“Keira’s Law”: More Domestic Violence Training for Judges. But Is It Enough?

“Keira’s Law”: More Domestic Violence Training for Judges. But Is It Enough?

By: Tina Ye, the Justice Centre at BWSS.

What is Keira’s Law?

Bill C-233, known as “Keira’s Law”, received royal assent on April 27 and became law on May 27, 2023.

The rally behind Bill C-233 came after the tragic death of 4-year-old Keira Kagan, found at the base of a cliff at Rattlesnake Point Conservation Area in Ontario, alongside the body of her father. Keira was the victim of a murder-suicide, and her story sheds light on the consequences of family violence and the need for reform in the criminal and family legal systems.

Keira’s Law proposes amendments to the Judges Act for continuing education for judges on intimate partner violence (IPV) and coercive control. The Bill also amends the Criminal Code by requiring a justice to consider imposing an electronic monitoring device for accused charged with offences against their intimate partner.

More Training for Judges

The bill pushed for the inclusion of continuing education for judges on matters of intimate partner violence and coercive control in the Judges Act.

Prior to Keira’s Law, section 60 of the Criminal Code only included training on sexual assault law. The section now expands the scope of training provided to judges to include intimate partner violence and coercive control “in intimate partner and family relationships and social context”.^[1]

The Judicial Council is now also required to submit an annual report to the Minister of Justice on the trainings delivered, the content and duration of seminars offered, and the number of judges who attended each seminar.^[2]

Monitoring Devices for Abusers

The Bill made changes to release orders for abusers under section 515 of the Criminal Code such that now, judges can impose electronic monitoring devices on abusers charged with an offence against their intimate partner.

Electronic monitoring devices are used to monitor compliance with condition of release order. It is usually used for geographical restrictions. Whereas prior to Keira’s law, conditions of release did not include monitoring device or the mention of IPV, the changes now compel judges to consider the risks to safety of the survivor to determine the use of the monitoring device.

“Judges Don’t Listen”

Jennifer Kagan-Viater, Keira’s mother and advocate behind Keira’s Law, recounted that before Keira’s death, she tried to voice concerns in court regarding her ex-husband’s violent and coercive behaviors. All fell on deaf ears. The judge dismissed any links that domestic violence had on parenting, and Jennifer’s warnings about her ex-husband’s abuse were ignored.^[3]

Unfortunately, this is a wide-spread experience amongst survivors in family courts.

At BWSS, an oft-repeated frustration we hear from survivors accessing support is how judges seem to glaze over their concerns of continuing violence at the hands of the abuser.

Survivors note that sometimes when they are giving testimony, they perceive from the judge’s body language or their tone of voice that they should hurry up and finish telling the story so the court can get on with the proceeding.

Survivors feel that judges are on guard, wary, and impatient, when they learn about family violence being asserted when parenting applications are brought to court.

Remarks about the time lapse between the “last incident” and the “now” make survivors feel like their fear is unfounded. When survivors bring up the history of abuse, they feel it may be weaponized against them – either painting them as incompetent parents or distorting these assertions to become attempts to alienate the other parent.

Furthermore, survivors share that non-physical abuse, such as emotional abuse, financial abuse, and sexual abuse, are not taken as seriously in court. Survivors worry that because these types of abuse are often gradual, long-term, and difficult to corroborate with physical evidence, they are less readily accepted by the court as “legitimate” types of abuse.

 This is especially true in cases of coercive control. Being a relatively new term in family law, “coercive and controlling behaviour” was added to the federal Divorce Act in 2021.^[4] Coercive control is defined as the “tactics of isolation, manipulation, humiliation, surveillance, and micro-regulation; where abusers instill fear, control and entrap victims, causing deep psychological, emotional, spiritual, and economic harm to the victim.”^[5]

 There is increasing evidence that coercive control can lead to more severe and lethal violence in relationships.^[6] However, so far, at least in lethality assessments, coercive control is not a factor considered when assessing a survivor’s safety.

Coercive behaviors during the relationship can also be predictive of abuse and violence after separation.^[7] When the abuser no longer has access to the survivor, their need for control can manifest in escalated violence. This does not end at violence targeted at the survivor, but also violence at the children of the relationship, or perhaps towards the children in order to affect the intended target – the survivor.

Survivors have also shared that, similar to Jennifer Kagan-Viater’s experience, judges seem to dismiss concerns about the dangers and practicality of co-parenting with abusers. There is an apparent attitude by the court that co-parenting can happen even if there is a history of abuse and/or coercive behaviours – that parents can set aside their “differences” for the best interest of their child.

What we observe, at BWSS, is that the survivor is always thinking about their children’s best interest. When survivors share concerns about co-parenting, it is because they know the abuser and what they are capable of. These concerns are always relevant to orders on parenting arrangements and conduct orders. To say otherwise is putting the survivor’s lives and their children’s lives at risk.

Will We See Change?

The passing of Keira’s Law is a welcomed step to the fight for justice for survivors of intimate partner violence. It can be hoped that with training specifically on IPV and coercive control, judges will be better equipped to adjudicate on family matters against a background of family violence.

But, some concerns remain.

First, the language of the amendment indicates that the changes are optional rather than mandatory. The Judicial Council “may” establish seminars for judges, and annual reports do not have to specify which judges attended these seminars, or if seminar contents are reviewed and proposed by those with knowledge of IPV and coercive control.

Second, the new law does not provide survivors with the toolkit to bring the judge’s attention to what was missed or overlooked. While the amendment hopes to provide judges with a better toolkit, what happens when the seminar falls short of providing that toolkit? Or, if the toolkit learned is not enough to help judges with an otherwise complex case?

As we observe at BWSS, most survivors are either self-represented or using a legal aid lawyer. When orders are given or decisions made, the option of an appeal- which is expensive, lengthy, and complex- is simply not available to these survivors. So, in some ways, nothing has changed. Judges still wield the power to decide whether or not IPV and coercive control are relevant to parenting orders.

Finally, the family justice system does not only involve judges, but also a variety of actors such as lawyers, police, child protection agencies, psychologists and counsellors, social workers, and more. When tragedies happen, when a survivor or a child is hurt, it is not because a single pinpointed actor dropped the ball, but rather because in the larger picture.

It must be wondered: what about training on IPV and coercive control for these sectors? We hear from survivors who are frustrated with law enforcement, with the Ministry of Children and Family Development, with lawyers. The training should not be confined to judges, but all who are involved in family matters must be trained on the effects of IPV and coercive control.

The Justice Centre at BWSS provides enhanced legal support and education that play a critical role in helping survivors navigate complex legal systems and bridging a gap in services that is often insurmountable without support.

In partnership with Strategic Interventions, the Justice Centre plans to deliver public training and advocacy workshops for the public interested in learning more about gender-based violence and the law. Interested? Subscribe for announcement and updates here.

Support BWSS’ work here.