Keira Kagan’s favourite t-shirt was emblazoned with the words “I can change the world.” Tragically, she had little time to do that: on February 9, 2020, four-year-old Keira died while in her father’s care in a manner that Ontario’s Domestic Violence Death Review Committee found to be “consistent” with intimate-partner-violence related father-child murder-suicides. A coroner’s inquest will be held into Keira’s death.
With the passage of Bill C-233, commonly known as “Keira’s Law,” last week, it could be said that Keira did, in fact, change the world. As her courageous mother, Jennifer, said in an interview on CBC’s Power and Politics:
Educating judges
Introduced in 2022 as a private member’s bill (PMB) by Liberal MP Anju Dhillon, and supported by fellow Liberal caucus members Pam Damoff and Ya’ara Saks, Bill C-233 passed third reading in the House of Commons with the unanimous support of MPs from all parties. It’s unusual enough for a PMB to make it through third reading; for any Bill to pass without opposition — especially in these times of extreme partisan politics– is almost unheard of. On April 19th, it passed third reading in the Senate and now awaits royal assent.
Bill C-233 contains two distinct elements: The first, which is not my focus here, will increase the use of electronic monitoring for those charged with offences related to intimate partner violence while they are on bail awaiting trial.
The second will change two sections of the Judges Act. Keira’s Law takes revisions made in 2021 to establish courses for judges on the topic of sexual assault one step further, expanding the scope to include intimate partner violence by creating:
“seminars for the continuing education of judges, including seminars on matters related to sexual assault law, intimate partner violence, coercive control in intimate partner and family relationships and social context, which includes systemic racism and systemic discrimination.”
An important first step
Judicial independence is a fundamental principle of the Canadian judicial system. As the Canadian Judicial Council website states:
This commitment to a separation of power, while critically important, has proven to be a roadblock to much-needed judicial education, especially on topics like gender-based violence and other so-called social issues.
Keira’s Law is a very important step in the right direction, but it must be noted that, as the Judges Act reads, the education proposed is permissive: Section 60(2) states that “the Council may” establish these seminars. It does not require it to, nor does it state that participation will be mandatory.
As always with new or revised legislation, the devil will be in the details: How soon will the CJC move to establish these seminars? How will judges be encouraged to attend? How will the content be developed and delivered, and by whom? Will there be any kind of evaluation process to assess what is actually learned and whether it is applied?
Reasons for hope
Despite these uncertainties, there are reasons to be hopeful that passage of this Bill moves us significantly in the right direction.
First, changes to the Divorce Act that came into effect in 2021 include a comprehensive definition of family violence that explicitly includes coercive control. Those changes require judges to consider the presence of family violence when making decisions related to children. In the first two years of implementation, we have seen better outcomes in some cases involving family violence. Lawyers who put these cases in front of the court and judges who hear them are following the intention of the legislation. As a result, an increased number of decisions make explicit reference to family violence and acknowledge its relevance to parenting arrangements.
Second, some time ago, the National Judicial Institute — which provides educational programs to judges across Canada — developed and delivered a series of seminars for both family and criminal court judges on how to manage cases involving domestic violence. I was part of that work and, in my experience, the judges who participated came with an interest in learning. They asked tough questions, they shared their fears about the consequences of getting these cases wrong, and they reflected openly about how they could do their jobs as well as possible to minimize further harm to women and children who had been subjected to abuse.
Third, a few years ago, Luke’s Place was contracted by Legal Aid Ontario to provide one-day seminars to all of its employees as well as per diem lawyers and community legal clinics – participation was mandatory – on the dynamics of domestic violence. Over a three-year period, we presented this training countless time to hundreds of participants. Many entered the room unwillingly, some even resentfully but, without exception, the evaluations of the training were positive. Many participants spoke with me at the end of the day, admitting that they had only come because they “had to,” but that they had found the training interesting and helpful and were glad they had attended.
Fourth, this is a time of heightened awareness about intimate partner violence. The pandemic led to higher rates of IPV than ever, and those rates have stayed high. Media analysis of this has shone a spotlight on what those of us who work in the field have long known: IPV is a serious public health epidemic. The CKW inquest in Renfrew County and the Mass Casualty Commission in Nova Scotia further direct public and political attention to the seriousness of intimate partner violence and the urgent need to address it meaningfully.
In other words, the time is right for this legislation.
As Jennifer Kagan said in her Power and Politics interview:
“Keira was failed by the court system. Had the judge on her case had education and training on domestic violence it would have made considerable difference for Keira. We hope that this piece of legislation will save lives of other children.”