The Quebec government should establish a comprehensive “made in Quebec” legal framework to tackle intimate partner violence by creating a specific right to adequate housing under the Quebec Charter of Human Rights and Freedoms and introduce comprehensive legislation that institutes a right to be free from domestic violence that includes legal recourses in civil matters, according to a report by legal experts.
Successive governments in Quebec have made important strides to provide better support to victims of intimate partner violence but “the time has come” to establish necessary policy foundations for a rights-based approach that should be anchored by Quebec’s international human rights obligations, affirms the report. The expert panel calls on the provincial government to follow in the footsteps of the federal government’s 2019 National Housing Strategy Act and explicitly incorporate the International Covenant on Economic, Social and Cultural Rights (ICESCR), a multilateral treaty signed by the United Nations General Assembly that came in force in 1976, in Quebec law.
“When you build your legal framework around a positive right, that’s going to change the entire approach,” remarked Pearl Eliadis, a McGill law professor and co-chair of the Gender Research Stream, one of several branches of the Québec Homelessness Prevention Policy Collaborative, that penned the report. The collaborative, founded in 2021, was established to advance policy reforms in Quebec to prevent homelessness. It is a joint effort between the McGill Department of Equity, Ethics, and Policy and the Old Brewery Mission, Quebec’s largest service provider for homeless men and the largest in Canada for homeless women.
Intimate partner violence, after a period of decline, has been on the rise in Quebec and the rest of Canada since 2016, according to Statistics Canada. In Canada, 44 per cent of women who have been in an intimate partner relationship, or about 6.2 million women, reported experiencing some kind of psychological, physical, or sexual violence in their intimate relationship in their lifetime, found a 2018 Statistics Canada survey. In Quebec, a 2020 report from the Quebec Ministry of Public Security revealed there were 19,906 reported victims of conjugal violence, 71 per cent of whom were female.
The COVID-19 pandemic has aggravated the situation. A Statistics Canada survey found that between March 2020 and July 2020, 54 per cent of victim’s services agencies reported an increase in the number of victims of intimate partner violence. The same holds true in Quebec, with approximately half of Quebec shelter and second step housing facilities reported a strong increase in demand and an inability to meet needs, notes the report entitled “Law Reform Opportunities in Quebec for Women Experiencing Intimate Partner Violence.”
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Women, and their children, fleeing toxic relationships face, besides physical and psychological violence, dire challenges, compounded by housing insecurity. The lack of affordable, social housing or second step housing (safe and affordable housing for victims who have left abusive relationships as they make plans for independent living) has become more acute since the pandemic, according to the report. Canada’s low social housing supply exacerbates the situation. Canada ranks among the lowest of OECD countries, with only four per cent of total housing units deemed to be part of the social housing supply, compared to 18 per cent in the United Kingdom and 19 per cent in France, notes the report. In In 2018, 13.5 per cent, or 628,700, of Canadian households lived in affordable or social housing compared to 10.2 per cent in Quebec.
“Given the reality of the levels of violence and threats that women face, it is essential to address the issue of housing supply and to increase the amount and quality of emergency, transitional and social housing,” states the report, who counts among its collaborators McGill law professor Lara Khoury, McGill Faculty of Medicine professor Anne Andermann, and Melpa Kamateros, executive director and co-founder of Shield of Athena Family Services.
That’s why the report proposes a rights-based approach as it extends beyond compliance with the law to ensure that the design, development and implementation of policy are defined by human rights principles and are “operationally directed” at promoting and protecting human rights.
“From a policy perspective, legislators will often think about law as the outcome, the thing that happens at the end of the policy process,” explained Eliadis. “What’s the problem, what’s the proper solution, and let’s have a law, and then law becomes one of the policy products.
“What we’re saying is that Quebec needs to recognize the right to adequate housing, contained in the ICESCR, which Canada acceded to in 1976 but has never been incorporated into Quebec’s legal context. The federal government has incorporated it since 2019, but housing is a matter of provincial jurisdiction so you need to have harmonization of the federal and the provincial area. Law in this context, the international human rights norms and the Canadian (and Quebec) Charter need to be seen as a policy compass that directs us to the result. Those norms need to be driving the policy, not just be seen as policy outcomes.”
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In order to reduce of housing insecurity for “survivors” of intimate partner violence, the report calls on the Quebec government to unequivocally recognize the right to adequate housing by amending the Quebec Charter. In international law, the right to adequate housing encompasses elements such as accessibility, affordability, availability of services, habitability, location, legal security of tenure and culturally adequate housing. But the report is recommending far more than just a declaration of the right in the Quebec Charter. It also advises the creation of strong oversight and accountability measures, including an independent housing rights advocate to promote and protect the right to housing.
“Amending the Quebec Charter will cost nothing but it’s a symbolic starting point,” said Eliadis. “It’s a recognition of social solidarity, if you will, which is how Quebec approaches these kinds of issues. But the next step, and this is the novel recommendation, is not only to have a symbolic recognition in the Charter but then to move forward with legislation that requires the government to put in place planning and accountability measures like the Federal National Housing Strategy, but adapted to Quebec’s realities.”
According to Morton Minc, former Chief Justice of the Municipal Court of Montreal who offered his insights to authors of the report, enacting a right to adequate housing in the Quebec Charter would be “quite an accomplishment and make a world of difference” because it would introduce a positive obligation on the Quebec government, acknowledge that the issue is being addressed on a “higher level,” and would lay the foundation for a homeless person to have recourse.
The Quebec government should also enact comprehensive legislation that creates a right to be free from domestic violence, said the report. The new framework should have a clear and inclusive definition that would make it easier for the courts to recognize forms of domestic violence, including the notion of coercive control, beyond what the Criminal Code recognizes as threats, assault and criminal harassment. provide protection to victims, asserts the report. “The reality right now in Quebec is that we do not have the tools to equip the courts to identify this kind of behaviour,” noted Eliadis.
But Minc is far from certain that this is a wise approach. “It would hamper the courts,” said Minc. “You can’t be that restrictive when you’re trying to give a definition of what is partner domestic violence. And I think by trying to give a definition, then it’ll restrain the court from giving its interpretation in each individual case.”
Besides a clear definition of intimate partner violence, the report urges the government to introduce legislation that would make it easier for the courts to provide protection to victims, particularly in a civil context, where there is a lower threshold of proof. This would also allow the courts to order wider and more flexible range of protective orders such as sanctions, restraining orders and exclusive occupancy of the family home. Further, the report suggests amending the Civil Code of Quebec to prevent eviction and maintain women and children in rental leases. It also recommends that the Quebec government undertake a study to examine the feasibility of implementing integrated domestic violence courts, as is the case in Ontario. “We need to look at it carefully as a potential option,” said Eliadis. “We think this is a more victim-centred approach, We appreciate that this would be a massive change to the legal system, and that there are concerns with integrated courts.”
Minc, who describes the notion of an integrated court as a “very interesting idea,” nevertheless believes that it might pose practical challenges. “In practice, it might be difficult,” said Minc. “You have civil judges and then you have criminal judges, and from just an organizational point of view, it might be very difficult to do.”
This story was originally published in The Lawyer’s Daily (now known as Law360 Canada).