By: Jennifer Koshan
Case Commented On: Barendregt v Grebliunas, 2021 BCCA 11 (CanLII); appeal allowed, 2021 CanLII 124350 (SCC; written reasons to follow)
Over the last 20 years, there has been significant progress in the judicial recognition of rape myths and stereotypes (see e.g., R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577 and more recently, R v Barton, 2019 SCC 33 (CanLII)). Federally appointed judges must now undertake to participate in education on sexual violence and its social context, but no similar duty exists for judicial education about intimate partner violence (IPV) (see a discussion here). Unfortunately, myths and stereotypes about IPV are not uncommon in Canadian case law. To name a few, survivors of IPV, who are disproportionately women, face allegations that they have lied about or exaggerated IPV out of vengeance, jealousy, or to gain an advantage in family law proceedings; that IPV ends at separation or is irrelevant unless it is physical; and that exposure to IPV has no impact on children (see e.g., here at 46-47). Allegations like this have been called out in feminist socio-legal literature for decades as being grounded in myths and stereotypes, but there are only a handful of cases in which the Supreme Court of Canada has explicitly recognized myths and stereotypes about IPV.
The Court has an opportunity to develop its jurisprudence on myths and stereotypes in the family law context in Barendregt v Grebliunas, 2021 CanLII 124350 (SCC). In this case, the trial judge allowed the mother’s relocation application, finding that it was in the best interests of the children that they reside with her in a location where she had family support. The trial decision considered the father’s emotional abuse against the mother and his alleged physical assault against her, which led to the separation (2021 BCCA 11 at paras 70-73). The father’s appeal and application to file new evidence was allowed by the British Columbia Court of Appeal, which emphasized that “many of the issues the trial judge was concerned about had taken place in the past” and “there was no evidence of any event involving the children or taking place in the presence of the children” (at para 72). The Supreme Court of Canada allowed the mother’s appeal from the bench, with written reasons to follow (Justice Suzanne Côté dissenting).
This post reviews existing Supreme Court of Canada case law on myths and stereotypes about or relevant to IPV as a way of setting the context for the Court’s upcoming decision in Barendregt v Grebliunas. My primary interest is in exploring myths and stereotypes related to the credibility of women’s claims of IPV, so I consider cases in both the criminal and family law areas. My overarching argument is that judges should not readily accept accusations that reports of IPV and its harms are false or exaggerated without attention to social context and impartial fact-finding that is alert to myths and stereotypes. In the wake of #MeToo and #IBelieveHer, what the case law shows is that we are not yet at the point of #Don’tDisbelieveHer when it comes to IPV.
Myths and Stereotypes: A Primer
To begin, it is important to note that courts and scholars tend to use the terms “myth” and “stereotype” together and interchangeably. The Supreme Court of Canada has not offered explicit definitions of the terms in the context of gender-based violence (GBV). It has defined a “stereotype” in equality rights case law as “a disadvantaging attitude … that attributes characteristics to members of a group regardless of their actual capacities” (see Quebec (Attorney General) v A, 2013 SCC 5 (CanLII) at para 326). The Court’s use of the term “myth” in sexual assault cases suggests a meaning that accords with the dictionary definition of this term, which is “a commonly believed but false idea” (see e.g., R v Esau, 1997 CanLII 312 (SCC), [1997] 2 SCR 777 at para 82). Taken together, myths and stereotypes are assumptions that are false or potentially erroneous and often linked to negative attitudes about disadvantaged groups. I will continue to use the terms together in this post, unless a specific term is used by the Court.
For judicial decision-making, reliance on myths and/or stereotypes is problematic because it can result in factually incorrect findings, impair the truth-seeking process, and lead to errors in the interpretation and application of the law. In the sexual assault context, reliance on myths and stereotypes – for example, in making assumptions about the presence of consent – has been found to amount to an error of law (see e.g., Barton at para 98).
The Court has also provided some general principles on the admission of social context evidence that can lead to the recognition that an assumption is based on myths and/or stereotypes. In R v Lavallee, 1990 CanLII 95 (SCC), [1990] 1 SCR 852, which I discuss at length below, the Court found that expert evidence was admissible to provide social context about IPV. In R v Spence, 2005 SCC 71 (CanLII), a case involving juror challenges for racial bias, the Court found that judicial notice could be taken of social context if it “would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used,” noting that “the need for reliability and trustworthiness increases directly with the centrality of the ‘fact’ to the disposition of the controversy” (at para 65).
To accept that some common assumptions about IPV are grounded in myths or stereotypes does not mean that particular allegations about claims of IPV can never be true. In Lavallee, the Court noted that it is up to the trier of fact to decide whether the social context related to women’s experiences of IPV actually applies on the facts of the case (at 891). As noted above, my argument is not that courts should always believe survivors, but that courts should be prepared to consider social context, including common myths and stereotypes about IPV, to inform their credibility decisions. False or faulty assumptions about the veracity of IPV claims, or about the harmful impact of IPV, can have serious implications for the safety of women and children.
In their intervener factum at the Supreme Court in Barendregt v Grebliunas, the West Coast Legal Education and Action Fund Association and Rise Women’s Legal Centre called attention to the ways in which courts in parenting disputes continue to disbelieve and minimize the harms of IPV and its impact on women and children (at paras 7-12). They argued that this is due to myths and stereotypes that influence courts’ perceptions of women’s credibility when they raise IPV in family disputes, including the assumption that women are lying or exaggerating to gain an advantage in those disputes, the way they present themselves as witnesses, their failure to report IPV to the police immediately or at all, and their portrayal as mentally unstable (at paras 15-16). Myths and stereotypes also underpin the negligible impact that many courts believe IPV has on women and children, including – as seen at the Court of Appeal in this case – casting the abuse as mutual, in the past, and of no consequence to the children’s best interests (2021 BCCA 11 at paras 72, 78-79). As noted by the interveners, these myths and stereotypes are not supported by, and can be refuted by, evidence about IPV (factum at paras 16-18, 22-25).
To what extent has the Supreme Court laid the groundwork for this analysis?
Supreme Court of Canada Case Law on Myths and Stereotypes about IPV
Criminal Law Cases
The first decision in which the Court explicitly recognized a myth about IPV was Lavallee in 1990. Lavallee was a criminal case involving a claim of self-defence by a woman who had killed her abusive partner. Writing for the majority, Justice Bertha Wilson noted that “popular mythology about domestic violence” includes the belief that “[e]ither she was not as badly beaten as she claims or she would have left the man long ago. Or, if she was battered that severely, she must have stayed out of some masochistic enjoyment of it” (at 873). Justice Wilson’s identification of this myth relied on American case law and social science literature and formed the basis for her finding that expert evidence about “battered women’s syndrome” was admissible at trial. In addition to battered women’s syndrome and “learned helplessness” (at 886), Justice Wilson noted that “environmental factors may also impair the woman’s ability to leave — lack of job skills, the presence of children to care for, fear of retaliation by the man, etc” (at 887).
While Lavallee can be seen as a positive decision for its initial recognition of myths about IPV, many feminists critiqued the characterization of survivors as suffering from a “syndrome” or “learned helplessness.” This critique was acknowledged in the Court’s next decision concerning self-defence in the IPV context, R v Malott, 1998 CanLII 845 (SCC), [1998] 1 SCR 123. In their concurring judgment in Malott, Justices Claire L’Heureux-Dubé and Beverley McLachlin noted the “new stereotype” of the battered woman as someone who was “victimized, passive, helpless, [and] dependent” (at paras 39-40). They recognized that survivors of IPV who strayed from this stereotype “will not have their claims to self-defence fairly decided”, including “women who have demonstrated too much strength or initiative, women of colour, women who are professionals, or women who might have fought back against their abusers on previous occasions” (at para 40). They also expanded on the list of factors that explain why women may not leave abusive partners, including “a woman’s need to protect her children from abuse, a fear of losing custody of her children, pressures to keep the family together, weaknesses of social and financial support for battered women, and no guarantee that the violence would cease simply because she left” (at para 42). These observations were based on socio-legal literature and, importantly to the appeal in Barendregt v Grebliunas, recognized how IPV can impact family law disputes. However, Malott has not had the impact on family law that we might hope – it has not been cited in any reported family law decisions at the Supreme Court nor lower court levels.
Ultimately, Lavallee and Malott are cases about women’s lack of options in the face of IPV. Today, rather than battered women’s syndrome and learned helplessness, the more appropriate lens for analyzing women’s inability to leave an abusive partner is that of coercive controlling violence (see a discussion here). Although it is not yet a criminal offence, coercive control has been recognized in family legislation including 2021 amendments to the Divorce Act, RSC 1985, c 3 (2nd Supp), s 2(1). Courts must ensure that their recognition of coercive control does not fall prey to the sort of concerns about battered women’s syndrome that were expressed in Malott, and should consider the structural factors that may keep women in abusive relationships.
More recently, in R v Goldfinch, 2019 SCC 38 (CanLII) – a case involving an alleged sexual assault between former intimate partners – the Court considered the admissibility of sexual history evidence of their past relationship. Writing for the majority, Justice Andromache Karakatsanis noted that “complainants continue to be treated as less deserving of belief based on their previous sexual conduct” (at para 45), and identified the myth “that sexual assault is a crime committed by persons who are strangers to their targets” (at para 2). The majority held that the relationship evidence was not admissible as “context” for the alleged sexual assault, noting that the defence’s attempt to introduce this evidence was for the sole purpose of suggesting the complainant had consented on the occasion in question – in other words, that her claim of sexual violence was not credible because of their past intimate relationship.
Lavallee, Malott, and Goldfinch confirm that courts should be attuned to assumptions about the credibility of women who report violence by intimate partners and aware of how gendered myths and stereotypes may inappropriately influence their assessments of women’s claims.
There are a few other decisions of note in the criminal law area that indirectly acknowledge myths and stereotypes about women who are survivors of IPV. In a series of cases, the Court has discussed the pressures on survivors of violence in the context of criminal investigations and proceedings. In R v B (KG), 1993 CanLII 116 (SCC), [1993] 1 SCR 740, Justice Peter Cory’s concurring reasons noted that in addition to the police, “friends and supporters of the accused can as well influence a witness to change a statement. This may be particularly true in … cases of spousal assault” (at 826). Similarly, in R v Marquard, 1993 CanLII 37 (SCC), [1993] 4 SCR 223, Justice L’Heureux-Dubé J remarked on the “well-recognized phenomena among victims of sexual abuse or domestic violence” of “recantation of the reported assaults and delay in reporting” which could “reflect negatively on the credibility of the witness” without knowledge of the context (at 270, dissenting; see also R v Godoy, 1999 CanLII 709 (SCC), [1999] 1 SCR 311 at para 21; R v Reeves, 2018 SCC 56 (CanLII) at para 84). In R v Friesen, 2020 SCC 9 (CanLII), Chief Justice Richard Wagner and Justice Malcolm Rowe noted that barriers to reporting child sexual abuse “can be particularly pronounced where the perpetrator … resides with the victim and is a parent or caregiver” and that “[t]hese fears may be especially pronounced … where the offender has also engaged in domestic violence” (at para 128).
Other cases could be clearer in rejecting myths and stereotypes about IPV. In R v Couture, 2007 SCC 28 (CanLII), the Court considered the admissibility of a spouse’s out-of-court statements about her abusive husband that incriminated him for the murder of a previous intimate partner and her friend. At trial, defence counsel alleged that separation from an abusive partner and/or revenge for the abuse could lead a spouse to lie about her partner. In dissenting reasons that would have admitted the spouse’s statements, Justice Marshall Rothstein stated that in this case, “estrangement itself could not serve as motivation for concoction” and “her actions were not motivated by a sense of vengeance arising from spousal abuse” (at para 127). However, his remarks were based on the facts of the case rather than a rejection of the gendered stereotype that ex-spouses have a motive to lie about IPV. Couture shows that women may face conflicting assumptions about IPV – that they should leave their partners and report abuse, but also that if they do, their reports could be seen as vengeful. It also raises concerns about the extent to which myths and stereotypes are introduced by counsel for abusive men, an issue which is beyond the scope of this post but has been analyzed by Elaine Craig in her work on the ethical obligations of counsel in sexual assault cases as well as by Deanne Sowter in the family violence context.
Other criminal cases could be seen as missed opportunities to discuss myths and stereotypes about IPV. In R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, Justice Michel Bastarache referenced Lavallee in noting “the growing social awareness of the problem of domestic violence” and found that “prevailing social values mandate that the moral responsibility of offenders be assessed in the context of equality between men and women in general, and spouses in particular” (at para 240). Similarly, in R v Tran, 2010 SCC 58 (CanLII), Justice Louise Charron acknowledged as legitimate the concern that refusing to recognize that “people have a legal right to leave relationships and even to make disparaging comments about ex-partners… could deny women the equal protection and benefit of the law” (at para 28). Both cases involved allegations that the accused had been provoked into violence by his wife, and while the Court spoke generally of equality principles, it did not take the opportunity to address the social context, myths, and stereotypes surrounding provocation claims.
Most recently, in R v Stairs, 2022 SCC 11 (CanLII), the Court considered search powers incident to arrest in a case where the police were responding to a domestic violence call. In their majority decision, Justices Michael Moldaver and Mahmud Jamal affirmed broad police powers to search the accused’s home, noting the importance of victim safety, the reality that victims may not cooperate with police, and the “emotionally charged and volatile” nature of these types of cases (at para 93). However, the dissent (written by Justice Karakatsanis) recognized that overbroad police search powers can deter victims from reporting IPV, noting that the victim, in this case, was arrested herself (at para 123). Neither the majority, dissent, nor concurring reasons by Justice Côté dealt with the concern that broad search powers will adversely impact those who are over-criminalized, including racialized and Indigenous persons. This is a concern not just for those who are accused of IPV, but for survivors of IPV as well. Stairs can be seen as another missed opportunity to tackle myths and stereotypes about IPV, including the assumption that police will invariably support and protect survivors.
Overall, there are only three criminal decisions from the Supreme Court that explicitly recognize gendered myths and stereotypes about IPV – Lavallee, Malott, and Goldfinch. Read together with the decisions that implicitly acknowledge myths and stereotypes, the Court’s criminal jurisprudence suggests that it is incorrect for courts to assume that survivors will leave their partners, report IPV, or – in the case of sexual assault – that they will have had no previous relationship with the perpetrator. However, the Court has not yet clearly stated that it is a myth to assume that women have a motive to lie about abuse out of vengeance towards their ex-partners (or on other grounds).
I now turn to the Court’s family law decisions to explore its recognition of myths and stereotypes about women’s claims of IPV in this context.
Family Law Cases
In a series of cases in the 1990s, Justice L’Heureux Dubé identified a number of myths and stereotypes related to the interpretation and application of family law, but none of these decisions explicitly dealt with or referenced IPV.
In Moge v Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813, the Court considered spousal support and the objective of self-sufficiency following a marriage breakdown. Writing for a majority, Justice L’Heureux Dubé noted the importance of recognizing the feminization of poverty and its connection to divorce (at 853-4). She also expressed concerns about “making a spouse’s entitlement to support contingent upon the degree to which he or she is able to fit within a mythological stereotype” of the traditional marriage (at 847).
Young v Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3 concerned a dispute about the father’s access to children and the role of religion in the children’s lives. Describing the position of the BC Court of Appeal, Justice L’Heureux Dubé (dissenting in the result) noted their “general concern that access rights remain vulnerable to the caprices of a vengeful custodial parent” (at 60). Her response identified as a myth the assumption “that the custodial parent typically attempts to obstruct access of the other parent”, given her finding that “studies in Canada, England and the United States indicate that the problem tends to be quite the reverse” (at 60). Justice L’Heureux Dubé’s reasons were grounded in gender equality and provide some authority for recognizing that mothers may face false assumptions that they are vengeful ex-spouses. While not directly related to IPV, this decision supports recognition of the myth that mothers may falsely claim IPV and block access out of vengeance rather than to protect their children.
In her concurring reasons in Willick v Willick, 1994 CanLII 28 (SCC), [1994] 3 SCR 670, Justice L’Heureux Dubé cited Lavallee for the Court’s recognition of “the usefulness of social science research and judicial notice of social context in debunking myths and exposing stereotypes and assumptions which desensitize the law to the realities of those affected by it” (at para 19). She found that this was an appropriate case to take judicial notice of child poverty in single-parent families and the hidden costs that can be ignored by courts in calculating child support, noting that the importance of interpreting legislation so as not to contribute to the substantive inequalities that can flow from the breakdown of spousal relationships (at para 22).
We then have a gap of more than 15 years before Justice Sheilah Martin’s concurring judgment in Michel v Graydon, 2020 SCC 24 (CanLII). Her reasons recognized the importance of access to justice considerations in family law, as well as how “fear and danger” may affect a parent’s ability to bring an application for child support (at para 86). Referencing Statistics Canada reports on family violence, she acknowledged that IPV is disproportionately suffered by women and can result in financial insecurity, the need to seek shelter, and sometimes, homelessness. Furthermore, IPV and its impacts may affect a survivor’s “emotional health and their consequent potential fear” and may result in an “inability” or “unwillingness to engage with their past abuser” (at para 95). Citing secondary literature, Justice Martin also accepted that “some abusive fathers may use the child support process as a way to continue to exercise dominance and control over their ex-wives” (at para 95). This may include a “counter-application for custody” and lead to women’s “fear of losing custody due to discrimination or stereotyping” (at para 85 and note 6). As Justice L’Heureux Dubé did in the 1990s, Justice Martin grounded her reasons in equality principles, noting the importance of attending to “the gendered dimensions of poverty” as it intersects “with race, disability, religion, gender modality, sexual orientation, and socioeconomic class” (at 101). This decision is an important recognition of the realities of litigation and systems abuse and how those forms of abuse might influence the actions of survivors of IPV. While not stated explicitly, it follows that assumptions should not be made about the credibility or veracity of IPV claims based on survivors’ conduct in family litigation and other legal processes.
In Colucci v Colucci, 2021 SCC 24 (CanLII), another child support case, Justice Martin wrote for a unanimous Court and remarked on the “trend in family law away from an adversarial culture of litigation to a culture of negotiation” (at para 69). While finding that “[p]arents should be encouraged… to resolve their disputes” in this manner, she stated that “family violence” and “significant power imbalances” were an exception (at para 69; see also the dissenting reasons of Justices Louis LeBel and Marie Deschamps in Miglin v Miglin, 2003 SCC 24 (CanLII) at para 212). Similar to her reasons in Michel v Graydon, Justice Martin recognized that legal tactics may be used in family disputes, though in Colucci, she gave the example of a support recipient who “threatens to withhold access or uses other tactics to discourage the payor from applying to reduce support” (at para 99). In isolation, this could be seen as a problematic statement that relies on the stereotype of the vengeful mother that was debunked in Young. However, Justice Martin clarified that courts should be “cautious to distinguish bad faith on the part of the recipient from situations where recipient conduct results from safety concerns arising from a history of family violence” (at para 99). This qualification is important in accepting that the conduct of survivors in pursuing or maintaining legal rights and remedies must be viewed through the lens of IPV, just as courts must view their failure to pursue rights and remedies through this lens.
Finally, in Association de médiation familiale du Québec v Bouvier, 2021 SCC 54 (CanLII), the Court considered when an agreement reached in a family mediation setting can be overturned. Justice Nicholas Kasirer, writing for the majority, viewed mediation more benignly than Justice Martin did in Colucci, noting that it “involves inherent protections to guard against the possibility that vulnerable parties will unknowingly end up bound by an ill considered agreement” (at para 88). Although he pointed to legislated training requirements on IPV for mediators in Quebec, and their obligation to take IPV into account in assessing the (in)equality of bargaining power (at paras 60-61), the concurring judgment of Justice Karakatsanis better recognized the unique vulnerabilities and power imbalances that can arise in the alternative dispute resolution (ADR) context (at paras 134-135). In addition, not all jurisdictions have similar IPV training or screening requirements for ADR professionals, so it is difficult to see ADR as having “inherent” protections (see here at 23-27).
Conclusion
This review reveals that there are some decisions in which members of the Court have made progress in recognizing false and faulty assumptions about IPV as myths and stereotypes, but it is a rare case where a majority of the Court has done so. By my count, there are only three such decisions: Lavallee, Goldfinch, and indirectly in Colucci. In the family law context, there is not yet recognition of stereotypes such as that of the lying wife who makes up or exaggerates IPV to gain an advantage in parenting proceedings. Given what we know about the underreporting of IPV, and because many lawyers advise their clients not to raise IPV in family cases, it is remarkable that this myth has had such staying power. We also know that there is often backlash to claims of IPV – for example, counter-allegations of parental alienation that courts may accept to the detriment of IPV survivors (see e.g., here and here). This evidence suggests that courts should be wary of allegations that women fabricate IPV in family law disputes to gain a mythical advantage.
We can take lessons from sexual assault cases such as Seaboyer, where the Supreme Court identified myths and stereotypes about the credibility of sexual assault complainants that it has expanded over the last 30 years. More recently, in Barton, Justice Moldaver’s majority judgment began with the point that “myths, stereotypes, and sexual violence against women—particularly Indigenous women and sex workers—are tragically common” and that “eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society” (at para 2).
In contrast to Barton, there is scant case law that identifies how myths and stereotypes about IPV may affect members of marginalized groups, apart from the general comments in Malott and Michel v Graydon noted above. Attention to the myths and stereotypes that apply to survivors of violence who experience intersecting inequalities is critical in light of evidence that women may face disproportionate risks of IPV if they are Indigenous, racialized, or have precarious immigration status or disabilities (see e.g., here, here and here). These women may also be susceptible to unique myths and stereotypes or at risk of disproportionate or differential application of common discriminatory assumptions about IPV. For example, Alberta’s Family Violence Death Review Committee has noted how legal actors and health, education, and social services professionals may “normalize” domestic violence in some Indigenous families, leading to a lack of response when reports of IPV are made (see a discussion here). While my research shows that cases involving Indigenous parties are scant in the family law realm, this sort of normalization may lead to stereotypes that are highly relevant in the child protection area, where Indigenous families are overrepresented. However, I did not find any Supreme Court of Canada child protection decisions dealing with myths and stereotypes about IPV.
To borrow the language from Barton, there is a pressing need to address myths and stereotypes related to IPV, and hopefully, the Court will take the opportunity to do so in Barendregt v Grebliunas. Lower courts require this direction to render decisions that do not rely on inappropriate assumptions that lead to wrongly disbelieving survivors and potentially compromising their and the children’s safety. In the meantime, courts may find some helpful guidance in the cases I’ve discussed here, even if that guidance comes in concurring opinions such as Justice Martin’s in Michel v Graydon. In Alberta, the Court of Appeal’s decision in R v Naslund, 2022 ABCA 6 (CanLII), also has a useful discussion of IPV and how it can affect substantive and procedural legal outcomes (watch ABlawg for an upcoming post on that case).
Another necessary step is for governments to implement mandatory judicial education about IPV, its social context, and myths and stereotypes. There is a good model federally for judicial education on sexual assault, and Bill C-233, An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner), 1st Sess, 44th Parl, Canada, 2022, seeks to extend this model by creating obligations for judicial education on IPV. In Alberta, we now have Bill 14, Provincial Court (Sexual Awareness Training) Amendment Act, 2022, 3rd Sess, 30th Leg, 2022, which would create education requirements for candidates seeking appointment as provincial court judges on sexual assault and its social context. Bill 14 should also be extended to require judicial education on IPV, and I will write about this in another future post.
The author’s research on intimate partner violence is supported by funding from the Social Sciences and Humanities Research Council. I am grateful for comments on an earlier draft from Janet Mosher, Deanne Sowter, Jonnette Watson Hamilton, and Wanda Wiegers.
This post may be cited as: Jennifer Koshan, “#Don’tDisbelieveHer: Towards Recognition of Myths and Stereotypes about Intimate Partner Violence at the Supreme Court of Canada” (April 13, 2022), online: ABlawg, http://ablawg.ca/wp-content/uploads/2022/04/Blog_JK_IPV_Myths_April_2022.pdf
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