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Man falsely accused an 'anomaly' in justice act
Hundreds of victims are doing their best to resist violence

Laura Busch
Northern News Services
Published Friday, December 23, 2011

A recent court case in in the NWT has drawn a significant amount of attention - for the most part negative - to emergency protection orders, and this has the potential to undermine the effectiveness of an important tool in the fight against family violence in the territory, GNWT Department of Justice officials say.

Yellowknife resident Roberta Marie Simmonds was convicted of knowingly making a false statement to a justice of the peace and the NWT Supreme Court in order to get an Emergency Protection Order (EPO) against a Yellowknife man. As it turned out, he'd had very limited contact with Simmonds. Her offence is a contravention of section 18 of the Protection Against Family Violence Act.

Yellowknife Centre MLA Robert Hawkins raised the issue in the legislative assembly earlier this month. Hawkins explained to Yellowknifer he is concerned because the man who was falsely accused was one of his constituents and because this case has the potential to undermine the public's faith in the justice system as a whole.

"We have to have faith in our system. And what's been demonstrated in this is a clear example of something that has been engaged under certain circumstances and it's been found to be false and yet the system won't stop," said Hawkins. "I feel as if the system has really let down our public and this individual specifically."

One of the main criticisms Hawkins raised is that the onus is completely on the accused to overturn an order.

Those who work with family violence issues in the territorial government say that placing that burden on the accused was consciously done to protect those who are subjected to family violence.

"The onus of inconvenience has changed," said Rebecca Latour, family violence analyst at the GNWT Department of Justice. "Prior to (the Protection Against Family Violence Act), the onus of inconvenience was on the victim and the children," said Latour. "So the burden of inconvenience is on the person who is being violent."

Hawkins said he was "a little disappointed" with the response he got from Justice Minister Glen Abernethy when he raised the issue in the legislature on Dec. 7.

"Minister Abernethy did share the concern in the summer and his position seems to be different," said Hawkins. "That said, he kept referring to a review but wasn't specific."

Officials in the Department of Justice explained to Yellowknifer the review Abernethy referred to was the Evaluation of the Protections Against Family Violence Act (PAFVA), a five-year review of the act as a whole released on Aug. 15. While it refers to EPOs, it does not look at respondent's rights or review what should happen if someone is falsely accused.

"What happens when someone purgers themselves? That's not what we were looking at," said Latour. "What's it like for people when they reach out for help? That's what we were looking at."

There have been three evaluations since the legislation was introduced in 2005 - one at the six-month mark, a transcript analysis that analyzed language used in the process "to see what kinds of social responses victims were getting when they reached out for help" in 2010, and a five-year evaluation completed in 2011.

"It's not that (respondent's rights) wasn't an issue. This evaluation focused on victims and the responses victims were getting," said Latour.

The five-year evaluation is on the Department of Justice's website.

While there may be disagreement on whether more checks should be put in place to protect individuals who have EPOs placed on them under false pretenses, both sides agree that the Simmonds case was an anomaly and that the family violence act as a whole is critical in helping those who are subject to family violence in the territory, and that family violence is a major issue in the North.

"This is a very unusual circumstance, and to my knowledge, this is the only circumstance," said Hawkins.

From the Department of Justice's perspective, while it is unfortunate that the legislation was misused in this case, this is but one case in hundreds of cases in the last five years.

Of 550 applications for an emergency protection order, 89 per cent are granted, and of that, there has only been one charge of lying to a justice of the peace, said Latour.

"So now, we've got this anomaly happening and it's like, there's a bigger story out there about the hundreds of victims who are doing their very best to resist violence and to find a safe place for themselves and their children," she said. "Some of these victims are men and some of them are elders, but in general it's women and children."

Before PAFVA legislation passed in 2005, police would have to wait until a crime was committed before they could press charges or remove perpetrators from the home, said Latour. This resulted in many calls where police would go to a home, leave because they could not press charges, and find themselves back at the same residence hours later dealing with a nasty situation.

Hawkins acknowledges the importance of EPOs as well, saying that they are "a critical function that I have no doubt or hesitation to say that they have probably saved lives because of certain circumstances."

There is no doubt in Latour's mind of the effectiveness or importance of EPOs in the territory's justice system.

"What we're hearing from front-line workers is that it's one of the most valuable tools they have to work with victims in immediate crisis," she said. "It is a really critical piece in a larger response to family violence."

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