Criminalizing coercive control

Canada is on the verge of becoming the latest jurisdiction – after England-Wales, Scotland, Ireland and Australia – to make coercive control by an intimate partner a criminal offence.

Legislation working its way through Parliament defines coercive control as engaging in controlling or coercive conduct involving exploitation, humiliation, manipulation or isolation of another person, which has a significant impact on them, including a fear of violence, a decline in their physical or mental health or a substantial adverse effect on their day-to-day activities.

Justice Minister Arif Virani sees criminalizing the act as a way to combat femicide — the killing of a woman by a past or present intimate partner. He has called gender-based violence an “epidemic requiring immediate action.”

According to Statistics Canada, 1,125 gender-related homicides occurred in this country between 2011 and 2021. In 2020, rates spiked, with 160 femicides that year –- one every 2.5 days. Sixty-six per cent of the killers were intimate partners, while 28 per cent were family members.Indigenous women, who make up just five per cent of the population accounted for 21 per cent of deaths by intimate partner.

So far in 2024, the Canadian Femicide Observatory for Justice and Accountability says there have been 168 femicides.

Currently in Canada, domestic violence charges can be laid in response to a single incident of aggression.

Bill C-332, a private member’s bill introduced by NDP MP Laurel Collins, would create a coercive control offence and carry a penalty of up to 10 years in prison.

However, it has not been without its detractors.

One recurring criticism, particularly during House of Commons committee hearings, is that criminalizing coercive control just puts another tool in the abusers’ toolbox to manipulate the law.

A wily aggressor, critics say, could turn the tables and brand a marginalized, racialized or immigrant partner as the aggressor.

Virani proposed amendments to the bill in response to concerns, drawing on laws criminalizing coercive control in other jurisdictions.

The bill now sets out a non-exhaustive list of repeated patterns, such as threats, controlling behaviour, and harassment deemed to be coercive control. It also now states that a judge can prevent an accused from cross-examining an alleged victim at trial. While the original bill set a two-year limit on charges after a relationship ends, there is now no limit on charges arising from previous relationships.

The amended bill was adopted unanimously in the House of Commons and is now working its way through the Senate.

Virani’s spokesperson said in an email that the government is examining how the criminal justice system responds to femicide and how that response can be strengthened.

The Canadian Bar Association’s criminal law section believes that a new offence is not necessary, as existing  Criminal Code provisions address behaviours associated with controlling or coercive conduct. These include threatening assault, assault, assault causing bodily harm, sexual assault, confinement, and attempts at any of those offences.

Melanie Webb, a criminal lawyer at Webb Barristers in Toronto and member of the section, says that even after an extensive rewrite of the initial bill, which was “quite vague,” she maintains her opposition.

While it’s likely to become law, Webb wonders whether it will be effective.

“I think it remains to be seen where this will go.”

The CBA’s family law section has a different view of the proposed legislation, as members say the current criminal law response silos violence into separate incidents and measures seriousness by the threat of injury or as experienced by the victim.

In a parliamentary submission, family practitioners said this approach misses the mark, as in most cases, “tactics other than violence are the most salient and consequential” and are done to undermine the victim’s autonomy.

Shelley Hounsell, a past chair of the family law section who practices in Nova Scotia, says the coercive control label is important because “people experienced it, but nobody had a name, and if you can't identify something with a name, it's hard to advance.”

This labelling began in Canada with the 2021 amendments to the Divorce Act. Family lawyers applauded the changes, which identified that cluster of behaviours as constituting coercive and controlling violence. 

“We don't have broken bones,” Hounsell says. “We never really did in family law, but we had a lot of harm happening.”

Criminal Code convictions for coercive control will give family courts more credibility in dealing with abusive behaviour, she adds.

“Controlling violence is not only going to be a criminal offence, it is a serious criminal offence.”

Carmen Gill, a University of New Brunswick sociologist whose research focuses on police intervention in intimate partner violence and domestic homicide, agrees.

“Right now, if there is no physical violence, no damage to property, there's no crime,” she says.

“The only time there's physical violence is when she is killed.”

Gill also welcomed amendments to the bill recognizing the connection between human and animal violence. She says aggressors can exercise control over a partner by threatening to harm a pet. People will stay in the harmful relationship out of fear for their pets if they leave and are unable to take them.

“I've seen women stay because they were worried for the cows on the farm,” Gill says.

If passed, the legislation would criminalize attempted and threatened violence toward an intimate partner’s animal, as well as controlling or attempting to control how an intimate partner cares for their companion animal.

Proponents of criminalizing coercive control also point to a high correlation between a pattern of aggression and rising cases of femicide of an intimate partner.

Karine Barrette, a lawyer with Regroupement des maisons pour femmes victimes de violence conjugale in Montreal, has met with lawyers in Britain who estimate 92 per cent of femicide victims there were first subjected to coercive control.

Lawyers in Australia told her the link in New South Wales is closer to 100 per cent.

At Oshawa-based Luke’s Place, which helps women and children navigate the family law process as they flee abusive relationships, Legal Director Emily Murray says although her organization remains opposed to criminalization, amendments to the bill have been positive.

Luke's Place is drafting a brief for the Senate committee hearings to call for a delay before the law comes into force to allow police, prosecutors and judges to receive education and training on coercive control.

“People don’t understand it,” says Murray, who supports the Women’s Legal Education and Action Fund’s call for the creation of a gender-based violence commissioner in Canada.

In New South Wales, the coercive control law was adopted in November 2022 but only came into force on July 1, 2024. During the 18-month delay, police officers and prosecutors received training to help them understand how to frame and successfully prosecute coercive control cases.

Similarly, in Queensland, Australia, a law on coercive control comes into force next May.

Barrette’s group started training Quebec police to detect and gather evidence of coercive control even before C-332 was presented. She said the red flags and other indicators in these situations are warning signs of a potential for more serious aggression.

“When we are aware that there is coercive control, we can change the trajectory of what is happening,” she says.

“It is super important that police officers and investigators are capable of understanding this.”