Ava J. Bowns*, Crystal J. Giesbrecht†, Kaila C. Bruer‡
ABSTRACT
Intimate partner violence (IPV) is a substantial problem in Canada, leading to over 100,000 victims reporting to police in Canada annually. However, there is no legal definition or Canadian Criminal Code offence for IPV. The purpose of this study was to examine how judges in the Canadian prairie provinces (Alberta, Saskatchewan, and Manitoba) define IPV in criminal cases. One hundred full-text, written judicial decisions from 2016 to 2022 were analyzed. Findings indicate that judges tend to discuss IPV as it relates to sexual and psychological violence; threats, coercive control, and physical violence; isolation and stalking; economic abuse and threats to take children away. Given that current Canadian law does not recognize psychological abuse as a criminal offence, this may signal a need for the creation of a legal definition of IPV to align with how more directly it is being discussed in courtrooms.
Key Words Psychological abuse; emotional abuse; coercive control; Canadian Criminal Code; judicial decisions.
Intimate partner violence (IPV) can include physical and sexual assault, as well as non-physical forms of violence and abuse, including economic, emotional, psychological, spiritual abuse, and coercive control (Cotter, 2021; Neilson, 2017; PATHS, 2018). Coercive control is a pattern of behaviour that is typically characterized by intimidation, degradation, isolation, and control; these tactics can occur in conjunction with severe physical and sexual violence or with low-level physical abuse and sexual coercion (Stark, 2013). IPV fits within the broader category of domestic violence, which can also include violence and abuse toward others in the family and home, including children (Neilson, 2017).
In Canada, IPV constitutes approximately one-third of police-reported violent crimes (Conroy, 2021; rate of 346 per 100,000, Statistics Canada, 2023) and the rates of IPV are especially high in the prairie provinces of Alberta (388 per 100,000), Saskatchewan (732), and Manitoba (633). However, it is estimated that up to 70% of victims/survivors do not report incidents of IPV to the police (Burczycka, 2016), likely in part because only physical forms of IPV are chargeable offences under Canada’s Criminal Code. IPV is not a criminal offence in Canada. Perpetrators of IPV are charged according to incidents (as opposed to patterns of behaviour) that typically relate to physical violence (e.g., assault) or threats (Beaupré, 2015). Other elements of IPV (e.g., emotional abuse, economic abuse, coercive control) are not chargeable offences leading to limited options for legal safety mechanisms (e.g., protective orders) for victims/survivors and for managing perpetrator risk.
Recent Canadian scholarship has examined understandings of and responses to IPV and its impacts on adult and child survivors in the family court system (e.g., Jaffe et al., 2023; Koshan et al., 2023; Neilson, 2023; Sheehy & Boyd, 2020). Since Canadian criminal law does not include a federal definition of IPV1, there may be differences in how IPV-related behaviours are understood and considered by legal decision-makers in criminal court.
In Canada, most criminal trials are bench trials (i.e., tried by a judge alone; Berger, 2020). The reason for a judge’s decision is written down and becomes public knowledge that can be accessed via legal repositories. The use of judicial decisions provides insight into how judges view IPV – at least with respect to their legal decisions. The present research2 seeks to address this problem by examining how judges in Canada define IPV in criminal court decisions.
The goal of the present study was to examine how judges define IPV in criminal cases in the prairie provinces where IPV rates are higher than the national average (i.e., Alberta, Saskatchewan, and Manitoba). Full-text judicial reports from provincial-level courts (see Table I) in these provinces from 1 January 2016 to 1 January 2022 were obtained from the Canadian Legal Information Institute (CanLII)3. Two hundred and three criminal cases were identified using the search terms “domestic violence,” “family violence,” and “intimate partner violence.” Any cases that did not directly involve IPV were removed. For example, some judges referenced the presence of IPV as either a mitigating or aggravating factor for a different crime, where IPV was not the focal crime of the case. This resulted in a final sample of 100 cases (72 out of 124 possible cases from Alberta; 12 from 49 in Saskatchewan; and 16 from 30 in Manitoba).
TABLE I Number of court cases by province and court level
Criminal Code charges frequently associated with IPV (e.g., assault with a weapon, sexual assault, aggravated assault; Beaupré, 2015) and behaviours listed in the Divorce Act (e.g., patterns of coercion and control, harassment, psychological abuse, threats to harm or kill, and financial abuse) were coded. The recently amended Divorce Act (2020) is the only piece of federal legislation in Canada that offers a comprehensive definition of family violence (including intimate partners). The Divorce Act lists behaviours that may be part of the pattern of intimate partner/family violence, including some actions that would constitute a criminal offence and others that would not (e.g., the failure to provide the necessaries of life, psychological abuse, financial abuse, or threats to kill or harm an animal). While this definition only applies to family law contexts, the definition serves as a good benchmark to code for in criminal court settings. Therefore, the IPV behaviours coded for in this study (see Table II) were extracted from the behaviours highlighted in the Divorce Act, as well as from other relevant IPV literature. Table II illustrates the proportion of cases where judges noted the nature of IPV. Other items coded included relationship, length, and verdict.
TABLE II Judge-referenced IPV victim experiences
An excellent interrater agreement was established for each item coded (0.88–1.00) using one-third of the cases (N = 32). Agreement was determined using intraclass correlation (ICC) coefficients for continuous variables (ICC > 0.75 = excellent interrater agreement, Cicchetti & Sparrow, 1981) and Cohen’s kappa for nominal variables. Any coding discrepancies were resolved through discussion. See the Supplemental Material for the complete coding guide.
Most of the cases of IPV in our sample were from Alberta (see Table I). Of the 100 cases included, the majority were sentencing decisions (n = 71), while 17 were trial decisions (i.e., guilty or not guilty). The remaining 12 cases were a pre-trial decision or a voir dire (i.e., determining admissibility of evidence). Over half (n = 58) of the cases involved more than one criminal charge; 42 cases involved a single criminal charge. The maximum number of criminal charges a defendant in this sample received was 7. See Table III for a breakdown of charges associated with IPV in this sample. In more than half of the cases (n = 65, 65%), the relationship between the victim and the perpetrator was a long-standing relationship, followed by a dating relationship (15%), only one intimate occasion (7%), a brief (<1 month) relationship (5%), or the relationship was not reported (8%).
TABLE III Criminal charges linked to IPV
Victim and defendant characteristics are outlined in Tables IV and V. Overall, adult women were most often the victims of IPV. The cases with a child (under the age of 18) as the primary victim involved dating violence where both victim and perpetrator were under 18, and cases where the child was a victim in addition to an adult victim (i.e., mother). Nearly all defendants (i.e., perpetrators) were male and, on average, were nearly 15 years older than the victims. Thirty-six judges noted that the defendants witnessed IPV in their childhood and of those, judges in 17 cases (47%) noted this experience as a mitigating factor (2% or 6% note it as an aggravating factor).
TABLE IV Victim and defendant characteristics
Judges in 51% of the cases noted that victims of IPV experienced physical violence, 33% noted psychological or emotional abuse, and 21% noted that victims experienced threats or intimidation (see Table II). To explore the factorial structure of the themes discussed by judges in IPV cases, all 11 items from Table II were entered into an exploratory factor analysis with varimax rotation (principal component analysis). The factor analyses revealed a four-dimension solution (see Tables VI and VII for statistical results), described later.
TABLE VI EFA of behaviours noted by judges when discussing IPV
TABLE VII Rotated principle component analysis (PCA) eigenvalues, percentages of variance, and cumulative percentages for factors
The most prominent dimension used by judges when discussing IPV was surrounding elements of “Sexual and Psychological Violence.” This dimension includes various forms of sexual, emotional, and psychological violence, including spiritual abuse. For example, in one case, the judge emphasized the psychological and sexual trauma experienced by the victim by stating that due to her intense anxiety associated with the sexual assault, she was unable to read her victim impact statement and ultimately unable to attend court. This victim was also diagnosed with posttraumatic stress disorder (PTSD) because of the abuse (R. v. Oka, 2021).
[Victim] suffers from Post-Traumatic Stress Disorder (PTSD) and anxiety. She has a fear of enclosed spaces. At the time of sentencing, because of intense anxiety associated with the assault and sexual assault she was unable to attend the court to read her Victim Impact Statement as she could not face taking an elevator to the courtroom. [Victim] also was unable to attend court remotely by WebEx or telephone as, even with a court support worker, she found the sentencing too much to face (R. v. Oka, para. 47, 2021).
Victims in the “Threats, Coercive Control, and Physical Violence” dimension were noted by judges to have experienced physical violence and abuse, coercion and control, as well as various forms of threats towards themselves or other people. For example, in the case R. v. Paquette, the judge reiterated the victim’s impact statement by emphasizing that she suffered distress and physical pain because of the threats and assaults she experienced. As well, this victim is now unable to live on her own because of the fear stemming from the physical violence and threats she experienced (R. v. Paquette, 2020). In another case, the judge noted that the victim was too afraid to leave the hotel room where she was being abused, as her abuser threatened to harm her and her children (R. v. Toulejour, 2016).
… She was shaking and anxious and seemed deeply distressed when reading her statement. … She cannot see herself living on her own for quite some time as the threats made to her have left her fearful. …Due to the incident, her PTSD and anxiety have gotten worse… She does not feel she can go to school or work because she is “scared for my life from the threats and abuse she suffered from the incident”. She has not been able to hold down a job, and as a consequence does not have the income to continue counselling (R. v. Paquette, para. 17, 2020).
Victims in the “Isolation and Stalking” category were reported by judges to have experienced various forms of stalking and harassment, as well as isolation in the forms of kidnapping or unlawful confinement. For example, in one case, the judge noted that the perpetrator kidnapped the victim and confined her against her will, which contributed to her inability to be in large crowds, and her diagnosis of severe anxiety and depression (R. v. Baht, 2018).
[Victim] is fearful of Mr. Baht. She indicated that the events of July 18, 2017 have had a negative impact on her life. She has gone from being a very outgoing, fun, happy, open person, to someone who does not want to socialize in big crowds. She has developed severe anxiety and depression. She has lost some friends and distanced herself from other friends… (R. v. Baht, para. 10, 2018).
Individuals in the “Economic Abuse and Threats to Take Children Away” category experienced threats to take their children away. These results are in line with IPV research that contends that 60% of abuse perpetrators threaten to take the victim’s children away (Stark, 2012). This category also included forms of economic abuse, including financial abuse. For example, in R. v. Wood (2021), the judge noted that victims of IPV may remain in a dangerous relationship due to housing and other financial reasons. In this case, the victim remained with her abusive husband as she and her children had nowhere else to go; she ultimately was found dead at the hands of her abuser (R. v. Wood, 2021).
…Underpinning this factor are two important societal concerns. First, the violent breach of the highly valued trust of a domestic union. Second, the cunning nature of domestic abuse where, despite the abuse and the ongoing risk of abuse, a victim often is compelled or lured by emotional, psychological, family, shelter or financial reasons to remain in a dangerous relationship (R. v. Wood, para. 48, 2021).
This study aimed to examine how judges in the Canadian prairie provinces define and/or discuss IPV in criminal court. Our results suggest that judges in our sample describe IPV in a way that maps onto four dimensions: Sexual and Psychological Violence; Threats, Coercive Control, and Physical Violence; Isolation and Stalking; and Economic Abuse and Threats to Take Children Away.
As physical forms of IPV (e.g., physical and sexual assault) and threatening behaviour (e.g., criminal harassment) have accompanying criminal charges in Canada, it was not surprising that these elements made up a notable portion of how judges’ descriptions of IPV in our sample. Despite not being chargeable offences in Canada, we also found that judges in our sample also recognized non-physical forms of IPV (e.g., psychological violence, coercive control, economic abuse) in their decisions. Psychological and emotional abuse were the second most common behaviours noted by judges in our sample. In particular, these elements of IPV were often considered by judges as aggravating factors and referenced when providing further context to the crime that does exist in the Criminal Code (e.g., assault). Psychological and emotional IPV behaviours were noted by over 33% of judges in our sample, and 11% additionally acknowledged the presence of controlling and coercive behaviours.
Psychological abuse is the most common form of IPV reported by victims in Canada (Cotter, 2021). Stark (2012) reported that 60–80% of IPV victims experience forms of control and coercion, sometimes in conjunction with physical forms of violence. As such, the judicial consideration of psychological violence and coercive control in their legal decisions suggests a familiarity with the dynamics of IPV. Overall, the results demonstrate that criminal court judges in the Canadian prairies do have a comprehensive understanding of the nature of IPV that aligns with definitions of IPV employed by researchers and advocates (Cotter, 2021; Neilson, 2017; PATHS, 2018).
Findings from this study point to the need for a standard definition of IPV in the Canadian legal system. This study demonstrated first that judges already have a comprehensive understanding of IPV, by acknowledging the complexity of IPV, yet they do not have any legal mechanisms in place (i.e., a federal definition) to accurately describe and respond to IPV. Other jurisdictions do have mechanisms in place to ensure accurate and consistent decision-making regarding IPV (coercive control has been legislated in other jurisdictions such as the UK in the Serious Crime Act 2015; and Scotland in the Domestic Abuse Act 2018). Similar legislation would likely have utility in Canada. Second, the establishment of a comprehensive definition of IPV, which considers the range of behaviours employed by perpetrators (inclusive of the four dimensions highlighted in this study), will allow for improved survivor experiences and management of future IPV risk (e.g., court-appointed treatment programs for the non-physical elements of IPV). Additionally, a federal definition would provide more consistency in responses to IPV beginning with police investigations and charging, through to sentencing for those found guilty of IPV, and mandating risk reduction strategies such as participation in treatment programs or risk reduction strategies such as electronic monitoring (see Bill C-233). As well, a victim’s decision to report IPV to police can be influenced by numerous factors; however, much of these factors can be deduced to the discrepancy in IPV interpretations in both victim and perpetrators of IPV, but also law enforcement who are called to IPV instances. A federal definition of IPV may increase how many instances of IPV are reported to police.
Exploring descriptions of IPV in judicial decisions offers several advantages but also some limitations. First, we only analyzed instances of IPV in which the case went to criminal court. As such, our results do not account for instances where a defendant accepted a plea (i.e., settled outside of the courtroom), participated in a provincial Domestic Violence Court, or cases where IPV was not acknowledged by the judge in their written decision. Second, judicial decisions may not report all IPV behaviours present in a case, as the information included in each written decision is at each judge’s discretion; aspects of IPV may not have been reported, recognized, or acknowledged in the written decisions. In addition, given that a criminal offence of IPV does not exist in Canada, elements of IPV beyond physical violence and threatening behaviours may not be presented to judges. Third, we used the search terms “intimate partner violence,” “domestic violence,” or “family violence” to identify cases; it is possible that cases relating to IPV were not identified in our search if judges used different terminology. Future work examining trial transcripts may provide a more complete insight into the behaviours present in IPV cases.
This was the first study to examine how judges in criminal courts in the Canadian prairies defined IPV in their decisions. The results provide an important baseline or benchmark for any future changes to how IPV is defined in the Canadian legal system. In 2020, Canada amended the Divorce Act (applicable to married couples who are divorcing) to include a comprehensive definition of IPV. Legislation also passed in 2021 to require the provision of professional development relating to sexual assault (Bill C-337) and IPV and coercive control (Bill C-233) for federally appointed judges. In addition, Canada is currently considering legislating a criminal offence of coercive control4, as has been implemented in the UK, Scotland, Ireland, Northern Ireland, and New South Wales, Australia. All of these recent or upcoming changes will result in a shift to how IPV is discussed in criminal courts. Future research will provide valuable insight regarding if and how the implementation of the above legislative changes impacts the way judges describe IPV in their decisions.
In addition, future research should examine how judges in family courts in the Canadian prairies define IPV in their decisions. This research would add important insight into the consistency between criminal and family courts and add to the body of knowledge on understandings of and responses to IPV within the Canadian family court system (Jaffe et al., 2023; Koshan et al., 2023; Neilson, 2023; Sheehy & Boyd, 2020).
The authors have no conflicts of interest to declare.
*Department of Psychology, Carleton University, Ottawa, ON, Canada;
†Provincial Association of Transition Houses and Services of Saskatchewan (PATHS) & Department of Justice Studies, University of Regina, Regina, SK, Canada;
‡Luther College & Department of Psychology, University of Regina, Regina, SK, Canada.
Supplementary material is linked to the online version of the paper at https://www.journalcswb.ca/index.php/cswb/article/view/387/supp_material.
1See the Divorce Act (Government of Canada, 1985; amended 2020) for a federal definition now used in family court.
2This article is based on the first author’s undergraduate honours thesis.
3The judicial reports included 71 sentencing, 17 trial, and 12 pre-trial or voir dire hearings.
4A private member’s bill (Bill C-322) was introduced in May 2023 and recently passed the second reading in the House of Commons (February 2024). It is currently being considered in committee.
Supplemental material for this article is available online at https://www.journalcswb.ca/index.php/cswb/article/view/387/supp_material
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Correspondence to: Ava Bowns, Department of Psychology, Carleton University, 1125 Colonel by Drive Ottawa, ON K1S 5B6, Canada. E-mail: avabowns@cmail.carleton.ca
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-nd/4.0/. For commercial re-use, please contact sales@sgpublishing.ca.
Journal of CSWB, VOLUME 9, NUMBER 2, June 2024
