Doing More, Doing Better? A Critique of the Criminalization of Coercive Control

Authors

• Janet Mosher, Osgoode Hall Law School, York University
• Shushanna Harris, Osgoode Hall Law School, York University
• Jennifer Koshan, University of Calgary, Faculty of Law
• Wanda Wiegers, University of Saskatchewan, College of Law

Author ORCID Identifier

 

Publication Date

2-5-2025

Document Type

Article

English Abstract

Canada stands on the verge of ushering in a new criminal offence related to coercive control in the context of intimate relationships. In this paper we critically evaluate this development, drawing out lessons from past criminalization efforts and in particular, their impact on Black women and their communities. Our analysis raises significant questions about the potential of the proposed offence to deliver on the promises held out by its proponents. We argue that not only will these promises go largely unrealized, but the ongoing harms of criminalization–harms that manifest not only in the criminal law sphere but in child welfare and border control–will be intensified. Black and other marginalized women are the least likely to benefit, and the most likely to be harmed. While we argue against criminalizing coercive control, we maintain that it is essential that all legal system actors acquire a deep understanding of coercive control that attends to how multiple structures of oppression intersect to shape the tactics of coercive control, differentially distribute supports and resources, and limit the space for survivors to take action. Securing the safety of all women requires rooting out the deeply entrenched stereotypes of Black and other marginalized women and ensuring equitable access to vital supports and resources–among them, safe places to disclose the violence, affordable housing, a stable source of adequate income, and accessible transportation.

Citation Information

Mosher, Janet; Harris, Shushanna; Koshan, Jennifer; and Wiegers, Wanda. "Doing More, Doing Better? A Critique of the Criminalization of Coercive Control." Journal of Law and Social Policy 38. (2026): 1-25.
DOI: https://doi.org/10.60082/0829-3929.1513
https://digitalcommons.osgoode.yorku.ca/jlsp/vol38/iss1/2

References

1 Our account of the circumstances of Daniella Mallia’s murder are drawn from news reports: Adam Carter files, “Toronto Cop Who Allegedly Ignored Domestic Violence Report Charged After Woman’s Death,” CBC News (29 March 2023), online: [https://perma.cc/F24N-9WR7]; Adam Carter files, “Toronto cop who neglected slain woman’s domestic violence complaint will keep his job,” CBC News (03 August 2023), online: [https://perma.cc/NL7E-3Y79]; Bryann Aguilar, “Toronto officer who failed to properly investigate women’s call for help days before her murder to keep job,” CTV News (3 August 2023), online: [https://perma.cc/NL7E-3Y79]); and Julia Alevato, “Toronto cop demoted for ignoring domestic violence call before woman's death,” CBC News (24 June 2025), online: [https://perma.cc/57KA-ZMAM]. Inspired by the movement #SayHerName that centres Black women’s experiences of police violence, we use Daniella Mallia’s name in full throughout; see Kimberlé W Crenshaw et al, Say Her Name: Resisting Police Brutality Against Black Women (New York: African American Policy Forum: 2015).

2 Alevato, supra note 1. A police “caution” is a warning to cease certain actions or behaviours as they could lead to a criminal charge.

3 Ibid.

4 Catherine McDonald, “Ontario man who planned murder of ex-girlfriend given life sentence,” Global News (28 February 2025), online: [https://perma.cc/EY42-2G5C]. Both constables subsequently faced disciplinary hearings. Constable Lee was demoted for a one-year period and Constable Alfonso for an eighteen-month period; see Agular, supra note 1 and Alevato, supra note 1.

5 Efforts to create a new offence of coercive control in Canada began with two private member’s Bills sponsored by MP Randall Garrison (see Bill C-247, An Act to amend the Criminal Code (controlling or coercive conduct), 2nd Sess, 43rd Parl, 2020 (first reading 5 October 2020); Bill C-202, An Act to amend the Criminal Code (controlling or coercive conduct), 1st Sess, 44th Parl, 2021 (first reading 25 November 2021). A third private member’s Bill C-332, An Act to amend the Criminal Code (coercive control of intimate partner), sponsored by MP Laurel Collins, received first reading on 18 May 2023. It was referred to the Standing Committee on Justice and Human Rights after second reading; that Committee reported back to the House of Commons on 22 March 2024, with multiple amendments to the Bill (see House of Commons Debates, 44-1, No 294). The Bill was unanimously passed in the House of Commons on 12 June 2024 and received second reading in the Senate on 5 December 2024. At the time of the prorogation of Parliament on 6 January 2025 the Bill was before the Standing Senate Committee on Legal and Constitutional Affairs. A government Bill, C-16, discussed infra, was introduced 9 December 2025.

6 House of Commons Debates, 44-1, No 234 (4 June 2024).

7 Ibid, see for example the remarks of MPs Laurel Collins, Frank Caputo, Randall Garrison, and Karen Vecchio.

8 House of Commons, Standing Committee on Justice and Human Rights, Evidence, 44-1, Meeting 96 (26 February 2024) online: [https://perma.cc/8PC3-VGKX]. See also Crystal J Giesbrecht, "The need for a Canadian Criminal Code offence of coercive control" (2024) 9:1 J of Community Safety and Well-Being 33; Lisa Ha, "Brief overview of coercive control and the criminal law" (Victims of Crime Digest No 17, Department of Justice), online: [https://perma.cc/3T49-35SL].

9 Bill C-16, 1st Sess, 44th Parl, 2025. The full title of the Bill is An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures).

10 Ibid, s 28, amending the Criminal Code by adding s 264.01.

11 Given that experiences of “justice” within the legal system are so rare for survivors of all forms of gender-based violence, we have chosen to use the term “criminal law system.”

12 Honourable J Michael MacDonald, Leanne J Fitch & Kim Stanton, Turning the Tides: Final Report of the Mass Casualty Commissioner, Vol. 3 (March 2023), online: [https://perma.cc/G7GN-22HK].

13 For the legislation in other jurisdictions see: Serious Crime Act 2015 (UK), s 76; Domestic Violence Act 2018 (Ireland), [No. 6] Pt 3 s 39; Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021 (N Ireland), c 2; Domestic Abuse (Scotland) Act 2018 (Scot), ASP 5; HB566 HD1 SD1, Relating to Abuse of Family or Household Members, 31st Legis, Reg Sess, Hawaii, 2021 (US); Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 (Queensland), 2024 (Austl); Crimes Legislation Amendment (Coercive Control) Act 2022 (New South Wales), 2022 (Austl). For an overview and comparison of the approaches in various jurisdictions see Joey Carrier, “Criminalizing Coercive Control in Canada: Learning from an International Comparative Analysis” (2024) 46:6 Man LJ 42.

14 Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (New York: Oxford University Press, 2007). A second edition was published in 2023.

15 Charlotte Barlow et al, “Putting Coercive Control into Practice: Problems and Possibilities” (2020) 60:1 Brit J Crim 160 at 160.

16 Valli Rajah & Max Osborn, “Understanding Women’s Resistance to Intimate Partner Violence: A Scoping Review” (2022) 23:5 Trauma, Violence & Abuse 1373 at 1373. 17Ibid at 1382. See also Bernadine Waller et al, “Sarah Waller’s Help-Seeking Model: Understanding African American Women Intimate Partner Survivors’ Help-seeking Process” (2023) 38:11/12 J of Interpersonal Violence 7170.

18 Stark, supra note 14; Evan Stark & Marianne Hester, “Coercive Control: Update and Review” (2019) 25:1 Violence Against Women 81; Leslie M Tutty et al, ""He Tells People That I Am Going to Kill My Children": Post-Separation Coercive Control in Men Who Perpetuate IPV" (2024) 30:11 Violence Against Women 2853; Stephanie Beckwith et al, “Coercive Control Literature Review” (Australian Institute for Family Studies, May 2023).

19 Rosemary Hunter, Mandy Burton & Liz Trinder, Assessing Risk of Harm to Children and Parents in Private Law Children Cases, Final Report (Ministry of Justice, United Kingdom, June 2020) at 48. 20 Sibylle Artz et al, “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014) 5:4 Intl J of Child, Youth and Family Studies 493, cited by Karakatsanis J in Barendregt v Grebliunas, 2022 SCC 22. See also Center on the Developing Child, “Toxic Stress” (2023), online: [https://perma.cc/2DPD-RS4B]; Nakiya Xyrakis et al, “Interparental Coercive Control and Child and Family Outcomes: A Systemic Review” (2022) 25:1 Trauma Violence & Abuse 22.

21 Emma Katz, Coercive Control in Children’s and Mothers’ Lives (New York: Oxford University Press, 2022); Jane E M Callaghan et al, “Beyond “Witnessing”: Children’s Experiences of Coercive Control in Domestic Violence and Abuse” (2018) 33:10 J of Interpersonal Violence 1551.

22 Stark & Hester, supra note 18; Holly Johnson et al, “Intimate Femicide: The Role of Coercive Control” (2019) 14:1 Feminist Criminology 3.

23 Stark & Hester, supra note 18 at 89–91; Statistics Canada, Spousal Violence in Canada, 2019, by Shana Conroy, Catalogue No 85-002-X (Ottawa: Statistics Canada, 2021) online: [https://perma.cc/BE6Q-EHPH] (45% of victims who self-reported domestic violence experienced violence after leaving their partners). On the range of tactics used post-separation see Tutty et al, supra note 18 and Kathryn Spearman, Jennifer L Hardesty & Jacquelyn Campbell, “Post-separation abuse: A concept analysis” (2023) 79:4 J Advanced Nursing 1225.

24 Charlotte Barlow & Sandra Walklate, Coercive Control (London: Routledge, 2022) at 1-2.

25 Ibid at 45 (emphasis in original). See also Sandra Walklate & Kate Fitz-Gibbon, “The Criminalisation of Coercive Control: The Power of Law?” (2019) 8:4 Intl J for Crime, Justice & Soc Democracy 94 at 95 & 108 [“The Power of Law”].

26 Cassandra Wiener, Coercive Control and the Criminal Law (London: Routledge, 2022) at 141.

27 Ibid at 24.

28 Stark, supra note 14 at 203-05.

29 Ibid.

30 Kristin Anderson, “Gendering Coercive Control” (2009) 15:12 Violence Against Women 1444.

31 Kate Fitz-Gibbon & Elizabeth Sheehy, “The Merits of Restricting Provocation to Indictable Offences: A Critical Analysis of Provocation Law Reform in Canada and New South Wales, Australia” (2019) 31:2 CJWL 197 at 218 (noting that when men’s revenge results in intimate partner femicide, this violence is often romanticized as a ‘crime of passion’). Tolmie, Smith, and Wilson make the important point that gender norms are “culturally specific and influenced by the shared history and circumstances of communities” and with specific reference to Maori, “cannot be flattened and distorted into Western notions of romantic love, sexuality, and the nuclear family” (see Julia Tolmie, Rachel Smith & Denise Wilson, “Understanding Intimate Partner Violence: Why Coercive Control Requires a Social and Systemic Entrapment Framework” (2024) 30:1 Violence Against Women 54 at 62).

32 Andy Myhill et al, “‘A genuine one usually sticks out a mile’: Policing coercive control in England and Wales” (2023) 33:4 Policing and Society 398 at 406.

33 Barlow & Walklate supra note 24 at 49 (noting that Stark’s work does not fully engage with how gender intersects with other structural constraints).

34 Catherine Donovan & Rebecca Barnes, “Re-tangling the concept of coercive control: A view from the margins and a response to Walby and Towers (2018)” (2021) 21:2 Criminology & Crim Justice 242; Ellen Reeves et al, “‘It was Dangerous, Corrosive and Cruel but not Illegal’: Legal help-seeking Behaviours Amongst LGBTQA+ Domestic and Family Violence Victims-survivors Experiencing Coercive Control in Australia” (2025) 40:1 J of Family Violence 27 at 27-28; Emma Jennings-Fitz-Gerald et al, “A scoping review of policing and coercive control in lesbian, gay, bisexual, transgender, and queer plus intimate relationships” (2024) 18:7 / e13239 Sociology Compass 1.

35 In one of the few studies that examines differences in tactics of coercive control among perpetrators, Tutty et al found that “[I]ndigenous partners were less likely to use two of the post-separation abusive tactics—bad-mouthing the women’s mothering and trying to control the children.” They underscore the paucity of research on post-separation tactics that compare perpetrators’ racial and ethnic backgrounds (see Tutty et al, supra note 18 at 2869). See also Beth E Richie, Arrested justice: Black women, violence, and America’s prison nation (New York: New York University Press, 2012) at 32-37; Beth E Richie, “Reimagining the Movement to End Gender Violence: Anti-racism, Prison Abolition, Women of Color Feminisms, and Other Radical Visions of Justice (Transcript)” (2015) 5:2 U Miami Race & Soc Justice L Rev 257; Beth E Richie & Erin Eife, “Black Bodies at the Dangerous Intersection of Gender Violence and Mass Criminalization” (2021) 30:7 J of Aggression, Maltreatment & Trauma 877; Courtney K Cross, “Coercive Control and the Limits of Criminal Law” (2022) 56 UC Davis L Rev 195.

36 Richie & Eife, ibid at 883. On the importance of intersectionality see Kimberlé Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color” (1991) 43:6 Stan L Rev 1241 at 1242.

37 While statistics on the experiences of women who are socially marginalized are limited, recent survey data of self-reported violence reveal that the interplay of multiple structures of oppression results in higher rates of being victimized by criminal offences in their intimate relationships, including Indigenous women, racialized women, young women, women with disabilities, sexual minority women, and women living in rural and remote areas (MacDonald, Fitch & Stanton, supra note 12 at 12-13). See also Statistics Canada, Violent victimization and perceptions of safety: Experiences of First Nations, Métis, and Inuit women in Canada, 2022, by Loanna Heidinger, Catalogue No 85-002-X (Ottawa: Statistics Canada, 2022); Statistics Canada, Intimate partner violence: Experiences of visible minority women in Canada, 2018, by Adam Cotter, Catalogue No 85-002-X (Ottawa: Statistics Canada, 2021); Statistics Canada, Intimate partner violence: Experiences of young women in Canada, 2018, by Laura Savage, Catalogue No 85-002-X (Ottawa: Statistics Canada, 2021); Statistics Canada, Intimate Partner Violence: Experiences of women with disabilities in Canada, 2018, by Laura Savage, Catalogue No 85-002-X (Ottawa: Statistics Canada, 2021); Statistics Canada, Intimate partner violence: Experiences of sexual minority women in Canada, 2018, by Brianna Jaffray, Catalogue No 85-002-X (Ottawa: Statistics Canada, 2021).

38 Tolmie, Smith & Wilson, supra note 31.

39 Ibid; see also Standing Committee on Justice and Human Rights, supra note 8.

40 A particular concern related to the inclusion of controlling or attempting to control how an intimate partner cares for a child arises at the intersections of criminal and family law. In response to allegations of family violence, fathers often claim that mothers are engaging in “parental alienation.” The criminalization of coercive control opens-up the potential for fathers to assert that they are targets of coercive control perpetrated by “alienating” mothers. Bill C-16 may temper this potential with the requirement that consideration be given to “whether the intimate partner is in a position of vulnerability in relation to the accused.” However, given the prevalence of claims of parental alienation in family law cases and what is known about how coercive controllers manipulate the CLS, it is nonetheless a significant concern. See e.g. Linda C Neilson, “Parental Alienation Empirical Analysis: Child Best Interests or Parental Rights?” (2018), online: [https://perma.cc/4FKE-KQCN]; Elizabeth Sheehy & Susan B Boyd, “Penalizing women’s fear: Intimate partner violence and parental alienation in Canadian child custody cases” (2020) 42:1 J of Soc Welfare and Family L 80; Suzanne Zaccour, “Does Domestic Violence Disappear from Parental Alienation Cases? Five Lessons from Quebec for Judges, Scholars, and Policymakers” (2020) 33:2 Can J Fam L 301; Simon Lapierre et al, “Women’s Experiences of “Parental Alienation” Allegations in the Context of Domestic Violence” (University of Ottawa, 2023); House of Commons, Coercive Control in Canada: Report of the Standing Committee on the Status of Women, (November 2025) (Chair: Marilyn Gladue), online:

[https://perma.cc/U58R-5PC4] [Standing Committee on the Status of Women].

41 The list of conduct does reflect some of the specific ways in which control can be enacted against marginalized women, including through controlling or attempting to control their expression of gender, taking of medication, access to health services or medication, and expression of their spiritual or other beliefs or their culture (including the use of their language and their access to their linguistic, religious, spiritual or cultural community); see Bill C-16, supra note 9, proposed s 264.01(2)(c). However, many forms of control that have been well-documented to date are missing, for example, threats to report women without citizenship to border control, or to report mothers to child protection authorities. As we discuss infra, these threats figure prominently in the experiences of Black women. Importantly too, in omitting any reference to coercion in the list of controlling conduct, the challenge noted earlier of differentiating “normal” control in a relationship from coercive control is magnified, although it may be captured in part by the requirement to establish reasonable fear for one’s safety. Also of note is the choice of term, “coercive or controlling” conduct rather than “coercive control,” or as in the Divorce Act, “coercive and controlling behaviour” (Divorce Act, RSC 1985, c 3 (2nd supp), s 2(1); for an interpretation that cites our description of coercive control, see Dunmore v Mehralian, 2025 SCC 20 at para 57). In Stark’s conception of coercive control, coercion and control are inextricably bound together, and in the UK, even though the Domestic Abuse Act 2021, c 17, s 1(3)(c) refers to “coercive or controlling” conduct, there “has been no suggestion in either the academic or the policy-based literature that the government’s intention is to fragment coercive control into ‘controlling’ and ‘coercive’ behaviour” (see Wiener, supra note 26 at 133).

42 Bill C-16, supra note 9, s 264.01(2)(c).

43 Ibid, s 264.01(3).

44 Myhill et al, supra note 32.

45 Jennifer Koshan, “Challenging Myths and Stereotypes in Domestic Violence Cases” (2023) 35:1 Can J Fam L 33. The persistence of this myth is evident in R v RMD, 2022 ABKB 851, where Justice Graesser took judicial notice “that it is not unheard of for a party involved in family law litigation to lie or exaggerate about violence having been committed against them to gain an advantage in parenting matters or property matters” (para 45). In contrast, the BCCA has cautioned that “trial judges must assiduously guard against the potential for myths and stereotypes or unfounded or generalized assumptions about human behaviour … to affect their reasoning process” and noted that this caution “takes on heightened importance in the context of alleged family violence” (see KMN v SZM, 2024 BCCA 70 at para 122).

46Criminal Justice Committee, The Scottish Parliament, 8th Meeting, Session 6, 8 March 2023, “Domestic Abuse (Scotland) Act 2018: Post-Legislative Scrutiny,” online: [https://perma.cc/26DC-CDCF] at 10-11;

Home Office, UK Government, “Review of the Controlling or Coercive Behaviour Offence” (March 2021), online: [https://perma.cc/BFK7-TA3Z] at 5-6. See also Myhill et al, supra note 32; C Houghton et al, “Domestic Abuse Court Experiences Research: the perspectives of victims and witnesses in Scotland,” September 2022, online: [https://perma.cc/5B4V-3NVW]; Iain Brennan et al, “Service Provider Difficulties in Operationalizing Coercive Control” (2019) 25:6 Violence Against Women 635.

47 Iain Brennan & Andy Myhill, “Coercive Control: Patterns in Crimes, Arrests and Outcomes for a New Domestic Abuse Offence” (2022) 62:2 Brit J Crim 468 at 480.

48 Ibid; Emma Buxton-Namisnyk, Althea Gibson & Peta MacGillivray, “Unintended, but not unanticipated: coercive control laws will disadvantage First Nations women” (August 26, 2022), online: [https://perma.cc/7ATH-5RXN].

49 Statistics Canada, “Trends in police-reported family violence and intimate partner violence in Canada, 2024” (28 October 2025), online: [https://perma.cc/G8BK-8LNG]. Goodmark observes that in the US, rates of IPV have dropped less than the overall crime rate (see Leigh Goodmark, “Gender-Based Violence, Law Reform, and the Criminalization of Survivors of Violence” (2021) 10:4 Intl J for Crime, Justice & Soc Democracy 13 at 15).

50 Susan L Hoppe et al, “Mandatory arrest for domestic violence and repeat offending: A meta-analysis” (2020) 53: 101430 Aggression and Violent Behavior 1. Research undertaken by Sherman and Berk in the early 1980s found that arrest had a specific deterrent effect, and this finding was seized upon throughout North America to support the creation of mandatory arrest or charging policies, including in Canada (for a review of these policies see Jennifer Koshan, Janet E Mosher & Wanda A Wiegers, Domestic Violence and Access to Justice: A Mapping of Relevant Laws, Policies and Justice System Components Across Canada, 2022 CanLIIDocs 3160, online: [https://perma.cc/3FV2-J8H5]. Sherman & Berk’s research has been subject to sustained critique and none of the six replication studies that were subsequently commissioned arrived at similar findings (see Dianne L Martin & Janet E Mosher, “Unkept Promises: Experiences of Immigrant women with the Neo-Criminalization of Wife Abuse” (1995) 8 CJWL 3). A 2022 coroner’s inquest in Ontario recommended that the province “[c]ommission a comprehensive, independent, and evidence-based review of the mandatory charging framework employed in Ontario, with a view to assessing its effect on IPV rates and recidivism, with particular attention to any unintended negative consequences” (see Office of the Chief Coroner, Verdict of Coroner’s Jury in the deaths of Carol Culleton, Anastasia Kuzyk, and Nathalie Warmerdam, 28 June 2022, recommendation 58 [Renfrew Inquest]).

51 Cary Ryan et al, “A review of pro-arrest, pro-charge, and pro-prosecution policies as a response to domestic violence” (2022) 22:1 J of Social Work 211. See also Nancy Ross & Cary Ryan, A Review of Pro-Arrest, Pro-Charge and Pro-Prosecution Policies: Redefining Responses to Domestic Violence (Halifax: School of Social Work, Dalhousie University: 2021) online: [https://perma.cc/CW58-WVD9].

52 MacDonald, Fitch & Stanton, supra note 12 at 367-368.

53 Danielle M Romain Dagenhardt et al, “Examining the Impact of Jail Sanctions on Recidivism for Domestic Violence Probationers” (2023) 38:11/12 J of Interpersonal Violence 7383 at 7386, 7395.

54 David B Wilson et al, “Court-mandated interventions for individuals convicted of domestic violence: An updated Campbell systemic review” (2021) 17:1 Campbell Systematic Reviews 1. Concerns regarding the under-funding, program duration, lack of risk assessments, and group size of the Partner Assault Response (PAR) program in Ontario were brought to light during the Renfrew Inquest, supra note 50. The Inquest jury recommended PARs programs in Ontario be audited for their efficacy, consistency, and currency; see Guy Quenneville, “Treatment of domestic abusers shouldn’t start after arrest, triple-homicide inquest told” (CBC, 17 June 2022), online: [https://perma.cc/DF48-V3W2].

55 Sandra Walklate & Kate Fitz-Gibbon, “Why criminalise coercive control? The complicity of the criminal law in punishing women through furthering the power of the state” (2021) 10:4 Intl J for Crime, Justice & Soc Democracy 1 at 3 [“Why criminalise coercive control?”]; Australian Women Against Violence Alliance, “Criminalisation of Coercive Control, Issues Paper,” January 2021, online: [https://perma.cc/JAM9-AWXW] at 8.

56 Goodmark, supra note 49 at 15.

57 Richie & Eife, supra note 35 at 883; Cross, supra note 35; Leigh Goodmark, “Should domestic violence be decriminalized?” (2017) 40 Harv JL & Gender 53; Aya Gruber, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (Oakland, University of California Press, 2021); Walklate & Fitz-Gibbon supra note 55; Sandra Walklate, Kate Fitz-Gibbon & Jude McCulloch, “Is more law the answer? Seeking justice for victims of intimate partner violence through the reform of legal categories” (2018) 18:1 Criminology & Crim Justice 115. 58 Cross, supra note 35 at 204; Waller et al, supra note 17.

59 Avalon, Wellness Within & Women’s Legal Education and Action Fund (LEAF), “We Matter and Our Voices Must be Heard” (September 15, 2022), online:

[https://perma.cc/24DL-J7LC] [The Avalon Report].

60 Patricia Hill Collins, Black Feminist Thought (New York: Routledge, 2000, 2009) at 77.

61 Ibid at 79.

62 Diane Roberts, The Myth of Aunt Jemima: Representations of Race and Region (New York: Routledge, 1994) at 4; bell hooks, Ain’t I A Woman: Black Women and Feminism (Boston: South End Press, 1981) at 22; Angela Mae Kupenda, “Law, Life, and Literature: A Critical Reflection of Life and Literature to Illuminate How Laws of Domestic Violence, Race, and Class Bind Black Women Based on Alice Walker’s Book The Third Life of Grange Copeland” (1998) 42 How LJ 1 at 8.

63 Cross, supra note 35 at 240 quoting Leigh Goodmark. See also Leigh Goodmark, Imperfect Victims: Criminalized Survivors and the Promise of Abolition Feminism (Oakland, University of California Press, 2023).

64 Cross, supra note 35 at 240-241 quoting Adele M Morrison. The Supreme Court of Canada has recognized that racialized women are amongst the groups who are “unable to fit themselves within the stereotype of a victimized, passive, helpless, dependent, battered woman” (R v Malott, [1998] 1 SCR 123 at para 40). See also The Avalon Report, supra note 59 at 9, 11. Not surprisingly, the stereotype of the ‘real victim’ was observed to influence officers in their policing of coercive control in the UK (see Myhill et al, supra note 32 at 406).

65 See the research discussed infra at note 76.

66 MacDonald, Fitch & Stanton, supra note 12 at 160. See also Ontario Native Women’s Association, noting that racism and discrimination both enable violence against Indigenous women and prevent them from seeking help; “Brief on the Criminalization of Coercive Control” for the House of Commons Standing Committee on the Status of Women, June 2024, online: [https://perma.cc/Q94R-SJN9].

67 Patrina Duhaney, “Criminalized Black Women’s Experiences of Intimate Partner Violence in Canada” (2022) 28:11 Violence Against Women 2765 at 2770-71.

68 Richie & Eife, supra note 35; Andrea Ritchie, Invisible No More: Police Violence Against Black Women and Women of Color (Boston: Beacon Press, 2017) at 197.

69 Ritchie, ibid.

70 Ibid.

71 Linda Neilson, “Brief for Justice Canada: Coercive Control Crime, Family Violence Considerations for Legislators” (September 2023, on file with the authors) notes that the criminalization of survivors “is particularly acute in First Nations, minority, and economically disadvantaged communities” (at 3). See also Victorian Aboriginal Legal Services, “Addressing Coercive Control Without Criminalisation: Avoiding Blunt Tools that Fail Victim-Survivors” (2022), online: [https://perma.cc/L66A-RQ87] at 24-29.

72 Cross, supra note 35 at 239. See also Goodmark, supra note 49 at 17 who points out that ‘bad’ victims are more likely to be arrested.

73 Note that this manipulation is not limited to the CLS; as a tactic of control, abusers make false allegations to a host of legal actors in various legal domains (e.g. family, child protection, social assistance, immigration, taxation) in attempt to further their control. One survivor tellingly described the legal system as a “playground” to enact control; Daniel G Saunders & Katherine H Oglesby, “No way to turn: Traps encountered by many battered women with negative child custody experiences” (2016) 13:2-3 J Child Custody 154 at 162. See also e.g. Cross, supra note 35; Walklate, Fitz-Gibbon & McCulloch supra note 57 at 123; Tutty et al, supra note 18.

74 Heather Nancarrow, “Domestic Violence Law: When good intentions go awry in practice” in Ramona Vijeyarasa, ed, International Women’s Rights Law and Gender Equality; Making the Law Work for Women (London: Routledge, 2021) at 42. Nancarrow discusses several Australian studies finding that Aboriginal and Torres Strait Islander women are more likely to be subject to cross-applications for protection orders, cross-orders, and dual arrests, which Nancarrow argues is at least in part a consequence of colonial history and systemic racism.

75 Tolmie, Smith & Wilson, supra note 31 at 57; Waller et al, supra note 17. See e.g. Senator Kim Pate, Injustices and Miscarriages of Justice Experienced by 12 Indigenous Women (2022), online: [https://perma.cc/UUZ7-5FJ7].

76 Mandatory arrest/charging policies in Canada direct officers to charge the dominant or primary aggressor. Translating these policies into practice has been fraught, with many survivors being charged. See e.g. Duhaney, supra note 67; Cheryl Fraehlich & Jane Ursel, “Arresting Women: Pro-arrest Policies, Debates and Development” (2014) 29 J of Family Violence 507; Anita Grace, ““They just don’t care”: Women charged with domestic violence in Ottawa” (2019) 42:3 Man LJ 153. A ten-year study of primary aggressor laws in the U.S. found a 24.8% reduction in the rate of arrests in states with primary aggressor laws. Moreover, an arrest was 40.6% less likely where the victim and perpetrator were Black as compared to where both were white; see David Hirschel, Philip D McCormack & Eve Buzawa, “A 10-Year Study of the Impact of Intimate Partner Violence Primary Aggressor Laws on Single and Dual Arrest” (2021) 36: 3-4 J Interpersonal Violence 1356 at 1375 & 1381-83. For those survivors who are charged, they face a higher risk of wrongful convictions and false guilty pleas; see e.g. Innocence at Stake: The Need for Continued Vigilance to Prevent Wrongful Convictions in Canada, Report of the Federal/Provincial/Territorial Heads of Prosecutions Subcommittee on the Prevention of Wrongful Convictions (2018), online: [https://perma.cc/Z6H5-WAT4] at 227-228. See also Pate, supra note 75, noting that Indigenous women with histories of violence and abuse are likely to falsely accept responsibility and punishment even where they have a valid defence.

77 Waller et al, supra note 17 at 7180 found that many of the Black women in their study feared police would kill their partner or endanger everyone in the household.

78 See Karen Flynn & Charmaine Crawford, “Committing “Race Treason”: Battered Women and Mandatory Arrest in Toronto’s Caribbean Community” in Kevin Bonnycastle & George Rigakos, ed, Unsettling Truths: Battered Women, Policy, Politics and Contemporary Research in Canada (Vancouver: Collective Press, 1998) at 93-102; see also Rachel Zellars, ““As if we were all struggling together”: Black intellectual traditions and legacies of gendered violence” (2019) 77 Women’s Studies Intl Forum 1; Balawyn Jones & Akuch Kuol Anyieth, “CALD Communities as “Collateral Damage” in the Criminalization of Coercive Control: An Argument for Prioritizing Civil System Reform Over Further Criminalization in Victoria” (2025) 31:2 Violence Against Women 598 at 604-05.

79 See Akwasi Owusu-Bempah et al, “Race and Incarceration: The Representation and Characteristics of Black People in Provincial Correctional Facilities in Ontario, Canada” (2023) 13:4 Race & Justice 530.

80 Just Facts, “Overrepresentation of Black people in the Canadian criminal justice system” (Department of Justice, Research and Statistics Division, December 2022), online: [https://perma.cc/X5UT-ED7S] at 7.

81 Toronto Police Service, Race & Identity Based Data Collection Strategy: Understanding Use of Force and Strip Searches in 2020, Detailed Report (Toronto: Toronto Police Service, 2022), online: [https://perma.cc/23XZ-ZGC5]; Ontario Human Rights Commission, From Impact to Action: Final report into anti-Black racism by the Toronto Police Service (Toronto: OHRA, December, 2023). 82 See e.g. R v Le, 2019 SCC 34; R v Borde, 2003 CanLII 4187 (ONCA); R v Morris, 2021 ONCA 680; R v Murray 2025 ONSC 4127.

83 Zellars, supra note 78 at 4.

84 Jessica Bundy, ““We’ll Deal with it Later”: African Nova Scotian Women’s Perceptions and Experiences of the Police” (2019) 44:4 Can J Sociology 319 at 330.

85 MacDonald, Fitch & Stanton, supra note 12 at 359.

86 Ardath Whynacht, Insurgent Love: Abolition and Domestic Homicide (Halifax: Fernwood Publishing, 2021) at 90.

87 Michael MacDonald, “Desmond Inquiry: Focus of Hearings Shifts to Examination of Domestic Violence,” The Kelowna Courier (14 September 2021), online: [https://perma.cc/87JD-TZAZ].

88 The Avalon Report, supra note 59 at 10.

89 Ibid at 11.

90 Ibid at 11-12.

91 MacDonald, Fitch & Stanton, supra note 12 at 358-359.

92 Ibid at 159-164 & 353-365; Walklate & Fitz-Gibbon, “The Power of Law,” supra note 25 at 101.

93 The importance of trust, and the time and resources necessary to establish it, are highlighted in the review by the Criminal Justice Committee of Scotland’s Domestic Abuse Act, 2018. The evidence presented to the Committee also underscores that police forces are under-resourced to meaningfully implement the legislation (see Criminal Justice Committee, supra note 46 at 20-21 & 50). On the inadequacy of resources see also Myhill et al, supra note 32 at 407-408, and on the importance of trust see Victorian Aboriginal Legal Services, supra note 71 at 11, 17, 20, 23 & 28.

94 This is a pressing concern for Indigenous women as well. See Wanda Wiegers, “The Intersection of Child Protection and Family Law Systems in Cases of Domestic Violence” (2023) 35 Can J Fam L 183 at 200. See also MacDonald, Fitch & Stanton, supra note 12 at 361-2, noting that concerns about child apprehension are particularly strong for Indigenous and African Canadian women. On the risk members of marginalized communities face in engaging with formal institutions, see The Avalon Report, supra note 59 at 12. There is a substantial body of research, particularly in the American context, regarding the surveillance of Black families by child welfare authorities; see, e.g. Dorothy Roberts, Torn Apart: How the Child Welfare System Destroys Black Families–and How Abolition Can Build a Safer World (New York: Hachette Book Group, 2022).

95 A child is generally identified in child protection statutes as being in need of protection or intervention where they have been, or are likely to be, harmed physically, sexually, or emotionally by their parent or caregiver. Emotional harm or injury may be expressly defined to include or arise from living in a situation where there is domestic violence by or towards a person who the child lives with or may be interpreted as such by child welfare agencies. Several statutes expressly identify “exposure” to domestic violence or to “severe domestic disharmony” as a distinct ground for intervention in some circumstances or as relevant to best interests. See e.g. Child, Family and Community Services Act, RSBC 1996, c 46, s 13(1)(e); The Child and Family Services Act, CCSM c C80, s 17(2)(b), (c), (e); Child Youth and Family Services Act, SO 2017, c 14, s 74(2)(f)-(i); Child, Youth and Families Act, SNL 2018, c C-12.3, s 10(1)(c),(f), 10(3)(h).

96 Donna Coker, “Race, Poverty, and the Crime-Centered Response to Domestic Violence: A Comment on

Linda Mills’ Insult to Injury: Rethinking Our Responses to Intimate Abuse” (2004) 10:11 Violence Against Women 1331 at 1333.

97 Children’s Aid Society of Toronto, Addressing Disproportionately, Disparity and Discrimination in Child Welfare: Data on Services Provided to Black African Caribbean Canadian Families and Children (Toronto: Children’s Aid Society of Toronto, 2015). See also the Ontario Human Rights Commission, “Interrupted childhoods: Over-representation of Indigenous and Black children in Ontario child welfare” (12 April 2018), online: [https://perma.cc/W8DA-VQY7].

98 Nicole Bonnie & Keishia Facey, Understanding the Over-Representation of Black Children in Ontario Child Welfare Services: Ontario Incidence Study of Reported Child Abuse and Neglect, 2018 (Toronto: Child Welfare Research Portal, 2022) at 7-8. See also Kofi Antwi-Boasiako et al, “Differences and disparities over time: Black and White families investigated by Ontario’s child welfare system” (2020) 107-104618 Child Abuse & Neglect.

99 Doret Philips & Gordon Pon, “Anti-Black Racism, Bio-Power, and Governmentality: Deconstructing the Suffering of Black Families Involved with Child Welfare” (2018) 28:1 JL & Social Pol’y 81 at 82.

100 Similar concerns exist for Indigenous mothers: recent Canadian statistics establish that, compared to non-Indigenous children in 2019, First Nations children were 3.6 times more likely to be subject to child welfare investigations and were also more likely to be placed in out-of-home care. Investigations were more likely to involve younger First Nations children and families reliant on government benefits who were facing “multiple structural challenges.” See Barbara Fallon et al, Denouncing the Continued Overrepresentation of First Nations Children in Canadian Child Welfare: Findings from the First Nations/Canadian Incidence Study of Reported Child Abuse and Neglect –2019 (Ontario: Assembly of First Nations, 2021) at 12, 38.

101 While we were unable to find statistics directly documenting this concern, research documenting racism in surveillance of those without status, in immigration detention, and more broadly within immigration policies and practices over a long history supports the likelihood of disproportionality. See Amnesty International, “I Didn’t Feel Like a Human in There”: Immigration Detention in Canada and its Impact on Mental Health (Amnesty International, 2021) at 64-67, Antje Ellermann, “Discrimination in migration and citizenship” (2020) 46:12 J Ethnic and Migration Studies 2463, David Moffette, “Immigration status and policing in Canada: current problems, activist strategies and abolitionist visions” (2021) 25:2 Citizenship Studies 273, and Robyn Maynard, “Black Life and Death across the U.S.–Canada Border: Border Violence, Black Fugitive Belonging, and a Turtle Island View of Black Liberation” (2019) 5:1-2 J Critical Ethnic Studies 124.

102 Janet Mosher, “Domestic Violence, Precarious Immigration Status, and the Complex Interplay of Family Law and Immigration Law” (2023) 35:1 Can J Fam L 297. On the risk members of marginalized communities face in engaging with formal institutions see The Avalon Report, supra note 59 at 12.

103 Bill C-16, supra note 9, proposes a hybrid offence and as such, for the purposes of the Immigration and Refugee Protection Act, (IRPA), the offence would be deemed to be indictable. If convicted of an indictable offence a foreign national is inadmissible to Canada and subject to potential removal. Removal without one’s child is also a real possibility. See IRPA, SC 2001, c 27, s 36(1)-(3).

104 Immigration and Protection Regulations, SOR/2002-227, s 133(1)(e).

105 Barlow & Walklate, supra note 24.

106 See Spousal Violence in Canada, 2019, supra note 23 (in 2019, 80% of spousal violence victims surveyed did not report the violence they experienced to the police). A survey conducted by Michael D Saxton et al found that 35.9% of respondents who had experienced intimate partner violence contacted police, “Experiences of Intimate Partner Violence Victims With Police and the Justice System in Canada” (2021) 36:3-4 J of Interpersonal Violence 2029 at 2036; see also Janel M Leone & Marisa L Beeble, “Incarcerated Women’s Strategic Responses to Intimate Terrorism” (2024) 39:1 J of Family Violence 65 at 67 (finding that for victims of coercive control/intimate terrorism, the main reason they did not seek formal help was the perceived danger and fear of retribution).

107 MacDonald, Fitch & Stanton, supra note 12 at 350.

108 Ibid at 160-161 (discussing the credibility discounting experienced by Black and other marginalized women).

109 The Avalon Report, supra note 59 at 8 (explaining that institutional betrayal occurs “when a survivor trusts an institution and turns to it for help or protection” and the institution fails to provide assistance or support). See also Carly P Smith & Jennifer J Freyd, “Institutional betrayal” (2014) 69:6 Am Psychologist 575; Lisa A Tucker, “The [E]X Factor: Addressing Trauma from Post-Separation Domestic Violence as Judicial Terrorism” (2021) 99:1 Washington U L Rev 339.

110 House of Commons, Standing Committee on Justice and Human Rights, Evidence, 44-1, No 96 (26 February 2024) at 12:15 (Emilie Coyle, Executive Director of the Canadian Association of Elizabeth Fry Societies) online: [https://perma.cc/9VWT-A5JQ].

111 Cross, supra note 35 at 239 and see 196, 227 & 239; Richie & Eife, supra note 35, come to a similar conclusion, as do Walklate & Fitz-Gibbon, “Why criminalise coercive control?,” supra note 55.

112 For example, although the Divorce Act was reformed in 2021 to add family violence as a factor relevant to the best interests of the child, and includes coercive and controlling behaviour, our review of case law supports a general tendency by courts to continue to focus on an incident-based approach and to assume that physical violence is more serious, while simultaneously expanding, in some instances, the concept of coercive control to penalize mothers who are seen as “alienating.” This case law review will be published separately.

113 Cross, supra note 35.

114 Barlow & Walklate, supra note 24 at 79, see also chapter 5, at 85 ff. Jones and Anyieth argue that in the debates surrounding the criminalization of coercive control, the harms to CALD (culturally and linguistically diverse) survivors and communities have been treated as “collateral damage” (see supra note 78).

115 Ibid. See also Walklate & Fitz-Gibbon, “Why criminalise coercive control?,” supra note 55 at 3-4 (making the important observation that the increased use of law does not necessarily equate with its efficacy and pointing to the challenges of establishing that safety has been improved).

116 See Leone & Beeble, supra note 106. Victims of coercive control in Scotland described the criminal law system as leaving the onus on them to keep themselves safe (see Houghton et al, supra note 46).

117 Bill C-233, An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner), 1st Sess, 44th Parl, 2023, online: Legisinfo, [https://perma.cc/9M22-QUC6 ] (Keira’s Law), has been held out as imposing mandatory training for judges on intimate partner violence but falls short of this requirement. On the importance of judicial education on gender-based violence and the need for it to be informed by consultations with survivors and anti-violence experts, see Rosemary Cairns Way & Donna Martinson, “Including Public Stakeholders in Judicial Education: The Politics of Judicial Accountability” (2025) 103 Can B Rev 267; Rosemary Cairns-Way & Donna Martinson, “Judging Sexual Assault: The Shifting Landscape of Judicial Education in Canada” (2019) 97 Can B Rev 367; Donna Martinson & Margaret Jackson, “Family violence and evolving judicial roles: Judges as equality guardians in family law cases” (2017) 30 Can J Fam L 11.

118 See House of Commons, Standing Committee on the Status of Women, supra note 40, recommendation 7: “That the Government of Canada continue to support efforts to criminalize coercive control in Canada, and that appropriate education initiatives and training related to recognizing and responding to coercive control for police and professionals in the justice system are established prior to the coming into force of any criminal legislation, while respecting the jurisdiction of, and in consultation and collaboration with, provinces, territories and Indigenous Peoples and governments.” See also Bill C-16, supra note 9, s 206 (2) (the section comes into force “on the second anniversary of the day on which this Act receives royal assent or on an earlier day to be fixed by order of the Governor in Council”).

119 Ontario Native Women’s Association, supra note 66 at 2.

120 MacDonald, Fitch & Stanton, supra note 12 at 370.

121 Barbara Schlifer Commemorative Clinic, “Risk Identification and Safety Assessment (RISA) Tool,” online: [https://perma.cc/9XPT-C7T2].

122 For detailed and excellent recommendations see Amanda Dale et al, A Report to the Guide the Implementation of a National Action Plan on Violence Against Women and Gender-Based Violence, (Ottawa: Women’s Shelters Canada, 2021), online: [https://perma.cc/4PS5-7GQF].

123 MacDonald, Fitch & Stanton, supra note 12 and the jury recommendations in the Renfrew Inquest, supra note 50, both underscore the importance of funding material resources and supports.

124 The Commission recommended that the way forward was to embrace a community-based approach and not to further build on a carceral response (see MacDonald, Fitch & Stanton, supra note 12 at 369-71 and 417-18 in particular).

125 Women and Gender Equality Canada, National action plan to end gender-based violence (November 2022), online: [https://perma.cc/2VSA-2DWZ].