Peace Bonds and Violence Against Women: A Three-Site Study of the Effect of Bill C-42 on Process, Application and Enforcement
11. Overall Findings
- 11.1 Peace Bonds and Violence in the Home
- 11.2 The Effect of Provincial Domestic Violence Legislation
11. Overall findings
The objective of this last part of the report is to try to bring together the findings from Winnipeg, Hamilton and Halifax, national trend data, and any additional information to get a general picture of the use of peace bonds in cases of partner violence in Canada. Of course, we are particularly interested here in what we can discern about the specific effect of Bill C-42 in the process, application and enforcement of peace bonds.
11.1 Peace Bonds and Violence in the Home
Without question, the major hurdle for battered women who wish to obtain a peace bond is procedural rather than a problem that could have been ameliorated by amendments to the Criminal Code. In all three jurisdictions, obtaining a peace bond by direct application to a J.P. was reportedly a time-consuming problem wrought with delays, making section 810 recognizances a poor choice for battered women.
No. The real problem with all of this is whether it’s peace bonds or assault charges is that the court system being what it is it takes a long time for things to get through. (NS Judge).
It’s unfortunate, it’s too bad something can’t go into place once the application has been made … it’s too bad something can’t go into place as soon as the application has been made. (NS Justice of the Peace)
… it’s a laborious process that takes too long. (MB Shelter worker)
If the respondent wishes to contest the order, or cannot be found, delays are inevitable:
One thing I have noticed that appears to me to be a problem is women going to court for a peace bond and he decides he won’t sign therefore they have to go through a trial. And I know a woman who went this month, a couple of weeks ago, actually the 17th, and she must go back in October. The courts are very backed up or they’re not putting it as a priority, or whatever, I’m not really sure. It’s a real problem for that woman and her children. (NS Shelter Worker)
They set it down for trial and it usually takes here, boy, about a good six to eight months. (MB Justice of the Peace)
Another procedural problem with peace bonds for battered women is that the process is intimidating because they cannot be obtained ex parte and the onus is placed on the applicant to acquire the order:
No, we bring some onus on the woman to, I mean these things are due to a bad situation, so, we’ve helped her all the way through court and through this process, now we’re saying to please take some responsibility to get your life back on track and carry on. (MB Police officer)
… I’ve heard complaints all the way along. SO INTIMIDATING … Yes, the process tends to be intimidating based just on where the woman is at, and because it’s telling her story again, and if my understanding is correct, they also have to let the person know who she’s applying against with the peace bond, and so she knows that she has to again deal with him through that system, so even though it’s a quasi-judicial process, I think there’s that fear of ‘Oh my god, I have to be in court with him, and what is he going to do, this is going to make it worse’ … and yes, I think that there’s all sorts of barriers. (ON Shelter worker)
Of course, if an abused or at-risk partner wants or needs help in the process of obtaining a peace bond, our informants reported that the applicant must pay for their own legal costs:
The disadvantage under our current peace bond system is that by and large the peace bonds are prosecuted by the individual as opposed to the Crown Attorney. So it’s difficult for someone who wants a peace bond to get it unless they’re comfortable with the court process or can afford a lawyer. (NS Judge)
Because a peace bond was set up, um, twofold, with a non-molestation order and the restraining orders, they didn’t have to appear in court, when you apply for a peace bond you have to appear, and then he gets to say whether he wants it or not, and then can get sent to mediation and then it might need to have to go to trial if he’s appealing it and it’s a lengthy process, most of our women need to have something that’s in place immediately. (MB Shelter worker)
Moreover, at least in Nova Scotia, there is no legal aid for applicants obtaining peace bonds. If a summons needs to be served on the respondent, this fee must be paid by the applicant:
Nova Scotia Legal Aid does not provide assistance with women in domestic violence situations for seeking peace bonds, and that is something that should have been changed a long time ago. It’s totally, you know, archaic … (NS Lawyer)
One NS shelter worker aptly summed up most of the informants’ sentiments by stating “It’s just another barrier when they don’t need one.”
Many of the potential difficulties encountered by a partner seeking protection through a peace bond are related to the fact that the entire ideology of the criminal justice system response to intimate violence has shifted. By and large, persons interviewed for this report argued that peace bonds were ‘archaic’ in light of contemporary pro-charge policies:
No, not a peace bond. A peace bond is obsolete almost, I mean you just don’t .... when I saw these questions I wasn’t sure whether you were sort of using a generic form for a protective order. (MB Shelter worker)
In addition, alternative remedies are reportedly more likely to be used, including:
- restraining or non-molestation orders through family courts;
- emergency protection orders under provincial domestic violence legislation; or
- obtaining conditions on a written undertaking when the accused is arraigned for assault charges.
I think what the Crown Attorney’s policy says in domestic violence situations is they should be seeking a written undertaking from that individual ordering that they have no contact with the victim. (NS Lawyer)
… the moment the police arrest me I could be released on a condition that I stay away from you, or stay off booze, or be controlled by a condition that may effect the probability of that offence occurring again. With a peace bond that can’t happen. A peace bond is never in place until such time as a judge hears the evidence and makes a decision. And in some cases it’s months and months and months. That’s the major factor is the delay. (NS Justice of the Peace)
And for anything that’s domestic normally they’re protection order, prevention order, if it’s domestic related. So it’s really stopped the peace bonds. Peace bonds, it’s usually … we get neighbours, or friends, or something like that. (MB Justice of the Peace)
Thus, section 810 peace bonds, as a form of initial remedy for partner violence are increasingly uncommon. Most of the peace bond applications seen by justice professionals in the three cities included in this report are largely neighbour disputes:
Well, neighbourhood disputes, sometimes we’ll get husband and wife or boyfriend and girlfriend who want a peace bond, they don’t want to have nothing to do with the boyfriend so they get a peace bond. (MB Police Officer)
… a lot of peace bonds are neighbourly disputes. We might be neighbours and I don’t like the way you built your fence, "take that fence down or I’ll go shoot you.", you get a peace bond because I threatened you. (NS Justice of the Peace)
Peace bonds are still quite common as a form of disposition in all three jurisdictions. However, the actual number of section 810 peace bonds versus common law peace bonds is difficult to disentangle, especially for Hamilton. For all domestic violence related peace bonds issued in Halifax and Winnipeg between 1993-2001 (n=424), we can make the following observations (see Tables 11.1.1 and 11.1.2):
First, the most common relationship status between respondent and applicant in domestic violence related peace bond issuances was common-law (30.2%), followed by separated (21.2%), boyfriend/girlfriend (21.0%) and married (13.0%). Over 70 per cent of domestic-violence related issuances were against a male respondent, on behalf of a lone female applicant.
| Respondent | Applicant | |||||
|---|---|---|---|---|---|---|
| Man | Woman | Both | ||||
| N | % | N | % | N | % | N |
| Man (n=296) | 12 | 3.1 | 271 | 70.8 | 14 | 3.7 |
| Woman (n=87) | 70 | 18.2 | 14 | 3.7 | 2 | 0.5 |
* Gender could not be discerned for either the applicant or offender in 37 cases Percentages based on total cases.
| Relationship (N=424) | N | % |
|---|---|---|
| Common-law | 128 | 30.2 |
| Separated | 90 | 21.2 |
| Boyfriend/girlfriend | 89 | 21.0 |
| Married | 55 | 13.0 |
| Family | 22 | 5.2 |
| No relationship | 13 | 3.1 |
| Divorced | 6 | 1.4 |
| Friend | 3 | 0.7 |
| Acquaintance | 3 | 0.7 |
| Unknown | 15 | 3.5 |
11.2 The Effect of Provincial Domestic Violence Legislation
It cannot be over-stated that in cases of domestic violence, section 810 peace bond applications have been made uncommon by provincial protection order legislation in Manitoba. In cases where specific provincial domestic violence emergency orders are unavailable, there are non-molestation, restraining, and exclusive possession (of the matrimonial home) orders available under provincial family law legislation. At the time of the writing of this report, four provinces and one territory had enacted their own domestic violence legislation. [8] Ontario had passed new legislation (Domestic Violence Protection Act) but it had not yet been proclaimed.
According to informants in Winnipeg, where Manitoba provincial domestic violence legislation has been in effect since June 1999, the emergency protection orders available under this legislation make peace bonds an unlikely recourse for battered women:
… we’ve got provincial legislation that covers that area and it’s far more effective than the peace bond. (MB Crown Attorney)
… we used to have, were domestic, or stalking kind of situations, which is now, they’re covered by other legislation, here in Manitoba. So it’s cut down on the number of peace bond applications. (MB Justice of the Peace)
A breach of a provincial restraining order in Manitoba is processed by way of section 127 of the Code. This is believed to be a better remedy because, as a Manitoba Crown attorney put it: “the penalty has a bit more teeth…it’s easier to get and it has more teeth.”
But even before the Manitoba domestic violence legislation, peace bonds were not the preferred protective order, at least in Winnipeg:
No, we’re … prior to … they used to have these non-molestation orders which would mean that, ok, like you and I could live together, but you would have a non-molestation order so all of a sudden, you’re upset with me at 2:00 in the morning, you call the police and you say “he’s bothering me” with a peace bond, it’s laid out in black and white. Which is extremely important for the enforcement, it’s laid right out. (MB Police officer)
One of the perceived benefits of such legislation is the immediacy of the order and the fact that there is often no end-date proscribed:
So what happens is they go into court, and they come into court, everything’s done in writing, they swear to their evidence. They give us more verbal evidence, then we make a decision. And if they’re given their protection order then, it’s for life. It’s there and sometimes the person from the house, and then later on will file for separation or whatever. But it’s no contact/communication, not a tad. We could remove someone from the house, we could have the police search their house for guns if she says there are guns and knows where they are. There could be no contact with children, if the children are involved in the domestic abuse. And it’s onfor life, until someone files, in the court of Queen's bench to get it set aside. (MB Justice of the Peace)
On the other hand, at least one Winnipeg police officer saw this not as an advantage but rather as a problem. The officer questioned the efficacy of having no time limit on the order:
No, no, actually we prefer, from our point of view, we prefer the 810's because you do have a time, you know, you’ve got the year, and so therefore you’re putting a little bit of onus on the person to try and get a life together and try and make some plans. (MB Police officer)
In order to try to assess the effect of provincial domestic violence legislation on the use of section 810 peace bonds, we may consider longitudinal data from the ACCS. Of those provinces and territories with provincial domestic violence legislation, PEI and the Yukon reported such small and erratic issuance frequencies on the ACCS that they could not be used for longitudinal analysis.
Although Manitoba has domestic violence legislation, it does not participate in the ACCS. Ontario’s domestic violence legislation has yet to be proclaimed, and in any case would be too recent to include in the analysis given that no post-enactment ACCS data on peace bonds is available. The only two provinces that make reasonable cases are Saskatchewan and Alberta.
Graph 11.2.1 demonstrates that for both Saskatchewan and Alberta, there were no drops in 810 issuances immediately following enactment of provincial domestic violence legislation: a seven per cent drop in 1995/96 for Saskatchewan and a 13 per cent drop in 1999/00 for Alberta.
However, in the case of Alberta, an even larger one-year drop of section 810 issuances occurred in 1997/98 (16%) when no provincial domestic violence legislation existed. Given that both of these provinces were not part of this report’s three-site study, it is unclear what justice personnel might say about these statistical trends.
It must be noted, however, that the data presented in Graph 11.2.1 reflects the total number of peace bonds issued and is not restricted to domestic violence related issuances. As mentioned, it is not possible to isolate this data from the ACCS.
[ Description of Graph 11.2.1 ]
[8] Saskatchewan: The Victims of Domestic Violence Act, 1995; Prince Edward Island: The Victims of Family Violence Act, 1996; Yukon: Family Violence Protection Act, 1999; Alberta: Protection Against Family Violence Act, 1999; Manitoba: The Domestic Violence and Stalking Prevention, Protection and Compensation Act, 1999.
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