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Creating a Criminal Code of Canada offence that specifically sanctions coercive control in cases of intimate partner violence would do little to protect women and children and may do more harm than good, said Osgoode Hall Law School Professor Janet Mosher in a recent submission to the federal Department of Justice.
Bill C-332, a private member’s bill calling for an offence of coercive control to be added to the Criminal Code, is currently awaiting second reading in the House of Commons. It builds on a similar bill put forward by the New Democratic Party two years ago, which died on the order paper.
Mosher and her co-authors, Osgoode PhD student Shushanna Harris, University of Calgary law Professor Jennifer Koshan and University of Saskatchewan law Professor Wanda Wiegers, submitted their paper last month in response to a Justice Canada invitation for comment on the proposed bill.
In intimate relationships, coercive control can take the form of enforced isolation, surveillance, threats, degradation, humiliation, and sometimes physical and sexual violence. It can leave women and children feeling like they’re walking on eggshells, the experience inflicting lasting psychological scars and, in some cases, post-traumatic stress disorder. Elements of coercive control are among the risk factors correlated with lethal violence.
“There's agreement that coercive control is a serious problem and needs to be understood by all actors in the legal system,” said Mosher.
“But there's not good evidence that creating more criminal offences or increasing penalties actually works generally to deter this kind of violence,” she added. “And we also know that there are really significant problems in how the criminal justice system currently responds to intimate partner violence.”
A parliamentary committee that investigated the issue in April 2021 recommended the government consider drafting legislation directed at coercive control. In recent years, changes to the federal Divorce Act and Ontario’s Children’s Law Reform Act have redefined family violence to include coercive and controlling behaviour. The Canadian Association of Chiefs of Police has also advocated for new offences specifically targeting coercive control.
But Mosher said evidence from countries such as England, which has had an offence of coercive control since 2015, is that judges, lawyers and police officers have difficulty conceiving of an offence based on a pattern of conduct and often misunderstand what coercive control is.
“It has lots of different components,” she added. “There are many different tactics. And it's very much not focused on a single incident or a small handful of incidents, but it's looking at a pattern of conduct over time.
“So in terms of proving it and getting the evidence before a decision maker, it's pretty complicated,” she explained. “It takes time and it takes resources, in addition to knowledge and understanding.”
The experience in England is telling, she noted: A recent study found that six of seven cases of coercive control were discontinued due to evidentiary challenges.
In their submission to the Department of Justice, Mosher and her co-authors also argue that a specific Criminal Code provision would be ineffective in deterring coercive control because most women who experience intimate partner violence do not contact the police. That’s especially true for Black, Indigenous and queer women.
“Contacting the police has many potential ramifications,” she said. “If you have children, the child welfare authorities will be notified. If you're a Black woman or an Indigenous woman, you're much more likely to have your children taken from you. That's a reason why you might not contact the police.”
Just as concerning, she added, is how many women – more likely marginalized women – are wrongfully charged with domestic violence-related offences because of police misunderstanding or the abusive partners’ manipulation of the legal system. Adding an offence of coercive control opens up even more opportunities for manipulation, said Mosher.
Even if a woman calls the police and it results in a charge, there is little protection that comes from that, she said. “It may make some women and children safer, but it will actually, in our view, make many women and children less safe.”
She said that the March 2023 report of the Nova Scotia Mass Casualty Commission, which conducted a public inquiry into the 2020 shooting of 22 people in and around Portapique, N.S., concluded that strong community-based responses to intimate partner violence that give women safe spaces would be more effective than carceral responses in protecting women and children.
A national action plan released in 2021 by Women’s Shelters Canada provides many solid recommendations on ending violence against women, said Mosher, including providing adequate income, adequate safe housing, and better and early interventions for abusers.