Introduction
The Standing Committee on Social Programs is pleased to report on Bill 21, Protection Against Family Violence Act.
The committee conducted public hearings in Fort Smith on September 8, 2003, in Hay River on September 9, 2003, in Wha Ti September 11, 2003, and, as I've mentioned, in Yellowknife September 16th and 18th.
There were several presentations that raised valid concerns for committee members.
Issues
Title Of The Act
The NWT Senior's Society expressed concern with the proposed title "Family Violence Protection Act." It was felt this wording did not reflect the importance of the victim in the title. Members of the committee had previously noted a literal reading of the title could be also be interpreted as an act protecting family violence.
Committee discussions on a possible new title concentrated on reflecting the rights of victims and describing the actual intent of the new legislation.
In the end, committee members settled on renaming the Family Violence Protection Act, the "Protection Against Family Violence Act." This new title reflects the intention of the legislation to provide emergency protection for victims of family violence.
The standing committee was pleased that the department and the Minister agreed with the request and concurred with the committee amendment to change the title.
Definitions Of What Constitutes Family Violence
Many presenters were concerned with what actually constitutes family violence. The NWT Seniors' Society's presentation to committee asked that forced confinement, neglect and stalking be added to the definition of what constituted family violence. In a presentation to committee by the Status of Women Council of the Northwest Territories they also requested forced confinement and stalking be added to the definition. The Standing Committee on Social Programs also identified a need to modify the definition of sexual abuse.
Forced Confinement
The Status of Women Council stated, "It could be assumed that a justice of the peace would see forced confinement as falling under Section 1(2)(d) regarding psychological and emotional abuse, but we feel greater clarity is required."
The NWT Seniors' Society wanted to ensure the full scope of the types of abuses that seniors are subject to are covered and clearly stated in the legislation.
The committee concurred with the Status of Women Council's position that forced confinement must be abusive in nature. Members of the Standing Committee on Social Programs saw value in including forced confinement in the definition to clearly send a message that this type of abuse will not be tolerated.
The standing committee was pleased the Minister agreed with this position and concurred with the amendment.
Neglect
The NWT Seniors' Society requested that neglect be added to the list of what constitutes family violence. This recommendation was made in order to ensure that all types of abuse that seniors are subject to were included in the legislation.
The standing committee struggled with this issue. Neglect implies there is a series of actions or inaction over a period of time that cause harm to an individual. This legislation is intended to deal with emergency situations where there is a real or immediate danger of physical or emotional harm. The Standing Committee on Social Programs came to the conclusion that the inclusion of neglect on the list of what constitutes family violence would be beyond the scope of the bill. Consequently, the standing committee will not be recommending an amendment to include neglect on the list of what constitutes family violence.
The members of the standing committee are, however, alive to the issue of neglect of our elders and strongly recommend that the Department of Health and Social Services take a serious look at bringing forward legislation to address the concerns of the NWT Seniors' Society. As a government, we also need to ensure that homecare and social workers have adequate training and resources to deal with issues of elder abuse when they are identified.
The Standing Committee on Social Programs will ensure the Members of the 15th Assembly are aware of this issue in our transition documents.
Stalking
Mr. Speaker, the inclusion of stalking on the list of what constitutes family violence was another issue that the members of the standing committee struggled with. In the proposed legislation there are provisions that allow the justices of the peace and the Supreme Court to limit or prohibit contact between the abuser and the victim. This remedy is also available through the use of peace bonds and restraining orders.
What becomes problematic to committee members is providing a definition and application of the word stalking itself. For example, in a community the size of Wha Ti, it would not be unreasonable for a person to run into someone against whom they have a restraining order or peace bond on a fairly regular basis, just through the process of daily living. Would and could this regular, unplanned contact be construed as stalking by a justice of the peace in granting an emergency protection order under the Protection Against Family Violence Act?
In addition, committee members also noted that many stalking cases do not involve persons who are cohabitating or who have lived in an intimate or family relationship and would fall outside the realm of this act.
In examining how other Canadian jurisdictions deal with the issue of stalking in their family violence legislation, it was shown that some jurisdictions, such as Manitoba, do list stalking. Others such as Ontario, describe "a series of acts which collectively cause the applicant to fear for his or her safety, including the following: contacting, communicating with, observing or recording any person."
Presenters from the Status of Women Council agreed that stalking is likely included in the present definition in the act. However, they wanted it made abundantly clear to those administering the legislation that stalking is both threatening and abusive behaviour.
The department advised that the present definition of family violence in the act includes any intentional or reckless act or omission that causes the applicant or his or her child to fear for their safety. It further specifically includes psychological and emotional abuse. The drafting of this definition was designed, the committee was advised, to cover a broad range of behaviours without the necessity of specifying each one. This allows for both discretion and flexibility in administering the act. Once various categories of violent behaviour are listed, there is a danger that some actions will be missed. In addition, violence can take many forms and a person's response is usually subjective.
The committee agrees that flexibility and appropriate discretion will be critical to the proper administration of the act and that this conduct is already covered in the definition of family violence. It is, therefore, not pursuing a motion to specifically include stalking behaviour as part of the definition of family violence.
Sexual Abuse
Committee members noted the original definition of sexual abuse was partially defined by listing who the victim of the abuse was. This list did not cover all eventualities. A simpler and cleaner definition of just "sexual abuse" puts the emphasis on the abuse itself rather than on an identified group of victims.
Committee members were pleased the Minister agreed with this analysis and concurred with the committee amendment.
Temporary Custody Of Children
It was pointed out to the Standing Committee on Social Programs, by the Status of Women Council of the Northwest Territories, there were no provisions in the proposed legislation addressing the issue of temporary custody of children as part of an emergency protection order granted by a justice of the peace. The council was concerned this omission could mean that if, for example, a man was physically abusing his wife and was the subject of an emergency protection order removing him from the family home, there would be nothing to stop him from taking custody of the children as a way to force his wife to let him back into the family home. In the absence of a custodial order, there is little the RCMP could do to force a parent to return children to another parent.
In addition, the threat of removing or taking children is often a manipulative tool in the cycle of violence. Applicants under this act need to know that specific relief is available to meet this challenge.
Committee members noted it could be argued that section 4(3)(h) speaks to this concern by stating an emergency protection order can contain "any other provision that the designated justice considers necessary for the immediate protection of the applicant or any other person at risk of harm." They also noted that a justice of the peace can order that an abuser not contact or communicate with the applicant and the children, thus effectively preventing child abduction.
The department reminded the committee that emergency protection orders are extraordinary remedies given without notice to the alleged perpetrator of violence. A custody order, even of short duration, can significantly impact the rights of parents in future custody disputes. The department was of the view that all interests must be balanced when relief is given prior to the other party having an opportunity to state his or her view of the facts.
The department also advised that a consideration of custody issues can be very complex, involving many different factors. Making decisions about custody of children would be beyond the normal duties of justices of the peace and would require significant training. Such training will also have to be provided to RCMP members and victim services workers. None of these groups have experience in this field.
The Department also reminded the committee that there is legislation in place to deal with custody issues, namely the Divorce Act, the Family Law Act and the Children's Law Act.
While training and expertise may be a concern, for Committee the larger concern is the role that using children as pawns plays in violent households. This behaviour cannot be adequately addressed if specific relief is not available in emergency situations.
The Standing Committee strongly believes such an amendment has merit.
This position is also supported by the 2003 Final Report of the Ad Hoc Federal-Provincial-Territorial Working Group Reviewing Spousal Abuse and Legislation, which specifically mentioned the temporary care and custody of children as one of the four components that every jurisdiction in Canada include as part of any domestic violence legislation.
However, in light of the Minister having what he considers to be serious reservations about adding this measure of relief to emergency protection orders, and the obvious time constraints imposed by this being the last session of the 14th Assembly, the standing committee did not wish to jeopardize the many important and valuable aspects of this legislation by pursuing an amendment at this time.
The Standing Committee on Social Programs strongly recommends that the Department of Justice and the next Assembly take the time to consider the merit of amending the Protection Against Family Violence Act to include the temporary care and custody of children as part of an emergency protection order.
The Supreme Court And Emergency Protection Orders
The Standing Committee on Social Programs on their initial review of the proposed Family Violence Protection Act noted a discrepancy in clause 5, which deals with the mandatory review of emergency protection orders granted by justices of peace by the Supreme Court.
Although the legislation provided that emergency protection orders could be confirmed or varied, there was some resulting confusion as to whether a Supreme Court judge had the power to dismiss certain provisions of an emergency protection order that could not be supported by the evidence, or overstepped the bounds of judicial fairness, even though the rest of the emergency protection order was reasonable and based on the evidence.
The Minister and department agreed with the standing committee's view that the present wording in clause 5 was too restrictive and limited the ability of the Supreme Court to act in an expedient manner and concurred with the committee amendment.
Implementation Concerns
Committee members heard from several stakeholders, including Major Karen Hoeft of the Salvation Army, who spoke eloquently on the need for extensive training by saying, "Every time we change an RCMP officer in the NWT, every time we change a victim services worker, every time we add JPs, there will be a need for training. If we do not do that, then the legislation really falls by the wayside and is not valid."
Several presenters, notably the Salvation Army and the Status of Women Council of the NWT, stated there was a need to involve stakeholders and the regions on a committee to guide the implementation plan.
The standing committee would recommend the government involve stakeholders and make sure the needs of frontline workers are addressed in the final implementation plan.
The committee also heard concerns about the application of this legislation and were questioned on how a person in a community without an RCMP presence would access or have an emergency protection order enforced. Members noted that applications can be made by any means of telecommunication and an applicant need not appear in person to obtain an emergency protection order. Members are aware this is not an ideal situation, but in all conscience cannot deny the use of emergency protection orders to the majority of residents in the NWT.
The standing committee recognizes these as valid concerns and has pressed the Minister and department to provide a timeline on when the Protection Against Family Violence Act could be implemented across the Northwest Territories. As it stands now, the department will continue to develop the regulations and training materials and will be submitting a finalized budget and implementation plan as part of the 2004-2005 Business Plan/Main Estimates which should be reviewed and made public by the next Assembly some time prior to March 2004.
False Accusations Made Under The Protection Against Family Violence Act
Mr. Marc Bogan spoke on behalf of non-custodial parents, who have had their custodial and visitation rights with their children curtailed or eliminated because of accusations made by their previous spouses or partners. Mr. Bogan is concerned the Protection Against Family Violence Act could enable a person to gain control of the family home and custody of the children through a false accusation. Members of the standing committee were also concerned with the possibility the legislation could be abused by persons making false accusations, but took sufficient comfort from clause 18 which creates an offence for making a false statement or application under the act which could result in fines not exceeding $5,000, six months in jail, or both.
Conclusion
The Standing Committee on Social Programs is pleased the government was able to introduce this important legislation prior to the dissolution of the 14th Assembly. The staff and Minister at the Department of Justice are to be commended for their hard work on this file over the last year.
However, the Standing Committee on Social Programs would be remiss if they did not point out this legislation will not solve the problem of family violence in the Northwest Territories in and of itself. The Protection Against Family Violence Act will be another tool for the justice system to use in addressing the issue of family violence. Members recognize we still need women's shelters, we need adequate counselling services to help dysfunctional family members heal and hopefully reconcile with their families and go on with their lives, we need programs that will help these families reunite, we need training at all levels to ensure this legislation accomplishes what it is intended to do, we need to ensure legal aid programs are adequately resourced to ensure the needs of families, mothers and fathers, and their children are respected when questions of custody and access are raised, and we need public education programs that not only promote the use of the provisions of this bill but also clearly state that family violence of any type will not be tolerated in the Northwest Territories.
The committee members are of the opinion that the passage of this legislation is just one small step in addressing the issue of family violence. It will protect victims and their children from immediate threat and physical harm. Groups such as the Family Violence Coalition are strongly encouraged to keep advocating for better services and solutions to the problem of family violence.
Mr. Speaker, I'd like to turn now to my colleague, Mr. Braden, to take us through Bill 24, Midwifery Profession Act. Thank you.