A Comparative look at Protection Orders from across Canada

Transcription

1 A Comparative look at Protection Orders from across Canada Province/ Territory British Columbia Provincial Law Forms of Violence Type of Order Since When Who it applies to Domestic Violence Prevention Act* * This Act has not been passed Emergency Intervention Order (short-term) Victim Assistance Order (long-term) (1998) Alberta Protection Against Family Violence Act Saskatchewan The Victims of Domestic Violence Act Manitoba Ontario The Domestic Violence and Prevention, Protection and Compensation Act Domestic Violence Protection Act* * This Act has been passed, but never proclaimed Quebec Not in existence New Brunswick Not in existence Prince Edward Victims of Family Violence Act Island Emotional maltreatment Physical violence or threats Emotional maltreatment Nova Scotia Domestic Violence Intervention Act Newfoundland Not in existence Nunavut Not in existence Yukon Family Violence Prevention Act Depriving of necessities Emergency Protection Order (short-term) Queen s Bench Protection Order (long-term) Emergency Intervention Order (short-term) Victim s Assistance Order (long-term) Interim Prevention Order (short-term) Protection Order (three years) Prevention Order Emergency Intervention Order Intervention Order Emergency Protection Order Victim Assistance Order Emergency Protection Order (30 days) A Judge can extend the Order for another 30 days. Emergency Intervention Order Victim s Assistance Order 1999 Members of the family Dating relationships (2000) Dating Relationships 1996 Members of the family Northwest Protection Against Family Violence Act Emergency Protection Order 2005 Family Spouses Parents of the same child

2 Territories Protection Order (long-term) Psychological, emotional, and financial abuse Intimate relationships (have lived together)

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4 THE LEGISLATION Most provinces and territories have implemented legislation that deals specifically with violence in intimate relationships. As shown in the chart above, the legislation s name as well as what forms of violence it addresses varies from one jurisdiction to another. For example, Manitoba s law can apply to a young woman who is being abused by her ex-boyfriend, but might not do much for an older woman who is being abused by an adult child. Meanwhile, the domestic violence law in Nova Scotia only applies to spouses, partners who have lived together or parents of the same children. This limited definition means that many women who are facing abuse at the hands of other family members, boyfriends, caregivers, etc, are unable to benefit from the domestic violence legislation. Generally, the purpose of these Acts is to create two types of protection orders (sometimes known as intervention, prevention, or victim assistance orders); short-term and long-term. The short-term orders are emergency orders that can be obtained 24 hours a day, by telephone or by appointment, from a trained Justice of the Peace. In most cases, the police or Victim Services workers are the ones who seek these orders on behalf of the victim. In the case of Saskatchewan, there are other agencies authorized to apply for a protection order by telephone. The First Nations community case workers, for example, can apply for protection orders by calling the police on behalf of a survivor. Short-term protection orders usually last anywhere from 30 to 120 days. After that, a formal application can be made to the court requesting that the order be extended or turned into a long-term order. In most cases, this decision will be made by a judge after hearing both sides. Ontario s legislation is the only one that allows a shortterm order to automatically become a long-term protection order. In most cases, getting a long-term order requires legal representation which means that unless legal aid is available only a small number of women are able to apply for long term orders. This is why short-term orders are being used much more frequently. Manitoba has the highest usage rates, with about 1,100 orders issued in the first year the legislation was implemented, whereas other jurisdictions issue fewer than 500 per year. 1 Some of the Acts include an order referred to as a warrant permitting entry. This is a warrant issued by a Justice of the Peace to the police in order to allow them to enter a building where there is concern that someone is experiencing domestic violence and is unable to seek help. WHAT TYPE OF PROTECTION IS OFFERED? Protection orders attempt to prioritize the victim s needs by applying some of the following provisions: granting exclusive occupation of home to victim (although this provision does not apply on some reserves) removing respondent from home issuing a no contact/no communication order (i.e. no annoying, harassing or following the victim) ordering the respondent to not attend specific places sending a police officer to accompany the party removing personal belongings; and making any other provisions necessary to protect the victim (i.e. removal of firearms, leaving the car with the victim, granting the victim temporary custody of the children) WHAT HAPPENS IF AN ORDER IS BREACHED? Each province or territory has set different penalties for someone who breaches a protection order. In some, a breach is a violation of section 127 of the Criminal Code. This means that failing to abide by a protection order is 1 Spousal Abuse Policies and Legislation. Final Report of the Ad Hoc Federal-Provincial-Territorial Working Group Reviewing Spousal Abuse Policies and Legislation. Prepared for Federal-Provincial-Territorial Ministers Responsible for Justice.

5 treated seriously and can lead to a maximum penalty of 2 years imprisonment. Other Acts treat a breach as a provincial offence and set out specific penalties that might be similar to those set out in the Criminal Code. Breaching a protection order in Manitoba, for example, can lead to a maximum $5,000 fine and/or up to two years imprisonment. WHAT COULD BE BETTER? It is important that legislation address the fact that violence continues to be carried out primarily by men against women, and that those who hold the least power and control in society are most vulnerable to violence. Thus, it is problematic that these relatively new legislations do not all establish special provisions for the protection of marginalized women such as older women, young women, aboriginal women, women living in rural areas, women with disabilities and Deaf women, same-sex partners, transgender individuals, and immigrant/refugee/non-status women. It is also crucial that new legislation be followed by extensive training of enforcement bodies, lawyers and judges; and increased resources and access to legal representation and social services. Protection orders that are not adequately enforced have the effect of providing a false sense of security instead of much needed prevention and protection against violence. More women would likely seek protection orders if they could do so through community-based services (such as women s shelters) and not just through the police.