often talk about people you know who have indeed had illnesses for a very long time, who have tried every treatment, but once that door is open, how will it work? Unlike you, I don’t have absolute confidence in all doctors, all medications and all treatments. I think there are abuses. The fact that there have been 16 cases of MAID in Quebec where tough questions are being asked because it appears the law was not followed shows that these questions are far from easy.

I don’t have a definite answer. I wonder, I have doubts and I think you do, too. However, we have fairly opposite points of view on this issue.

[English]

Senator Miville-Dechêne: Honestly, no, I wasn’t aware of that. That was in one of the briefs submitted to Quebec’s commission on end-of-life care. They discuss the situation in Belgium and in the Netherlands. It’s a bit different. All right, then, I’ll take you at your word.

But there is certainly more than one expert who’s uncertain about the irremediability of psychiatric disorders. It’s a difficult debate. You mention evidence and the fact that it’s beyond dispute, but I think that the Council of Canadian Academies, a respected scientific organization, also reached similar findings on the issue of irremediability. These are professionals, but not physicians only. From what I understand, they are also scientists from various backgrounds. That, too, is not insignificant. It is a social debate. Yes, physicians are very important, but I think the debate is broader than that.

[English]

Senator Miville-Dechêne: Yes.

Hon. Julie Miville-Dechêne: I rise to speak in support of the principle of Bill S-251, which was introduced by Senator Kutcher.

At first glance, this appears to be a very simple, very short bill that should be very easy to support, regarding the use of reasonable force to correct a child. Who among us here advocates any form of child abuse? No one, obviously.

How could anyone object to sending a clear, albeit symbolic, message about our commitment to ending all forms of mistreatment, abuse and trauma for Canadian children? Again, no one.

On the other hand, this topic affects most of us personally, whether as a former child or as a parent.

Like many of my generation, I myself experienced physical correction when I was young. I have a vivid memory of the first spanking I received from my mother, at the age of seven or eight, when we lived in France. Even worse were the punishments at school. At that time, corporal punishment was frequently used to discipline children in elementary schools in Paris. I remember classmates being spanked in front of everyone and others being seized by the ear and pulled around the classroom by the teacher. For students, it could not have been more humiliating.

When I returned to Quebec in the 1970s, times had changed, at least at school. I may be a wise and patient senator now, but I was a rebellious teenager. I still remember the stinging slap my mother gave me after I insulted her. Let’s just say that it did nothing to improve our relationship.

I want to add that, although I remember being disciplined like that, it did not cause me any lasting trauma. In fact, like many other children, I’m sure, I was more hurt when my family yelled at me and criticized me. A slap hurts in the moment, but the damage words can do can last a long time. However, I doubt the government will ever be able to legislate what a parent can and can’t say to their children.

Bill S-251 proposes to eliminate the exception set out in section 43 of the Criminal Code, which allows a parent, among others, to use “force by way of correction toward a . . . child . . . if the force does not exceed what is reasonable under the circumstances.”

Although I am in favour of the principle of the bill, I still want to point out three problems worth thinking about.

The first is a political issue that comes up in many of our debates: How far can the government go in regulating private behaviour? Of course, there is no question that the government can criminalize violence against children, as it does for violence against any person, particularly the most vulnerable.

When it comes to “force [that] does not exceed what is reasonable under the circumstances,” however, we are also getting into the area of education, discipline and discretion in the exercise of parental authority. It’s clear that the government can and must protect children from violence, but it also can and must respect parents’ judgment.

[English]

It’s also important to remember that the exception provided at section 43 is already quite narrow. Here are excerpts from a March 2021 letter from Justice Minister Lametti to Heidi Illingworth, the Federal Ombudsperson for Victims of Crime:

The issue of whether or not section 43 should be repealed raises differing and strongly held views across Canada. . . .

As you are likely aware, assault is broadly defined in Canadian criminal law to include any non consensual use of force against another person. This can also include non consensual touching that does not involve physical harm or marks. Section 43 of the Criminal Code is a limited defence to criminal liability for parents, persons standing in the place of parents, and teachers for the non-consensual application of reasonable force to a child. . . .

In 2004, the Supreme Court of Canada . . . held that section 43 is consistent with the Canadian Charter of Rights and Freedoms and the United Nations Convention on the Rights of the Child. It also set out guidelines that significantly narrowed the application of the defence to reasonable corrective force that is transitory and trifling in nature. Moreover, the SCC’s decision provided that teachers cannot use force for physical punishment under any circumstances . . . .

[Translation]

There are many different parenting styles and approaches. I don’t believe that this grand, complex human adventure can be reduced to an exact science with definitive and universal answers that can be applied to any situation. That’s why we have to be careful not to target parenting approaches that we may not like, but that don’t necessarily deserve to be criminalized.

In a similar vein, I would point out that differences exist not only between individuals and families, but sometimes also between cultures. The way children are raised, the role of authority and discipline, and parenting approaches are often shaped by our personal or cultural history. Cultures and family backgrounds also influence the perception and impact of physical correction on children.

Again, I want to reiterate that we should not be condoning child abuse, mistreatment or violence in any way, but neither should we disproportionately target Canadians from minority cultures by removing the narrow exemption set out in section 43 of the Criminal Code. Some parenting styles may not match our own personal preferences. This does not necessarily mean that they are criminal.

[English]

Finally, I note something of a paradox. Many of the people who support this bill argue that we should not fear a wave of new prosecution of parents if we remove the exemption at section 43. This is because, while removing the exemption would technically make any non-consensual touching of children by their parents a criminal offence, everyone realizes this is an absurd situation. For this reason, proponents of the bill argue that if we remove the exemption at section 43, a new set of common-law defences and exemptions would apply, including an exception for minimal offences, rules about necessity, implied consent and others.

So are we really just removing one explicit, codified and narrowly interpreted exemption and replacing it with numerous vague and uncodified exemptions that would achieve the same purpose? In some ways, it could be argued that we are asked to make the Criminal Code less pragmatic and less realistic and that, as a result, courts will have to develop new workarounds. In other words, the change we are contemplating may be more symbolic than substantive.

All that being said, I recognize there is a global movement to remove these limited exemptions, even if it means developing new ones to replace them.

As of 2022, 65 countries have banned corporal punishment. Even in France, Article 371-1 of the Civil Code was amended in 2019.

[Translation]

That article states: “Parental authority is expressed without physical or psychological violence.”

[English]

If the French can make this commitment, perhaps we can as well.

Society evolves, and it’s normal that we adapt our legislation to reflect that change. Sometimes we update our laws to reflect the way we already live, and sometimes they reflect our aspirations. Just because things have always been one way doesn’t mean that we must continue forever.

I believe our laws play a role in setting the tone, and we must trust the institutions to behave reasonably in the circumstances. Thank you.

[Translation]

Senator Miville-Dechêne: Yes.

Senator Miville-Dechêne: Yes.

Senator Miville-Dechêne: That question sums up the very essence of the issue. Laws can do some of the work, and they can be a signal or a symbol. But society changes at its own pace. As you said yourself, sometimes it’s a generational issue, sometimes it’s a cultural issue, but certainly, every family has a different perspective on corporal punishment. How can we address that?

Obviously, this can also be taught in school. I know that in Quebec, new courses are being developed on these civic issues. There is no magic solution. You are asking me an extremely difficult question. The fact remains that children talk amongst themselves, and there can be all kinds of influences that make them realize that a situation isn’t normal. They might talk about it to friends or to a psychologist, and the parents themselves can evolve. It’s not 1960 anymore, like when I lived in France. Things have changed a great deal.

The point I was trying to make is that I agree with the principle of the bill, but it obviously won’t solve all the social issues surrounding it.

(On motion of Senator Martin, debate adjourned.)

[English]

Senator Miville-Dechêne: What I understand from the history of this type of bill, because this is not the first time that this section of the Criminal Code has been called into question, is that the education sector’s reaction has always been that, sometimes, it is necessary to go to those lengths.

I understand that the Supreme Court has said that educators have very little room to manœuvre when intervening. However, in that situation, just as for parents, what concerns me is the issue of restraining a child so they don’t hurt themselves. It is very difficult to have absolute and general legislation to govern human beings.

You’ve all seen your children have a temper tantrum or meltdown, and sometimes we don’t know how to deal with it. However, in my opinion, we should not confuse calming down a child, even clumsily, and using unreasonable force.

That is a good question. In reading up on this issue, I realized that it’s not as simple as it seems. Yes, we have a provision that talks about reasonable force. In 2023, it is symbolically very difficult to use words like that because people always think the worst. But if we eliminate that clause, what does that mean? Are we going to have to build up jurisprudence to determine what’s acceptable and what’s not? There will always be situations that will be a bit of a grey area.

[English]

Hon. Julie Miville-Dechêne: Senator Batters, I want to start by commending you for sponsoring this bill. I have been concerned about this for a long time, and I think it is completely unacceptable for the term “child pornography” to be used in the Criminal Code. As you know, I work on these issues. Pornography is referred to as “adult entertainment,” and it is absolutely unacceptable for this term to be used to refer to sexual exploitation.

That being said, the term likely dates back to another time when no distinction was made and people were probably less bothered by its use. However, it is high time that term was changed, so I thank you for that.

I have a translation question for you that you may not be able to answer now. I have always used the French terms “exploitation sexuelle des enfants” and “matériel d’abus et d’exploitation des enfants,” but the French translation of the bill uses the term “pédosexuel” instead. It is not incorrect.

I just find it strange that the English version uses the term “child sexual abuse and exploitation material,” while the French uses a term that comes from the word “pedophile.” The term is not incorrect, but it is much less commonly used when talking about these issues. In general, we refer to child sexual exploitation, which is broader in scope.

You probably can’t answer my question right now, but perhaps the committee could check and see whether that is really the best term. If we really want to convey the gravity of this issue to ordinary Canadians, then shouldn’t the word “child” be used in the French version as well?

[English]

Senator Batters: Thank you very much, Senator Miville-Dechêne, and thank you so much for all of the work that you’ve done on this very important topic. That’s an excellent question. I don’t have the French version of it with me, but that’s something that I’m sure we will study in great detail at committee — we want, of course, to have the best possible translation and words being used because, as I said, words matter, in French or in English.

Hon. Julie Miville-Dechêne: I rise to speak briefly in support of Bill C-39 at third reading. The bill delays, by one year, eligibility for medical assistance in dying in cases where mental illness is the sole underlying condition.

As my colleagues Senator Manning and Senator Kutcher have mentioned, this is a very difficult issue. It’s not easy to talk about medical assistance in dying. I’m feeling quite emotional after listening to my colleagues, so I will continue.

I support this delay, which will give experts another 12 months to try to refine the guidelines around this extremely rare practice globally. More fundamentally, however, I don’t see any need to act too quickly on such a serious issue, especially in light of the critical shortage of psychiatric resources.

I have always believed that the issue of medical assistance in dying for people with psychiatric illnesses can’t be boiled down to just individual rights or a constitutional analysis. Mental illness is more complex than physical illness, because it often progresses slowly and unpredictably. Unlike degenerative neurological diseases, whose course is known and predictable, it is not uncommon for the psychological suffering associated with mental illness to improve over the medium and long terms.

The federal government outpaced the Government of Quebec on this file before conducting a similar review. Less than a month ago, in mid-February, the Government of Quebec introduced a bill that does not extend medical assistance in dying to patients suffering solely from mental illness.

This exclusion was recommended in the report of the Select Committee on the Evolution of the Act respecting end-of-life care, after extensive consultation with the public and experts. The report states, and I quote:

Self-determination is not the only principle that should be taken into account in this discussion. The protection of vulnerable persons, the ability to consent and the risk of abuse are all elements that enter into the equation.

The Quebec report notes that psychiatrists are divided on the incurability and irreversibility of certain mental disorders. That division reflects the complexity of these illnesses, which are more unpredictable than physical illnesses.

Consequently, there is a real risk of making medical assistance in dying available to a patient too soon. Senator Kutcher, I do not believe that I am participating in what you referred to in your speech as a misinformation campaign on this matter by saying that. I think that there are fundamental differences of opinion in the medical profession, which is why we need to be very careful.

The Quebec report cites psychiatrists who explained that suicidal thoughts are inherent to certain mental disorders. What’s more, the response to psychiatric treatments varies. Alleviated suffering can be a long time coming, after months or years of psychiatric treatment, assuming such treatment is available. I will quote another excerpt from the same report:

We heard the testimonies of several individuals who, after years of unsuccessful treatments, managed to achieve a better balance. These witnesses told us that if they had been eligible for medical aid in dying, they would undoubtedly have applied for it at a time when their health condition seemed hopeless. Today, these same persons are doing much better and are able to cope with their illness because they have received a correct diagnosis and appropriate treatment. Thus, the uncertainty surrounding the trajectories of mental disorders prompts us to be very cautious.

The testimony that made the biggest impression on the select committee came from the Association québécoise de prévention du suicide, the Quebec association for suicide prevention. According to the association, expanding MAID would have an impact on people with suicidal tendencies. There is concern that it could send the signal that death is a legitimate or appropriate option for people with mental disorders. This would undermine years of suicide prevention efforts. I should point out that this does not mean that these suicidal patients would access MAID, but their distress could increase. Let me remind you that Quebec is a pioneer in medical assistance in dying, yet Quebec’s elected officials decided not to rush into the specific issue of eligibility where mental illness is the sole underlying condition, because there are too many differences of opinion.

I also want to point out two things that I think reinforce how important it is to take the time to think about these sensitive issues. First, Quebec now leads the world, with 7% of deaths in the province resulting from MAID. That is higher than Ontario and even long-time pioneers Belgium and the Netherlands. The fact that the rise in MAID was markedly faster in Quebec than elsewhere prompted the chair of the Quebec select committee to investigate the cause and launch a consultation, while advocating for better access to palliative care.

Second, it seems as though, in Quebec at least, it is now easier to get medical assistance in dying than it is to get comprehensive palliative care, and yet both of these options should be available under Quebec law, which guarantees all citizens access to both medical assistance in dying and palliative care, whether at home or in a health care facility.

Some tragic events that occurred in Quebec recently exposed flaws in the system. Andrée Simard, widow of former Quebec premier Robert Bourassa, was denied palliative care during the last three days of her life at St. Mary’s Hospital in Montreal. According to her daughter, Michelle Bourassa, with whom I spoke at length, Ms. Simard died in a lot of pain because she was not given any palliative sedation. Ms. Simard forbade her family to use her fame to get preferential treatment. Her daughter chose to fight in memory of her mother so that all dying persons are treated fairly and with humanity, whether they choose palliative care or medical assistance in dying.

That’s why, even though these issues don’t fall under federal jurisdiction, I think that the availability and quality of palliative care and psychiatric services are a prerequisite for expanding medical assistance in dying. We can’t legislate in a vacuum, in the abstract universe of the Charter of Rights, with no regard for what care is actually available to patients. As responsible legislators, we need to think about the applicability and actual consequences of the laws on which we vote. In this case, we need to prevent the current trend of the health care system getting around providing access to care by expanding access to medical assistance in dying. Better access to psychiatric care is a prerequisite for treating people’s suffering. That is also how we show our compassion. For all of these reasons, I will be voting in favour of Bill C-39. Thank you.

Hon. Julie Miville-Dechêne: Thank you, Senator Ataullahjan.

I rise to once again support, at third reading stage, Bill S-224, which is sponsored by my colleague, Senator Salma Ataullahjan.

As she clearly stated, I’m the critic for the bill to amend the Criminal Code in respect of trafficking in persons. I agree with its objective, as I explained at second reading stage.

[English]

According to the International Justice and Human Rights Clinic of the University of British Columbia School of Law, asking victims to prove reasonable fear may be a barrier to a conviction for human trafficking. The requirements of the human trafficking offence are more onerous than those of other offences of a similar nature. For example, in the Immigration and Refugee Protection Act, trafficking in persons is also prohibited, but it does not require that an individual believe that their safety would be threatened. That is a more appropriate standard.

The new section proposed by Senator Ataullahjan has the great merit of sticking to the vocabulary of the Palermo protocol, and therefore focuses on the actions of the trafficker and not on the fears of its victims. The change in language proposed in Bill S-224 is even more necessary because this crime has a disproportionate effect on Indigenous women and girls, who are 10 times more likely to be victims of trafficking and commercial sexual exploitation than non-Indigenous women and girls.

I strongly believe it is time that we adapt our Criminal Code to the reality of women and girls who are the victims of human trafficking.

Thank you very much, senators. I hope we pass to the next step.

Hon. Julie Miville-Dechêne: Honourable senators, I rise at second reading in support of Bill S-224, which is sponsored by my colleague, Senator Salma Ataullahjan. The senator asked me to be the critic of this bill to amend the Criminal Code regarding trafficking in persons, and I accepted without hesitation.

Human trafficking is a very serious offence in Canada that involves a trafficker who recruits, transports, conceals and threatens violence against a victim, over whom he or she often exercises coercive control for the purpose of exploitation. In 2019, 95% of Canadian trafficking victims were women and girls. Some 71% of cases involved sexual exploitation, but the crime covers any form of forced labour that is similar to slavery.

Human trafficking is a more serious offence than procuring because of the trafficker’s behaviour of threatening, coercing or deceiving the victim and abusing his or her power over the victim. Unfortunately, this crime is on the rise, with over 500 cases in 2019, and it is difficult to prove.

Trafficking in persons was added to the Criminal Code as an offence in 2005. A 2018 report from Public Safety Canada summarizes the challenges associated with enforcement. Victims are often reluctant to report their situation, since they tend to believe that the success rate of prosecutions is very low. Prosecutors, for their part, find it difficult to reach the high threshold of evidence required for trafficking cases. The statistics are startling. In 2019, 89% of human trafficking charges resulted in a stay, withdrawal, dismissal or discharge. Less than one in ten charges resulted in a guilty verdict.

Given that this crime was identified only 15 or so years ago, the justice system is still finding it difficult to understand the scope of the trauma felt by the victims, including the fact that some victims develop an attachment to the trafficker. The traumas, the drug addiction and mental health problems affect their memory, which makes their testimony particularly difficult. To survive, the victims might also make up stories, which complicates the search for the truth.

For all these reasons, it is imperative that the trial not rely on the victim’s performance during her testimony or her state of mind at the time of the exploitative situations.

For many years, survivor advocacy groups have been criticizing the section of the Criminal Code that Bill S-224 is proposing to change. Why? Because under the current subsection 279.04(1), the Crown must demonstrate that the victim could reasonably expect — given all the circumstances — that her safety would be threatened if she refused to be exploited.

This wording places a heavy burden on survivors, who are not always aware of coercive control mechanisms. This type of control may be exercised without any perceived danger to the victim, who is rather targeted to be humiliated, isolated, exploited or dominated. Moreover, many women do not even realize that they are being trafficked, because in the vast majority of cases the exploiters are friends, acquaintances, or current or past lovers, in other words relationships where emotional blackmail is often present.

This is not just a matter of opinion. As Senator Ataullahjan already mentioned, the wording of the current section 279.04 of the Criminal Code does not meet the definition of trafficking in persons used in the Palermo Protocol, which constitutes the international reference on the issue. Unlike the current section 279.04, this protocol focuses on the behaviour of the exploiter, not on the victim’s perception of danger. The Canadian government ratified this protocol in 2002, and we therefore have an obligation to protect the victims of trafficking.

[English]

According to the International Justice and Human Rights Clinic at the University of British Columbia School of Law, asking victims to prove reasonable fear may be a barrier to conviction for human trafficking. The requirements of the human trafficking offence are more onerous than those of other offences of a similar nature. For example, in the Immigration and Refugee Protection Act, trafficking in persons is also prohibited, but it does not require that an individual believe that their safety would be threatened. This is a more appropriate standard.

The new section proposed by Senator Ataullahjan has the great merit of sticking to the vocabulary of the Palermo Protocol and therefore to focus on the actions of the trafficker and not on the fears of his victim.

That change in language proposed in Bill S-224 is even more necessary because this crime has a disproportionate effect on Indigenous women and girls, who are 10 times more likely to be victims of trafficking and commercial sexual exploitation than non-Indigenous women and girls.

Among the groups I have consulted, other suggestions for changes were proposed. For example, la Fédération des maisons d’hébergement pour femmes — a federation of women’s shelters in Quebec — suggests adding the idea that the trafficker is trying to take advantage of the victim’s state of vulnerability, which is at the heart of the definition of sexual exploitation in the United Nations. The federation would also like the notion of coercive control to appear in the proposed article.

For its part, the Canadian Council for Refugees suggests broadening the definition of what constitutes trafficking by adding the notion of threat in general, and not just the threat of violence, in order to better reflect the reality of the trafficking of migrants or refugees for whom threats of denunciation or deportation are often used the most.

The main priority, however, is for the Senate committee to study first and foremost the significant change to the Criminal Code suggested by Senator Ataullahjan. I strongly believe it is time that we adapt our Criminal Code to the reality of women and girls who are victims of human trafficking. Thank you.

(On motion of Senator Duncan, debate adjourned.)

[Translation]

Hon. Julie Miville-Dechêne: Honourable senators, I rise to speak to Bill S-205, which was introduced in this place by my colleague Senator Boisvenu. With this bill, he is starting another chapter in his mission to defend abused women. I salute his long‑standing commitment.

Like everyone else, I was horrified by the 18 alleged femicides committed by intimate partners in Quebec in 2021 alone. Domestic violence is a scourge that illustrates how little progress we have made towards achieving gender equality. It can even become a matter of life or death. According to Statistics Canada, 47% of female murder victims in Canada were killed by an intimate partner, compared to only 6% for men.

Eighteen femicides is eighteen too many, but that is just a drop in the ocean. Every year, a staggering 20,000 offences against the person are reported and committed in a domestic violence context in Quebec. That is extremely difficult for the police and the justice system to manage, given that they are constantly struggling with limited resources and somewhat subjective risk assessments.

For years, I have been trying to come up with possible solutions to this fear that too many women experience.

I am not a supporter of minimum sentences and harsher sentences. There is no evidence demonstrating that an even more punitive approach would have a deterrent effect and reduce the number of such crimes.

However, I have seen the pervasive fear in victims of domestic violence when their partner or former partner is released. I have met these women and listened to them. They constantly relive the trauma of being spied on, monitored and attacked by an abusive partner, and fearing for the safety of their children.

Until attitudes change and assault is no longer used a means of control by violent men, there absolutely needs to be better prevention and a system that supports and protects victims as much as possible.

It is for this reason that I am prejudiced in favour of using electronic monitoring devices, as Bill S-205 proposes. I see it as one more tool, though not a magic solution, so victims do not have to live in fear when their former partner is released. Many women’s groups have been calling for these monitoring devices for years.

However, it is important to note that Bill S-205 would allow a judge to require an accused to wear the electronic device at every stage of the legal process, including before the verdict. After some consultation, I think it would be more appropriate if the device were only required as part of the parole conditions for persons found guilty of domestic violence, at least initially. I will come back to that.

I also think that the addition of the electronic monitoring device could represent a wise use of our technological advances. For once, technology would be used for the public interest, to protect vulnerable individuals, rather than for inappropriate surveillance, whether it be for commercial or security reasons.

Some people are concerned that these monitoring devices may be too intrusive and may negatively affect the offenders’ rehabilitation. Based on a study conducted by Spanish criminologist Lorea Arenas, it seems those concerns are unfounded. The offenders who participated in the study found that wearing the monitoring device was not as bad as prison. They felt that there were more advantages to not being in prison, even if wearing the device 24-7 can be uncomfortable or disrupt their family life.

Electronic monitoring devices use geolocation technology. They are made up of two parts: a bracelet worn by the offender and a device provided to the victim. The device establishes two zones: a pre-alert zone and an alert zone. As soon as the offender enters the pre-alert zone, he receives a call telling him to turn back. If he does not comply and enters the alert zone, the police will intervene.

What is most reassuring about the way the electronic monitoring device would be used is that it puts the women at the centre of decision making. Subclause 2(3.1) of Bill S-205 states that victims must be consulted about their safety and security needs before the justice makes a decision.

As I was saying earlier, electronic monitoring devices cannot be seen as a magic solution. Yes, there were some very positive results in Spain, where only 2 of the 800 women equipped with the monitoring device were killed. However, there may have been other factors involved, such as the existence of specialized courts, training for judges, support for victims, and police resources.

I want to point out that the bill introduced by Senator Boisvenu goes further than Bill 24, which is currently being studied in the Quebec National Assembly. Quebec wants offenders to be required to wear one of these electronic monitoring devices once they are convicted of domestic violence, serve their sentence in a provincial jail and become eligible for parole.

Bill S-205 would expand that requirement to the accused in cases of domestic violence.

According to the experts I spoke to, the use of an electronic monitoring device before a verdict is much more controversial. I want to share a quote from the Regroupement des maisons pour femmes victimes de violence conjugale au Québec. I quote:

 . . . in many cases, these former partners will do whatever it takes to try to maintain their hold over their former partners. It is actually at the time of separation, when the abuser feels like their partner is slipping away from them, that the woman and her children face the greatest risk of lethal violence.

Abusive spouses are more dangerous, more likely to act out, when there is a change in their situation. This may be when the separation occurs or the abuser is reported to the police, when they lose control over their partner, when their life falls apart and financial and housing problems start to pile up.

All this usually happens before the trial, that is, before the verdict is pronounced. According to the people I consulted, this is when releasing the accused with an electronic monitoring device would be too risky, because it could give the victim a false sense of security in the face of a former partner who is still far too dangerous.

An alarm going off at the police station does not guarantee a response in time to prevent tragedy every time. For this reason, again according to the people I consulted, it is better to keep the accused in prison than to release them with an ankle bracelet.

I would again like to quote the Regroupement des maisons pour femmes victimes de violence conjugale on the use of ankle bracelets prior to the trial:

 . . . there may be a temptation to use [the electronic monitoring device] when the abusive partner would otherwise have been kept in custody because of the danger he poses to his former partner or children.

In many cases, violent men become less dangerous over time, especially if they have served a sentence. At that point, the authorities are in a better position to assess the actual risk of release because these men are monitored for a longer time by various agencies. The electronic monitoring devices seem like a useful tool for correctional services.

There is another reason these devices might not be a cure-all, especially in the many parts of our vast country that have low population density.

In cities, where population density is high and everything is close, it seems likely the police could respond in time when alerted that the offender is in the prohibited zone. However, the devices may be much less effective in rural areas, where there are fewer police officers and greater distances to cover. It’s far less likely that an alert will enable officers to get to the victim in time. In addition, remote areas have very bad cell service.

That said, it’s clear that the only option available right now, a peace bond, also known as an 810, does a poor job of keeping women safe.

Every stakeholder told us that there is often no follow-up to the numerous complaints filed by victims and no proactive monitoring system because of staff shortages.

Abused women do not always want to resort to the courts to obtain justice. It is a lengthy and difficult process that, in many cases, prolongs the trauma. They want to move on. That is what makes the electronic monitoring device so attractive, but it would certainly be best to take it one step at a time.

First, we need to assess how this tool works for offenders released on parole after being convicted, before we start using it in cases where it is harder to do a risk assessment of the abuser.

I am aware that many femicides occur long before trial and that we are stuck using inadequate monitoring instruments in the short term.

Because of the presumption of innocence, the majority of accused are quickly released on bail. It is at this point that a serious evaluation of the danger they pose is essential. Bill S-205 provides that a judge can require an accused to attend domestic violence counselling or addiction treatment at the interim release stage.

I have not consulted experts on this aspect, so I will leave it to them to speak to the effectiveness and legality of requiring treatment before sentencing.

In closing, I believe that my colleague’s bill deserves serious review in committee. We need to ensure that the measures we use strike a pragmatic balance, and not let ourselves be enticed by a trendy new gadget that is also not without risk.

True protection for victims needs to be the priority, in a manner respecting our rights and freedoms.

Thank you.

Senator Miville-Dechêne: Certainly.

Senator Miville-Dechêne: Yes.

Senator Miville-Dechêne: Thank you for your question.

As I said in my speech, there are other criteria involved in the situation in Spain that we should probably take into account if we are to more closely examine the impact of a far broader use of these monitoring devices. That is one thing.

That being said, you are right that I have concerns. I am concerned because, as you know, the Government of Quebec has conducted a more thorough analysis of the situation and has also determined that electronic monitoring devices would be used after a verdict is rendered.

Obviously, I do not know all the reasons behind that, but I am fairly certain that the issue I raised is at the root of their concerns. For now, we need to know how electronic monitoring devices work.

If we give a whole lot of these out to the accused without assessing how dangerous those people really are, then the real danger is that the victims will take more risks because they believe they are protected by the device. That is where the danger lies, Senator Boisvenu. What it comes down to is that it is dangerous for the victims to put too much faith in a tool that does not fully protect them. Making this tool available could mean that judges let more of the accused go free when they are, in fact, dangerous.

With that in mind, I think that we must be prudent and implement this tool in stages.