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Speech in Senate Chamber: Immigration and Refugee Protection Act, Civil Marriage Act, Criminal Code, Bill S-7 to Amend —Third Reading


Immigration and Refugee Protection Act
Civil Marriage Act
Criminal Code

Bill to Amend—Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Ataullahjan, seconded by the Honourable Senator Meredith, for the third reading of Bill S-7, An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts.

Hon. Anne C. Cools: Honourable senators, I rise to speak in opposition at third reading of Bill S-7, An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act, the Criminal Code and to make consequential amendments to other acts.

This bill's short title is "Zero Tolerance for Barbaric Cultural Practices Act." This short title is unwise and insensitive, for this bill that touches certain human activities, which, though undesirable in Canada, are large and complicated.

This bill has proceeded in the Senate with unreasonable haste. This quick journey is objectionable, as is the Senate's rush to judgment on this bill. Its many substantive issues have had truncated treatment. It did not receive the fulsome debate that such a complicated subject deserves. Its first reading was November 5, and its journey here has been only 18 sitting days. This haste is disturbing for those who have concerns about this bill.

Honourable senators, the bill's Senate supporters insist that the terms "barbarism" and "barbaric" are reasonable descriptions in this bill, insisting that these terms apply to the actions but not to the cultures of those touched by it. These claims are specious and fallacious.

The Hon. the Speaker: Senator Cools, just a moment, please. It's 6:00. Am I advised that I don't see the clock?

Hon. Senators: Agreed.

The Hon. the Speaker: I will not see the clock.

Senator Cools.

Senator Cools: They fly in the face of the human fact, and of the human experience. This mistaken and facile dichotomy denies the nature, structure and workings of the human person, and human mind. It denies the human factor, which is that in the human species, personal traits and cultural practices are inseparable. This is the condition of the upright, two-legged, rational, human animals that we call people. Human nature is that way. This is further complicated by the fact that human beings are most often incapable of insight into their own actions and attitudes. The human psyche is an artful dodger, well-practiced in its art of self-knowledge and self-discernment avoidance. Many human beings labour in a unique human darkness. This is best expressed by the Jesuit Father Thomas Green in his 1984 book, Weeds Among the Wheat. Relying on the spiritual master Jacques Guillet's work on personal discernment, Father Green quotes him, at page 29:

Man is plunged into a threefold darkness. God commands without being seen; Satan conceals himself, suggests more than he affirms, proposes more than he demands. . . . Finally, there is the darkness in man himself who is incapable of seeing his own heart clearly, incapable of grasping completely the seriousness of his actions and the results deriving from them. . . .

In this "threefold darkness" man is challenged to choose and to act:

Choice for this man is not only the selection of this or that mode of acting; it requires, also, the identification of the voices he hears. Therefore, he must make a discriminating judgment — and that is "discernment."

Honourable senators, debate on Bill S-7 should have begun by admitting that questions that involve family relations and family ties are inherently difficult and complicated. This is the nature and structure of familial bonds and connections. They are deep, interconnected, interwoven, and not easily disentangled. Human beings tend to live in states of closeness to their family members. We must understand that family relationships and cultural attitudes are connected and deeply bonded.

I note this debate's prevalent use of the term "domestic violence." I also note that family and domestic violence have been falsely framed as violence against women. The term "violence against women" is inadequate to express the depth of the gravity of violence between family members and its consequences for all family members. This term presumes that violence is a gendered characteristic, a gendered problem.

Violence, a scourge of the human condition, is a human problem, not a gender problem. Both American and Canadian scholars of domestic and family violence, such as University of New Hampshire's Dr. Murray Straus and University of British Columbia's Dr. Donald Dutton, inform that domestic violence is symmetrical and that men and women attack each other and initiate violence against each other at equal rates.

Honourable senators, this domestic violence symmetry is much overlooked. It was examined in the well-supported 1998 Report of the Special Joint Senate-House of Commons Committee on Child Custody and Access after Divorce. This report, titled For the Sake of the Children, said at page 80:

Information about female violence is available in anecdotal form, as well as in the results of general population surveys using the Conflict Tactics Scale (CTS), developed by Murray Straus. That scale was used in Statistics Canada's 1993 Violence Against Women Survey, which was cited by a number of witnesses. They quoted its major finding that 29 per cent of currently or formerly married women had experienced some form of domestic violence. Some Committee Members noted that the same 1993 study reported that the vast majority of women — 97 per cent — had not experienced abuse the year before. The study reported that "Three percent of women were assaulted by their partner in the 12 months prior to the survey." However, the Violence Against Women Survey has been criticized because it applied the CTS only to women and did not ask men about their experience of violence perpetrated by women. Some Committee Members noted Dr. Murray Straus's concern about inadequate use of his methodology, the CTS, in the 1993 Statistics Canada survey, quoting Dr. Straus as having noted the omission of questions about women assaulting men:

That is what the Canadian National Survey of Violence Against Women did. They used the techniques which I developed, the Conflict Tactics Scale. But they left out the half of it which asks about violence by women, so they wouldn't be left with politically embarrassing data.

Dr. Straus's words are most interesting.

Honourable senators, those who work in the family violence field quickly discover the reality of female violence, and female abuse of children and men. As Canada's frontrunner in this field, I built one of Canada's first women's shelters in Toronto. I served families afflicted by violence loyally for decades.

England's Erin Pizzey, whom I call my soul sister, in the early 1970s, founded Chiswick Women's Aid, the world's first women's shelter for women, and families, afflicted by violence in London. She wrote the world's first book on domestic violence, titled Scream Quietly or the Neighbors Will Hear. On July 5, 1998, Erin Pizzey, writing in the London newspaper The Observer, said:

. . . of the first 100 women coming into the refuge, 62 were as violent as the partners they had left. Not only did they admit their violence in the mutual abuse that took place in their homes, but the women were abusive to their children.

Honourable senators, the reality of vulnerable children's needs raises the troubling fact that the Standing Senate Committee on Human Rights, in its three committee meetings and 21 witnesses, did not hear a single person from the child protection and child welfare agencies, such as the Children's Aid Society. One would think that the child protection professionals and officials would have been heard. It is inconceivable that the Senate committee did not seek the testimony of those who actually are in the child protection business, nor the testimony of provincial Attorneys General who prosecute the relevant offences daily.

Honourable senators, the short title of Bill S-7 is "Zero Tolerance for Barbaric Cultural Practices Act." This Senate has been told little, actually nothing, of the effect and consequences of zero tolerance policies on these afflicted families.

By the way, honourable senators, the term "barbarism" — in addition to meaning uncivilized and savage — includes an element meaning foreignness and foreigners. Barbarians were foreign and came from far away.

A huge negative consequence of zero tolerance policies is the proliferation of false accusations and vexatious, mischievous prosecutions. I had hoped that the Senate committee would have examined the consequences or the results of zero tolerance policies. Between 1989 and 2003, there was a plethora of false accusations of physical and sexual abuse in divorce and child support proceedings. In two speeches here, on February 17 and May 4, 2000, I recorded in this Senate, 52 such cases, wherein false accusations were made in civil proceedings, mostly by women, and wherein the presiding judges found these accusations to be unsubstantiated and, frankly, false.

One such case, in 1994, in the Ontario Court of Justice was B (D) and B(R) and B(M) v. Children's Aid Society of Durham Region and Marion Van den Boomen. Justice Somers, in his reasons for judgment said, at page 42:

. . . sexual assault allegations made by a mother against a father in custody disputes are very prevalent nowadays and indeed have become . . . "the weapon of choice".

They even called it the silver bullet.

Honourable senators, I come now to a most relevant criminal case where the presiding judge expressed great concern about zero tolerance policies respecting family violence. I speak of the Provincial Court of Alberta case R. v. Ghanem, June 22, 1998, presided by Judge B. R. Fraser.

The husband, Mr. Ghanem, had been charged with domestic assault against his wife, Nagewa Salem. He was tried and acquitted. She had charged him in an effort to imperil him in their divorce proceeding. It seemed that Mr. Ghanem was elsewhere when this alleged assault was supposed to have occurred. As it was, he was in another place with other people. He had alibis.

In his reasons for judgment, Judge Fraser addressed the absence of the proper investigation of the accused, Mr. Ghanem's, circumstances, particularly that of his alibis. The outcome was that Judge Fraser acquitted Mr. Ghanem. In his reasons for judgment, he said, at paragraph 2:

It was also disclosed to the police officer immediately upon being told of the allegations. The officer chose not to investigate the alibi and instead just laid the charge. Apparently he didn't feel he had any responsibility to do so.

And paragraph 17:

His alibi is corroborated by both the plumber, Mr. Toma, and the tenant Mr. Ramirez. Both are completely independent witnesses and I have no difficulty with their credibility whatsoever. I feel the same way about Ms. Mitchell. They are all credible, reliable witnesses.

And paragraph 19:

On the other hand I find the evidence of the complainant and her mother to be contradictory, confusing, contrary, conflicting, irreconcilable and quite frankly, false. I do not believe this assault they complain of, happened at all. I believe they concocted it for the purpose of gaining leverage in the custody issue and particularly in retribution for the legal papers the accused had caused to be served on the complainant. I find she didn't call the police until an hour or more after the papers had been served. The serving of the papers were the catalyst to concocting this fabrication and falsely accusing Mr. Ghanem.

And paragraph 21. This is Judge Fraser's reasons for judgment.

I want to make two further comments because one is curious as to how a man could be falsely accused in these circumstances right up to and including a trial. The reasons are quite clear to me and disturbing. First, the police apparently have a policy of zero tolerance in domestic assault cases. Any zero tolerance policy is dangerous. It is especially dangerous when it is not properly applied. If the police consider zero tolerance means laying a charge whenever they receive a complaint, they are incorrect. The power to arrest and lay charges is an awesome power. Used incorrectly it is oppressive to the public. Complaints must be investigated. An officer doesn't automatically have reasonable grounds just because someone makes a complaint of domestic abuse. In this case the officer correctly goes to the potential accused and advises him of the complaint. The purpose of that is to investigate the complaint. If the potential accused has another version or as in this case an alibi, it is incumbent on that officer to investigate that version or that alibi to the best of his ability in order to determine if he has reasonable grounds to lay the charge. If, after a proper investigation he feels the complaint is legitimate, and he has reasonable grounds for that belief, then he must lay the charge. That's what zero tolerance means.

Now remember, I am recording here Judge Fraser's words in his reasons for judgment.

At paragraph 22:

Here the officer advises Mr. Ghanem of the complaint and Mr. Ghanem gives up his right to silence by immediately advising him that he wasn't there and where he was and that there are witnesses who can verify it. The officer's answer to this is to charge and arrest him and tell him that if he had a witness he could bring that witness forward. The result is that an innocent man with a full bona fide alibi verified by three people is falsely charged and put through the agony of a criminal trial and the expense of having to defend himself. If that's what police officers think zero tolerance means, then their training is sadly lacking. I would direct the Crown to send a transcript of this trial and my remarks to the Chief of Police of the Calgary Police Service so that police force can correct that misunderstanding and hopefully avoid another innocent person being charged without the police completing a full investigation.

Secondly, and the primary reason the accused was falsely charged was the false complaint by the complainant —

The Hon. the Speaker pro tempore: I regret to inform the senator her time has expired.

Senator Cools: Your Honour, may I have five more minutes?

The Hon. the Speaker pro tempore: Is the chamber granting five more minutes to Senator Cools?

Hon. Senators: Agreed.

Senator Cools: I thank you, Your Honour.

Secondly, and the primary reason the accused was falsely charged was the false complaint by the complainant Nagewa Salem and the false testimony by both her and her mother, Fatima Salem. There is a remedy for this kind of conduct. To falsely accuse someone of a crime is a crime in itself of mischief. To give false testimony is also a crime of perjury. I therefore direct the Crown to bring the transcript of this trial and my remarks to the attention of the Chief Crown Prosecutor for the purpose of determining if such charges should be investigated and if so to further determine if evidence supports such charges. They may also wish to investigate why the alibi of which the Crown had formal notice was not investigated at their direction.

Honourable senators, that was one of many cases, which is unquestionable proof of the serious dangers of zero tolerance policies respecting Criminal Code offences including family members. Bill S-7 is poised for similar abuses and similar miscarriages of justice. This is revealed in its short title, the "Zero Tolerance for Barbaric Cultural Practices Act."

In conclusion, senators, I wish to say that matters of such gravity and complexity require a greater examination, review and debate than this bill has been given here. Colleagues, the experience, the precedents, and the cases show that zero tolerance policies will, of necessity, spawn many pernicious acts. This is a heart of darkness which is soul destroying for its victims. I earnestly urge colleagues to rethink this bill, because nowhere in this debate have I heard any consideration or any attention given whatsoever to the negative and pernicious, as I said before, consequences of zero tolerance policy. There is much evidence to show that a zero tolerance policy is unwise, not prudent, quite often foolish and a great folly. It's a mischief in and of itself.

Thank you, honourable senators.

The remainder of this day's Senate Debates are available here.