Review of Provincial and Territorial Domestic Violence Legislation and Implementation Strategies

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Executive Summary

Introduction

At the time of this study, Domestic Violence legislation is operative in five provinces and territories with proclamation dates shown below.

• Saskatchewan : The Victims of Domestic Violence Act (Feb, 1995)
• Prince Edward Island : The Victims of Family Violence Act (Dec, 1996)
• Yukon : Family Violence Protection Act (Nov, 1999)
• Alberta : Protection Against Family Violence Act (Jun, 1999)
• Manitoba : The Domestic Violence and Stalking Prevention, Protection and Compensation Act (Sep, 1999)

Ontario introduced a similar bill for first reading on September 27, 2000, but the bill is not discussed in this study.

In general terms, the purpose of domestic violence legislation is to provide victims of domestic violence quick and effective access to the justice system to achieve early intervention. This is typically done through some form of ex parte emergency order that can be made by a justice of the peace, later confirmed by a court. The orders typically centre on provisions such as granting the victim exclusive occupation of the residence, removal of the respondent from the residence, supervised removal of personal belongings to ensure the victim’s safety, and restraints on communication or contact with the victim.

Most Acts also contain longer term orders to assist victims, and some allow for warrants permitting entry if there are grounds to believe a victim is in the residence and entry is being denied by the respondent.

Background to Study

Focus Consultants contracted with the Federal Department of Justice to gather materials and undertake preliminary analyses pertaining to domestic violence legislation in the five jurisdictions listed above. The immediate user of this information is the Government of Nunavut; the immediate purpose is to facilitate a decision as to whether similar legislation might be appropriate for Nunavut. It was foreseen, however, that other jurisdictions might also find the document useful.

The overall product is organized in three parts:

• Part 1 – A review of key implementation issues associated with developing and implementing domestic violence legislation, wherever possible with applicability to the geography and culture of Nunavut’s population. Only Part 1 is systematically addressed in this executive summary.
• Part 2 – A comparison of the legislation and regulations pertaining to domestic violence legislation in the five jurisdictions, including reference to legal cases that relate to the legislation.
• Part 3 – A series of appendices containing legal documents, implementation materials and evaluation documents pertaining to domestic violence legislation in the five jurisdictions. These materials are only available in binders for the Government of Nunavut and Justice Canada, and have not been electronically incorporated in this document.

The analysis in Part 1 addresses five areas related to the development of domestic violence legislation: consultation processes, infrastructure requirements, training, communication, public legal education, and impact issues.

Consultation Processes Prior to Domestic Violence Legislation

The purposes of consultation in the jurisdictions were:

• to assess the need for legislation and identify the gaps in the response to domestic violence that it could fill;
• to assess the capacity and willingness of communities to be effective partners in implementing the legislation; and
• to elicit concerns or responses about specific features of the proposed legislation.

The issue of capacity and willingness is critical in a context such as Nunavut. A consultation process may lead smoothly to legislation. However, equally likely, it could create an understanding that legislation should be delayed until the infrastructure necessary to support victims under the Act can be developed.

Infrastructural Requirements

Several features of models in the five jurisdictions are of particular importance in understanding infrastructure requirements for the Government of Nunavut.

• The emergency order requires teamwork among several players.
• These include justices of the peace, servers, peace officers or designated persons, court officers (registrar or judge) and a support service worker for the victim.
• The training in the jurisdiction has evolved from simply providing information about the Act, to defining the technical requirements of individual players, to reinforcing the interconnections between players.
• Jurisdictions need to assess the feasibility of having all these players and interconnections in place when considering legislation.
• The role of the justice of the peace (JP) is critical in the process.
• This requires that for jurisdictions considering similar legislation, the network of JPs be well-developed.
• Safety planning and follow-up capabilities are essential for the victim.
• This is likely the single most critical infrastructure requirement to support this legislation.
• This can be especially difficult in isolated communities. It is not just a matter of policing, but also of protecting the victim emotionally. Without this capacity, alternatives to this legislation or a longer term developmental process should be considered.
• Telecommunications capacity and methods of researching evidence are essential for an emergency order.
• These include phone, fax and/or e-mail for applying for emergency order.
• Application forms, JOP checklists and service information sheets need to be developed.
• Technology to locate JPs (e.g., 1-800 numbers with automatic transfers, call centres) are essential.
• Some form of central staff support is required for long term success.
• Ongoing tasks involve monitoring (even tracking of orders can be very difficult), evaluation, training and public education.

Training

Two broad-scale orientations in training were:

• Training is an ongoing function rather than a one-time process (because of staff turnover, the emergence of new needs, orientations and issues, and amendments to the Act); and
• training is as much about assessing and developing capacity as it is about providing information.

Key topics covered in training materials include:

• team work between multi-disciplinary partners;
• domestic violence legislation is one tool among many; how to determine which tool is most appropriate;
• dynamics of domestic violence and the need for understanding and compassion for the victim;
• protection of victim as a paramount consideration;
• clause-by-clause analysis of the Act and Regulations;
• step-by-step discussion of procedures for each type of worker, and forms that need to be completed; and
• role play or discussion of scenarios.

Delivery of training has emphasized:

• delivery by a team (e.g., by police officer and family violence specialist);
• use of a “train the trainers” model;
• coverage of a wide range of participants, either together or separately;
• length has varied by type of audience, but generally is 2 or 3 days; and
• the need for follow-up (either as formal training or as information sessions).

Public Education and Information Materials

Evaluation reports in Saskatchewan and PEI state that more public education was necessary.

Written materials produced thus far have consisted of:

• pamphlets about the Act generally;
• information sheets for victims and respondents about specific things to know or prepare for in relation to an order; and
• multi-page guides about the victim assistance order.

Impact Issues

The following three issues are derived from evaluation studies in Saskatchewan and PEI and do not cover issues already addressed above.

• The victim assistance order (as opposed to the emergency order) has received little use in PEI and Saskatchewan but anecdotal evidence from Winnipeg suggests a much higher rate of usage. The main reasons for lesser use in Saskatchewan and PEI appear to be that:
  • lawyers feel it does not provide significant new options to existing legislation;
  • they would prefer to use legislation that can also deal with custody, maintenance and restraining orders as a “whole package”; and
  • legal aid is not available for a victim assistance order unless the client meets financial eligibility requirements.
• Findings about the impact of domestic violence legislation on mandatory charging in spousal assault cases in Saskatchewan are somewhat equivocal. On balance it appears that rather than being used as an alternative to charging, the legislation is being used where there is insufficient evidence to support a charge, or unlikelihood of conviction because a victim would be unlikely to be cooperative in criminal proceedings.
• Seizure of firearms from a respondent (i.e., the perpetrator of violence) is usually seen as a preventive measure to protect the victim. In some Northern jurisdictions firearms are often essential for earning a livelihood, and domestic violence legislation may be better able to accommodate victims’ and respondents’ specific needs than would a separate court order.

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