Should Canada criminalize coercive controlling behaviour?

Woman looks out window

As Crystal Giesbrecht recently wrote in The Lawyer’s Daily, coercive control in situations of intimate partner abuse is often unidentified or misunderstood.

While, as she noted, coercive control is not a criminal offence in Canada, that could change if MP Randall Garrison has his way. Last fall, he introduced a private member’s bill – Bill C-247 – that would amend the Criminal Code to make engaging in controlling or coercive conduct an offence.

This would mark a significant change in Canada’s response to intimate partner abuse. While many forms of intimate partner abuse constitute criminal offences, they fall within general offences such as assault, sexual assault forcible confinement, criminal harassment and others. Unlike in many other countries, there is no offence that is specific to the abuse that can happen in intimate relationships.

Bill C-247 would make it an offence for someone to “repeatedly or continuously engage in controlling or coercive conduct towards a person with whom they are connected. . .”

The meaning of “connected” is later defined to mean two people in different kinds of intimate relationships, either current or past or who share parenting responsibilities.

Is this the right move?

There are pros and cons to using the criminal law to regulate and respond to violence within the family. Certainly, most of us want to live in a society in which these kinds of abusive behaviours are taken seriously, where there are consequences for those who engage in them, measures to keep survivors safe and steady movement to eliminate them. Criminal law may have the ability to assist with at least some of those goals, but it is not the answer to all of them.

Many of those subjected to abuse by their intimate partner are reluctant to contact the police for a wide range of valid reasons. Evidence is often difficult to put together, given the intensely private nature of these behaviours. The criminal standard of proof – an important cornerstone of Canada’s justice system – is challenging to meet when the evidence consists of nothing more than two sets of contradictory statements. The general lack of a gender-based understanding of family violence in Canada’s legal systems interferes with proper outcomes in these cases. Abusers sometimes hold the threat of family law consequences over their partner to stop them from calling the police. Whether legally realistic or not, those threats can be enough to stop the victim from contacting the authorities.

In other words, we should not assume that creating a specific crime to respond to harm caused by one intimate partner to the other will solve the problem of family violence.

Can we learn from others?

Other countries have already tackled the question of criminalizing family abuse, including coercive control.

Some jurisdictions, including Victoria and Queensland in Australia have opted not to go the criminal route. Some states in the U.S. are considering criminalizing coercive control.

In Tasmania, emotional abuse or intimidation has been a criminal offence since 2004, although there have been few prosecutions. Scotland, in 2019, rejected the creation of an offence of coercive control, instead creating the more general offence of domestic abuse, which is intended to cover a range of behaviours, some already criminalized and others not. Ireland passed legislation to make coercive control a criminal offence in 2019, with the first conviction late last year.

The United Kingdom has the most extensive criminal legislation relating to coercive control, passed in 2015, which has led to an increase in the number of charges for this kind of behaviour, but the level of conviction remains low.

Importantly, in the UK, the legislation carried with it significant resourcing for education and training for all those in the criminal system as well as supports for survivors.

 What should Canada consider?

Before we move to criminalize coercive control, we need a national dialogue about how we, as a country, want to engage the criminal law in responding to and ending intimate partner abuse.  Such a dialogue should involve a wide range of stakeholders including police, Crowns, defence counsel, judges, survivors and those who serve them on the frontlines, who could explore the many and nuanced questions that need to be answered before decisions with long-reaching implications are made.

Let’s learn from our own past. When federal, provincial and territorial governments introduced domestic violence mandatory charging directives in the mid-1980s, it was a logical response to the very low charging rate in these cases. However, in the 35 years since, we have seen how that directive has backfired, with women being inappropriately charged, triggering unnecessary child protection investigations, bad outcomes in custody and access cases and other negative consequences for victims of abuse.

Bill C-247 offers us the opportunity to avoid those and to find a way to move forward so that a tool intended to protect victims of intimate partner abuse won’t be, unintentionally, turned into a weapon to be used against them.

This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.