Yellowknife (Apr 06/05) - The territorial government unveiled new legislation last week designed to combat domestic abuse amid concerns certain provisions could be unconstitutional.

The Protection Against Family Violence Act gives magistrates sweeping new powers including the authority to bar a suspected abuser from the family home without a full court hearing.

Unlike existing Criminal Code legislation, the new act allows victims to obtain an emergency protection orders ex parte (without the alleged abuser being present).

"Where is the balance?" asked Karen Hoeft of the Yellowknife Salvation Army. "The lack of representation for the man is a problem. I believe it is unconstitutional."

Hoeft objected to a provision that allowed magistrates to make the exclusionary order in non-emergency situations.

With the help of the police or a social worker, an alleged victim can apply to a Justice of the Peace for a protection order. Magistrates can grant the request within a matter of hours, quickly separating a victim from their abuser.

Proponents argue the legislation will be an effective "tool" in the battle against domestic abuse in the Northwest Territories, an area that has one of the highest incident rates in the country.

"This is a new way to prevent family violence," said Margaret Cissel, a family law advisor in the territorial Department of Justice.

Lack of due process

While an alleged abuser can appeal the decision, it could take several weeks before they have their day in court, Hoeft said.

"In the meantime, where do they go?" Hoeft said.

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

An independent review of that legislation commissioned by the Yukon Department of Justice noted: "Protection orders represent a significant interference with the rights of respondents."

Nearly 99 percent of protective orders were granted in the Yukon during the first two years, leading to criticisms the process in unbalanced.

During a press conference Friday in Yellowknife, Justice Minister Brendan Bell conceded the legislation was weighted heavily in favour of the accuser but "imbalance is an important tool."

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

Dr. Sanjeev Anand, a constitutional law expert at the University of Alberta, said the ex parte provision represents a "short term deprivation" of rights, but is needed in circumstances where violence has or is about to occur. "It is reasonable... given the pressing circumstance."