Thank you, Chair. I'd be very pleased to give a technical overview of the various components of the proposed provisions in this amendment.
This proposed coercive control offence would prohibit engaging in “a pattern of conduct”, which is the act element of the offence, with the intent to cause an accused's intimate partner to believe their physical or psychological safety is threatened, or being reckless as to whether their pattern of conduct could have this effect. This is the fault or mental element of the offence.
In respect of the mental element in proposed subsection 264.01(1), a person who intends to cause their intimate partner to believe their safety is threatened either desires that outcome or is virtually certain that their conduct will result in that outcome. A person who is reckless as to whether their conduct could cause their intimate partner to believe their safety is threatened is aware that their conduct is likely to have that result and proceeds to engage in the conduct despite that risk.
This approach is closely modelled on the mental element in Scotland's domestic abuse offence, but uses terminology that has meaning in Canadian criminal law. For example, “intimate partner” is defined in section 2 of the Criminal Code as including “current or former spouse, common-law partner and dating partner”. “Pattern” has been interpreted in the context of the dangerous offender provisions to apply where conduct is engaged in at least twice. “Safety” has been interpreted in the criminal harassment and human trafficking context to include psychological safety.
I'll now move to the act element of the offence in proposed subsection 264.01(2). The act element is, as I've said, engaging in a pattern of conduct. That is defined as “any combination, or any repeated instances” of any of three types of conduct—first, violence, including attempted and threatened violence toward the intimate partner, the intimate partner's child, their animal or anyone known to them; second, “coercing or attempting to coerce the intimate partner to engage in sexual activity”; and third, conduct that could in all the circumstances reasonably be expected to cause the intimate partner to believe their physical or psychological safety is threatened.
Notably, the first two categories of conduct constitute criminal conduct in and of themselves. The last category encompasses subtler forms of conduct that are generally non-criminal behaviours in other contexts.
The definition of this third category of conduct is informed by the Criminal Code's definition of exploitation for the purposes of the human trafficking offences. It uses an objective test and relies on the concept of physical and psychological safety. Appellate jurisprudence interpreting that definition clarifies that the test is objective, meaning that the focus is on whether the conduct could reasonably be expected to have the prohibited consequence, not on whether it actually had that consequence. In particular, proof that the victim actually feared for their physical or psychological safety is not required to meet the test.
A non-exhaustive list of examples of this third category of conduct is provided to assist criminal justice practitioners in identifying conduct that could reasonably be expected to cause a complainant to believe their safety is threatened, including more subtle forms. This list is informed by relevant legislation in other jurisdictions, as well as input from Justice Canada's 2023 engagement process, including the lived experiences of survivors.
The list highlights that abusers may engage in subtle forms of abuse that do not constitute criminal offences in and of themselves and that may not be readily recognizable as coercive, particularly if considered out of context. This approach is also informed by the coercive control offences that have been enacted in Scotland, New South Wales and Queensland.
Clear act elements may also assist with interpreting and applying the offence. For example, courts may infer the offence's mental element from evidence that the accused repeatedly engaged in the prohibited conduct.
Moving now to the interpretive provision in proposed subsection 264.01(3), this provision directs consideration of “the nature of the relationship” between the accused and the complainant, including whether the complainant was in a “position of vulnerability in relation to the accused.”
This factor is to be considered when determining whether any conduct could reasonably be expected to cause the intimate partner to believe their safety is threatened. The purpose of this provision is to assist in minimizing opportunities for the offence to be weaponized against the victim by requiring consideration of the whole context of the offending and, in particular, any power imbalance between the accused and their intimate partner, which is generally present in relationships marked by coercive control. Situating the alleged conduct in the overall context of the relationship at issue could assist in identifying the true aggressor, including in cases involving mutual intimate partner violence allegations.
Turning now to the penalty provision in proposed subsection 264.01(4), the proposed penalty is a maximum of 10 years on indictment, which would treat the offence the same way as criminal harassment and would ensure its eligibility for dangerous offender and long-term offender designations.
Finally, the “for greater certainty” clause in proposed subsection 264.01(5) clarifies that safety includes “psychological safety”, which has the same meaning it has in the context of the Criminal Code's criminal harassment and human trafficking provisions.
I hope that assists the committee. I will be happy to try to answer any of your questions.
Thank you.