Proposed paragraphs 264.01(1)(a) and 264.01(1)(b) articulate the mental element of the offence, so those are about what's going on in the accused's mind. If you look at Scotland's approach, you'll see that it's very similar. Scotland uses the concept of harm. We use the concept of safety in the Criminal Code. I believe they're meant to capture the same type of conduct, but the way the intent element is crafted—“intent to cause” a particular effect and “reckless as to whether” the conduct would lead to that effect—is the same.
The inquiry is about what's happening inside the accused's mind at that stage. Then when you move to the act element, you're looking at the actual conduct itself. One example is monitoring a person's finances. Well, we all do that, and when we're in partnerships we do it for each other often. However, that cannot constitute prohibited conduct for the purposes of this offence unless it could reasonably be expected to cause the intimate partner to believe their safety is threatened. That's where the objective element occurs.
Now, from evidence of a person engaging in the prohibited conduct—whether that be the more subtle forms or the violent, sexually coercive forms—courts can infer the mental element, like, for example, intent to cause an intimate partner to believe that their safety is threatened. Obviously, the more evidence you have in that regard, the easier it will be for courts to infer intent. However, both have to be made out for the offence to be proven beyond a reasonable doubt in a court of law.