Last week, the Supreme Court of Canada released its decision in the case of Ahluwalia v Ahluwalia. This was a very good day in the world of law for survivors of intimate partner violence (IPV). In fact, when a colleague called to share the highlights of the decision with me, I was grocery shopping and – no word of exaggeration – I wept onto the mushrooms.
For the background leading to this decision, I encourage you to read what I wrote following the trial as well as in response to the Ontario Court of Appeal decision.
I am going to let the decision – which establishes a new tort of intimate partner violence – largely speak for itself. Justice Kasirer wrote clearly for the majority in a 6 – 3 split decision in a way that doesn’t require a lot of analysis.
There will, no doubt, be bumps along the road as lower courts begin to interpret this decision in future cases. Nonetheless, the SCC has taken a huge step forward in demonstrating a deep judicial understanding of the unique realities of intimate relationships, the nature of IPV and the need for a focused legal response to it.
“I am not just a bruised spouse, I am an unfree spouse”
This decision unquestionably establishes that an intimate relationship imposes a higher standard of care on the partners than exists in other kinds of relationships:
“[it] is a relationship of close personal connection, sustained over a period of time, and marked by mutual interdependence, care or commitment, and the presence of domestic, emotional, financial or physical intimacy. . . . understood in these terms, intimate partnerships become sites of ‘contradiction’: intimacy offers security but can expose a person to danger, including abuse. Intimacy promises privacy, yet that same privacy can be a veil through which others, including the law, sometimes fail to see or properly respond to abusive conduct. . . . It is the intimacy , and the durable partnership based on mutual dependency – not its legal form – that create the setting in which sustained coercion and control can be tortious.”
From this flows the decision’s nuanced and thoughtful analysis of intimate partner violence:
“There is little doubt that intimate partner violence engages the victim’s dignity, autonomy, and equality and interferes with their ability to make independent decisions about their lives and about themselves.”
“In order to properly characterize the wrongful conduct at the heart of this appeal, intimate partner violence, best understood, is not confined to conduct that inflicts physical or psychological injury, but includes all abusive conduct by which one intimate partner coerces and controls the other, thus depriving them of their autonomy.”
“The deprivation of autonomy within intimate partnerships can flow from the accumulation of subtle acts that might not have the same effect in a different relationship. Intimate partner violence entails a pattern of coercion that can unfold slowly over time, and may or may not be punctuated by incidents of physical or emotional distress.”
“A single act of physical violence inflicted by one intimate partner upon the other may be sufficient for the aggressor to lay down the law for the relationship in a manner that serves to control, isolate or entrap the victim.”
“. . . the tendency to frame intimate partner violence as episodic or incident-based sometimes fails to speak to the cumulative pattern of conduct that is greater than the sum of its parts.”
Justice Kasirer also acknowledges the gendered reality of IPV:
“Intimate partner violence is not experienced uniformly. Its impact is shaped by gender and context. While it can affect people of all genders, any effort to confront it seriously – -and to respond in a manner consistent with the principle of substantive equality – must begin by realizing that women are overwhelmingly those most often harmed by their partners.”
He also notes:
“The mere fact that the parties have formally separated does not necessarily put an end to the intimate partner violence.”
Making new law
Having established both the unique realities of intimate relationships and the prevalence and seriousness of abuse within those relationships, including its particular impact on women, the Court turns its mind to whether or not a new tort is required.
“None of the existing torts consider whether the alleged wrongful conduct coerces or controls the victim, nor are they designed to compensate the victim for the distinct injury to their intangible interests in dignity, autonomy and equality within an intimate relationship. . . . This coercive and controlling conduct is a violation of the trust and equality inherent in intimate partnerships in Canadian law.”
“[E]xisting torts, whether separately or together, cannot remedy the full scope of the injury inflicted by intimate partner violence, specifically the coercive control at issue here. . . . Forcing facts into the strict confines of existing torts is both out of step with the incremental development of tort law and does not advance access to justice for victims of intimate partner violence. . . . Existing torts, even when taken together, are not wide enough to capture the full nature and scope of the wrongful conduct of intimate partner violence. . . The existing torts are inadequate to respond to Ms. Ahluwalia’s claim.”
“A new tort grounded in the distinct wrong and distinct harm arising from intimate partner violence increases access to justice because it more accurately reflects the type of evidence that victims of intimate partner violence are able to bring to establish the abuse they suffered.”
”Crucially, the new tort centres on a distinct dimension of intimate partner violence – coercive control – that undermines the victim’s dignity, autonomy and equality, unlike violence directed at a stranger. Whether manifested through a single violent act, discrete acts of violence, or a pattern of abuse, the new tort fixes on coercive or controlling conduct by which one partner overpowers the will of the other. . . . [it] fills a gap in the common law.”
In its decision, the SCC confirms that judges must use an objective standard to assess the abusive conduct, asking whether a reasonable person, fully aware of the relevant context of the relationship, would perceive the conduct as coercive control.
Importantly, the decision notes that the existence of coercive control, once established, is itself proof of harm. In other words, by definition, coercive control causes harm; once a judge determines there has been coercive control, no further proof that the victim has been harmed by it is needed.
The decision is also clear that not all aggression will be considered coercive control:
“[W]hen an intimate partner strikes out as an act of resistance against their aggressor, the victim has not acted in a controlling or coercive manner, and the new tort should not cover this conduct.. . . Labelling acts of resistance as ‘intimate partner violence’ without recognizing the distinct wrong suffered by the victim of abuse could therefore perpetuate the kind of manipulation and victim-blaming that so often characterizes relationships involving coercive control.”
This legal case began when Mr. Ahluwalia filed his application for divorce in the Superior Court of Justice in Ontario. Based on the evidence of abuse presented by Ms Ahluwalia, who was unrepresented at trial, Justice Renu Mandhane – in a bold and thoughtful decision — called for the creation of a new tort of family violence. That decision was overturned by the Ontario Court of Appeal, which felt that existing torts provided an adequate response to survivors of IPV.
Now, the highest court in the country has determined that the unique realities of IPV and the harms caused to those victimized by their partners warrant a distinct tort of intimate partner violence. It’s time for fireworks!