Yellowknife (Apr 18/05) - The Protection Against Family Violence Act is being billed as a "new tool" for victims of domestic abuse, but critics wonder if it holds the answer to the epidemic problem of family violence in the North.

Is the new Protection Against Family Violence Act - which can force abusers from their homes - the answer to a territory-wide problem? - Andrew Raven/NNSL photo

At its core is a provision that allows a victim of domestic violence quick access to an emergency protection order. Granted by justices of the peace, the orders can give victims exclusive use of the family home or vehicle and allow police to confiscate the firearms of an alleged abuser.

The process is a civil one and does not necessarily involve criminal charges or a court hearing. Victims can apply for the emergency protection orders through shelter workers or police and they can be granted ex-parte, or without the alleged abuser being present for the hearing.

The streamlined process provides victims with help "within a matter of hours," said Margaret Cissel a family law advisor in the territorial Justice department. "This is a new way to prevent family violence," she said.

Critics of the law say it does not deal with issues underlying family violence and question whether its powers are constitutional.

"Where is the balance?" asked Major Karen Hoeft of the Salvation Army.

"The fact that the alleged abuser is being excluded is a serious concern. I believe it is unconstitutional."

Seven other Canadian jurisdictions have similar legislation, including the Yukon which passed the Family Violence Protection Act in 1999.

But questions have been raised as to the fairness of a system that, initially at least, excludes the alleged abuser from the court process.

An independent review the Yukon law - commissioned by the territorial justice department - concluded that emergency protection orders have Charter implications, but stopped short of calling them unconstitutional.

"Emergency intervention orders represent a significant interference with the rights of respondents, and are made without notice to the respondent or a hearing," the report said.

The Yukon review also highlighted a system that is heavily weighted in favour of the accuser. During the first two years the legislation was in effect, 51 of 52 protection applications were granted by justices of the peace. In 38 of those cases, the alleged victims were granted sole use of the family home. Those decisions were automatically reviewed by a judge and in 47 of 51 cases, the orders were upheld.

Justice Minister Brendan Bell concedes that the system favours applicants, but said "imbalance is an important tool" in reducing the rate of domestic abuse in the territory.

"Family violence is not acceptable," he said. "We are trying to take a pro-active approach."

Dr. Sanjeev Anand, an expert in constitutional law at the University of Alberta, said the ex-parte applications "represent a short term deprivation of rights," but are necessary in circumstances where violence has occurred or is about to occur. "It is reasonable given the pressing circumstance," Anand said from Edmonton.

The new territorial legislation provides for an automatic review of the emergency protection order by a Supreme Court justice within three days - a provision designed to ensure there is enough evidence to warrant the order.

The Family Violence Act also allows Supreme Court Justices to impose protection orders in non-emergency situations if they are satisfied domestic abuse has occurred sometime in the past.

Like the emergency provisions, they last up to 90 days and can be issued ex-parte - a provision Hoeft called unconstitutional.

The legislation also gives police the power to enter a home and remove someone they suspect has been a victim of domestic violence for the purpose of "assisting or examining" that person.

Jurisdictions like Saskatchewan have similar provisions, though a review by the federal justice department said they are rarely used.

Justice officials concede there will be challenges to enforcing the NWT legislation, especially in communities that do not have a permanent police presence.

RCMP Superintendent Pat McCloskey said implementing emergency protection orders will take longer in those smaller communities, but police would make arrangements - including spending the night in the community - to ensure the orders were obeyed.

"Officers will not leave the community until the (victim) is safe," McCloskey said.

Suspected abusers who violate the court orders face a maximum of six months in jail and a $5,000 fine. Anyone who files a false application could face the same penalty - a provision designed to discourage abuse of the system. If the couple reconcile they can apply to have the order rescinded in Supreme Court.

Hoeft worried the law would force men from their homes and onto the street. With few shelters outside of Yellowknife, she said there is the potential of someone "freezing to death in a snowbank."

A spokesperson with the Department of Justice said any person barred from their home could find help from community social service workers or the RCMP and in a worst case scenario, sleep at the detachment.

Solutions

The number of abused women admitted to shelters in the Northwest Territories is eight times the national average and proponents of the legislation believe it will go a long way toward curbing that trend.

"We admit, (the rate of abuse) is too high," McCloskey said. "This will allow us to take concrete steps to reduce violence in the NWT."

But while Hoeft said the legislation will be helpful, more needs to be done to address the underlying causes of domestic violence - including physical and sexual abuse, and alcoholism.

"I think, what we need is a systematic philosophical change," she said.

"We need to examine the root causes of domestic violence. This legislation is not the be-all and end-all."

"Without a support network, the law will fail," she said.