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In 2015 a new offence came into effect in England and Wales: controlling or coercive behaviour in an intimate or family relationship. Three years later, similar offences were introduced in Scotland and Ireland. And it is perhaps less well known that France introduced a comparable offence in 2010 and the Australian State of Tasmania had introduced related offences of economic and emotional abuse in 2004. These offences, which criminalise non-physical abuse in domestic relationships, constitute a novel development in the criminal law, with distinctive features and challenges. This article discusses a number of legal issues that have emerged from the operation of the new offence in England and Wales. An analysis of prosecutions for controlling or coercive behaviour (235 successful convictions have been identified as of December 2018) gives some insight into special features of the offence and its impact. In the absence of primary data (such as case reports) or comprehensive secondary statistical data, media reports of cases in which people have been charged with and/or convicted of the new offence in England and Wales since it came into operation in December 2015 provide a useful basis on which to explore the operation of the offence. Our research appears to have identified about half of all successful prosecutions (107 cases) as of 28 April 2018, which was 28 months after the offence came into effect. As these reports were primarily descriptive accounts of judges’ in-court remarks, they provide an adequate basis on which to make some preliminary observations. This article identifies four legal issues that have emerged in the operation of the offence of controlling or coercive behaviour: uncertainty about which relationships are captured by the new offence; how to preserve the principle of non-retroactivity when criminalising courses of conduct (involving behaviours that may have been manifest for many years); evidentiary difficulties in criminalising courses of conduct (patterns of behaviour); and reconciling an apparent overlap between the new offence and traditional assault and threat offences.

L’article 2926.1 CcQ rend imprescriptibles les actions civiles liées aux violences sexuelles, conjugales et infantiles, dans la mesure où elles constituent un préjudice corporel. Or, le critère du préjudice corporel qu’impose cet article soulève plusieurs enjeux lorsqu’il s’agit de déterminer quelles victimes de violences sexuelles, conjugales et infantiles peuvent bénéficier de l’imprescriptibilité de leur action en réparation. Ces enjeux découlent d’une incertitude entourant le concept de préjudice corporel, dont la définition exige qu’un certain seuil soit dépassé pour qu’un acte sur le corps soit considéré comme une atteinte à l’intégrité physique.

Personal autonomy is a constitutive element of all rights. It confers upon a right-holder the power to decide whether, and under what circumstances, to exercise her right. Every right infringement thus invariably involves a violation of its holder’s autonomy. The autonomy violation consists of the deprivation of a right-holder of a choice that was rightfully hers – the choice as to how to go about her life. Harms resulting from the right’s infringement and from the autonomy violation are often readily distinguishable, as is the case when someone uses the property of a right-holder without securing her permission or, worse, causes her bodily injury. At other times, however, the two harms overlap, as in the case when a right-holder is unlawfully barred from exercising her free speech right or is denied the right to vote. Furthermore, the autonomy harm may sometimes exceed the physical harm sustained by the victim, as is the case in many sexual harassment incidents. At other times, however, the victim’s physical harm or economic loss will outweigh the autonomy harm, as is often the case in automobile accidents. Even though autonomy violations are omnipresent, and the harm resulting from them can be severe, the law rarely recognizes a cause of action for violations of autonomy, nor does it provide redress for autonomy harms. The current legal approach to autonomy protection can best be characterized as anomalous and unprincipled. Therefore, from a normative perspective, it is untenable. In this article, we set out to make three novel theoretical and doctrinal contributions. First, we advance a comprehensive jurisprudential account of the relationship between rights and autonomy. Second, we show why existing law should be replaced with a legal regime that respects and protects individual autonomy in all cases. Finally, we develop a remedial framework designed to address autonomy violations. Mindful of administrability constraints, we incorporate three limitations to ensure that our proposal does not overwhelm the court system: (a) suits for autonomy violations would only be allowed when the plaintiff has a cause of action originating from the defendant’s infringement of her recognized legal right; (b) any such suit would undergo a strict de minimis scrutiny; and (c) no double recovery would be allowed in cases in which the plaintiff’s autonomy harm is subsumed in her physical or economic loss.

This paper explores the progressive possibilities presented by two areas of private law – family law and tort law – in achieving economic justice for women who have been victims of domestic violence. The author first considers the role spousal support law might play in providing economic redress following abuse. While the Supreme Court of Canada’s decision in Leskun v. Leskun suggests that a court might consider the consequences of spousal misconduct when making a support order, courts remain reluctant to use support awards to address the economic impact of abuse. By contrast, tort law may appear to provide a more responsive framework for battered women. Women may use the tort of battery to seek damages to compensate for direct financial impact of the violence (e.g. medical expenses) and for indirect economic harm (e.g diminished employability). However, the challenges inherent in bringing a successful tort action mean that women rarely succeed in achieving compensation. The author concludes by considering other options (e.g. a public compensation scheme) which may be a solution for women seeking financial compensation for the harms suffered at the hands of a violent spouse.

There has been a growing momentum toward a greater recognition and explicit use of Indigenous laws in the past several years. According to the Truth and Reconciliation Commission’s final report, the revitalization and recognition of Indigenous laws are essential to reconciliation in Canada. How, then, do we go about doing this? In this article, we introduce one method, which we believe has great potential for working respectfully and productively with Indigenous laws today. We engage with Indigenous legal traditions by carefully and consciously applying adapted common law tools, such as legal analysis and synthesis, to existing and often publicly available Indigenous resources: stories, narratives, and oral histories. By bringing common pedagogical approaches from many Indigenous legal traditions together with standard common law legal education, we hope to help people learn Indigenous laws from an internal point of view. We share experiences that reveal that this method holds great potential as a pedagogical bridge “into” respectful engagement with Indigenous laws and legal thought, within and across Indigenous, academic, and professional communities. In conclusion, we argue that, while this method is a useful tool, it is not intended to supplant existing learning and teaching methods, but rather to supplement them. In practice, we have seen that this method can be complementary to learning deeply through other means. There are many methods to engage with Indigenous laws, and there needs to be critical reflection and conversations about them all.

This paper explores Canadian family law cases involving claims of parental alienation and of family violence from 2014–2018, reporting the data on these claims, their resolution, and their impacts upon custody and access. A close reading of those cases where both alienation and intimate partner violence claims are made reveals troubling patterns in how intimate partner violence is discounted in this context. We suggest that the rise of shared parenting as a dominant norm assists in understanding why alienation has achieved such unquestioned status, and call for greater focus on safety and women’s and children’s voices.

Canadian courts have held that parents stand in a fiduciary relationship with their children. Some commentators take the view that this is an inappropriate and unwarranted extension of a set of concepts that were originally elaborated in the context of the management of property rights and other pecuniary interests. The goal of this article is to assess the characterization of parents as fiduciaries in the light of recent scholarship on fiduciary law. I argue that, while there are significant differences between the parent-child context and more established fiduciary categories, the characterization of the parent as a fiduciary toward his or her child nonetheless captures a central – indeed, a defining – element of the parent-child relationship, which is also a characteristic element of all established fiduciary relationships: namely, the possession of legal powers that are held in a managerial or other-regarding capacity for the benefit of another person. Every aspect of the traditional property-based fiduciary relationship finds its counterpart in the juridical relationship between a parent and his or her minor child. The ability of a parent to take account of his or her own interests in relation to some exercises of the parent’s decision-making powers is also found in many established fiduciary relationships. The recognition of parenthood as a fiduciary relationship leads to a better understanding of fiduciary relationships because it clarifies how such relationships are constituted, and it clarifies that they extend to any situation where one person is empowered and authorized to look after the interests of another, whether those interests be financial or entirely personal.

Should family lawyers be subject to special rules of professional conduct? This debate has resurfaced because of the 2021 amendments to the federal Divorce Act (“Act”), which imposed new professional obligations on lawyers. The suggestion is that the Act now conflicts with the Federation of Law Societies Model Code of Professional Conduct (“Model Code”), such that the Model Code needs to be amended to comply with family lawyers’ legislative professional obligations. There are also questions about whether additional guidance is needed for lawyers when representing parties who are experiencing family violence. Against this backdrop, I review the question of whether family lawyers ought to be governed by a separate code of professional conduct, suggesting that there are questions about the lawyer’s role which need to be answered before a comprehensive regulatory change can be considered. I also argue, however, that family violence concerns, specifically in relation to intimate partner violence, need to be central to discussions about professional rules and ought not wait. This paper concludes with recommendations for reform to the Model Code and questions for future debate and discussion.

This article seeks to identify the nature of vindication as a distinctive function within the English law of torts. It argues that a specific conception of vindication explains fundamental features of the law of torts, variations in the structure of different torts, as well as variations in the approach to damages from one tort to another, which are not explicable by reference to well-documented functions of torts, such as compensation and punishment. According to this conception vindication entails attesting to, affirming and reinforcing the importance of those interests that are the subject of the law’s protection and their inherent value, and by association the importance of the overlying legal rights. The emphasis on vindication varies across torts; the torts actionable per se are paradigm examples of torts that have vindication as their primary function.The focus of this article is on how the over-arching vindicatory function of a tort shapes the approach to compensatory damages. It is submitted that for torts which have vindication as their primary function damages are available for the wrongful interference with the interest protected by the tort, in and of itself. Such damages compensate for a damage that is ‘normative’ in nature, are assessed objectively, and are awarded notwithstanding whether the claimant suffers any negative psychological, physical, emotional or economic effects in consequence of the wrong. The article goes on to analyse the relationship between vindication and non-compensatory damages, including the novel head of ‘vindicatory damages’.

For corrective justice, liability is the consequence of the parties' being correlatively situated as the doer and sufferer of an injustice, and the remedy is seen as undoing that injustice to the extent possible. Combining consideration of legal doctrine and private law theory, this article applies the framework of corrective justice to gain-based damages for torts. Within this framework, restitutionary damages ought to be available only insofar as they correspond to a constituent element in the injustice that the defendant has done to the plaintiff. The radical proposal that allows restitutionary damages for any wrongful gain is unsatisfactory because it fails to link the damages that the plaintiff receives to the normative quality of the defendant's wrong. In contrast, dealings in another's property give rise to such damages because the idea of property includes within the owner's entitlement the potential gainsfrom the property's use or alienation. Restitutionary damages should not be seen as serving a deterrent or punitive function; such a function cannot account for why the plaintiff, of all people, is entitled to the defendant's gain. Properly understood, even situations where the plaintiff's wilfulness or calculation increases the damage award fit within the framework of corrective justice. The corrective justice approach thus repudiates the notion that restitutionary damages are occasions for the promotion of social purposes extrinsic to the juridical relationship between the parties.

Jan Cowie, 1994 58-2 Saskatchewan Law Review 357, 1994 CanLIIDocs 497

Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).