JUST Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Wednesday, June 19, 2002

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1530

The Chair (Mr. Andy Scott (Fredericton, Lib.))

Professor Dominique Goubau (Family Law at Laval University (Faculty of Law); Chairman of the Committee of the Bar on Family Law, Barreau du Québec)

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1535

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1540

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1500

The Chair

Mr. Bob Mills (Red Deer, Canadian Alliance)

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Mr. Bob Mills

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The Chair

Mr. Dominique Goubau

The Chair

Mr. Robert Lanctôt (Châteauguay, BQ)

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Mr. Dominique Goubau

Mr. Robert Lanctôt

Mr. Dominique Goubau

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Mr. Robert Lanctôt

Mr. Dominique Goubau

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. Dominique Goubau

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The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Mr. Dominique Goubau

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

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Mr. Dominique Goubau

Mr. John Maloney

Mr. Dominique Goubau

The Vice-Chair (Mr. John McKay (Scarborough East, Lib.))

Mr. Robert Lanctôt

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Mr. Dominique Goubau

The Vice-Chair (Mr. John McKay)

Mr. Paul Harold Macklin

Mr. Dominique Goubau

Mr. Paul Harold Macklin

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Mr. Dominique Goubau

The Vice-Chair (Mr. John McKay)

Mr. Bob Mills

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Mr. Dominique Goubau

The Vice-Chair (Mr. John McKay)

Mr. Bob Mills

The Vice-Chair (Mr. John McKay)

Mr. Dominique Goubau

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The Vice-Chair (Mr. John McKay)

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 100

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1st SESSION

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37th PARLIAMENT

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EVIDENCE

Wednesday, June 19, 2002

[Recorded by Electronic Apparatus]

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[English]

    The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order the one hundredth meeting of the Standing Committee on Justice and Human Rights. I'm sure the reason we are not meeting tomorrow is so that we can end the session on the hundredth meeting.

    Today we are considering Bill C-400, an act to amend the Divorce Act (limits on rights of child access by sex offenders). The witnesses today are from the Barreau du Quebec: Dominique Goubau, professor of family law at Laval, and member of the committee of the barreau on family law; and maître Julie Delaney.

    I presume you have been instructed that you have approximately ten minutes. We don't have a big crowd, so I'll give you an indication when your ten minutes is up. I will defer now to you.

[Translation]

    Professor Dominique Goubau (Family Law at Laval University (Faculty of Law); Chairman of the Committee of the Bar on Family Law, Barreau du Québec): Thank you, Mr. Chairman.

    Mr. Chairman, honourable committee members, my name is Dominique Goubau. I am Chairman of the Standing Committee on Family Law of the Barreau du Québec, and I am accompanied by Ms. Julie Delaney, who is a lawyer with the Research Department of the Barreau du Québec and Acting Secretary of our Committee, in the absence of Ms. Suzanne Vadboncoeur.

    A brief word, first, to thank you for welcoming the Barreau du Québec as part of your consideration of Bill C-400, and also to tell you that, since we were not informed of your invitation until last Thursday, that is on June 13, it was unfortunately in great haste that I drafted the report I have here with the consent of the members of my committee. A number of copies of this report are available for committee members. However, as a result of the committee's standing orders, it could not be translated into English, as we would have liked.

    By way of introduction, I will tell you that the Barreau du Québec is an organization which, for many years now, has intervened in all major debates concerning family law and criminal law reform. The Barreau currently represents more than 19,300 paid-up members. I wanted to note that before starting.

    In our view, Bill C-400's intentions are entirely laudable. Its obvious objective is to protect children, and I would like to emphasize to this committee that the protection of children who are in delicate or dangerous situations has also been the Barreau du Québec's objective as well.

     Consequently, we share the general objectives of this piece of legislation. However, we emphasize that, in our view, this bill, as currently drafted, as laudable as its intentions may be, will ultimately run counter to the interests of children and may well fail to protect the rights of children in Canada. I will now explain in greater detail this conclusion which the Barreau du Québec has reached.

    First, the new subsection (9.1) of section 16 of the act, as proposed in the bill under study before you, ultimately introduces a presumption that it is systematically and automatically contrary to the interest of the child, which is to maintain a right of access for parents who are serving a prison term for an offence listed in the bill.

    Second, the bill introduces a new principle in family law. In a situation in which the non-custodial parent is serving a prison term, it gives the custodial parent unilateral power to block the child's right of access to the non-custodial parent, in this instance the parent who is incarcerated.

    That parent holds this power since it is sufficient for him or her not to consent to continued relations for the right of access to be automatically suspended under this legislative proposal. So before going to the heart of the Barreau du Québec's position, I would like to mention that the Supreme Court and all courts in Canada have, for some years now, established the principle that the right of access is not, any more than parental authority, a right of the parent, but rather a right of the child. The Supreme Court confirmed this in a number of major decisions in the 1990s, and the exact references to all those decisions are contained in the brief I am filing today, in particular Young v. Young, in 1993, and, more recently, the [Editor's Note: Inaudible] decision in 2000. I think it is important to bear in mind that this is a right of the child.

    The notion of the child's interests has always been criticized in doctrine as being too unclear, but has also been defended in doctrine and by the courts for the same reason. The unclear nature of the notion of the child's interests is precisely its raison d'être. That is what makes it usable in the courts since, in relying on this broad notion of the child's interests, the courts can apply it on a case-by-case basis to the specific situation of each child which they have before them and whose case must be addressed.

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    This principle has almost always been unequivocally confirmed by the courts in Canada. It should also be kept in mind that, in so doing, the courts have also confirmed another principle, a common law principle, but one which also exists in civil law. According to that principle, in Canada, the courts are the ultimate guardians of the child's interests. When parents or other persons cannot agree on what the child's interest is in a particular case, the courts ultimately come to their defence to ensure their interests are well served.

    One of the modern ways, since it dates back roughly 10 years, is, in particular, to hear the child himself or herself, in as many cases as possible, where children are able to express themselves and have something to say.

    For about 10 years now, it has been case law in Canada that children themselves are ultimately the preferred interpreters of their own interests and of what the decisions concerning them should be. The courts have clearly understood this message and increasingly hear children when that is necessary. They do so particularly in cases concerning access and the organization of custody.

    I would also like to draw the committee's attention to the fact that, in its reply to the report of the Special Joint Committee on Child Custody and Access, the Canadian government emphasized, and we agree on this, that it will be important in future to hear children where that is possible. In my brief, I quote a passage from the Canadian government's reply to the Special Joint Committee's report on Child Custody and Access. In its reply, the Canadian government strongly emphasizes that children must be heard so that decisions can be made that effectively meet their interests.

    In the opinion of the Barreau du Québec, the presumption that simply because the non-custodial parent is incarcerated for a crime enumerated in the bill means that this automatic nature of the effect of the bill is incompatible with the very notion of the child's interests, and the interests, properly understood, of the children on a case-by-case basis.

    Of course, when a parent is convicted of a crime as serious as those enumerated in the bill, the courts, very often, will obviously suspend access in practice. This is what happens, and, in my brief, I cite a certain number of court decisions in which, in such cases, access was suspended or at least structured. But there are other cases, and I cite some of those as well, in which the courts, in very specific cases, came to the contrary conclusion. After gauging the child's interest in light of expert opinion and testimony and in light of the child's testimony, where possible and necessary, the courts at times, rarely, but at times, find that access should not be suspended but rather structured.

    The incarceration of the non-custodial parent is obviously a new situation and the courts are now authorized to review the situation and restructure or often suspend and at times cancel for an indeterminate period of time the parent's access. But there are other cases in which the child's interest absolutely dictates that that access be maintained.

    I would like to draw the committee's attention to another point.

    An extensive debate was conducted across Canada last year on the restructuring of parental responsibilities in the context of the Divorce Act. That debate focused to a large degree on presumptions and the possibility of establishing, in the Divorce Act, presumptions with regard to the reorganization of parental responsibilities.

    When we talk about restructuring parental responsibilities, it must be understood that that concerns not only the right to custody, but also structuring of the right of access. In its reply to the report of the Special Joint Committee on Child Custody and Access, the Government of Canada emphasized, and I quote:

The Government of Canada endorses the approach of the Special Joint Committee which recognizes that no one model of post-separation parenting will be ideal for all children and rejects the use of legislative presumptions.

    This is precisely the position of the Barreau du Québec.

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    We think that such a presumption, this time with respect to the right of access, is a presumption that could well play against the interests of certain children in Canada. We have a system which already meets those interests adequately.

    Incidentally, I would note that it is true that, in the context of this broad consultation, much attention was focused on the question whether it would be appropriate to include in the Divorce Act a certain number of criteria, a certain number of examples which would illustrate the notion of the interests of the child, not presumptions, but a certain number of points which the courts, which the judges, which decision-makers would have to bear in mind in making a decision in the best interests of the child.

    At that time, family and/or marital violence was extensively discussed. It is true that some provincial legislation--not in Quebec, but in other provinces--defines the notion of the interests of the child using a certain number of criteria. This idea of criteria for defining the interests of the child is an interesting one, but it has been widely criticized, not only in doctrine, but also by many associations which spoke out in the federal/provincial/territorial consultation that was conducted in 2001, that is to say last year. Why? Because when criteria such as spousal abuse or, for example, incarceration of the non-custodial parent or perhaps incarceration of the custodial parent, are added, there is a risk of forgetting other things. That is why the Barreau du Québec has preferred to speak out against the idea of enumerating a certain number of criteria for the sake of defining the child's interests, criteria which would remain broad, because it is precisely this broadness which enables the courts to work on a case-by-case basis. That is why the Barreau du Québec is not only totally opposed to the idea of a presumption such as that contained in Bill C-400, but is even opposed to the idea of a list of criteria that would include, for example, the incarceration of a parent.

    However, as I said a moment ago, the courts are very much aware of the problem for children and generally suspend the right of access in case of incarceration for something as serious as the crimes listed in Bill C-400.

    I obviously will not read the brief I am filing here. For those arriving late, I note once again that I have here a brief which is in French, but which is at the disposal of the members of this committee.

    There is a second point that I would like to emphasize, and that is the role of the non-custodial parent. In granting the custodial parent the power to consent to continuing personal relations between the child and the incarcerated parent, Bill C-400 in fact disrupts the general economy and general philosophy of family law in Canada, in Quebec and even in the other provinces, as we have known it for decades. Why? Because, and particularly since the 1980s and 1990s--and I cite the relevant Supreme Court decisions in my brief to support the Barreau du Québec's argument--there is a very clear principle, and that is that no single parent should have a decision-making monopoly in a family. In the discussions and the federal-provincial-territorial consultation, there was much talk about the reorganization of parental roles, particularly in terms of decision-making with regard to the children.

    An idea is emerging across Canada, particularly in Quebec, but also in most European countries, in most American states as well, in Australia, England and France, and that is the idea of co-parenting. Of course, one could say that co-parenting is no longer the same thing when one parent is incarcerated. That's true, and that's why court control is always necessary in an extraordinary situation such as incarceration for crimes as serious as those listed in the bill. However, we feel there is a real danger that this little bill, this little subsection which would be amended in the Divorce Act, would disrupt the general scheme of the Divorce Act by saying that, in specific cases, decision-making power belongs to one parent.

    In 1993, in Young v. Young, precisely in a case in which the non-custodial parent's right to access had been limited, the Supreme Court clearly held that it was not for the custodial parent to limit the non-custodial parent's right of access and that there was definitely no statutory or case law presumption favouring a decision by the custodial parent to restrict access. I think that was a wise decision. It's a decision that has been understood everywhere and it is a decision which is beginning to produce results in terms of legislative reform. It's a decision which was also central to thinking across Canada on the reorganization of parental roles. I believe this must be kept in mind, and the Barreau du Québec is firmly of the opinion that, ultimately, when parents cannot agree on the organization of parental roles, and particularly on the right to access, then ultimately, through, of course, mediation, extrajudicial or non-judicial services and so on, ultimately, the court should be able to play the role it has always played, that is to say as parens patriae, that is to say the person who is ultimately the guardian of the child's interests.

    There's another factor in this regard. I believe we must not downplay the delicate situation of many women, who are generally the custodial parent of the child, when the husband or father of the child is incarcerated. Under the bill, if the parent were incarcerated for a listed crime, access would be automatically suspended, unless the spouse or mother or the child consented to continued access.

    The Barreau du Québec very much fears that women in delicate situations may be subject to emotional blackmail, particularly in situations of marital or family violence and, consequently, consent, without judicial control, to continued personal relations between the child and the non-custodial parent, when the interests of the child would dictate precisely the contrary.

    Ultimately, these, in summary, are the important reasons, I believe, why the Barreau du Québec applauds the intentions of the bill, but cannot at all agree on the specific content and manner in which the bill is formulated.Thank you.

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[English]

    The Chair: Merci, Monsieur Goubau.

    Mr. Mills.

    Mr. Bob Mills (Red Deer, Canadian Alliance): Thank you very much.

    I've listened with interest to your comments, and the one thing I didn't hear you say very often was that this incarcerated parent was a sex offender. These are sex offenders we're talking about. The interesting point is that you mentioned the children's best interest as well, and I think all of us agree on that. But we're talking about children who are basically too young to stand up before a judge and give their opinion.

    Now, each day so many comments come in from across Canada, many of these from Quebec, and I find it more and more interesting how many cases there are now. They are in the hundreds, the cases of people who are going through this same sort of thing.

    We're talking about an 11-year-old girl whose father raped her where a court told her she had to go to prison to visit him, and she tried to commit suicide after that visit. We're talking about two boys who were sexually assaulted by a father, and a judge told them they must visit that father in jail. They didn't want to go. The results were rather catastrophic if you can believe everything that's been given here.

    My question is, would it not be better--because I understand your argument about the custodial parent--to have both parents prove before a judge why it is in the best interest of the child for that child to visit that sex-offending parent in prison? Would that solve the problem you've identified? Because then the judge would hear both sides of the story as to the best interests of the child.

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[Translation]

    Mr. Dominique Goubau: Of course, the Barreau du Québec is very sensitive to these situations. It is clear that, in the vast majority of cases as serious as those just mentioned, the courts suspend the right of access. Does that mean that a presumption that access should be automatically suspended in all cases should be introduced into the act? The Barreau du Québec believes that it should not. The same is true with regard to the right to custody. The courts obviously make many decisions every day: should custody be awarded to the child's father or mother, or perhaps to both?

    It is clearly possible, in the flow of decisions, that a judge may make a mistake and award custody, or even organize a right of access for a parent who in fact should not perhaps have it. Do those unfortunate cases oblige us to introduce a presumption in the act with regard to custody or access? The Barreau du Québec believes they do not. I believe it is also the position of the Government of Canada, where it says, in its reply to the report of the Special Joint Committee of the Senate and House of Commons on Child Custody and Access, that there should be no statutory presumption because presumptions ultimately play against the interests of the child.

    However, to answer your question more specifically, I will say that it is undoubtedly appropriate to organize the terms of the legal debate. It is also appropriate, and I believe that it is quite clear from the reports on the federal-provincial-territorial consultation held across Canada and in Quebec as well, that extrajudicial services should be put in place to assist families and provide an adequate response to these situations. There lies the solution, and I believe it is the solution that was designated by the vast majority of stakeholders in the federal-provincial-territorial consultation.

    The fear of the Barreau du Québec is that, by responding to these unfortunate cases automatically, by means of a presumption that would apply to all cases, the government would cause much harm in other cases and other scenarios which could also be cited here. Consequently, based on this subtle distinction, the Barreau du Québec feels we should continue to sit down and take the time to make concrete and specific decisions in light of all the circumstances of the individual case in order to come to a better solution. I believe we must trust the courts. In our opinion, the solution is not to impose a statutory presumption of this kind.

[English]

    Mr. Bob Mills: My problem with that is the justice system, obviously, is failing a lot of these children. I wouldn't have this many examples if it weren't failing. There wouldn't have been all of those phone calls all weekend. Now it has gotten so much publicity across the country that, as I say, they're equally from Quebec as they are from Newfoundland or from Victoria. They're from right across the country, where judges are saying by their judgments they cannot prevent that child from visiting that sex-offending parent in jail. They're sex offenders. They didn't rob a bank; they're sex offenders. It would seem to me that if a psychologist or a parent could demonstrate it's not in the best interests of the child, they would be prevented. But it's not working.

    One of these cases is going to appeal on Friday in Toronto. As everybody on the committee knows, I didn't know whether it was one or ten. Now I'm convinced there's a lot. So it's not working.

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    The Chair: Mr. Mills, I want to make the point that any of these cases you referred to might currently be before the courts, so please be very judicious in what you say.

    Mr. Bob Mills: Yes.

[Translation]

    Mr. Dominique Goubau: In response to that specific question, I will say that, in the cases I'm familiar with--I don't receive any telephone calls on Friday evenings as you do--based on the case law in the area and what we hear from the Family Law Committee of the Barreau du Québec, when a child is a victim of serious sexual abuse by the father, the court almost automatically suspends the father's access. I would even go further. In Quebec, these are scenarios in which an application may be filed with the court for deprivation of an attribute of parental authority, which obviously goes much further. We note from analysis of decisions rendered on this question in Quebec that deprivation of an attribute of parental authority is often the ruling in scenarios such as this.

    There are also cases in which, where a parent is incarcerated for one of the offences described here, the custodial parent would like that parent's access to be suspended, but in which, in light of testimony and independent expert assessment, sometimes by experts appointed by the court, the court may come to the conclusion that, in the interests of that specific child, it should not maintain the parent's access, but restructure it so that the relationship between the child and the non-custodial parent, as tenuous as it may be, is maintained at least at a minimum. That's rare, but it can happen.

    Since that can happen, it must be concluded that a presumption, not monitored by the courts, but applied automatically under the act would deprive certain children of all contact with their non-custodial parents, without the specific circumstances of their case being even taken into account.

    In the report, I cited a certain number of decisions in which the courts had come to this conclusion because they found that it was in the interests of the child. In certain cases, the Court of Appeal had to intervene, while in others, there were no appeals because the decision was clearly in the best interests of the child.

    I obviously don't mean that this is good in one case and not good in another case. All I mean is that a great deal of subtle thinking, considerable debate and much circumspection must undoubtedly be exercised before anyone concludes that any relationship between the child and the custodial parent must be automatically and irremediably broken, even though--it's true and it's good--in most cases, the right to access will in fact be suspended, either by the courts, or simply in actual fact. Since the custodial parent is in prison, the right to access, on a de facto basis, can no longer be exercised as directed in the first order.

    These cases generally return to court for restructuring or suspension of the right to access.

[English]

    The Chair: Thank you very much.

    Mr. Lanctôt, you have seven minutes.

[Translation]

    Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman.

    Thank you for being here. I know that Mr. Mills is well aware what I think of the bill. I appreciate the support of the Barreau du Québec for the remarks I have made. It represents precisely what I think, and even more so, in the sense that we were also talking about emergency cases. I explained that there were interim applications and interim decisions and that judgments could be obtained in a few hours. That happens, and it is important that it be said.

    There was another thing you spoke of. We are getting ready to exercise an enormous degree of discrimination between people who are married and those who are not and who have had children outside marriage. We are amending the Divorce Act and, in so doing, are not ensuring that there are no differences between legitimate and illegitimate children. So we are creating something highly discriminatory. Doesn't that raise a problem with regard to sections 15 and following of the Charter? Wouldn't it be terrible to start by making this distinction instead of putting the child's interests first? I would like to hear your opinion on that.

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    Mr. Dominique Goubau: First, on the question of the constitutionality of the very nature of the interests of the child, the Supreme Court was very clear in 1993, in Young v. Young, in which one of the parties had argued that this notion was so vague that it had become unconstitutional, that it was not valid. The Supreme Court ruled unanimously on this question that this was not true. First, the notion of the interests of the child is recognized in article 3 of the International Convention on the Rights of the Child, which Canada has signed, and it is a notion that must remain broad. That is precisely its raison d'être, and it is precisely because it is broad that it is adaptable, that it can evolve and apply on a case-by-case basis. So the question of the constitutionality of the notion of the interests of the child is definitely no longer at issue.

    The other question is this: by amending the Divorce Act, by setting different criteria in the context of the Divorce Act, contrary to everything that is done in provincial legislation, can we...? This is obviously the $100 question, but what I would say to you on this point is that, in the 1970s, under the first Divorce Act of 1968, the Supreme Court clearly held that Parliament had jurisdiction to settle corollary matters relating to divorce, that is to say alimony between spouses, which normally is a civil law, private law matter and thus a provincial jurisdiction, as well as support from parents for their children and custody, visiting rights. I believe the Supreme Court clearly decided this question in these two major decisions in 1970, so that there is no big problem there. Is there going to be a different kind of treatment? Perhaps, but I don't think the matter can be viewed as a problem of constitutional jurisdiction.

    That said, the question is well taken because I forgot to emphasize one point in my brief, that is the incompatibility, in the Barreau du Québec's view, between Bill C-400 and the very important section of the Divorce Act, section 16, subsection 10, which is the Friendly Parent Presumption, and also the presumption of maximum contact between the child and the non-custodial parent necessarily in the case of an order concerning access for the non-custodial parent.

    Of course, where the parent is incarcerated, the right to access will be limited, even suspended or cancelled, but the legal debate and analysis of the evidence before the court will be conducted in light of this important principle as a result of which Canada is consistent with most modern legislation in the field, that is to say the affirmation of continued contact where, according to subsection 16(10), that is compatible with the interests of the child, in other words, under judicial control. That is a fundamental principle of the Divorce Act of 1985 and, in our view, a principle that is directly contrary to the principle conveyed by subsection 16(9.1) as proposed in Bill C-400.

    Mr. Robert Lanctôt: Witnesses have suggested that we not go as far as Bill C-400, but think of something such as a suspension of mandatory access for a certain time to enable the parent or the child, if it's the child's lawyer, to take steps.

    What do you think of that suggestion?

    Mr. Dominique Goubau: We have not specifically discussed that question, but I have thought about it personally. In the logic of our brief, of course, the Barreau du Québec would not agree to automatic suspension of this kind for the same reasons as stated a moment ago. Obviously, however, this would be the lesser evil, since it would mean that ultimately there would still be that point to which the Barreau du Québec is very much attached, this judicial rampart idea. So it would not be a position the Barreau du Québec would support, but it would definitely be a position less open to attack than what we have in Bill C-400.

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    Mr. Robert Lanctôt: So it would be a dangerous direction to take.

    Mr. Dominique Goubau: In our view, it would be a dangerous direction to take for the same reasons as those I stated a moment ago with regard to the automatic nature of the effect of incarceration. Consequently, on first consideration, the Barreau du Québec would not agree to that solution, even though it is much more diluted than that of Bill C-400. A bill that would incorporate the principle you've just stated would undoubtedly still be opposed by the Barreau du Québec, but with less conviction than I am showing you here.

[English]

    The Chair: Thank you very much. We'll be back.

    Mr. Macklin.

    Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you.

    I have just one question that flows from this. Although you said that generally speaking a series of criteria to establish the best interests of the child would not be appropriate because of what you might exclude, from my perspective there has been some discussion in this committee that if not a criterion at least a guide should possibly be established in some fashion within the act that would indicate a judge should take into account this particular situation--whether it be defined as pedophilia or as something along that line that would at least be limiting in its nature--and would draw the matter to his attention to be dealt with as part of the consideration in making an order or reconsidering an existing order respecting access. Would you comment on that, please?

[Translation]

    Mr. Dominique Goubau: That's a very interesting question. Is it because there are more and more women on the bench? I don't know, but the first thing one notices in considering judicial appointments over the past 10 years is that the judges are clearly more and more aware of and sensitive to a certain number of situations to which they were previously less sensitive; I'm thinking in particular of the matter of spousal abuse.

    One notes that the courts now have much broader knowledge of the phenomenon than was observed five, six or seven years ago. So I'm quite optimistic about the sensitivity of the judges who have to address these questions. That's the first point.

    As for the second, that is the appropriateness of establishing a list of criteria, I would tend instead to speak as a university professor. This approach has been criticized by many writers, in particular Professor Nicholas Bala of Queen's University in Kingston, Ontario, and by Professor Mnookin of Berkeley University in the United States. Their criticism, which is in fact based on their own observations, is founded on the fact that when judges are given a list of criteria which they must consider, it is often noted that, in cases where those lists are used, particularly under U.S. legislation, a judge who already has an idea about how to settle the case will rely on one of the criteria to provide the statutory legitimacy for his own opinion. Thus he will find a solid basis in the act for a decision which is consistent with his own personal convictions. That's why these writers feel judges should not be provided with this weapon or legitimacy.

    For example, in the list of criteria, there would very definitely be the importance of maintaining contact with the parent, as described in subsection 16(10). There could also be the criterion of spousal abuse or family violence. There could be the criterion designed to warn against incarceration for such and such a reason. However, from the moment those criteria have contradictory objectives and as long as there is no hierarchy among those criteria, one winds up with the same problem as we have today, that is the problem of the notion of the interests of the child.

    Ultimately, a decision must be made on the basis of each case. Taking into consideration a host of factors and criteria without favouring one over another. In legislative terms, does the fact that the courts can support one, two, three, four, five or 10 enable them to work better? Some will say no, but, to be fair, it is true that some writers have also said that that at least has the benefit of drawing the court's attention to the fact that the problem may exist. I would prefer--and I am not speaking on the committee's behalf since we have not yet discussed this point--the example of certain American legislation--Minnesota's perhaps, although I can't remember--which contain a list of criteria, but ultimately require the court to explain why it relies or does not rely on each of the criteria. I'm certain that the courts would like that kind of statutory measure.

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[English]

    The Chair: Thank you very much.

    Mr. Cadman.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

    Thank you, Mr. Goubau, for appearing today. I appreciate your arguments. I think you make some good points, but I'm still struggling.

    You made a comment about having faith in the courts and that in many or most cases such as this there would be suspensions. I would like to have faith in the courts too, but where's the accountability when something goes wrong? Something has gone wrong somewhere here, and the more cases Mr. Mills hears about, the more it appears as if it's more frequent than we suspected.

    It's almost as if we're saying whoops, we made a mistake. Unfortunately, when the mistake gets made, a child is damaged, and that's what I'm concerned about. Our struggle is to find a way to prevent this sort of thing from happening.

    Whether or not everything that's spelled out in he bill is the correct vehicle, I don't know. That's what we're here for. I go back to this whole idea Mr. Mills mentioned earlier about the reverse onus, about putting the onus on the parent who is incarcerated to show why visiting is in the best interest of the child. Something is going wrong here, and I think we're all concerned about it.

[Translation]

    Mr. Dominique Goubau: The Barreau du Québec is very sensitive to this question as well, of course. I quite understand the argument, but I have no statistics. This is obviously not a debate about statistics here.

    That said, however, what we hear and what we know about family law and the practice of family law shows that many problems are as important and, in some instances, even more important, such as the phenomenon of spousal abuse, without there being any conviction or any prison term as a result of that conviction. Many children today in Canada and Quebec suffer from this because they are kept in a family environment in which one of the two parents, generally the father, is a violent person, either toward the child's mother, or toward the children. To address that, should we try to define what spousal abuse or family violence is and draft a bill that would provide, in that kind of scenario, for automatic suspension or removal of the child? Here again, and for the same reasons, the Barreau du Québec believes that what is important is that decision-makers, the courts in this instance, but also the entire parajudicial apparatus, be very much aware of this problem of spousal abuse or sexual abuse and be educated about it. Social tools must exist in order to correct this and respond to it effectively. But the Barreau du Québec does not believe that an answer in the form of a statutory presumption calling for the restructuring or suspension of the right of access would be the right response because it is inflexible and does not make it possible to study the individual situation of each child concerned. Ultimately, and I repeat, there is a risk of causing more harm than good, regardless of how laudable--and I emphasize it once again--the intention of this bill is, to which the Barreau du Québec obviously subscribes.

[English]

    The Chair: Thank you very much.

    Mr. Maloney.

    Mr. John Maloney (Erie—Lincoln, Lib.): The act deals with prohibitions and presumptions about the defendant as the parent of the victim. You say that in theory you don't disagree with the philosophy, just the wording of the actual legislation. Is that correct? Is there something we could do to massage this that you feel would be supportable by the bar?

º  (1615)  

[Translation]

    Mr. Dominique Goubau: When, on behalf of the Barreau du Québec, I say “the objective”, I obviously mean the very broad objective of the bill, that is to say child protection, but I do not mean action in terms of suspension or automatic restructuring of the right of access in case of incarceration for the crimes listed here. The Barreau du Québec is very firmly of the view that the best solution lies, first, in the use of the interests of the child criterion, as we currently know it in the Divorce Act and in all provincial legislation. That's it for the legislative side. Second, I think it must be borne in mind, because this is also what has come out of the recent federal-provincial-territorial consultation everywhere, in Quebec as well, the solution is to put in place services and mechanisms for the education of judges and the public concerning the problems raised by spousal abuse and family violence and the problems raised by sexual and physical abuse against children. In the view of the Barreau du Québec, the solution lies there, and the courts remain the ultimate guardian of that in a context in which both the public and the courts and the paralegal apparatus would be--this is related to the question of a moment ago--more sensitive to these questions and more educated about them.But the Barreau du Québec feels that the notion of the interests of the child, as it appears in the International Convention on the Rights of the Child of 1989, which was ratified by Canada in 1991, remains the most effective tool in the field.

[English]

    Mr. John Maloney: In a perfect world your response makes sense, but as Mr. Mills has provided you with letters saying this perfect world doesn't exist, and there are situations where this has happened, is it not time for us to send a wake-up call to the judiciary? Similarly, any presumption can be rebutted.

[Translation]

    Mr. Dominique Goubau: Allow me to answer that.

    The opinion of the Barreau du Québec, which is somewhat similar to what I said a moment ago, is that work must be done with regard to access to this legal debate, which must be the forum for determining the notion of the interests of the child.

    Not more recently than two years ago, in the course of a debate in relation to a youth protection act in New Brunswick, the Supreme Court of Canada held that a mother who was at risk of having her children removed had a constitutional right to access to legal aid. That's one way of fostering this debate, which must be done, but there is also the non-judicial route, education and services which are necessary to sensitize everyone to this. We are not in an ideal world when we think we can advance...

    When we look at where we are today in terms of our response to spousal abuse, whether with regard to legislation, the courts or, in general, socially, and when we see how the situation was 10 or 15 years ago, we see that major steps have been taken. It doesn't mean we're in an ideal world if we propose that we continue to develop the principle of using the criterion of the best interests of the child, as most countries have done in their legislation, but with the qualifications I have stated with regard to judicial intervention and access to justice.

    The Vice-Chair (Mr. John McKay (Scarborough East, Lib.)): Mr. Lanctôt, three minutes.

    Mr. Robert Lanctôt: Thank you.

    There's one premise that I find false. Mr. Mill, who originated the bill, says he has received opinions from legal experts and, in particular, from judges, according to which there was nothing in the act that enabled the court to render a judgment protecting the interests of the child. This has troubled me from the start. That's why I spoke about an exceptional case. It may be vary bad to base a law on exceptional cases. That's what troubles me in what I've heard.

    Mr. Goubau, I would like to ask you whether it is true that judges say the present act does not enable them to render satisfactory judgments. I'm not talking about presumptions. If that's what he meant, it's not at all the same thing. If people understand that, it's really too bad. Does the present act make it possible to render judgments prohibiting children from seeing an incarcerated parent?

º  (1620)  

    Mr. Dominique Goubau: Not only are there no barriers, but I cite a few examples in the report you have before you. The courts render decisions suspending the incarcerated parent's right of access and even--here I'm talking about Quebec--virtually final decisions depriving a parent of an attribute of parental authority in the case of serious crimes against children. I would not say that the judicial response is automatic, but the parties still must get as far as the court. The Barreau du Québec believes that here lies the problem, or part of the problem. It's a question of access to the legal debate. Is it because some people are poorly informed of their rights that it is appropriate to cut off access to the debate and to court decisions by saying that we're going to take the easy way out and that access will be automatically withdrawn in all cases unless the custodial parent agrees to maintain it? We think it would be a mistake to adopt provisions which, in the very short term, would go against the interests of many children.

    To answer your question more specifically, I would say that the legislation, both federal and provincial, in all provinces and territories, now gives the courts the necessary tools to suspend the right of access for an indeterminate period. I hasten to say, relying on the decisions published and on what we have heard from the parties, that this is generally what the courts do.

    It is of course natural that certain pathetic and dramatic cases are talked about. They exist and they will always exist. Even with the presumption, they will exist. I think we have to be careful not to generalize. We have to see the effect of each particular case, and it is precisely for that reason that courts exist.

    This has enabled me, once again, to underscore the position of the Barreau du Québec on this point.

[English]

    The Vice-Chair (Mr. John McKay): Mr. Macklin.

    Mr. Paul Harold Macklin: There is one other matter I would like to pursue. I don't know whether you can specifically relate to the situations that Mr. Mills has brought forward. I'm wondering if there is any argument to be made that it might have something to do with a lack of resources, a lack of legal aid support, or in fact a lack of proper counsel to give advice and to represent these individuals. It might be why we're running into these difficulties, why these cases are coming forward that seem to indicate to Mr. Mills that we do have a problem.

    I wonder whether you could comment on that perspective.

[Translation]

    Mr. Dominique Goubau: The comments I have to make are based on the important report on the federal-provincial-territorial consultation, which focused on this question of access and resources. The lack of resources has been emphasized across Canada. For example, everyone agrees that supervised access services are good, essential and important, but everyone also agrees that there are not enough of them. I think that this is one of the lessons that must be drawn from this report.

    That's one example, and I could cite others. I've mainly heard about what has happened in Quebec because I personally chaired the federal-provincial consultation for Quebec on behalf of the Quebec Department of Justice. I can tell you that the representatives of the shelters for battered women and victims of spousal abuse and family violence described the lack of resources in this area. I believe all these things are very much related in terms of a response to situations such as the one outlined in this bill. But I still think the lack of resources should not be offset by a statutory presumption which may have an opposite effect for other children. That's a serious danger that the Barreau du Québec really wanted to emphasize. That's why we made a considerable effort to produce this brief and insisted on being able to speak to you today.

[English]

    Mr. Paul Harold Macklin: So from your experience you don't have any reason to believe that it may be a matter that counsel are failing to raise with the judge in an appropriate manner...to get the response from the judge that Mr. Mills would like to see. Obviously, if you don't have a presumption that the judge relies upon, I think you rely upon counsel to raise and make the arguments on why this situation, this incarceration ought to be taken into consideration.

    So I have a concern. I'm looking at all the options. What is it? Is it a failure to bring the attention of the judge to this issue, or is it the failure of the judge to respond in an appropriate manner? For some reason, Mr. Mills is receiving these responses and I'd like to know what the underlying reason would be for this.

º  (1625)  

[Translation]

    Mr. Dominique Goubau: On that specific question, I don't think it's counsel's arguments that lead the judges to decide to maintain contact between a child and a parent who has been incarcerated for raping his child. There are objective facts which it is up to counsel to present to the judges. There are objective facts, not rhetoric about maintaining or suspending rights. Everyone agrees that there are horrible facts which, for the vast majority of judges, are sufficient factors for restructuring and generally suspending the right of access, and even depriving a parent of parental authority in Quebec. That's the reality.

    Now, are we living in a perfect world? Of course not. Are there lawyers who do a poor job? I'm in a poor position to say yes, since I represent the Barreau du Québec, but there are of course lawyers who do not always give the best advice in the world. I think that, regardless of the legislation, that will always be the case. Whatever the presumptions, there will always be tragic cases that must be settled in one way or another. I believe it is by refining and improving access to justice that we will do that.

    Here's an example. Since 1995 or 1996, so in the past seven or eight years, we have witnessed the emergence of a specialization in child law everywhere, particularly in Quebec. The Barreau du Québec has produced a very interesting brief on the role of child law lawyers. Everywhere in Canada, we see a proliferation of lawyers specializing in child law. There is a new emerging culture of family law and child law, as a result of which the judicial world is much more sensitive to all these questions. I believe I can say that children are now much better represented than they were 10 or 15 years ago. Of course, things must still be improved, but I dare believe we are headed toward something better in this regard.

    Of course, I say this while bearing in mind the slippage that occurs in the system, the dramatic cases that arise and which, in our view, will always occur, to which a response, if necessary, must come through a final legal debate as subtle and precise as possible, with expert opinions where possible, and financed where possible, but definitely not through a presumption that would be like a cleaver.

    Presumptions work very well, for example, in determining support. The Divorce Act was amended in 1997. There was some reluctance, but most people ultimately have found that it's a good thing, and it involves a presumption. I emphasize, however, that support is still determined by the courts, despite the presumptions and determination models, and that the federal support determination model, like all the systems in Canada and Quebec, has escape hatches that make it possible to say that, in a particular case, the presumption does not work because the father is in excessive difficulty. I believe that that argument is also valid with regard to the right of custody and right of access. This is precisely what the federal government emphasized in its response to the Special Joint Committee on Child Custody and Access.

[English]

    The Vice-Chair (Mr. John McKay): I would ask the witnesses to try to adhere to the three-minute timeline. I've been fairly generous because we don't have other parties represented here.

    Mr. Mills.

    Mr. Bob Mills: Thank you.

    I guess the point I really want to make is about the psychological victims that we're creating. Again, I had the advantage, or disadvantage, of seeing five-year-old and six-year-old little girls emotionally scarred by what they went through. I read here where people who are now parents of children were also victims of sexual assaults by parents. These are psychological victims out there.

    The two judges in this case--and I assume if we dug into it we'd find others--said there wasn't enough guidance to prevent access. And then you hear--I'm not a lawyer--Supreme Court justices saying “Well, if parliamentarians wanted it that way, they should have written it in the law”. Parliament is supposed to give guidance to judges as to a position.

    Whenever I hear a judge say there's not enough guidance in the law about preventing access of a father who raped a 13-year-old daughter and that he needs more guidance to say a five-year-old and six-year-old girl should not go into a prison and visit this person they last saw when the youngest one was one and a half years old--they don't know who this person is--I guess I say if there's even one victim out there, and I believe there's a heck of a pile of victims out there, we should try to do something.

    Now, I don't know exactly what we should do. That bill was written with the help of a number of lawyers, but I've also found I could go to different lawyers and get different opinions. I think everyone understands the motive here, so what I'm asking is do judges want some guidance, or don't they?

º  (1630)  

    Mr. Dominique Goubau: I don't know this particular case, but maybe this particular judge was misguided. I don't know.

[Translation]

    However, as I previously told the gentleman, I believe that judges now have all the elements and all the tools necessary to make good decisions. There is even a judicial guide, which I have not yet mentioned. In 1995 or 1996, in Gordon v. Goertz and in other subsequent cases, in particular D v. P in 1996 as well, the Supreme Court of Canada unanimously held that, if there is no presumption in favour of a decision of the custodial parent, the courts must nevertheless defer to the decisions made by custodial parents because they are the ones who know the child best, who are with the child daily. That's why judges must pay very special attention to the position and decision of the custodial parent.

    That's what the Supreme Court said, and Madam Justice Claire L'Heureux-Dubé has emphasized it twice.

    I can tell you, based on an analysis of court decisions across Canada which followed those Supreme Court decisions, that the courts generally attach considerable importance to the decisions of the custodial parents in matters such as the suspension of the right of access.

    With your permission, Mr. Chairman...

[English]

    The Vice-Chair (Mr. John McKay): I'll allow you time on the second question. We'll come back to you.

    Let's end with Mr. Mills and a final question. Do you want to carry on the dialogue you were having?

    Mr. Bob Mills: Yes.

    Again, I just see psychological victims. I hear there are more and more. I'm really familiar with the one because I saw it happening, and I saw the court system and what it did. I say it failed. It failed, because we now have two psychological victims.

    We have many others across this country. I haven't checked every province, but I think every province is probably represented in all this. It is only in the last couple of weeks that I've been inundated with this stuff. I hardly have time to read it.

    There are victims out there. And even if there is only one, it would seem to me that Parliament should give some guidance to judges. A suggestion is to have both parents justify how it's in the best interest of the child; do whatever, just so long as a judge is aware that you could be creating a victim. Obviously, in this case and in these other cases, they weren't aware of that.

    The Vice-Chair (Mr. John McKay): Would either of you like to respond on that?

[Translation]

    Mr. Dominique Goubau: Of course, it's difficult to control, but it could be that, in a particular case, a custodial parent is very dissatisfied with continued contact between the child and the incarcerated parent, whereas the court may have had, as we see in practice, an assessment by an expert designated by the court showing that, in that specific case, some contact should be maintained. I don't know whether that's the case.

    Allow me to compare that with provincial youth protection acts. Youth protection is a provincial jurisdiction, and all provinces have a child protection law; Quebec has one as well.

    Child protection directors across Canada obviously do their work as best they can, but sometimes they make a mistake and fail to remove a child victim from his environment. Does that mean that there should be a presumption in the Child Protection Act ensuring that, from the moment any violence occurs, children are all automatically removed from their environment? Of course not, and no one would contend such a position.

    However, should intervention work be improved in situations such as this? Of course, and that is done in particular by improving services, by providing better access to the courts and by educating judges.

º  (1635)  

[English]

    The Vice-Chair (Mr. John McKay): Thank you. That's the last question.

    I want to thank the witnesses on behalf of the committee for their assistance in dealing with this issue. One hates to give the last word to a law professor, though.

    Some hon. members: Oh, oh!

    The Vice-Chair (Mr. John McKay): On behalf of our chair, I want to wish you all a good summer. This is our last meeting. It's the one hundredth meeting of our committee, and I suppose we'll see you in the fall. Have a good summer.

    Thank you again.