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| Pamela Cross |
Such a move is consistent with the Liberal party’s platform in the recent election, which committed to “making murder motivated by hate a constructive first-degree offence, including femicide.”
Many feminist and violence against women advocates have called for this, including the Canadian Femicide Observatory for Justice and Accountability. Certainly, there are some positive possibilities that could flow from a stand-alone offence of femicide. But there are also some reasons to be cautious about moving in this direction.
Defining femicide
Femicide is generally understood to mean the killing of a woman or girl because of her gender. Some say the killing has to be committed by a man, but this is not universally agreed-upon. The term does not specifically address the killing of transwomen or those who identify as non-binary. It includes, but is not limited to, intimate partner killings.
For example, Toronto’s 2018 “van attack” has been described as an act of femicide, even though men were among the victims, because the perpetrator identified himself as an “incel” (involuntary celibate).
Vladimir Ivankin: ISTOCKPHOTO.COM
But does this mean it should become its own offence in the Criminal Code?
Pros and cons
Those who support creating a distinct offence of femicide suggest it will allow for more accurate data collection about who is being killed by whom as well as give the police more resources. It could also lead to increased public awareness about the prevalence and seriousness of all forms of gender-based violence, including lethal violence.
However, before we move to create a separate offence of femicide, we should look at what the Criminal Code already offers with respect to the killing of women. For example, s. 718(2) sets out some aggravating factors for the court to consider in sentencing. These include evidence that the offence was motivated by prejudice or hatred based on, among other factors, gender, as well as evidence that the offender, in committing the offence, abused their intimate partner or another family member.
We need to know what we mean by the word femicide, and right now there are some differences of opinion about that, as well as what the elements of the offence would be. We also should consider potential, if unintended, negative consequences, including the differential impact of such an offence on marginalized communities, which are already disproportionately affected by a carceral criminal system. Having a look at mandatory charging policies, which have not proven to be as effective as hoped when they were implemented, would be helpful before a new criminal law response to gender-based violence is developed.
If one of the goals is to make women safer, we need more than a new criminal law. We need to address the root causes that lead to gender-based violence, including the murder of women; we need to educate the public, and we need to ensure that all those involved in the criminal process from police to judges are well-informed about GBV. We should also be looking at alternatives to the present criminal system that might better encourage true accountability on the part of those who have caused harm, while also ensuring the safety of those who have been harmed.
Learning from others
Some other countries have created criminal offences of femicide. In the past three years, Cyprus, Malta, Croatia and Belgium have done so, as has South Africa.
It is from the Caribbean and Latin America that we can learn the most. In response to extremely high rates of violence against women, 18 of 33 countries in that region have introduced a distinct offence of femicide into their criminal laws, beginning with Costa Rica in 2007. However, the rates of GBV and femicide have not gone down.
In Costa Rica, there were 10 femicides in the first two months of this year. According to the Judicial Branch’s Observatory on Gender Based Violence Against Women, femicide — most of it taking place in the context of intimate partner violence — has been steadily rising since 2022.
The country’s Ministry of Health reported in March that domestic violence overall has more than doubled in the last four years, increasing from 9,406 reported cases in 2021 to 23,046 in 2024.
Research conducted by Queen Mary University of London looked at the impact of femicide laws in Mexico, only to find that they have failed to reduce the number of femicides and of girls and women reported missing. The report points to ambiguities in the legislation as one of the reasons for its lack of effectiveness, but also argues that the roots of violence need to be addressed and that the laws need to be supported by a judicial system that can effectively enforce them.
Canada can learn from the experiences of those countries that have already implemented a stand-alone offence of femicide before moving ahead to do the same here. We should also review the history of the criminal response to gender-based violence in this country and listen to the voices of all those who could be affected by the creation of a new criminal offence.
This is the only way to ensure that any action we take does not have a negative impact on those it is intended to protect.
Pamela Cross is a feminist lawyer who works on issues related to violence against women and the law. One of her key roles is as the legal director of Luke’s Place in Ontario.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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