Good afternoon. My name is Kat Owens. I am a lawyer and Project Director at the Women’s Legal Education and Action Fund, or LEAF. I’m grateful to appear today from what is now known as Toronto, on the traditional lands of the Mississaugas of the Credit, the Wendat, other Anishinaabe and the Haudenosaunee nations.

LEAF is a national charitable organization that advocates for the equality of women, girls, trans and non-binary people. We do this through law reform, litigation and public legal education.

LEAF has worked together with the Canadian Association of Elizabeth Fry Societies, the Barbra Schlifer Commemorative Clinic and Luke’s Place to submit a joint brief to this committee on Bill C-48. All four of our organizations work with and on behalf of women and gender-diverse people who have faced gender-based violence, intimate partner violence and processes of criminalization. Each of us supports measures that will meaningfully address gender-based violence and make survivors of intimate partner violence safer. Bill C-48 will do neither. Instead, it is likely to increase the criminalization of marginalized communities, including survivors of intimate partner violence.

I will focus on three main points today: the crisis in Canada’s bail system, the effect of Bill C-48 on survivors of intimate partner violence and the need for evidence-based law reform.

As you’ve heard from multiple witnesses, there is a crisis in Canada’s bail system, but it is not that the system is too lax or releases too many people pending trial. Instead, there are too many people in our jails, the majority of whom have not been convicted of a crime. Incarcerated people face appalling conditions. These include lengthy lockdowns, a lack of rehabilitative programming or mental health supports, and serious health and safety risks. It is unsurprising but still appalling that people in these conditions are dying. Earlier this year, for example, Sarah Rose Denny, a young Mi’kmaw mother, repeatedly asked for access to health care in a provincial jail. She was denied that care and died days later of double pneumonia.

Bill C-48 risks increasing the number of people in an already overwhelmed system that is causing real harm to the disproportionately marginalized communities who experience incarceration in Canada. To counter this, we support the CCLA’s recommendation to require a statement in the record of proceedings of how a justice has considered section 493.2 of the Criminal Code.

On my second point, Bill C-48 will not make survivors of intimate partner violence safer. To understand why, it is critical to remember that there is no neat dividing line between survivors of intimate partner violence and those charged with intimate partner violence offences. Sometimes this is because of inappropriate dual charging flowing from mandatory charging policies. As this committee heard from Ms. Big Canoe last week, this is a significant problem for Indigenous women.

In addition, perpetrators and survivors often overlap. People who are incarcerated have elevated histories of sexual and/or physical victimization. Black and Indigenous women are more likely to have experienced intimate partner violence. They are also more likely to face criminalization by the state. For this reason, we urge you to remove the proposed amendment to section 515(6)(b.1) of the Criminal Code, which introduces a reverse onus related to discharges for intimate partner violence offences.

My final point is that reforms to the bail system need to be grounded in evidence, not headlines. In addition, the possible consequences of Bill C-48 on marginalized communities and on a bail system in crisis need attention as soon as possible. We urge you to require a review by committee on the second or third anniversary of the day on which this act receives Royal Assent, if it is passed, rather than on the fifth. That review should also incorporate an independent and external evaluation of Canada’s bail system more broadly.

Right now, when people talk about bail reform, they mean how we can make bail harder to get. This will not improve safety, including for survivors of intimate partner violence. What will improve safety are evidence-based reforms that focus on disrupting the larger relationship between incarceration, mental health, addiction, discrimination, poverty and social disadvantage.

Thank you for your time, and I look forward to your questions.

[Translation]

I agree with what has been said.

In terms of your question related to public confidence in the bail system, one of the important things said by other witnesses as well is the need for evidence and data collection so that when there is concern in the public, we are able to have those conversations grounded in data and in accurate analysis.

Beyond targeted funding for bail-related programs, which we support wholeheartedly, broader social service and community supports such as access to mental health care and pharmacare for medications are also investments that can help strengthen the system and restore public confidence.

Thank you, Senator Jaffer, for the opportunity to speak on this point. We are also very concerned about that provision, and that’s why we called for it to be removed from the bill.

With respect to discharges, this committee has heard from other witnesses that strict requirements need to be met before a discharge can be provided. There are concerns with conflicts with the Criminal Records Act and whether or not people who have discharges that should be expunged from their record will not see that happen. There is also the reality that prosecutors have access to information about discharges already. We are concerned about expanding reverse onus beyond the narrow set of circumstances where the courts have found they’re appropriate and for the impact, as Ms. Coyle mentioned, on individuals who face dual charging.

We have thought about it, yes, in terms of how problematic it is for reasons that Ms. Coyle also spoke about, where you have someone who receives a discharge for a relatively minor offence or potentially a dual charging pleads guilty to get out of jail, and all of a sudden they become that repeat offender subject to the reverse onus, and that is quite concerning to us.

Thank you very much for the question.

The short answer is that this is one of the areas where it would be beneficial to have additional data looking specifically at this question related to dual charging. I don’t know of strong data that lays that out, but perhaps my colleagues on the panel may have information about that. I do know from talking to people who work directly with survivors, like Ms. Mattoo who appeared before the committee yesterday and Ms. Coyle today, that this is a problem they see frequently in the work they do.

From a broader statistical standpoint, we also do know — and there are statistics for this in our brief — about the percentage of folks who are incarcerated who have experienced victimization themselves. That’s broader than the situation of dual charging, but it is a situation where we have an overlap between perpetrators and survivors.

Thank you for that question as well.

We absolutely agree that gender-based violence is an epidemic, as has been said by the Mass Casualty Commission, but responses like these don’t make survivors safer, and I can give you three quick reasons for that. The first is that the criminal justice system already doesn’t work for many survivors, especially ones from marginalized backgrounds. The second is the point made about no neat dividing line between survivors and perpetrators. The third is that changes to the bail system like this do nothing to address the underlying causes of gender-based violence, and they actually may make things worse in terms of the impact of detention on people, like losing their jobs, homes and mental health supports, as other witnesses have talked about.

Yes, we are concerned about that, and we think it would be beneficial to have one.

Thank you.

I’ll be quick. My colleague Ms. Coyle also made that recommendation. That’s the sense that we know the system is not working right now. We know there’s a significant risk that this bill will negatively impact marginalized communities, and so as soon as we have the data, as Ms. Latimer said, let’s get this review started so that we can make evidence-based policy changes.

Thank you for the question, Senator Klyne.

I do not have those numbers. That doesn’t mean they don’t exist, but I don’t have access to them.

Absolutely. Thank you for that question.

As I alluded to earlier, the criminal justice system is not a system that works for all survivors. There are many that it does not work for who never engage with the criminal justice system at all, particularly members of marginalized communities — Indigenous women, Black women and trans women — who face high levels of gender-based violence. They may not interact with the system at all, so a criminal justice system response is unlikely to help them. For those who do, we hear about the risk of dual charging and about police not taking them seriously. Again, relying solely on a criminal justice system response to gender-based violence is something that we’ve tried for decades, and it hasn’t worked and it’s unlikely to work now.

I would echo what Ms. Coyle has said, and I would point to thinking about some of the collateral consequences as well. I think it was Ms. Mattoo who spoke yesterday about the impacts on a survivor when they do face a charge like this, when they are held in remand, even for short periods of time, in terms of losing access to housing and to children and, if they have immigration status requirements, not being able to fulfill those requirements. The concern that we have is that when you do see survivors who are charged with violence, like Ms. Coyle just mentioned, that we’re going to see an increase in these types of broader consequences for survivors instead of actually seeing gender-based violence rates go down.