New electronic monitoring and judicial education amendments target domestic violence

Law360 Canada (April 21, 2023, 9:17 AM EDT) -- Parliament stands poised to enact a two-pronged bill that could increase the use of electronic monitoring as a condition of bail for those charged with domestic violence and also aims to spur judges to better educate themselves about intimate-partner violence, coercion and control and the resulting risks to the lives of victims, who are mostly women and children.

“Keira’s Law” (Bill C-233), which received Senate approval April 18, is named in remembrance of a 4-year-old child who died in 2020 in an apparent murder-suicide committed by her father, when she was in his unsupervised custody despite her mother warning the court of his escalating abusive and controlling behaviour.   

Bill C-233 aims to raise the level of education and understanding of federally appointed judges about domestic violence and also adds electronic monitoring as an expressly listed optional condition for release on bail, stipulating that, if requested by the attorney general, a justice must consider ordering electronic monitoring when the safety and security of a person, including an intimate partner, could be at risk.

The bill awaits royal assent, after which its amendments to the interim release provisions of the Criminal Code and changes to the federal Judges Act will come into force in 30 days.

The private member’s bill was introduced in the House of Commons Feb. 7, 2022, by Montreal lawyer and Liberal MP Anju Dillon, who with Liberal MPs Pam Damoff, parliamentary secretary to the Public Safety Minister, and Ya’ara Saks, parliamentary secretary to the minister of families, children and social development, worked to win all-party support for the bill’s swift passage in the Commons, as well as passage through the Senate, where the bill was sponsored by Sen. Pierre Dalphond, a former Quebec Court of Appeal judge.

“This important legislative initiative aims to protect an intimate partner and their children against further violence following a separation, especially from partners where coercive control was exercised over their spouses,” Dhillon said in an April 19 statement that thanked MPs and senators for their “immense support.”

“We all agree that more needs to be done to protect women and their children who are also victims of domestic violence. Bill C-233 is a concrete step in the right direction,” Dhillon said. “Studies show that the separation of the couple often does not break the cycle of violence. On the contrary, violent partners will often resort to acts of violence in order to resume coercive control,” she said. “These actions can include harassment, threats, assault and even murder. “

Damoff said the Judges Act amendments provide for continuing education seminars for judges on matters related to “intimate partner violence and coercive control in intimate partner and family relationships.” The new provisions also require annual reporting of information about the seminars to the federal justice minister.

“It is in the best interest of everyone that judges be well-informed on the topic of family violence, and that their primary focus in considering custody in such cases be the best interests of the children involved, Damoff said in an April 19 press release.

Added Dalphond, "domestic violence harms and even kills women and children. Keira’s Law proposes to familiarize judges with this subject and to invite other actors in the legal system to become better informed, including lawyers, social workers, police, and psychologists.”

Bill C-233 will amend the Criminal Code’s judicial interim release provisions to require a justice of the peace to determine whether an accused charged with an offence “in the commission of which violence against a person was used, threatened or attempted, including against the accused’s intimate partner,” should be required to wear a remote monitoring device as a condition of bail, when requested by the attorney general.

As the Code currently stands, considering the imposition of electronic monitoring is not mandatory, although it may be considered and imposed pursuant to a presiding justice's broad discretion to impose any conditions they deem necessary — as long as the conditions are justified — to ensure the safety of victims or witnesses to the alleged offence, including offences against an intimate partner.

(The prevalence of electronic monitoring varies across Canada. Some provinces and territories pay for the device, while others require the accused to pay for it.)

Bill C-233 attracted few formal submissions to Parliament from the organized bar, but some defence counsel publicly raised concerns that the electronic monitoring provision is oppressive and impractical, and the judicial education measures strike at the separation between the legislative and the judicial branches of government.

A press release from Damoff’s office said Bill C-233 will promote, to a greater extent, the safety and security of intimate partner complainants and their children.

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