Letter to Minister David Lametti on Canadian legislation recognizing coercive control as an offence

June 5, 2020

The Honourable David Lametti, P.C., Q.C.
Minister of Justice and Attorney General of Canada
House of Commons,
Ottawa, Ontario K1A 0A6

 

Dear Minister Lametti,

As the Federal Ombudsman for Victims of Crime, an important part of my role is to recommend ways that the federal government can make its laws, policies and programs more responsive to victims’ needs. I am writing to you regarding the issue of coercive controlling behaviours in relationships, which are repetitive and ongoing behaviours against an intimate partner. Experts define coercive control as involving controlling/proprietary behaviours, psychological abuse, sexual jealousy, and stalking where perpetrators may make implicit or explicit threats, use physical or sexual violence, destroy the victim’s personal property, and isolate or intimidate the victim by closely monitoring their behaviours and interactions with other people. I strongly believe there is a need for legislation to criminalize this pervasive form of psychological violence in intimate partner relationships in Canada. It is long time that non-physical violence be recognized as equally harmful to victims.

Intimate partner violence is a largely hidden and underreported crime, with only about one third of victims coming forward to the police. In 2016, over 93,000 Canadians reported being victims of intimate partner violence to the police, and victims of intimate partner violence are disproportionately female. Coercive control takes shape around the prevalence of male dominance and male supremacy relative to women, with tactics that are often rooted in historical gender norms. Evan Stark, sociologist, forensic social worker and award-winning researcher, notes that as women have gained more autonomy in the past few decades, the deployment of coercive control tactics by men serve as a response to the increase of women’s agency.

From a criminal justice perspective, it can be difficult to recognize specific behaviours as being part of an intimate partner violence dynamic. Within the Canadian criminal justice system, intimate partner violence is approached as an incident-based problem, and it is treated as an episodic or one-time event. However, this approach fails to address additional and repetitive tactics used by abusers that include exploitation, manipulation, intimidation, isolation, and micro-regulation of daily life: otherwise known as coercive control. Coercive control instills fear and compliance in an intimate partner, and ultimately eliminates their sense of freedom and sense of identity in the relationship. Experts have also identified coercive and controlling behaviours as important precursors for femicide worldwide.

Victims are often ashamed to disclose their situation and are reluctant to seek help due to their lack of trust in the criminal justice system. Despite its prevalence, there is a lack of corresponding offences for intimate partner violence, which recognize its’ dynamics as being separate from other types of assault. This makes it extremely difficult for law enforcement to intervene effectively.

Because this type of behaviour is completely hidden from a justice system response in Canada, victims continue to suffer deep and lasting harm. Other countries have developed and adopted new offences related to coercive control behaviour in recent years, such as England and Wales (2015), Ireland (2019), and Scotland (2019). Statistics from England and Wales reported that by the 2018 year-end, there were 9,053-recorded offences of coercive control, demonstrating the necessity to recognize coercive control as a criminal offence. I believe Canada should follow other Five Eyes countries by recognizing the behaviours of coercive control as a criminal offence.

According to the Home Office Statutory Guidance Framework used in England and Wales, they have identified a list of seventeen behaviours that could be included in coercive controlling behaviours. They are:

• isolating a person from their friends and family;
• depriving them of their basic needs;
• monitoring their time;
• monitoring a person via online communication tools or using spyware;
• taking control over aspects of their everyday life, such as where they can go, who they can see, what to wear and when they can sleep;
• depriving them of access to support services, such as specialist support or medical services;
• repeatedly putting them down such as telling them they are worthless;
• enforcing rules and activity which humiliate, degrade or dehumanise the victim;
• forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of children to encourage self-blame and prevent disclosure to authorities;
• financial abuse including control of finances, such as only allowing a person a punitive allowance;
• threats to hurt or kill;
• threats to a child;
• threats to reveal or publish private information (e.g. threatening to ‘out’ someone);
• assault;
• criminal damage (such as destruction of household goods);
• rape;
• preventing a person from having access to transport or from working.

And, the definition emphasizes the behaviour is repeated and continuous under Section 76 of the Serious Crime Act 2015.

Controlling or coercive behaviour in an intimate or family relationship A person (A) commits an offence if—

1. A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
2. at the time of the behaviour, A and B are personally connected,
3. the behaviour has a serious effect on B, and
4. A knows or ought to know that the behaviour will have a serious effect on B.

This framework is a roadmap that Canada could follow to recognize the serious implications of coercive control on victims of intimate partner violence. Those with lived experience and those who work in the field are very familiar with the impacts.

In March, my team and I held a community forum in Yellowknife to increase our engagement with victims of crime in the North. We heard from victim services providers, criminal justice personnel, survivors and advocates about their lived experiences with crime and our criminal justice system. There was general agreement among participants that the criminal justice system has not evolved to recognize the realities of intimate partner violence and coercive control. One participant pointed out:

“Assault is what happens when you get into a brawl at a bar. Intimate partner violence is about psychological or financial abuse. These need to be recognized as forms of violence.”

The sentiment above is echoed by many survivors who contact my Office from coast to coast to coast. Recently my office commissioned Dr. Carmen Gill to write a research paper on this issue entitled - Understanding coercive control in the context of intimate partner violence in Canada: How to address the issue through the criminal justice system? In this paper, she notes that coercive control is the underpinning dynamic in the vast majority of intimate partner violence relationships. This paper also includes extensive background on the legislative frameworks passed recently in Europe. I have included this research paper for your reference.

In order to improve access to justice for victims and address a gap in the Canadian legal response to intimate partner violence, I recommend the following:

1. Creation of new offence of coercive control
   Update the Criminal Code of Canada to include coercive control as a criminal offence. This new offence would expand the understanding of the issue beyond that of the incident-based approach and provide recognition of a pattern of psychological violence that causes fear and harm to victims in intimate relationships.
   I recommend the creation of a task force or committee comprised of criminal justice representatives from all levels (police officers, prosecutors, defence lawyers) including experts on coercive controlling behaviours and intimate partner violence, and representatives of victim services, to lay the groundwork of the amendments needed.
2. Legal test to coercive control
   I recommend using of the description of coercive control adopted by the Home Office in the United Kingdom as a starting point for a legal test. The statutory guidance framework offers a rationale for the offence as well as a broad description of what encompasses coercive controlling behaviour. Of course, any definition developed should reflect a Canadian way of defining the issue.
3. Federal/Provincial/Territorial working group to review legislation, policies pertaining to intimate partner violence
   I recommend the creation of an FPT working group to support collaboration from Ministers responsible for Justice and Public Safety at the Federal/Provincial/Territorial level. The creation of a new offence related to intimate partner violence will have policing and justice implications in all jurisdictions coast to coast to coast. Application of the Criminal Code of Canada should be consistent and the response to intimate partner violence must reflect upon a pattern of violence, beyond the single-incident offence.

The Canadian legal and justice systems must be more responsive to the lived realities of victims and survivors of intimate partner violence. These realities often involve fewer overt acts of physical aggression and violence, and more repeated patterns of intimate terrorism in the form of psychological abuses and coercive control. Victims and survivors deserve access to justice, which is often not possible due to our limited legislative framework. By making necessary Criminal Code amendments, we can improve women and children’s safety. We can also address current police limitations in recognizing these coercive controlling behaviours when responding to situations of intimate partner violence. In my view and experience working directly with victims and survivors, it is time to address this gap in legislation.

If I can provide additional information to encourage this consideration, please feel free to contact me. I look forward to your response and to continuing to work with you to bring about positive change for victims and survivors of crime in Canada.

Sincerely,

 

 

Heidi Illingworth
Federal Ombudsman for Victims of Crime