[Hpn] Domestic Violence Intervention Act

K. E. MacLean, BA morgannia@hfx.eastlink.ca
Wed, 24 Jul 2002 20:02:00 -0400


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 My apologies for any cross-posting.

Following the deaths in 2000 of  Lori Lee Maxwell and Bruce Allan George,
Dawn Russell, Dean of Dalhousie Law School, and Diana Ginn, Assistant
Professor of Law, were asked to review the Framework for Action, a 1995
policy for responding to domestic violence.  One of the recommendations of
their report, known as the Russell Report, was that Nova Scotia adopt
domestic violence legislation.  Such legislation already exists in six other
jurisdictions: Saskatchewan, Prince Edward Island, Alberta, Manitoba, the
Yukon and Ontario(not yet proclaimed).  In response to the Russell Report,
the Nova Scotia government developed the Domestic Violence Intervention Act.
   This Act was given third reading in the Nova Scotia Legislature and Royal
assent on November 22, 2001.  This past spring, two community sessions were
held by the Department of Justice regarding this new legislation.

Basically the act allows a victim of domestic violence to apply, twenty four
hours per day, to a Justice of the Peace (JP) for an Emergency Protection
Order.  The provisions of such an order could include:  granting the victim
exclusive occupation of the victim's residence (regardless of ownership);
giving the victim temporary possession or control of specified personal
property such as an automobile, car, bank card, or keys;  directing a peace
officer to remove a respondent from the residence and/or supervise the
removal of personal belongings and/or seize any weapons; ordering the
respondent to not communicate directly or indirectly with the victim; and/or
awarding temporary care and custody of any children to the victim.  The
legislation includes penalties for failure to comply with the provisions of
an order.

According to the legislation, Emergency Protection Orders are valid for no
more than thirty days.  However, they must be forwarded to a Supreme Court
Judge by the JP within a period of time to be determined (5-7 days in other
jurisdictions).  The Judge may either confirm the order or set a date for a
hearing.  At a hearing, the judge may confirm, terminate or vary the order.
Orders can be extended for 30 days from the expiration date of the original
order.  The victim or the respondent can also apply to change, terminate,
revoke or extend or shorten the duration of the order.

As the Act itself is essentially finalized (future amendments are possible),
the purpose of the community sessions was to provide information about the
Act and to seek input in regards to the regulations which will support it.
Representatives from Social Work, Policing, Transition Houses, Women's
Centres, Victim's Services, Provincial Government and the Legal community
were in attendance.   Many concerns and suggestions were raised.

One of the main points of discussion was concern that JP's would be
obligated to report incidents to the police.  It was stated that this may
have a "chilling effect,"  ie:  women who may otherwise use the legislation
would be reluctant to do so.  Department of Justice staff responded that
because JP's are independent of government this point could not be addressed
in the regulations.  They did state that they expect that JP's would not
report incidents to police similar to how judges who become aware of
criminal activity in a civil matter do not report the criminal behaviour to
police.   JP's would, however, be obligated to report incidents of child
abuse/neglect as required by the Children and Family Services Act.

The implications of this new legislation for respondents to an application
was also raised in discussion.   While there is no immediate opportunity for
a respondent to provide information when an application is made, they are
able to ask for a review.   As well, in other jurisdictions most, although
not all, applications are made with the assistance of the police who are
able to provide some context to help the JP make an informed decision.  The
Act also contains penalties for anyone who makes a false or malicious
application.  However, respondents are bound by the order immediately upon
receiving notice of the order (i.e.: the order might require them to leave
their home).  It was suggested by some in attendance that housing must be
available for men.  Currently there are no plans or monies for such
services.

Resources issues, such as court time, were another area of concern.  Orders
must be reviewed by the courts within a set period of time (to be
determined) and concern was raised whether this is possible given the
backlog in the courts.  Apparently goverment and judiciary are currently in
discussion about appropriate timelines.    Concern about a victim's access
to legal counsel was also raised.  While a lawyer is not required to make an
application, should a hearing be required, victims will have limited access
to counsel as there will be no increased funding for legal aid services.
Finally the need for training and public education was raised.   This point
was also raised in the Russell Report as a critical success factor in other
jurisdictions with domestic violence legislation.  Prior to the proclamation
of the Nova Scotia legislation, there are apparently plans for training
sessions for "appropriate groups" to be made available through the Justice
Learning Centre.  As well, pamphlets, information sessions and internet
information will also be made available for the public and others.

The question of how JP's will make decisions about orders based on limited
information was also raised.  The legislation does provide some guidelines
in this regard.  It requires that JP's consider the nature of the incident,
any history (given by police, the victim or others), the existence of
immediate danger to persons or property and the best interests of the victim
and any child.  The final decision to make an order is based on the balance
of probabilities.    As well,  an application form will be part of the
regulations and will ensure that certain information is provided to the JP.
It is also expected that JP's will develop their own protocols, (ie:
checklist) for handling applications.

There were several other significant points which came up in discussion.  It
is extremely important to recognize that this legislation does not provide
protection for women in high risk situations and if perceived as such it
will provide a false sense of security for women.   Other available
resources, such as police protection, must be sought in such cases.   As
well, victims are responsible for serving the respondent with the order
through such means as registered mail, bailiff or with the assistance of
police.  However, since the Community Sessions the Department of Justice has
decided to record all Orders on a web-based database which will be
accessible to such groups as police.  The Nova Scotia legislation also
limits the definition of victim and respondent to those in an adult conjugal
relationship or to individuals who are the parents of children regardless of
their marital status or living arrangements.  In some jurisdiction this
definition is more broadly defined (ie:  could be used in cases of elder
abuse).  Finally, it is not clear as of yet how such legislation might apply
to property on band land.

The second session focused on who should be entitled to make an application
for an emergency protection order.  Generally, there seemed to be a
consensus that there should be three categories:  the victim,  specific
others (suggestions included police, transition house workers, women's
centres, lawyers, health professionals) and finally, others as allowed by
the JP.  Consent of the victim for others to make an application would be
paramount.

The second session also focused on whether those in attendance believed the
province should develop a primary aggressor policy.   This would help
prevent both parties from applying under the Act.   The consensus was that
such a policy would be helpful.  Discussion focused around British
Columbia's primary aggressor policy which provides guidelines to police for
determining who is the primary aggressor and discusses gender dynamics in
relationship violence.  Again, training for police regarding a primary
aggressor policy was seen as essential by those attending the Community
Session.

The Domestic Violence Intervention Act is expected to be proclaimed by the
spring of 2003.  The introduction of this legislation in Nova Scotia is a
positive development in the sense that victims of domestic violence and
their children will not have to leave their homes, custody of the children
can be established quickly and  property can be protected.   However, as
discussed at the Community Sessions, there are many concerns regarding the
implementation of the Act.  Some of these will hopefully  be addressed by
the regulations.  Information about the regulations should be available this
fall.  However, the effectiveness of the legislation needs to be monitored
and adaptations made as necessary.   Indeed, the Russell Report recommended
that coordination and monitoring occur through interagency committees, that
there should be ongoing data collection and that the legislation be
evaluated within 5 years of it's introduction.  With a committment to such
monitoring by government, the Framework for Action will undoubtedly be
strenghthened by the introduction of  the Domestic Violence Intervention
Act.

[A complete copy of the Act can be viewed at
www.gov.ns.ca/legislature/legc/bills/58th_2nd/3rd_read/b079.htm.   The new
JP Centre opened March 31st and can be contacted at 1-866-816-6555.  The
Center is open from 9am to 9pm and has someone on call from 9pm to 9am.] 


-- 
"A journey of a thousand miles must begin with a single step."
Lao-Tzu

Kimberley E. MacLean, BA 
E-mail:  morgannia@hfx.eastlink.ca


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<pre><nsasw @ca.inter.net=""><NSASW-LIST @is.dal.ca=""><belindamacf @hotmail.com=""><nsasw @ca.inter.net="">&nbsp;My apologies for any cross-posting.

Following the deaths in 2000 of  Lori Lee Maxwell and Bruce Allan George,
Dawn Russell, Dean of Dalhousie Law School, and Diana Ginn, Assistant
Professor of Law, were asked to review the Framework for Action, a 1995
policy for responding to domestic violence.  One of the recommendations of
their report, known as the Russell Report, was that Nova Scotia adopt
domestic violence legislation.  Such legislation already exists in six other
jurisdictions: Saskatchewan, Prince Edward Island, Alberta, Manitoba, the
Yukon and Ontario(not yet proclaimed).  In response to the Russell Report,
the Nova Scotia government developed the Domestic Violence Intervention Act.
   This Act was given third reading in the Nova Scotia Legislature and Royal
assent on November 22, 2001.  This past spring, two community sessions were
held by the Department
 of Justice regarding this new legislation.

Basically the act allows a victim of domestic violence to apply, twenty four
hours per day, to a Justice of the Peace (JP) for an Emergency Protection
Order.  The provisions of such an order could include:  granting the victim
exclusive occupation of the victim's residence (regardless of ownership);
giving the victim temporary possession or control of specified personal
property such as an automobile, car, bank card, or keys;  directing a peace
officer to remove a respondent from the residence and/or supervise the
removal of personal belongings and/or seize any weapons; ordering the
respondent to not communicate directly or indirectly with the victim; and/or
awarding temporary care and custody of any children to the victim.  The
legislation includes penalties for failure to comply with the provisions of
an order.

According to the legislation, Emergency Protection Orders are valid for no
more than thirty days.  However, they must b
e forwarded to a Supreme Court
Judge by the JP within a period of time to be determined (5-7 days in other
jurisdictions).  The Judge may either confirm the order or set a date for a
hearing.  At a hearing, the judge may confirm, terminate or vary the order.
Orders can be extended for 30 days from the expiration date of the original
order.  The victim or the respondent can also apply to change, terminate,
revoke or extend or shorten the duration of the order.

As the Act itself is essentially finalized (future amendments are possible),
the purpose of the community sessions was to provide information about the
Act and to seek input in regards to the regulations which will support it.
Representatives from Social Work, Policing, Transition Houses, Women's
Centres, Victim's Services, Provincial Government and the Legal community
were in attendance.   Many concerns and suggestions were raised.

One of the main points of discussion was concern that JP's would be
obligated to report
 incidents to the police.  It was stated that this may
have a "chilling effect,"  ie:  women who may otherwise use the legislation
would be reluctant to do so.  Department of Justice staff responded that
because JP's are independent of government this point could not be addressed
in the regulations.  They did state that they expect that JP's would not
report incidents to police similar to how judges who become aware of
criminal activity in a civil matter do not report the criminal behaviour to
police.   JP's would, however, be obligated to report incidents of child
abuse/neglect as required by the Children and Family Services Act.

The implications of this new legislation for respondents to an application
was also raised in discussion.   While there is no immediate opportunity for
a respondent to provide information when an application is made, they are
able to ask for a review.   As well, in other jurisdictions most, although
not all, applications are made with the assistanc
e of the police who are
able to provide some context to help the JP make an informed decision.  The
Act also contains penalties for anyone who makes a false or malicious
application.  However, respondents are bound by the order immediately upon
receiving notice of the order (i.e.: the order might require them to leave
their home).  It was suggested by some in attendance that housing must be
available for men.  Currently there are no plans or monies for such
services.

Resources issues, such as court time, were another area of concern.  Orders
must be reviewed by the courts within a set period of time (to be
determined) and concern was raised whether this is possible given the
backlog in the courts.  Apparently goverment and judiciary are currently in
discussion about appropriate timelines.    Concern about a victim's access
to legal counsel was also raised.  While a lawyer is not required to make an
application, should a hearing be required, victims will have limited access
t
o counsel as there will be no increased funding for legal aid services.
Finally the need for training and public education was raised.   This point
was also raised in the Russell Report as a critical success factor in other
jurisdictions with domestic violence legislation.  Prior to the proclamation
of the Nova Scotia legislation, there are apparently plans for training
sessions for "appropriate groups" to be made available through the Justice
Learning Centre.  As well, pamphlets, information sessions and internet
information will also be made available for the public and others.

The question of how JP's will make decisions about orders based on limited
information was also raised.  The legislation does provide some guidelines
in this regard.  It requires that JP's consider the nature of the incident,
any history (given by police, the victim or others), the existence of
immediate danger to persons or property and the best interests of the victim
and any child.  The final dec
ision to make an order is based on the balance
of probabilities.    As well,  an application form will be part of the
regulations and will ensure that certain information is provided to the JP.
It is also expected that JP's will develop their own protocols, (ie:
checklist) for handling applications.

There were several other significant points which came up in discussion.  It
is extremely important to recognize that this legislation does not provide
protection for women in high risk situations and if perceived as such it
will provide a false sense of security for women.   Other available
resources, such as police protection, must be sought in such cases.   As
well, victims are responsible for serving the respondent with the order
through such means as registered mail, bailiff or with the assistance of
police.  However, since the Community Sessions the Department of Justice has
decided to record all Orders on a web-based database which will be
accessible to such groups as poli
ce.  The Nova Scotia legislation also
limits the definition of victim and respondent to those in an adult conjugal
relationship or to individuals who are the parents of children regardless of
their marital status or living arrangements.  In some jurisdiction this
definition is more broadly defined (ie:  could be used in cases of elder
abuse).  Finally, it is not clear as of yet how such legislation might apply
to property on band land.

The second session focused on who should be entitled to make an application
for an emergency protection order.  Generally, there seemed to be a
consensus that there should be three categories:  the victim,  specific
others (suggestions included police, transition house workers, women's
centres, lawyers, health professionals) and finally, others as allowed by
the JP.  Consent of the victim for others to make an application would be
paramount.

The second session also focused on whether those in attendance believed the
province should develop a 
primary aggressor policy.   This would help
prevent both parties from applying under the Act.   The consensus was that
such a policy would be helpful.  Discussion focused around British
Columbia's primary aggressor policy which provides guidelines to police for
determining who is the primary aggressor and discusses gender dynamics in
relationship violence.  Again, training for police regarding a primary
aggressor policy was seen as essential by those attending the Community
Session.

The Domestic Violence Intervention Act is expected to be proclaimed by the
spring of 2003.  The introduction of this legislation in Nova Scotia is a
positive development in the sense that victims of domestic violence and
their children will not have to leave their homes, custody of the children
can be established quickly and  property can be protected.   However, as
discussed at the Community Sessions, there are many concerns regarding the
implementation of the Act.  Some of these will hopefully 
 be addressed by
the regulations.  Information about the regulations should be available this
fall.  However, the effectiveness of the legislation needs to be monitored
and adaptations made as necessary.   Indeed, the Russell Report recommended
that coordination and monitoring occur through interagency committees, that
there should be ongoing data collection and that the legislation be
evaluated within 5 years of it's introduction.  With a committment to such
monitoring by government, the Framework for Action will undoubtedly be
strenghthened by the introduction of  the Domestic Violence Intervention
Act.

[A complete copy of the Act can be viewed at
<a class="moz-txt-link-abbreviated" href="http://www.gov.ns.ca/legislature/legc/bills/58th_2nd/3rd_read/b079.htm">www.gov.ns.ca/legislature/legc/bills/58th_2nd/3rd_read/b079.htm</a>.   The new
JP Centre opened March 31st and can be contacted at 1-866-816-6555.  The
Center is open from 9am to 9pm and has someone on call from 9pm t
o 9am.]&nbsp;

</nsasw></belindamacf></NSASW-LIST></nsasw><br>-- 
"A journey of a thousand miles must begin with a single step."
Lao-Tzu

Kimberley E. MacLean, BA 
E-mail:  <a class="moz-txt-link-abbreviated" href="mailto:morgannia@hfx.eastlink.ca">morgannia@hfx.eastlink.ca</a>
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