Caution urged over proposed coercive conduct amendments

In a nutshell: A proposed amendment to s. 264 of the Criminal Code to create a new criminal offence of “engaging in controlling or coercive conduct” that has a “significant impact” on the intended victim is “not ripe for approval,” the CBA’s Criminal Justice and Family Law Sections wrote in a recent submission. The two Sections, who have taken different positions on Bill C-332, a private member’s bill, would benefit from wider consultation before it becomes law.

Criminal Law Section concerns:

• Existing Criminal Code provisions already address behaviours associated with controlling or coercive conduct, raising doubts about the necessity of a new offence.
• Proving “significant impact” is problematic. Either it not measurable or it presents difficulty in proving a criminal standard. What’s more, alternative legal tools like peace bonds and protection orders are already available to the person fearing violence.

Family Law Section concerns:

• It sees problems in the criminal law’s current approach to addressing family violence and recognizes the need for amendments to reflect better the realities faced by victims. In the Family Law Section’s view, criminal law approaches the issue through a “violent incident model,” which isolates each act of violence as a separate incident. However, this fails to adequately address the harm experienced by victims of family violence, which is often measured by its frequency and duration rather than the severity of individual incidents.
• The Section proposes expanding and clarifying definitions related to controlling or coercive behaviour, using plain language, ensuring they align with experiences and research from other jurisdictions. The submission cites New South Wales, Australia, as a successful example.

For family law practitioners, having clear language to articulate the violence experienced by their clients is crucial. Equally important is ensuring that police, judges, and other stakeholders in the justice system– to say nothing of victims themselves – understand the definition of coercive and controlling behavior.

Looking back at the CBA’s work

In 2018, the CBA strongly supported the adoption of Bill C-78, which amended the Divorce Act and its definition of “family violence.” The CBA’s submission at the time included recommendations to enhance that definition, particularly by clarifying psychological and financial violence. The implementation of these amendments in 2021 led to a notable shift in family law practice.

Read the full submission.