Domestic Violence
Protection Act, 2000, Bill 117, Mr Flaherty /
Loi de 2000 sur la protection contre la violence
familiale, projet de loi 117, M. Flaherty
Ministry of the
Attorney General
Mr David Tilson, parliamentary assistant
Ms Joana Kuras, executive lead, victims' services
Ms Anne Marie Predko, counsel
STANDING COMMITTEE ON
JUSTICE AND SOCIAL POLICY
Chair /
Présidente
Ms Marilyn Mushinski (Scarborough Centre / -Centre
PC)
Vice-Chair / Vice-Président
Mr Carl DeFaria (Mississauga East / -Est PC)
Mr Marcel Beaubien (Lambton-Kent-Middlesex PC)
Mr Michael Bryant (St Paul's L)
Mr Carl DeFaria (Mississauga East / -Est PC)
Mrs Brenda Elliott (Guelph-Wellington PC)
Mr Garry J. Guzzo (Ottawa West-Nepean / Ottawa-Ouest-Nepean
PC)
Mr Peter Kormos (Niagara Centre / -Centre ND)
Mrs Lyn McLeod (Thunder Bay-Atikokan L)
Ms Marilyn Mushinski (Scarborough Centre / -Centre
PC)
Substitutions / Membres remplaçants
Mrs Marie Bountrogianni (Hamilton Mountain L)
Mrs Tina R. Molinari (Thornhill PC)
Mr Joseph Spina (Brampton Centre / -Centre PC)
Mr David Tilson (Dufferin-Peel-Wellington-Grey PC)
Clerk / Greffier
Mr Tom Prins
Staff / Personnel
Ms Elaine Campbell, research officer,
Research and Information Services
The committee met at 1536 in room 151.
SUBCOMMITTEE REPORT
The Chair (Ms Marilyn
Mushinski): We'll call the meeting to order. Good
afternoon, ladies and gentlemen. This is the standing committee
on justice and social policy, to consider Bill 117, An Act to
better protect victims of domestic violence.
Mrs Brenda Elliott
(Guelph-Wellington): Chair, I move the adoption of the
report of the subcommittee. Do you need me to read that out?
The Chair:
That needs to be read into the record.
Mrs Elliott:
It reads as follows:
Your subcommittee met on
Monday, October 16, 2000, to consider the method of proceeding on
Bill 117, An Act to better protect victims of domestic violence,
and recommends the following:
(1) That the committee meet
in Toronto on October 23, 24, 30, and 31 for the purpose of
holding public hearings and that the committee will meet on
November 14, 2000, for clause-by-clause consideration of the
bill.
(2) That the Attorney General
and appropriate ministry staff be invited for one hour to provide
a technical briefing on October 23, 2000. Following this
briefing, each of the three parties will have 30 minutes to make
statements and ask questions.
(3) That scheduling will be
accomplished by means of four lists. One list will be created by
each of the three parties and the fourth list will contain the
names of those people who contacted the clerk directly. Each
party's list must contain a prioritized list of proposed
witnesses and must be provided to the clerk by noon on Thursday,
October 19, 2000. The clerk will divide the available time
equally among the four lists.
(4) That the clerk have an
advertisement placed once in the Toronto Star, the Globe and Mail
and the National Post. The advertisement will also be placed on
the Ontario Parliamentary Channel and on the Internet.
(5) That witnesses will be
offered 20 minutes to make their presentation.
(6) That the Chair will
accept requests by witnesses to have their expenses paid by the
committee if the witness is from out of town and the request is
reasonable.
(7) That the legislative
research officer will prepare a number of background papers as
well as a summary of recommendations.
(8) That there will be an
opportunity for each party to take five minutes to make opening
comments at the beginning of the clause-by-clause process.
(9) That the deadline for
written submissions is November 9, 2000, at 12 noon.
(10) That amendments should
be filed with the clerk by November 9, 2000, at 12 noon.
(11) That the clerk has the
authority to begin implementing these decisions immediately.
(12) That the information
contained in this subcommittee report may be given out to
interested parties immediately, as opposed to after the committee
has voted on it.
(13) That the Chair, in
consultation with the clerk, will make any other decisions
necessary with respect to this bill.
Mr Peter Kormos
(Niagara Centre): Chair, at the subcommittee meeting,
with the allocation of the 20-minute time slots, there was some
contemplation about whether or not that would be appropriate in
terms of the number of people applying to speak to the committee.
I wonder if we've got some sort of report on the numbers. If the
numbers are low, then 20 minutes obviously is fine. Do we have to
address that?
The Chair:
My understanding from Mr Prins is that at this point the 20
minutes seems to be fairly reasonable, based upon the responses
we've been getting.
Mr David Tilson
(Dufferin-Peel-Wellington-Grey): Madam Chair, I'd like
to speak to the committee on items 9 and 10 of the report. I
gather there has been some confusion as to what this date was.
Originally it was the 12th and now it's the 9th. The ministry
would prefer that the date for both those items be the 7th, which
would be a Tuesday. The rationale is that the date of November 7
for both items 9 and 10 is one week after the public hearings and
it'll be one week before clause-by-clause. Ministry officials
feel they would prefer to have a full week to consider the
written submissions as well as the amendments that would be
filed.
I hope there would be
unanimous consent from all committee members to change the date
on items 9 and 10 from November 9 to November 7.
The Chair:
Would you want the time to remain at 12 noon or would that be
moved to 5 pm?
Mr Tilson:
The time's fine.
The Chair:
Is the committee in agreement with that? OK, so we have a motion
to change the dates outlined in clauses 9 and 10 to November 7. All in favour?
That carries.
Can I have a motion to adopt
the report of the subcommittee? All in favour? That carries.
DOMESTIC VIOLENCE PROTECTION ACT, 2000 / LOI DE 2000
SUR LA PROTECTION CONTRE LA VIOLENCE FAMILIALE
Consideration of Bill 117, An
Act to better protect victims of domestic violence / Projet
de loi 117, Loi visant à mieux protéger les victimes de
violence familiale.
MINISTRY OF THE ATTORNEY GENERAL
The Chair:
Then we'll go to Mr Tilson, the parliamentary assistant to the
Attorney General and native affairs. Congratulations, Mr
Tilson.
Mr Tilson:
Thank you, Madam Chair. It looks like I'm listed to speak now.
What I would prefer we do at this particular point of the agenda
is that I introduce the two individuals listed on the agenda who
come from the Attorney General's office to give the committee a
technical briefing, and that any comments I make would be in the
half-hour time slot each caucus is given, that my time slot be at
that time.
The Chair:
So we'll hear from Anne Marie Predko and Ms Kuras first?
Mr Tilson:
Sure. I'll introduce them to you, Madam Chair, and members of the
committee, if they could come forward to the table. Anne Marie
Predko is counsel to the Ministry of the Attorney General. With
her is Joana Kuras, who is the executive lead of the victims'
services of the Ministry of the Attorney General. They will make
a technical presentation at this time.
Ms Joana
Kuras: Good afternoon. By way of background, I would
like to provide some information about events that brought us to
this hearing today and to the introduction of Bill 117.
In December 1998, the
provincial government created a committee composed of community
experts in the field of domestic violence and senior government
officials called the Joint Committee on Domestic Violence. This
committee's mandate was to provide advice to government on the
implementation of jury recommendations from the inquest into the
deaths of Arlene May and Randy Iles. The joint committee tabled
its report in August 1999.
The report of the joint
committee contains 16 strategies to address domestic violence in
Ontario. Strategy 5 is entitled "Ensure consistent enforcement of
restraining orders and explore strategies to improve their
effectiveness." There are 10 recommendations under strategy 5. If
passed, Bill 117 and its related policy changes would respond to
these 10 recommendations.
Specifically, recommendation
63 asked the Ministry of the Attorney General to establish a task
group to critically examine restraining order policy and practice
and to determine if new civil legislation was necessary. In
September 1999 the ministry established the task group on
restraining orders. The members were drawn from relevant
divisions in the Ministry of the Attorney General and the
Ministry of the Solicitor General, including representatives of
the OPP. That committee has now reported, and as a result Bill
117 has been tabled.
I will ask Anne Marie Predko
now to provide you with the technical briefing on Bill 117.
Ms Anne Marie
Predko: Good afternoon. As counsel in the policy branch
of the Ministry of the Attorney General, I am pleased to provide
you with the technical overview of Bill 117, An Act to better
protect victims of domestic violence. This presentation will be
divided into three main parts. Joana Kuras has given us the
first, which is an overview of the background which led to the
development of the proposed legislation. I will next provide an
overview of the major components of the bill and the effect of
these components. For your reference while we discuss the bill,
in your material provided to you by the clerk, there is a
compendium of the bill contained at tab 4 and the text of the
bill itself is contained at tab 1. At the end of this
presentation, there will be an opportunity to ask technical
questions relating to Bill 117.
Since 1989, there have been a
number of attempts to strengthen the existing restraining order
system in the province of Ontario. Currently in Ontario, under
the Children's Law Reform Act, a person with custody of or access
to a child can seek an order restraining another person from
annoying, molesting or harassing the applicant or the children.
Under the Family Law Act a married spouse or a common-law spouse
or same-sex partner can seek an order restraining their former
spouse or partner from annoying, molesting, harassing or
communicating with the applicant or the children. Persons only
qualify as a common-law spouse or same-sex partner if they have
resided with their partner for a period of three years or reside
together in a relationship of some permanence and are together
the parents of a child. Neither the Children's Law Reform Act nor
the Family Law Act contains any criteria for a judge to consider
when deciding whether to grant a restraining order.
Breaches of existing
restraining orders are provincial offences, punishable for a
first offence by a fine of up to $5,000 and imprisonment for up
to three months or both. On a second or subsequent offence,
punishment increases to a fine of up to $10,000 and imprisonment
for up to two years or both.
A number of technical
difficulties flow from the vague wording of the existing
legislative provisions, and enforcement through the Provincial
Offences Act. These include inconsistency in the level of
evidence required to obtain a restraining order. In some
locations in this province, these orders are routinely granted on
consent without any evidence provided to the court. In other
locations, serious conduct which affects the safety of the
applicant or the children must exist.
Persons affected by the order
may be confused about the meaning of the terms "annoy, molest or
harass," including the
applicant, the person who's restrained by the order and, at
times, the police.
The orders may contain
exceptions for specific purposes; for example, under the existing
restraining order, a common type of phrase would be "the
respondent shall not communicate with the applicant except for
the purpose of discussing child access." This makes it difficult
to enforce the order due to the potentially broad interpretation
of this exception.
Enforcement through the
Provincial Offences Act leads to confusion because several types
of courts could be the forum of prosecution for this offence,
including provincial offences court, criminal court, specialized
domestic violence courts and Family Court.
Enforcement through the
Provincial Offences Act also means that the conditions of release
are more limited than under the Criminal Code. The accused who is
accused of breaching a restraining order cannot be held beyond 24
hours under the Provincial Offences Act, even if he or she is
deemed to be a safety risk, and a fine is the most common outcome
of a charge for breach of restraining order.
After reviewing these
legislative concerns, the policy and practice currently
surrounding restraining orders, the task group on restraining
orders recommended the development of new civil restraining
orders legislation.
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Bill 117, if passed, would
provide for intervention in cases of domestic violence by
building and expanding upon elements currently found in existing
provincial legislation. In preparing this bill, staff reviewed
existing legislation in Alberta, Manitoba, Prince Edward Island,
Saskatchewan and the Yukon, as well as some American states, New
Zealand and Australia.
The bill defines "domestic
violence" to include acts or omissions that cause bodily harm or
damage to property, physical assaults and threats that cause a
person to fear for his or her safety, forced physical
confinement, sexual assault, sexual exploitation, sexual
molestation and any series of acts which collectively cause a
person to fear for his or her safety. This definition is found in
subsection 1(2) of the bill. The acts or omissions listed in that
section can be against the applicant, a relative of the applicant
or any child.
The bill allows the following
persons to apply for an intervention order: spouses as defined
within the Family Law Act, former spouses, same-sex partners,
former same-sex partners, persons who are cohabiting in a
conjugal relationship, persons in a dating relationship and
relatives who reside together. The definition of persons who can
apply for an intervention order is contained in subsection 2(1)
of the bill.
The bill provides for two
types of intervention orders: an intervention order and an
emergency intervention order. An application for an intervention
order would be made in a non-urgent situation, with notice to the
respondent, to a Superior Court judge. An application for an
emergency intervention order would be made in an urgent
situation, without notice to the respondent, to a Superior Court
judge, a designated provincial court judge or a designated
justice of the peace. Under the bill, provincial court judges or
justices of the peace would be designated to hear applications
for emergency intervention orders 24 hours a day, seven days a
week. The designation section is contained in section 13.
The bill allows a Superior
Court judge to make an intervention order if he or she is
satisfied that domestic violence has occurred and that a person
or property may be at risk of harm or damage. The intervention
order may contain a range of provisions, including: restraining
the respondent from being near any specified person or place,
from contacting any person or from engaging in any specified
conduct that is threatening, annoying or harassing to any person;
requiring the respondent to vacate the applicant's residence;
requiring police to escort a specified person to the applicant's
residence to remove a person's belongings; requiring a peace
officer to seize weapons and weapons permits, where the weapons
were used or threatened to be used to commit domestic violence;
granting the applicant exclusive possession of the residence;
requiring the respondent to compensate the applicant for any
financial losses caused by the domestic violence; granting either
the applicant or the respondent temporary possession and
exclusive use of specified personal property, such as a car, bank
accounts or bank cards; restraining the respondent from dealing
with property in which the applicant has an interest, again such
as bank accounts or the property that the parties might share
together; and requiring the respondent to attend counselling or
to pay for a child's counselling. This range of available
provisions is contained in subsection 3(2) of the bill.
The bill allows a Superior
Court judge, a designated provincial judge or a designated
justice of the peace to make an emergency intervention order if
he or she is satisfied that domestic violence has occurred, a
person or property is at risk of harm or damage, and the matter
must be dealt with on an urgent basis for the protection of a
person or property that is at risk of harm or damage. This is a
three-stage test that's required for the emergency intervention
order which can be compared to the two-stage test that is
required for a regular intervention order on notice. The third
stage of the test is that the matter must be dealt with on an
urgent basis for the protection of a person or property that is
at risk of harm or damage. An emergency intervention order may
only contain the first seven provisions contained in subsection
3(2) of the bill. These are restraining the respondent from being
near any specified person or place, from contacting any person or
from engaging in any specified conduct that is threatening,
annoying or harassing of any person; requiring the respondent to
vacate the applicant's residence; requiring police to escort a
specified person to the residence; and requiring a peace officer
to seize weapons and weapons permits where the weapons were used
or threatened to be used to commit domestic violence. These
provisions that can be contained in an emergency intervention
order are aimed at the personal and immediate safety of the
victim of domestic violence.
The bill provides that every emergency intervention
order must advise the applicant and the respondent that they are
entitled to a hearing before the court for the purpose of asking
for a variation or termination of the order. This is subsection
4(8) of the bill.
An emergency intervention
order made by a designated provincial judge or justice of the
peace must be reviewed shortly thereafter by a Superior Court
judge. If the Superior Court judge is satisfied that there was
sufficient evidence before the designated provincial judge or JP
to support the granting of the emergency intervention order, and
there has been no request for a hearing, the Superior Court judge
shall confirm the order. If the Superior Court judge is not
satisfied that there was evidence before the designated
provincial judge or JP, then the Superior Court judge shall order
a hearing. At the hearing, whether it's ordered by the Superior
Court judge or whether it's requested by the applicant and the
respondent, the Superior Court judge may confirm, vary or
terminate the emergency intervention order. These provisions are
contained in sections 5 and 6 of the bill.
The bill provides that
breaches of emergency intervention orders and certain provisions
of intervention orders shall be enforced by peace officers under
the Criminal Code of Canada. Breaches relating to no contact with
the applicant or other persons, vacating the home and weapons are
police enforceable. Breaches relating to property, monetary
compensation and counselling can be enforced by the Family Court
through the respondent posting a bond or entering into a
recognizance.
The provinces of Alberta,
Saskatchewan and Manitoba utilize section 127 of the Criminal
Code to enforce their domestic violence legislation that is
similar in intent to this bill.
The bill provides that the
applicant or respondent to an intervention order may make a
motion to the court at any time, upon notice to the other party,
to vary or terminate the order. The court must be satisfied that
there has been a material change in circumstances before changing
the order.
At section 10, the bill
provides that the court, when reviewing an intervention order at
a hearing or at an application to vary or terminate the order,
shall consider current family law orders and may, if it is
authorized under the family law legislation affecting the order,
change the family law order to the extent necessary to provide
protection under the intervention order. The bill also provides
that an appeal from an intervention order may be made to the
Divisional Court.
The bill gives the Family
Rules Committee, subject to the approval of the Lieutenant
Governor in Council, the authority to make rules under section 68
of the Courts of Justice Act and in relation to the practice and
procedure in proceedings under the proposed Domestic Violence
Protection Act. The Attorney General may require that the Family
Rules Committee make, amend or revoke a rule. If the Family Rules
Committee does not do so, the Lieutenant Governor in Council may
make a regulation that carries out the intent of the Attorney
General's requirement. These provisions are contained in sections
17 and 18 of the bill.
The bill amends the Courts of
Justice Act so that, if passed, the Domestic Violence Protection
Act would be within the jurisdiction of the Family Court in the
province. It also repeals section 35 of the Children's Law Reform
Act and section 46 of the Family Law Act. In terms of the repeal
of those two sections, which are the existing restraining order
provisions, the bill has been drafted to allow these provisions
to be repealed in stages if required.
At this time, if people have
questions of a technical nature-
The Chair:
Have you finished your submission?
Ms Predko:
Yes.
The Chair:
OK. I believe what we were going to do was give half an hour to
each party, at which time they could both ask questions and make
their speeches or submissions.
1600
Mr Kormos:
Chair, if I may, the subcommittee gave an hour for this
submission, but subject to what other people might tell me in
terms of correction, my impression was that we were going to be
somewhat, dare I say, liberal.
Interjections.
Mr Kormos:
It irks me as much as it does you. We've got two hours left, so
I'm wondering if we could agree that we'll share the remaining
two hours.
The Chair:
Yes, I had also anticipated that fairly conservatively at two, I
might add.
Mr Kormos:
And my approach is somewhat radical, I understand.
Mr Tilson:
Seriously, I don't know whether it's being suggested that the
three parties split the remaining 25 minutes or whatever it is,
but I don't have a problem with that, if that's what you're
asking. As I understand it, each caucus was going to have half an
hour to either speak or ask questions. Mr Kormos is perfectly
correct: we now have 20 to 25 minutes' leeway. I don't have a
problem if you divide that among all three caucuses.
The Chair:
We'll give each party about 40 minutes. Is that OK?
Mr Tilson, I believe you
mentioned in your introduction that you wanted to add after the
submissions of the ministry. Is that correct?
Mr Tilson:
Actually, I'll just be part of the government questions and
comments.
The Chair:
OK, because normally I would hear from the Liberal side
first.
Mr Tilson:
That's fine. I have no problem with that.
The Chair:
Mrs Bountrogianni?
Mrs Marie
Bountrogianni (Hamilton Mountain): I'll let the lawyers
ask the really technical questions.
The Chair:
We'll give you until about a quarter to five, OK?
Mrs
Bountrogianni: I may not need that long. I'll give the
rest to my colleague. I saw in Hansard where the former
parliamentary assistant-the order might include "ordering counselling for children
at the alleged abuser's expense." Is that correct? Is that part
of the bill?
Ms Predko:
Yes, that's correct.
Mrs
Bountrogianni: I'd like to ask, will the province or
legal aid or some other funding agency pay for the children's
counselling if the alleged abuser cannot pay for it? Let's face
it: in many of these cases, the alleged abuser can't pay, so is
there any backup plan or any-
Ms Predko:
That's a resourcing issue in the process that would obviously
need to be addressed. It's not something that is within the
context of a briefing the Ministry of the Attorney General could
give you, but I certainly could touch base with other ministries
that would be responsible for that type of information.
Mrs
Bountrogianni: I would appreciate that. I'm not being
critical here. There are actually quite a few points I like. I'm
a child psychologist, and from my experience I know that alleged
abusers often don't have the money or hide the money or don't
want to or delay, and counselling is very important. If another
ministry can get back to me on that, that would be great. Mr
Tilson, will you make that commitment to ask if the other
ministries can provide-
Mr Tilson:
Absolutely. My understanding is that the ministry is going to be
providing resources in a number of areas. But in terms of what
you're speaking of now, my belief is that there are already
resources put forward in the victims of crime process to assist
the type of people you speak of. In answer to your question,
we'll be pleased to clarify that.
Mrs
Bountrogianni: A similar question for the counselling
for abusive partners-I guess I'd like that to go for those as
well, Mr Tilson. Again, professionally speaking, sometimes it's a
little late at that point, and the counselling of children is
extremely important.
The Ontario Women's
Directorate used to fund counsellors going into the schools and
speaking to violence prevention. Again, as a former employee of a
school board, I would partner with some of these counsellors and
we would go in together and talk about the signs of abuse and so
forth. The majority of that funding was cut. Today there were
some announcements on more funding. I'd like to know if this
ministry values that sort of counselling and, again, if they can
get the appropriate ministry to get back to me on that-once Mr
Kormos stops distracting the parliamentary assistant.
Mr Tilson:
I'm sorry. You'll have to repeat what you were saying.
Mrs
Bountrogianni: Basically, a very similar issue to what I
said earlier.
The other question is,
presumably then the courts will be busier with this bill. The
women will have another road to go to, once they're in this
terrible position. Is there then more access or more funds for
legal aid? Because it is very difficult even right now for women
to access legal aid.
The Chair:
Does anyone from the ministry have an answer for that?
Mrs
Bountrogianni: Are there plans to increase legal aid for
women to be able to access the positive steps in this new
bill?
Ms Kuras:
There are no plans at this point, that I am aware of, to increase
funding for it. However, legal aid certainly has made a
commitment to ensuring that women who are facing domestic
violence are a priority for legal aid certificates and legal aid
services.
Mrs
Bountrogianni: We'll underline that one. I guess my
other point is that 75% of women don't report their abuse. I know
that the Attorney General's not responsible for those 75% but I
feel that I have to talk about the 75%.
Mr Tilson:
A good point.
Mrs
Bountrogianni: It is a good point. Again, with someone
from a different culture, there are sometimes cultural reasons
why they don't report right away-sometimes they're personal
reasons, sometimes they're psychological reasons-but we cannot
criticize women who don't want to report; we just have to try to
make it easier for them to report.
I was in the women's centre
in London on Saturday. I just want to read you some statistics
for the record before I hand it over to my colleague. Last year,
they turned away 685 women-I guess this is underlining need for
more shelters. They admitted 703. This year, to date-we haven't
got a complete year yet-they've already turned away 869 women at
the Women's Community House in London, Ontario. I guess my plea
on the record is-even though I know this is a different
ministry-it's wonderful what you're doing, but it will not
address the big picture of domestic violence and I look forward
to you or your minister influencing the other ministers involved
in domestic violence legislation.
Mr Tilson:
Is that a question?
Mrs
Bountrogianni: It's just a statement to you, and I'm
hoping that you'll talk to your other ministers.
Mr Tilson:
May I respond to what she said?
The Chair:
Please.
Mr Tilson:
You're actually right. Horrific crimes happen. How do you get
women, and specifically women-the bill is designed for a number
of people with domestic violence, but a large percentage would be
women, and your point is certainly well taken-to even deal with
it?
We believe this bill is
going to provide more confidence in the system for women, to use
your example. It will be easier to approach the police, to
approach justice officials. When a police officer arrives at a
home, for example, where there are problems, the police officer
will have an easier time in assisting the woman to deal with
these horrific issues that have developed. It may not be the
solution, but we believe that this bill will make it easier for
women to have more confidence in the system to deal with these
horrific crimes.
The Chair:
Members of the committee, I have received a request to go in
15-minute rotations rather than 40 minutes.
Mr Tilson:
Madam Chair, you can direct me here. I don't know what I'm
supposed to do when comments are made. I am here as the
parliamentary assistant, and whether I am supposed to respond or wait until
the end, I'll do whatever you wish.
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Mr Michael Bryant
(St Paul's): I can tell you, I'll direct my questions-I
think it makes sense-to the government. If I am sending a
question to them that I should send to Mr Tilson -I think we
should give them a time to respond. But I like the idea of
rotating.
The Chair:
OK. We'll go to Mr Kormos next, then, Mr Bryant?
Mr Bryant:
Do we have time left in my 15?
The Chair:
No, you don't actually.
Mr Bryant:
Fair enough. Then let's rotate to Mr Kormos.
Mr Kormos:
We've got to be quick because we don't have a whole lot of
time.
On the legal aid issue, on
Friday morning a constituent in my office, a woman who was last
in our office a year ago, wrote to the Niagara Regional Police
because of some concern she had about the police not enforcing a
Unified Family Court restraining order coming out of St
Catharines. Mind you, the police responded appropriately, but the
problem is now her spouse-three kids. She gave me permission to
talk about this today. NCDC, Niagara Child Development Centre,
for instance, has refused to do any more supervised access
because the father is being just so outlandish. He has renewed
the litigation. She can't find a lawyer to represent her on legal
aid, because of the block constrictions on funding for legal aid
representation in family law. Lawyers simply aren't doing it. So
she's got to pay to defend herself against what is, from a
layperson's view, probably frivolous or vexatious litigation-I
know those are legal terms and I'll leave that to the lawyers-so
she's out a good 10 grand-plus.
To boot, she had one of
those alarms that the local committee, with Women's Place being a
part of the committee, gave her some year and a half to two years
ago, because that's when she was having a problem with the first
instance with the restraining order and the constituency office
got involved. The husband had backed off. She had to return the
alarm, because of course there's a shortage of them. There were
no incidents.
But I'm going, "Holy
zonkers, Jane." We're pre-Christmas, the litigation is set for
mid-November, the husband's taking her back to Family Court and
raising all these access and custody issues, and wants the
restraining order from the original Unified Family Court
withdrawn or abandoned. We're entering a very volatile time
frame. There's the combination of the litigation going back into
court, the guy's being denied access effectively because
supervisory services won't supervise the access any more, and
we're entering Christmas season, with all the emotions that
accompany that. I'm going, "Holy zonkers, if you ever needed an
alarm, it's now." And that's no criticism of anybody. Of course,
she then has to go back on to some sort of a waiting list, I'm
told, to access one and she's not going to have priority, because
the guy hasn't been harassing her recently, but surely she's at a
higher risk now, with the upcoming litigation along with
Christmas season and all the other stuff that goes on with
it.
So I share, I've got to
tell you, the concerns about the adequacy of legal aid funding,
because the nature and the manner in which they fund has excluded
a whole lot of family practitioners from representing people in
family cases.
Let's get down to the bill.
There are a couple of very specific things. Section 3, or I
suppose even the interim or emergency orders: why is the word
"and" between paragraphs (a) and (b)? In other words, why does
the trier there have to conclude not only that there was domestic
violence but "and" that person has to find that there may be risk
of harm. Why isn't it "or"? What do they call them, Mr Bryant, a
conjunctive? Seriously, why isn't it merely a conjunctive
"or"?
Ms Predko:
The drafting in this section is trying to address an issue that
has been a problem in existing restraining order provisions,
which was that there were no criteria for the judge to follow. In
terms of domestic violence having occurred in the past and then
there's some future risk, in the case of an intervention order,
that something will happen again, I think if the two events are
contemporaneous, in that something happened in the recent past,
yesterday or last week, there should be no difficulty flowing to
the second stage of this test. I agree with you that where the
events are not exactly contemporaneous, as in the situation that
you've described, it's more difficult, and that's why the level
of the test is "may be" at risk. There only needs to be a
possibility of risk for the situation to qualify in order to get
a restraining order.
Mr Kormos:
OK, gotcha.
Ms Predko:
One of the problems with the existing enforcement regime is that
there are a lot of orders on the CPIC system that do not relate
to domestic violence at all.
Mr Kormos:
We're going to get to that. Going back in terms of the definition
of "domestic violence," why does subsection 1(2) read "domestic
violence means the following acts"? Why doesn't it say it
"includes the following acts," so as not to be restrictive?
You've got to agree with me that there are some clever lawyers
out there who are going to argue that the act that's the
foundation for this application doesn't fall within those six
areas. I don't know a whole lot about this, but when it says
"means" as compared to maybe saying "includes," that means the
person hearing it could be in a position of saying, "Oh, oh, I
can't grant a restraining order, because you're right,
high-priced Toronto lawyer, it doesn't technically fall within
those six categories." Why doesn't it say "includes" instead of
"means"?
Ms Predko:
The question is, why is the list exhaustive as opposed to
inclusive, from a drafting perspective?
Mr Kormos:
Yes, ma'am.
Ms Predko:
It's exhaustive because these were the anticipated limitations of
domestic violence in terms of the definition. This definition is
an adaptation of definitions that are used in other jurisdictions in
the country, and it's also a further adaptation of part of the
definition as put out in the Joint Committee on Domestic Violence
report.
Mr Kormos:
But do you agree that "includes" would broaden the area a whole
lot and prevent those technical arguments from being made against
a restraining order?
Ms Predko:
I'm not going to answer the second part of your question.
Mr Kormos:
Why not? You answered the first part. Either you agree or you
don't agree.
The Chair:
Give her a chance.
Mr Kormos:
I know; I knew that.
Ms Predko:
You've asked me two questions. You've asked me if I agree that
"includes" would expand the list. Yes, I do. Do I agree that it
would address the technical arguments that lawyers are likely to
make? I can't say, because really it's going to be for a judge to
interpret the legislation, not for counsel to interpret the
legislation.
Mr Kormos:
Fair enough. Is there a difference between "on the balance of
probabilities" and "reasonable and probable grounds to believe"
in terms of the test or the standard?
Ms Predko:
In terms of legal tests, those are used in two different
locations in law. The "balance of probabilities" is a sort of a
50%-plus-one type of test. "Reasonable and probable grounds to
believe" might be a lower test. It's a test that means, from a
legal perspective, that you have examined all of the information
that you have available to you and that a reasonable person could
move from where you are, in terms of your knowledge, to where you
think this process is going. It's a test that's normally used in
a criminal context for-
Mr Kormos:
Assault charges.
Ms Predko:
Well, for investigative purposes, I guess, to put it that way,
where an officer faced with particular circumstances has to
decide.
Mr Kormos:
Quite right. The reason I'm asking that is because section 4 with
the ex parte order, the emergency order, uses the same test as
the order "upon application with notice" and "the balance of
probabilities." I don't quarrel with "balance of probabilities"
for being the appropriate test when you've got a "with notice,"
where it's litigated. But in the context-I'm just wondering; I
don't know what my colleagues feel about this-of an emergency
order at 2 in the morning, I'm wondering if there shouldn't be
consideration given to what you suggest is that marginally lower
test but still a standard of "reasonable and probable grounds to
believe that." People get busted on that basis, don't they, and
held in custody? So I'm just wondering why the drafters didn't
put "reasonable and probable grounds" for section 4,
understanding full well why they put "balance of probabilities"
in section 3.
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Ms Predko:
In response to that I would say that in the situation in section
4 you actually only have evidence from one side, so it should
actually be easier to prove on a balance of probabilities because
you don't have the other side at all. You've only got one side of
the-
Mr Kormos:
Oh, I understand that part. Subsection 4(2), because the bill
contemplates going at 2, 3 or 4 in the morning, really makes me
crazy, because on an emergency order application at 2 in the
morning a victim has to provide, because it says, "shall contain
a summary of all previous and current court proceedings and
orders affecting the applicant and respondent including all
applications and orders under this act." Holy zonkers. I'm not
aware of any section that gives the court, the judge or JP, the
power to dispense with that. It says "shall." Shouldn't there at
least be the power to dispense with that by a JP or whoever the
court is composed of? Go ahead.
Mr Tilson:
Isn't it-and you're right, this is an ex parte proceeding-fairer
that the applicant should reveal everything they know about the
proceedings, past and present, to the best of their
knowledge?
Mr Kormos:
I agree but-
Mr Tilson:
If they make it up, they're going to be in doo-doo trouble
because they're saying-
Mr Kormos:
Oh, I'm getting to that silly section in a minute. But to be
fair, Parliamentary Assistant, it says "shall," with no relief
from requiring to produce it.
Mr Tilson:
We're talking about a very serious matter, this proceeding ex
parte, and I would hope that the judge or justice would have as
much information before him or her as possible.
Mr Kormos:
So if I'm a woman who has just been threatened by some crazy
partner of mine, and I am rattled and shaken to begin with, and I
don't provide all of that, because it says "shall," is that what
my abuser is going to use as grounds to set aside that emergency
order? I'm raising it; we will talk about this more, but I'm
concerned about it. I'm concerned that it says "shall" because of
the nature of the emergency order, which gets me around to
section 16.
This is the sort of stuff
the Red Tape Commission would include in one of their omnibus
bills repealing, isn't it? It's redundant, isn't it? Perjury and
public mischief are offences under the Criminal Code, as I
recall. Section 16, why is it in this bill? Does it do anything
for the bill?
Mr Tilson:
It's a very serious matter indeed: tell the truth. You better
tell the truth. You better not make up things or you're going to
be in big trouble with the court.
Mr Kormos:
I always tell the truth, Mr Tilson. But does it do anything for
the bill?
Ms Predko:
It sends a clear message. I think beyond that, as you say, its
content is already existing in law.
Mr Kormos:
Let's make this clear, because you referred to section 127, and I
want to thank ministry staff for providing me with a copy of the
briefing notes for their minister, or the parliamentary
assistant, his briefing notes to section 127. I want to assure
them I shared them with Mr Tilson because I didn't have my code-I
don't have a Criminal Code-with me.
If somebody breaches it,
they can either be prosecuted under section 127 of the Criminal
Code, "breach of a court order," that general section-if I
recall, some lawyers
have told me that there has been some case law around that in
terms of what is and isn't included in court orders. I can't
recall those conversations, but I've been told that.
When you say the police
shall enforce this, the problem a whole lot of my constituents
have had historically is that they've got a family court order, a
Unified Family Court order or a Supreme Court order in a divorce,
and the police are very nervous. No disrespect-they're just very
nervous. Their line is, "It's a civil matter," or, "Call your
lawyer in the morning." The police basically know the Criminal
Code and that's the focus of their work.
What's going to go on to
make these orders more enforceable than the Unified Family Court,
the Family Court, provincial division, and the Supreme Court or
various Superior Court orders that police have been nervous about
enforcing? Not in terms of busting somebody who violates them-or
I suppose they could be charged under the Provincial Offences Act
too, couldn't they?
Ms Predko:
They could not be charged under the Provincial Offences Act the
way this act is structured.
Mr Kormos:
I thought at least they could be charged, that they could be
given a provincial offence ticket; I was hoping, at least.
What I'm worried about is
in terms of the enforcement. You're aware of the circumstances
I'm talking about, right? The guy's there-I say "guy"; it usually
is-and the police are saying, "Whoa, we don't see any blood
dripping. This is a civil matter. Call your lawyers." What's
going to change that with this act?
Ms Predko:
If we turn to subsection 4(7) of the bill-
The Chair:
You have about 30 seconds to answer the question.
Ms Predko:
At subsection 4(7) of the bill we see, "An emergency intervention
order prevails over any order made under the Children's Law
Reform Act." Part of the difficulty for police officers when they
attend at a scene now is that they are not clear which order
prevails. That is a very common concern that police officers
have, as well as the wording of the order. Those two things are
addressed directly by this bill, first by the specific wording
contained in subsection 3(2), and also by this subsection 4(7)
which would make the order prevail.
The Chair:
We'll go to the government side.
Mr Tilson:
So I'm clear, each caucus will still have half an hour to either
make a presentation or comments about the bill?
The Chair:
Yes. Actually you have just a little under half an hour. You now
have 15 minutes, and then we go back. We're going in 15-minute
rotations, except that for the last half-hour I'm going to narrow
it down a little bit because we need time to get up to vote.
Mr Tilson:
The last point Mr Kormos raised was one I had intended to ask
about and you may wish to elaborate. We all hear, as Mr Kormos
has indicated, that police arrive at the scene and they groan,
they literally groan, about getting involved in these matters.
One of the reasons they groan, just as you've indicated, is
because of the contradictory court orders, because of a
restraining order and child access. It's conceivable that those
two orders could conflict, as I understand it, for example, and
there may be others you may wish to comment on.
You have now answered that.
Subsection 4(7), "An emergency intervention order prevails over
any order made under the Children's Law Reform Act, the Divorce
Act (Canada) or the Family Law Act against or affecting the
applicant or respondent or any child." Maybe you can tell me what
sort of consultations you've had with the police or the police
organizations on this topic, continuing on from the part that was
raised by Mr Kormos.
Ms Predko:
Certainly. The task group on restraining orders, which was
convened by the Attorney General in September 1999, first of all
had a stakeholder relations meeting with the police officers in,
I believe, January or February 2000. That would have been a first
opportunity for police officers to give some feedback in terms of
the perceived problems with the existing restraining order
system.
1630
There was then an advance
meeting with police officers in June of this year on
recommendations that new civil domestic violence legislation be
an option for the government to proceed with. There was further
confidential consultation with some police services in September
of this year to provide some feedback in terms of the proposed
direction of this bill. We certainly expect that as regulations
under the bill, if passed, are developed, the police will be a
very important stakeholder group to be involved in the
development of those regulations, particularly in the areas where
the bill impacts upon municipal police services and the OPP.
Mr Tilson:
I have one other question. Presentations have been made,
particularly by the government members in the House, with respect
to the speed of dealing with issues. Perhaps a summary of
comparison between restraining orders and intervention orders-in
other words, under the current regime as opposed to the regime
that's being proposed by this bill, for one, essentially now
there's 24-hour service. Perhaps you can elaborate on that.
Ms Predko:
I can give an overview now. The other possibility would be that I
could ask staff to prepare a chart that would give committee
members a comparison between the existing system and the proposed
system. I wouldn't have that available today, but I can briefly
give you an overview of the main differences if you would
like.
Mr Tilson:
That would probably be very useful. A chart would be useful, but
perhaps you could comment on some of the items. That would be
helpful, but a chart would be very helpful.
Ms Predko:
In terms of the existing system, as I mentioned in my overall
technical briefing, there are no existing criteria for granting a
restraining order. What flows from that, and maybe wasn't
specifically clear, is there is no existing definition of
"domestic violence" in legislation in Ontario. This definition
that's been put forward in the proposed Domestic Violence
Protection Act would be our first definition of "domestic
violence."
The other main difference is that people in a much
broader category of relationships could apply for intervention
orders than can currently apply for restraining orders under the
existing legislative regime. So persons who are in dating
relationships, for example, and persons who are related and
reside in the same household can apply for intervention
orders.
I would like to point out
that in the situation of Arlene May and Randy Iles, they would
not have qualified for a restraining order under our existing
legislative framework. As well, the addition of family members
residing in the same household has the possibility of allowing
persons who are subjected to elder abuse to be protected by these
intervention orders.
In terms of timelines,
which you had pointed out in your comments, one of the main
differences is that now, of course, you have to apply during
regular court hours, and in some locations in the province
regular court hours are not even every day of the week. In the
north or in small locations, the fact that a process will be
available 24 hours a day, seven days a week, will mean an
enhancement of service, particularly to those remote areas.
Currently you can apply for a restraining order on an ex parte
basis, but you have to do it directly in writing to the court and
the court has to be available and open to receive your
application. So this is a significant enhancement of service to
areas of the province that don't have a court open at all
times.
Those are the main
differences. Of course, subsection 3(2) sets out the specific
items that can be prohibited. At this point in time we have no
limitation on what can be prohibited by the restraining order
provisions of the existing legislation. We just have those words
"annoy," "molest," "harass." It would be a significant
enhancement for police stakeholders to be able to more clearly
see what activity is being prohibited.
Mr Joseph Spina
(Brampton Centre): I think you got into some of the
answer to the question I was about to ask. It was around the
applicants in section 2, where you indicated that this act
broadens the base of the applicant. I guess it's not just a
female spouse or a child but also includes an elderly person who
may or may not be related. They could just be a cohabitant of the
household, could they not?
Ms Predko:
Actually, if we turn back to the definitions section, "cohabit"
is defined to mean "to live together in a conjugal relationship,
whether within or outside marriage."
Mr Kormos:
It's conjugal, Joe.
Ms Predko:
In terms of when we say people are cohabiting, we actually mean
people who are cohabiting in an intimate or sexual relationship.
From a policy perspective, we were concerned about capturing
roommates in terms of this proposal.
Mr Spina:
And that's gender-neutral?
Ms Predko:
This definition is completely gender-neutral.
Mr Spina:
So it could be two women or two men?
Ms Predko:
Certainly.
Mr Spina:
The other element I want to clarify is in section 3, where it
talks about cohabiting for any period of time. Respecting what
you indicated by "conjugal," I'm just wondering, is that too
loose or is that covered by other legislation in defining
"cohabitation"? I'm thinking of a couple, of whatever type, who
spend a weekend together and then an abusive situation results.
Is that considered to be cohabitation? I'm just trying to clarify
that.
Mr Kormos:
It's too bad Mr Vankoughnet isn't still in your caucus. He could
be helpful with that.
Ms Predko:
It's a continuation along a spectrum of relationships. I think
what you've just described would fit either within the concept of
the people dating or cohabiting for any period of time. With
dating being included, it really isn't a distinction you
necessarily have to draw when the cohabitation periods are very
short.
Mrs
Elliott: You mentioned, I think, the joint committee on
domestic violence in your opening remarks, and you also mentioned
that you had looked at other jurisdictions and the legislation
they have in place. I'm curious to know how the legislation
before us is different than the legislation you've reviewed from
other jurisdictions.
Ms Predko:
There are some distinctions between Canadian legislation and
foreign legislation because of our constitutional prerogatives in
Canada, where the federal head of power includes all criminal law
power. For example, in New Jersey, which is an American statute
I've examined quite closely, the state is capable of enacting
criminal powers. So they have a much easier time making a bill
that covers the criminal and the civil spectrum. Because of our
Constitution, it's a little more difficult, so I'm going to
restrict my remarks mainly to the differences between this and
other Canadian pieces of legislation, because the foreign ones
are quite different.
The main differences, I
think, are that in section 2 we include persons who are or were
in dating relationships. There is a definition of "intimate
partners" in the Yukon's legislation, but it is a circular kind
of definition and was not of assistance. The dating relationship,
I would argue, is more broad than that and is included here.
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In terms of the definition
of domestic violence, our definition is different from the other
jurisdictions, because the violence could have occurred against
"an applicant, an applicant's relative or any child." I believe
that's also true in Prince Edward Island, but in the other
Canadian jurisdictions the violence must have happened directly
against the applicant. This difference is because much of what is
domestic violence does occur in a continuum family setting where
threats are made against children. There can be threats made
against things that are not people, like pets, for example, and
we think this captures the continuum in a more effective way.
Another difference in our
definition of domestic violence is causing the applicant "to fear
for his or her safety." In consultation with some advocates for
victims, we were trying to capture the essence of the activity.
For example, if we look
at paragraph 3 of subsection 1(2), "an act or omission or
threatened act or omission that causes the applicant to fear for
his or her safety," many of the other jurisdictions say here, "an
act or omission or threatened act or omission that would cause
bodily harm or damage to property." That may be overly broad in
the sense that there may be acts or omissions that would cause
damage to property that wouldn't necessarily cause people to fear
for their safety. So that's a way our definition is
different.
In terms of the process, we
have the shortest period of time and a stagnant period of time
during which a person is entitled to a hearing. Most of the other
jurisdictions have a process whereby a Superior Court judge
reviews the order within a short period of time but the
respondent is not given any opportunity to provide evidence or be
heard. Then the respondent would have to make an application
after confirmation to have the order changed or set aside. This
is a best practice from our perspective. We've consolidated
what's happening in Alberta, Saskatchewan and Manitoba into what
we think is a workable best practice for Ontario. So in that way
it is different than their legislation.
Mr Bryant:
I have 15 minutes, is that right, Madam Chair?
The Chair:
You've got until 5 o'clock.
Mr Bryant:
Thank you for coming. Let me deal with some technical questions
first. You mentioned in your remarks that two other provinces-I
think you said Saskatchewan and Alberta-use Criminal Code
provisions to enforce actions that this act addresses itself to.
Have I got that right?
Ms Predko:
Yes. They have specialized domestic violence legislation much
like this. In three of the five provinces they have no offence
provision and rely on section 127 of the Criminal Code.
Mr Bryant:
To your knowledge, in those provinces they haven't adopted
provincial legislation because the Criminal Code covers it
already?
Ms Predko:
I'm not sure I understand the question. From my discussion with
their policy counsel, I think they made a decision that they
wanted criminal enforcement of their specialized domestic
violence legislation, as we do. In making that decision they
decided, because of the way section 127 of the code is
drafted-maybe it's helpful if we make reference to that for a
second.
Section 127 of the code is
entitled "Disobeying Order of Court.
"Everyone who, without
lawful excuse, disobeys a lawful order made by a court of justice
or by a person or body of persons authorized by any act to make
or give the order, other than an order for the payment of money,
is, unless a punishment or other mode of proceeding is expressly
provided by law, guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years."
Mr Bryant:
That is what provision in what act?
Ms Predko:
That's section 127 of the Criminal Code. You'll see that part of
this is "unless a punishment or other mode of proceeding is
expressly provided by law," other than contempt, I might add. By
not providing an expressed other mode of proceeding in law, you
are able to use this section of the Criminal Code, and that's the
approach that's been taken in the other three provinces and the
approach that we're proposing to take in Ontario.
Mr Bryant:
If this has been covered already, just tell me, but I don't think
it has. The bill before us now permits seizure of weapons. This
type of provision is already available to judges when they set
bail conditions under the Criminal Code, isn't that right?
Ms Predko:
That's correct.
Mr Bryant:
I'm just taking this from Mr Martiniuk's speech of October 3.
He's discussing what the bill does. He talks about other terms of
the order. Before I get to that, the new act permits the removal
of the abuser from the home. That's also already available under
the Criminal Code, is that right?
Ms Predko:
If there's a criminal charge.
Mr Bryant:
So the answer is yes.
Ms Kuras:
If there's a criminal charge.
Mr Bryant:
The other terms that could be found I guess in intervention
orders, and again I'm just going through the list from Mr
Martiniuk-"Requiring the ... abuser to vacate the residence."
Could this be required by a judge today, before this act is
passed?
Ms Predko:
By a Family Court judge, a person can get exclusive possession of
the matrimonial home if they are a married spouse, which means
they qualify under part I of the Family Law Act. This would be
available to all of the persons who are listed in section 2, all
the potential applicants, which is much broader than a married
spouse.
Mr Bryant:
"Requiring that police are present while the ... abuser removes
personal possessions." Is that not already either a matter of
policy or a matter of course under these orders? Could a judge
make that order right now, before this bill is passed?
Ms Predko:
No, actually they could not. Police as a matter of practice in
some jurisdictions will attend to keep the peace; in other
jurisdictions they will not. So in order to ensure that everyone
is entitled to the same service-
Mr Bryant:
So you're saying there are different police practices on
this?
Ms Predko:
That's correct.
Mr Bryant:
Do you happen to know what they do in Toronto?
Ms Predko:
In Toronto? I didn't practise in Toronto so I don't know.
Mr Bryant:
Fair enough.
Mr Tilson:
Where's that?
Mr Bryant:
Strike that from the record.
"Ordering counselling for
the abusive partner to help prevent further violence." That's an
order that can be part of a sentence right now under the Criminal
Code, can't it?
Ms Predko: Under the Criminal
Code, but these orders can exist without there ever being a
criminal charge.
Mr Bryant:
Sure, I understand.
Ms Predko:
So yes, under the Criminal Code such an order could be put in
place.
Mr Bryant:
This counselling that's being provided to the abusive partner, I
understand it's going to be a court order under this new act. Are
additional funds being dedicated? Maybe this is a question for Mr
Tilson, or maybe it's a question for Ms Kuras, as the executive
lead on victims' services. Is there some anticipation that there
are going to be increased orders and therefore more resources
needed for the counselling of the abusive partner?
1650
Ms Kuras:
Obviously we'll have to look at whether or not increased
resources are required, but currently abusive partners do attend
counselling sessions as part of probation orders, for example
under the PAR program. We would be tracking this to see whether
or not additional resources would be required, depending on how
often these types of orders might be made. It's difficult to
say.
Mr Bryant:
It sounded like they're required to get that counselling under
their probation orders. Is that right?
Ms Kuras:
Correct.
Mr Bryant:
"Requiring that the ... abuser give up possession of firearms and
weapons that have been used, or threatened to be used, to commit
domestic violence." Again, that's an order that probably
routinely would be given, but certainly could be given under a
Criminal Code offence right now.
Ms Kuras:
Again, to be specific, not at the home and not at the time. There
are specific provisions for firearms seizure under other
provincial statutes; for example, with respect to hunting and
those sorts of things. But no, this is not something that would
be available today unless there was-
Mr Bryant:
A Criminal Code offence. OK.
Next, and again this is Mr
Martiniuk's list, "ordering counselling for the children at the
alleged abuser's expense, to help them overcome the effects of
exposure to the violence." This is what the intervention order
will do. How is this going to be enforced against, to put it
bluntly, deadbeats if in fact there are no monies forthcoming?
We're talking here often about people, as you know very well, who
have been ignoring civil and criminal orders, restraining orders,
and now they're being told to pay for counselling and they won't.
So how is that going to be enforced against them?
Ms Kuras:
That question was asked earlier and we'll just expand our
information search to include not only "unwilling" but
"unable."
Mr Bryant:
I think the question, if it was from Dr Bountrogianni, was-
Ms Kuras:
If they can't pay, and you are asking if they won't pay.
Mr Bryant:
Right. So right now the Ministry of the Attorney General is not
committing new resources in anticipation of the additional
counselling remedies that are being provided under this act?
Ms Kuras:
The additional resource requirements will have to be looked at.
There are none at this time.
Mr Bryant:
I'm going to take "There are none at this time" as right.
"Granting exclusive
possession of the residence to the victim or exclusive use of
certain property such as credit cards and bank accounts." Who's
going to do that? I'll tell you what I'm thinking of. I always
think of the Family Responsibility Office. Orders are often made,
but who's going to make sure that they're enforced? Is the
Ministry of the Attorney General going to put crowns or other
people in charge of ensuring that this order is followed through?
Because again, we're not talking about the most co-operative
people in the world when we talk about the abusive partners.
Ms Predko:
One of the things about a civil order is that they are for the
most part self-enforced, which means that when you get an order
in the Family Court, for the most part they're enforced by the
person who obtained the order. In this situation, the act makes
provision for the respondent to either post a bond or enter into
a recognizance. If he or she can post a monetary bond, then that
would provide funding that could, for example, pay for the
counselling service, if that's the situation, or could deal with
the exclusive use of the property.
I think what's going to
happen here is that this is an order that can then be shown to
other persons who might deal with the property and it will be an
order that would give them notice of the applicant's interest in
the property. If it's a situation where he's restrained from
dealing with a particular property, it could be registered on
title, for example, or if it's a situation where she's been given
exclusive use of something, it would be something that could be
shown to police officers. It's quite a common reaction in a
domestic violence situation, for example, if he or she is the
registered owner of a vehicle, to phone the police and report the
vehicle stolen. It's to address that type of behaviour and it's
to show persons in authority or persons who might be dealing with
the property who has the power to deal with the property or the
exclusive use of the property.
This type of order is quite
common now, under the Family Law Act, in terms of the contents of
the matrimonial home. It's possible now in law between married
spouses to make this type of order.
Mr Bryant:
So basically it's up to the victim to enforce the order. The
Attorney General is not, through this act or otherwise, going to
be enforcing the order for the victim. It's up to the victim to
enforce this order.
Ms Predko:
I don't think that's what I answered.
Mr Bryant:
That's what I'm saying. Do you disagree with me?
Ms Predko:
I don't think I'm in the position to answer that question.
Mr Bryant:
So you don't deny it then.
The Chair: She said she's not in a
position to answer that question, sir.
Mr Bryant:
Chair, I'm just asking the question and she answered, I
thought-
The Chair:
And she's answered it.
Mr Bryant:
Chair, why are you getting involved?
The Chair:
She has answered the question.
Mr Tilson:
Let me put it this way: I don't think it's appropriate to
cross-examine the witness. She gave an answer which, hopefully,
will answer your question. It's as simple as that. If you don't
like the answer, that's the way it goes. She's given an answer
and I think it's an appropriate answer.
Mr Bryant:
I was just waiting for her to finish her answer. I didn't think
that she had finished her answer, but the Chair and Mr Tilson
will probably continue to have advice for me on my questioning.
I'll keep on asking them.
The Chair:
Mr Kormos?
Mr Kormos:
Have you had a chance to read some of the written submissions
we've received?
Ms Predko:
I haven't had an opportunity to do so, Mr Kormos.
Mr Kormos:
Some pretty wild stuff in there. There's some people who clearly
shouldn't have access to e-mail. There's some real-
Ms Predko:
I'm hoping I'll be given them so that I'll have the opportunity
to read them.
Mr Kormos:
You don't have to read all of all of them because, trust me, the
highlighted comments will warn you about the authors.
Parliamentary Assistant, I
appreciate the effort here. You talk about the regional disparity
from community to community, police force to police force, for
instance, in terms of police attending to keep the peace and the
degree to which they'll become active. Let's talk about women as
victims of domestic violence. My concern is that women aren't
going to be treated equally across Ontario with this bill. Is
that a fair concern on my part?
Ms Predko:
Why do you have that concern?
Mr Kormos:
I'll tell you why. Because in August I visited at Attawapiskat
and Peawanuk on the James Bay-Hudson Bay coast, the community of
Ogoki, which is inland, along with several other of the isolated
native communities. They don't have justices of the peace. I
spoke with the native police services in those communities and
they very specifically talked about their frustration, the police
officers', in dealing with, among other things, domestic
violence. These cops can't even get arrest warrants because they
don't have access to a JP. So I'm really concerned about
accessing. I appreciate you've got section 13 in here; that's the
designation of JPs who are going to do 24-hour duty, and judges
as well as JPs.
As part of the drafting
team, have you included any recommendations to the ministry about
needing to beef up the whole JP and judge complement if we're
going to give fair and equitable access to this legislation?
Let's talk to the people in Ogoki or Peawanuk or
Attawapiskat.
Mr Tilson:
My understanding is that the Attorney General's office will
provide whatever resources are necessary to make the bill work. I
also understand, which I hope the two witnesses before us, or the
two people from the ministry, would elaborate, the continuation
of the telewarrant process that is being done now. You don't have
to go as far north as you're talking about to hear of
situations-and obviously that is an approach which the Attorney
General wishes to proceed with under this bill.
Perhaps the witnesses-I
keep calling you witnesses-the representatives from the ministry
could elaborate on that point.
1700
Ms Predko:
Certainly.
Mr Kormos:
Even though it's my time, it's his question. Sure, by all means.
I just didn't want him to think I didn't realize.
Mr Tilson:
Just making sure you're awake, Mr Kormos.
Mr Kormos:
Go ahead.
Ms Predko:
It's anticipated that, as it says in the bill, certain JPs or
judges would be designated to hear these on a 24-hour,
seven-day-a-week basis. Currently in Ontario, justices of the
peace are available on a 24-7 basis through the Telewarrant
Centre, which is the centralized facility connection that's
available to police officers by use of telephone and fax.
That is certainly a model
that is used in other jurisdictions in this country where they
have a centralized, specialized panel that deals with these
applications so that police in all locations would be able to go
to the centralized panel to get a hearing of an application
for-in those jurisdictions it would be called a protection order;
in our jurisdiction it would be called an intervention order. So
it would be anticipated that it wouldn't be having to go to local
JP resources or local court resources in an after-hours
situation.
Mr Kormos:
But I don't understand. If I'm the applicant, I'm a woman who's
just had my partner, husband, boyfriend, what have you kick the
door in, I'm the one who has to make the application, I'm the one
who's fearful at 2 in the morning-it's one thing in Welland to
say the police officer's going to take you down to the police
station, which might be one of the places where the 24-hour-a-day
JP is going to conduct hearings. I've been to the police stations
in these communities too; they're worlds removed from what we
regard as an urban police station. How does the individual access
that, as compared to-I understand what you're saying about police
officers, through the technical support they have in police
stations, how they utilize. How does the individual, how does
Jane Doe, if I may, access that on her own? Because some of these
communities don't have police either.
Ms Predko:
It's not anticipated, under the current structure of this bill,
that people would have direct contact with justice of the peace
resources without some facilitation through police services.
Mr Kormos:
OK. This is something new. Have we heard this before? Go
ahead.
Ms Predko: Obviously in the north
there would need to be another strategy if there are not police
services available. I want to point out as well that the
Aboriginal Healing and Wellness Strategy is aimed at addressing
domestic violence, among other issues, and that certainly this
would need to be done in conjunction with, consultation with, the
aboriginal community. It's not our intention to just impose a
bill and say, "Here, this is something that would work for your
community." It's certainly something that would need to work
through the Aboriginal Healing and Wellness Strategy. So to
answer your earlier question about the small, remote locations, I
think there would need to be a strategy, and one of the
regulation-making powers under the bill is that different
regulations can be put in place for different areas of the
province, and that's because it's anticipated that there would
need to be a strategy developed for the north.
Mr Kormos:
I've got another problem down where I live, down in Niagara
Centre. You've got to bear with me for a couple of minutes,
because I've got to explain it, right? As a matter of fact, it
was in 1999. Honest, Chair. It was during the provincial
election, another constituent. I get a phone call, and I know
this woman. I know her parents, her family, her husband, her
kids. This isn't domestic violence; this is a neighbour dispute.
It will probably speak to the application of this bill and why
it's restricted to domestic violence, because neighbour violence
can be very volatile too and very difficult for police to deal
with. My goodness, they hate those, the spiked fences. We've all
had to deal with those in our ridings.
This woman has a neighbour
who may or may not have threatened her in terms of what the
Criminal Code requires for a charge of threatening. The police
don't lay a charge. I talk to the staff sergeant. When he
explains to me why the police didn't lay a charge, with what
little bit I know and the experience I've had, I'm inclined to
say, "You're right, the judge probably wouldn't convict on the
threatening sections under the Criminal Code." The police
recommend that she go and get a peace bond under the Criminal
Code. Is it section 745?
Ms Predko:
Section 810.
Mr Kormos:
It used to be 745, back before 1988.
Interjection.
Mr Kormos:
Time flies, that's right.
The problem is that she
goes to a JP and the JP gives her a hard time about hearing the
application for a peace bond. Again, I don't know a whole lot
about procedure but I recall that although the judicial
discretion is precisely that discretion, the obligation of the JP
to hear you out, to determine whether or not there are reasonable
or probable grounds and to sign the information, is not
discretionary. You know what I'm saying, Chair?
The Chair:
Yes, I do.
Mr Kormos:
So in the midst of the election-I've got a few things going on-I
say, "No problem, we'll go over to 3 Cross Street in Welland,"
where the JPs hold their office. Here's this JP and I go in with
my constituent and I say, "Whoa." The JP has problems deciding
whether or not she's going to turn her tape recorder on. She
doesn't have a clear understanding of the fact that these
proceedings are supposed to be recorded. You'll like this story,
Ms Mushinski.
The Chair:
Would you please refer to me as the Chair.
Mr Kormos:
The Chair. The Chair, Ms Mushinski, will like this story.
The justice of the peace
has problems deciding whether she should record it. I say,
"Please, JP, you've got to record this." She's not a new JP, she
was appointed before 1990, if you get what I mean, between 1987
and 1990. I've known this woman for a long time through her
political activity with the local Liberal organization. Wait,
hold on. I'm going to get to that.
I've encountered some
excellent justices of the peace. I've known-we've been blessed in
Niagara-some very good ones. We've got a couple of dogs thrown in
there. The political patronage appointments have ended up being
real dogs. I'm there with the JP explaining to her very patiently
that this woman has a crisis. The JP at first misunderstood where
the woman lived and tried to suggest she perhaps lived in a bad
part of town and maybe she should consider moving out that part
of town to get rid of her neighbour. It's a part of town I happen
to have grown up in, of all things. I explained to the JP, "No,
Your Worship, she lives on the other side of the canal."
"Oh."
Sure enough, I had to
leave, and by the time all was said and done, the JP had sat
there and, using her position, convinced the woman not to lay the
peace bond information. Incredibly frustrating: I spent 30
minutes there with this constituent. Basically what we've got is
a bad JP, an incompetent one; not the norm, but an incompetent
one. Her name is Meg Belcastro. As I say, Chair, you might enjoy
this story. She's an incredibly incompetent JP who shouldn't be
sitting, who is not receiving adequate supervision and who is
certainly not receiving adequate training, and if she is, she
hasn't the aptitude or the ability to internalize the
training.
What has the Ministry of
the Attorney General got in mind? We've already got a lot of
concerns about training for crown attorneys, police and judges
around the issue of domestic violence and dealing with those, and
we've seen a remarkable transition in the response of the courts.
What has the AG got planned for justices of the peace, many of
whom are very good, some of whom are not? What has the Ministry
of the Attorney General got in mind for training of justices of
the peace to have them deal with this very new area of law and
some incredible new powers being granted to justices of the
peace?
Mr Tilson:
Designated justices of the peace.
Mr Kormos:
Yes, for the ones who are selected or appointed.
The Chair:
You have about two minutes to answer that question.
1710
Ms Predko:
As we explained when we were technically reviewing the bill, if
the bill is passed, we anticipate that only a certain number of JPs and
provincial court judges would be designated to hear applications.
We've been reviewing best practices in other jurisdictions, and
in particular Saskatchewan and Alberta rely on specialized
panels. In having a specialized panel it is much easier to
deliver training, and as I'm sure you're aware, training of
judicial officers is within their jurisdiction.
Mr Kormos:
Their own bailiwick.
Ms Predko:
That's correct. The Ministry of the Attorney General provides
training material and educational material for use by the
judiciary and by justices of the peace. We would provide
educational material to the bar as well and hope that they could
play an educative function in their interaction with judicial
officers.
Mr Kormos:
Have you any initial material? None of that stuff is prepared
yet?
Ms Predko:
What material?
Mr Kormos:
The materials you'd provide for training of justices of the
peace, judges, members of the bar.
Ms Predko:
No. The process would be that if the act is passed, then we'll
need to develop regulations and the content of the regulations
would be the meat and potatoes of any education or training
material that you would provide to those groups.
The Chair:
Thank you, Mr Kormos. Mrs Molinari?
Mrs Tina R.
Molinari (Thornhill): I understand that there's a
broader range of relationships covered in this act and that it's
the first Canadian jurisdiction with such expansive coverage.
There are a couple I did not see covered in the definition, being
those who are living together and "cohabit" means "conjugal
relationship." Is there somewhere else where roommates would be
covered, where there are two people living together who are not
related or are not living together in a conjugal relationship,
but there is a form of violence expressed? Are they covered in
any other area?
Ms Predko:
They are not covered by the statute. They certainly have other
remedies available to them: all the Criminal Code protections as
well as an application for a peace bond under section 810 of the
Criminal Code.
One of the difficult policy
decisions is that when you're examining something and calling it
"domestic violence," there are a lot of mandatory standards that
apply to police services and a lot of internal police service
policy that relies upon a definition of "domestic violence" in
terms of the relationships between the parties. For example, some
police services require that a domestic incident be identified by
communications and then they follow a different procedure. To
include roommates within the parties covered by the bill would
likely lead to some confusion between the application of this
bill and the definition of "domestic violence" used by police
services in responding to these types of incidents.
Mrs
Molinari: My next question is the age restriction. "A
person must be at least 16 years old to apply for, or be the
respondent to an application for, an intervention order or an
emergency intervention order."
Ms Predko:
And your question is why the age restriction?
Mrs
Molinari: Yes.
Ms Predko:
If the victim of domestic violence is under the age of 16 years,
they would be within the ambit of the Child and Family Services
Act, which is the primary method of protecting children within
the province of Ontario from violence and abuse, so in
consultation with the Ministry of Community and Social Services,
not wanting there to be confusion and overlap between these two
pieces of legislation, the age of 16 years was chosen in terms of
applicants.
In terms of respondents,
again it's a situation where we don't want to impact on a family
situation and have a child removed from a home when they're under
the age of 16 years because they are perpetrating violence. It
should be a situation that would either come under child
protection or another method of proceeding. We don't want to
interfere in the lives of children who would come within the
coverage of the Child and Family Services Act.
Mrs
Molinari: The reason I ask is, where they are covered
then, is it as extensive? This is a good piece of legislation
that covers a wide range of protection for victims. What I'm
looking for is comparable legislation and you're telling me there
is something in place that would protect under-16s. Is it as
forceful as this?
Ms Predko:
I don't want to give you an opinion about what I think is the
coverage of the Child and Family Services Act. It's different.
The Child and Family Services Act, under section 37, defines a
child in need of protection, and the method of defining a child
in need of protection is structured differently than this is
structured in this act. I can tell you truthfully that an assault
against a child under the age of 16 years is still allowed in
Ontario law and an assault against an adult person in the context
of this act would be domestic violence. There are differences
between the treatment of young people under 16 and people over 16
within the context of this act.
Mrs
Elliott: My colleagues across the way were making some
comments earlier about counselling programs and the types of
programs that are available. I think it's important to have on
the record that there is an existing program in place; in fact it
was established under our government. It was formerly called the
male batterers' program. It's now called the partner assault
response program. In addition to that, $21 million is now
invested in over 100 counselling programs for both women and
children. Some $50 million dollars is presently being expended on
community-based projects under the title of the victims' justice
action plan.
An additional $10 million
is underway now, divided into two, $5 million being focused on
children who have witnessed violence and an additional $5 million
being funnelled toward transitional programs for women who have
experienced domestic violence. By my numbers, we're now up to a
total of well over $100 million being invested in what's commonly
called the VCARS program, which is the victim crisis assistance
and referral service.
That's $10 million annually invested in that program, and under
our government the number of sites where those services are
offered-certainly we have one of those in my own community of
Guelph-Wellington-has been expanded by 50% and there are now over
26 sites.
Mr Tilson:
Attorney General Flaherty has indicated he has made a number of
requests to the federal government with respect to protecting
victims of domestic violence. Can you tell us what some of those
requests have been?
Ms Predko:
Certainly. The requests are basically threefold. The first is to
create a specific offence for breach of a provincial intervention
order or a protection order, such as we're discussing with this
bill. The reason that request was made was because it would be
much easier to track breaches of these orders through the system
if there was a specific offence for breach of a restraining
provision.
The second request that's
been made of the federal government is to reverse the onus on a
bail situation where the person has committed domestic violence
or where they've breached a restraining order. The reason here is
that in some of the critical incidents we've witnessed over the
past six or eight months, the parties were out on bail, even in a
situation where the crown attorney in a particular case had
opposed bail at a bail hearing.
The third situation that
the Attorney General has asked the federal government for a
response on is either a simplification or a clarification about
section 810, peace bonds, to make them a more effective remedy
for victims of domestic violence and victims in the situation
that this member spoke about up here. Currently peace bonds are
done by practice in most of the provinces on notice to the person
who is alleged to have breached the peace, and they take a number
of months to process. If that process was clarified and either
made on a without-notice process or in a process where there was
an expedited hearing, then it would be easier to get an 810 peace
bond and involve the criminal system in a situation that might
not be domestic violence but certainly would be neighbour
problems or a roommate problem.
Those are the three main
requests that the Attorney General has made to the federal
Minister of Justice.
1720
The Chair:
Any further questions from the government side? You have about
five more minutes.
Mrs
Molinari: With respect to restraining orders, can you
tell me how many restraining orders are currently in Ontario and
how many are breached?
Ms Predko:
Each year, there are about 1,500 to 2,000 new restraining orders
added to the system, and at any one time on the CPIC system,
which is the Canada-wide police information system, there is-I'm
not totally certain on this number, but I believe there are
around 10,000 to 12,000 on CPIC for Ontario at any given
time.
In the past few years,
we've averaged around 200 charges for breach of restraining order
on an annual basis. We believe the reason that number is so low
is because police officers are uncomfortable with laying that
charge. It's an incredibly low number if you think about the
number that are outstanding on the CPIC system. Certainly, when
police describe their experience, they seem to be attending where
there's been a breach.
The other alternative that
happens, and it will continue to happen, is that if the breach
involves a criminal offence, the police will decide to lay a
criminal charge. That would continue to be the case.
I've just had a note passed
to me. It's 5,000 to 6,000 restraining orders on the CPIC system
at this time.
Mrs
Molinari: What are the current penalties for restraining
orders?
Ms Predko:
For a first breach of a restraining order, the penalty is up to
three months in jail or $5,000 in fine or both. Normally what we
see in terms of the system when we review the statistics is a
fine in the neighbourhood of $265 to $300. We don't actually see
a lot of time in incarceration. For a second restraining order
breach, the punishment can be as high as two years in jail or
$10,000 in fine or both.
Mrs
Molinari: So those are the current ones?
Ms Predko:
Those are the current ones under the Provincial Offences Act. But
the limitations are actually defined within the statutes that
define the restraining orders, so it's defined in section 35 of
the Children's Law Reform Act and section 46 of the Family Law
Act.
Mrs
Molinari: Will this increase the penalties?
Ms Predko:
The penalty for breach of section 127 of the Criminal Code is up
to two years in jail, so it's the same, but it takes away the
possibility of a fine as an outcome. A current outcome quite
commonly is a fine, and of course it would lead to a criminal
record for the person who is convicted.
Mrs
Elliott: I asked you earlier about how this legislation
varied from legislation in other jurisdictions, and you pointed
out a number of those things. I'm curious to know if the
legislation in other jurisdictions, particularly the Canadian
jurisdictions, has been evaluated, and if you have a sense of how
well that's been working to actually address the issues since
those pieces of legislation have been in place.
Ms Predko:
There have been two evaluations of the legislation in the
province of Saskatchewan, one about six months after
implementation, and another, I believe, three to four years after
implementation. In both evaluations, the results were quite
positive in terms of victim feedback and police feedback about
the effectiveness of these orders.
One of the things they did
notice, though-and I didn't get to finish my answer to you
earlier-was that certain provisions of the Saskatchewan
legislation-one is a warrant of entry-were not being utilized at
all. That type of warrant of entry, which allowed the police to
enter a place where they thought a victim might be and try to
make contact with the victim, those provisions have not been
reproduced in our bill because the result of the Saskatchewan evaluations was that they
were not being utilized.
Alberta has a process where
they've evaluated their legislation. They have not yet made
public the results of that evaluation but we expect it in the
next month or so. We're hopeful that their evaluation process,
which will be at the one-year mark for the implementation of
their legislation, will be able to provide some additional
feedback to us in terms of the best approach to
implementation.
The Acting Chair
(Mr Joseph Spina): Mr Bryant, you have about eight
minutes, I believe.
Mr Bryant:
I probably should direct this to all three ministry officials who
are here and I'll let you decide who answers it.
I presume everybody here is
aware of Justice Baldwin's report. We refer to it as the Baldwin
report in the vernacular, but it's the report to the Attorney
General of Ontario by the Joint Committee on Domestic Violence,
working on a seamless community. You know about this report.
Ms Predko:
Yes, I do.
Mr Bryant:
About a year after the report was given to the minister, in July
2000-so it had sat on his desk, so to speak, for 11
months-Justice Baldwin undertook the extraordinary measure of
writing to the Attorney General, the Honourable Jim Flaherty. She
did two things. She called for a summit on how the justice system
deals with domestic violence and she also said in July-this is
her quote and it's something that affects the prosecutors, the
crown, and your ministry: "I have observed no noticeable change
in the manner in which counsel are approaching these difficult
cases in the criminal courts in which I preside." So she said
we've put together this important report, which itself was to
consolidate and assist in the implementation of the Iles
inquest-it's a big report; this is just the executive summary-and
nearly a year after the report had been tabled, there was no
change in the manner in which counsel were approaching these
cases. Is there anything in this legislation that addresses
itself to that serious concern that directly affects members of
your ministry?
Ms Kuras:
The concern you're referring to is her comment about her
observations in her courtroom?
Mr Bryant:
The quote, yes.
Ms Kuras:
I think as part of a technical briefing on this legislation it's
fair to say that we are hoping this legislation will prompt
vigorous prosecution and vigorous enforcement of restraining
orders because the process is going to be clearer. It's going to
provide an opportunity for us to have some input in developing
the regulations in terms of the policies and procedures to ensure
that this new legislation is brought into force, if passed, with
an understanding on the part of all the players about the roles
they will need to play. I would hope that, if passed, this bill
will prompt some further steps-it is one step-that need to be
taken in the area of domestic violence. On that basis, I would
answer your question that I believe this bill, if passed, would
actually provide an opportunity to improve some of the practices
and procedures.
Mr Bryant:
How? She is talking about the way counsel deal with domestic
violence cases. It took up a big part of her report. How does
this legislation address that directly?
Ms Kuras:
I don't believe legislation can directly address the way counsel
conduct themselves as they do their business, certainly not
legislation put forward by the Ministry of the Attorney General.
Certainly, as a parallel effort, we hope to have significant
training available, both for the bar as well as all others
involved in ensuring that this restraining order reform
works.
1730
Mr Bryant:
Here is my concern, so that you understand. She is saying there
is a problem in July 2000. You are saying there is nothing in the
legislation to address the problem. So I'm asking the
ministry-and let's be clear: I support the legislation. It is a
first step, as you said. I'm concerned about all the other steps,
all the other strategies that are listed in the Baldwin committee
report, 16 strategies in all. I'm saying that in July the judge
said there's a problem; you said there's nothing in the
legislation. This is my opportunity to ask the ministry, what are
you doing to correct this very specific concern raised by a judge
who authored a very important report on domestic violence? I open
it up to all ministry officials.
Ms Kuras:
If we were not talking about this specific legislation, I could
offer some other information that might help you see that there
is some work being done on risk indicator tools. Police forces
are going to be implementing a set of adequacy standards in the
new year. Part of that is a very significant look at how police
services deal with domestic violence incidents, and they will be
completing a risk indicator tool which will help crowns assess
the potential risk that any particular offender may present in
the future. So there are a number of other initiatives which
aren't listed as part of this legislation but are part of a
larger strategy to deal with domestic violence.
Mr Bryant:
I'll tell you my concern, and I probably address this to Mr
Tilson more than to counsel. The concern is that we've got all
the promises here and we've got the road map. We don't need
another summit. I think the judge was trying to be judicial when
she said that we need another summit. We've got the road map
here.
After nine people died over
the course of the summer as a result of domestic violence in
Ontario-that we know of, that was reported in the newspaper-the
government rose in the House and said-and one can look at the
Hansard-"In response to this disaster, here's what we're doing,"
to which I say, is that it?
One of the things we've
heard is, "It's a first step." What I'm doing is giving the
ministry an opportunity to say, "Here's what else we're doing to
deal with the 16 strategies in the Baldwin committee report."
What are you doing other than addressing a tiny component of the
problem of domestic violence?
Mr Tilson: If you're asking me,
as the parliamentary assistant, I've just recently been
appointed, this past week, and have yet to find an office.
Mr Bryant:
Fair enough. Perhaps I should address it to the lead counsel on
victims' services.
Mr Tilson:
In speaking to the Attorney General, I believe, as he has said
and as others have said, this is the first step. Obviously we've
got a lot of things to do. Domestic violence is a very serious
problem and we're going to deal with it.
Mr Bryant:
I appreciate that, Mr Tilson. I probably shouldn't have directed
it to him.
I have one minute. Let me
ask Ms Kuras. You are the executive lead, victims' services. Why
is it now 15 months past and the Baldwin committee report has not
been fully implemented? You can tell us. You've been working as
the executive lead in victims' services. Why hasn't the Baldwin
committee report been implemented?
Ms Kuras:
There are many aspects of the report that are being worked on,
some that have been implemented. I think if you looked at the
entire picture, you would see there has been fairly significant
movement. The fact that all of them haven't been actually
implemented in the way they've been described-well, if you look
at the cover, it is a five-year plan. It wasn't intended to be
completed in a year. I think there has been significant work done
on the expansion of domestic violence courts, and that certainly
was an important recommendation. We're improving the specialized
police response. I think that perhaps you best consider this as a
five-year plan-we are-and I hope you'll continue to see some
improvement.
The Acting
Chair: Eight minutes, Mr Kormos, please.
Mr Kormos:
Thank you for coming here today. I wish we had more time.
I want to apologize. When I
made reference to that speaking note on section 127 of the
Criminal Code, I saw the open cardboard box, right over here, and
of course I gave it to Mr Tilson. I thought it came from the
Ministry of the Attorney General because there were multiple
copies of these various speaking notes. I saw Ms Molinari reach
into the box and get some of them. So I'm wondering, Mr Tilson,
if you would table with the committee all materials prepared, for
support of members of the committee.
Mr Tilson:
I have no intention of giving you my notes.
Mr Kormos:
Well, I suppose-
Mr Tilson:
I don't mean to be flippant about it. I have notes here that I
have prepared, and I think that's an unreasonable question to
ask.
Mr Kormos:
No, the ones prepared by the ministry.
Mr Tilson:
If there are documents that will help us-we've already indicated
there's going to be a chart prepared to assist in comparison, and
we're prepared to provide whatever information we can make
available to you to better understand the bill.
Mr Kormos:
Fair enough. No problem. I've read the bill and I won't have to
rely upon speaking notes to speak to the bill.
I'm interested because
today for the first time you raised this concept that it's
presumed that there's going to be police intervention and that
police are going to walk this through the system for a victim of
domestic violence. That wasn't suggested in any of the debate or
introduction by Martiniuk or Flaherty.
Part of the problem we've
got down where I come from, on a 24-hour-a-day basis-there are
nights in Welland when there are two police officers on duty out
there in patrol cars in the city of Welland, which is not as big
as Toronto, and a lot of it is a rural community as well. I don't
know where our cops, without their resources being addressed as
well, are going to have the resources to have a police officer
working with an applicant in a process that could take a
considerable period of time throughout the course of a shift. I
suspect a whole lot of small-town and not-so-small-town Ontario
is very much in the same dilemma, especially on a 24-hour-a-day
basis.
That then takes us to the
problem of legal representation. Again, it was new today when it
was suggested for the first time that the police are going to be
the advocates, if you will-not the best choice of words but I'm
using it for a very specific reason. If the police are going to
be called upon to be the advocates in the emergency or interim or
as the ex parte applications, I presume that isn't necessarily
the case on the permanent one. There it's contemplated that
lawyers are going to be involved. I suppose anybody can represent
themselves in court, but then we've got the other serious problem
of women's access to legal representation.
I heard what Ms Predko said
earlier about legal aid funding and a commitment from legal aid,
and I'm sorry, but the reality is that just isn't the case. Fewer
and fewer lawyers are representing people in matrimonial
litigation on legal aid because of the block fee of a maximum,
the capping of the fee, in terms of the hours of preparation. I'm
told the procedures become so onerous, form after form and so on.
Women aren't getting to lawyers. My fear is, are women going to
have access to lawyers under section 3, the with-notice
intervention order? I suspect not. It's going to be a real
problem in a whole lot of the province.
You talk about designating
judges and justices of the peace, yet I notice-in some of the
briefing materials we got around JPs, federally appointed judges
and so on-huge vacancies on the federal appointments. I didn't
see whether we received any material yet on the provincial
appointments but I know just anecdotally from talking to
people-heck, the province had to shut down provincial offences
courts this summer, in Hamilton among other places, because of a
shortage of justices of the peace. Charge after charge was tossed
out in provincial offence courts in both Toronto and the Hamilton
area, and it could well have happened in other areas as well.
They weren't Criminal Code charges, to be fair, but whole
dockets were tossed
out because of a shortage of justices of the peace, among other
things. So there are real problems there. Quite frankly, we're
going to keep reminding the government of it, hoping to hear some
sort of response to those issues in the context of these
particular hearings.
1740
The other really troubling
thing is that all of this process in Bill 117 happens after the
fact and it's reactive. Something has to happen in terms of
actual de facto violence or that would permit you to infer that
there could be a risk of violence before you access Bill 117.
Then you end up with a piece of paper that lets the police do
something if something happens yet again. So that comes to the
whole issue, and I trust we're going to hear from some of these
people during the course of these hearings.
Down where I come from,
Women's Place shelter used to provide an extensive level of
services for women and kids. It would make Bill 117 far less
critical, because if women have safe places to go to and their
kids have safe places to go to, if they have support in the
community, if they can be in those safe places, they don't need
the emergency restraining orders. They can use the traditional
court process. Then you don't have the dilemma about police being
the advocates at 2 in the morning, or 24-hour-a-day JPs and
judges. So one of the concerns that folks down in Niagara have is
that this speaks for itself.
I've raised some of the
issues about the drafting. Drafting is a difficult exercise, and
if it appears that I've been critical of either of you, if you've
been in charge of the actual drafting-I appreciate that it
probably wasn't a single person making those decisions, it was a
committee or group effort, but I'm going to be raising some
points about what I see.
It also makes me concerned
that we don't have an explanation, for instance, for the
exhaustive list under subsection (2) in terms of the definition
as merely being including but not limited to.
The "under 16"-what you're
saying is that a 15-year-old who's forced into prostitution can't
go to a JP and get an order under Bill 117 against her pimp. The
fact is there are 15-year-olds in Toronto-I use prostitution as
an illustration-with 25-, 30- and 35-year-old pimps, and you know
what children's aid says about children, especially in the range
of 15 and a half years. They aren't being dealt with by FACS. So
I'm concerned about the 16-year-old rule as well.
I'm also concerned-and Ms
Molinari hit it right on the head in her critique when she raised
concerns about the standards, the relationship that has to exist
under section 2 about applicants. I was concerned about elder
abuse, for instance, but in paragraph 5 of section 2 you deal
with that, those who are related. It seems to me that we could
again very quickly come up with situations or scenarios where
people are at risk because of their living situations, where
there isn't an equality in the relationship that goes beyond
co-habitation and/or blood relationship: roommates, two elderly
people living together in a less than co-habitational situation.
There's a whole pile of scenarios I think we could come up with
pretty quickly that should warrant us looking at section 2. Ms
Molinari's criticism of the bill is dead on. It's good to see a
government member-
Mrs
Molinari: I wasn't criticizing.
Mr Kormos:
Well, you raised the criticism. I'm following through, Ms
Molinari. It's refreshing. I hope you'll work with me on
amendments to-
Mrs
Molinari: You're going to get me into trouble.
Mr Kormos:
You shouldn't get into trouble for criticizing faulty
legislation, Ms Molinari, ever.
There's going to be a whole
bunch of things that we're going to be addressing, so thank you
very much, Chair. Good for you, Tina.
Mr Bryant:
You never should have come back.
Mr Tilson:
I've only got a few minutes to speak. First of all, I want to
thank you, members of the Attorney General's staff, for coming
and making your presentation today. I know you'll be with us
throughout the committee hearings.
Bill 117, which is the
Domestic Violence Protection Act, is certainly a response to one
of the most horrific crimes we have in our society today, which
of course is domestic violence. It's important that the issues be
discussed openly and that we find ways to prevent this crime and
to assist victims of domestic violence.
We have some written
presentations that have been given to us today. I imagine there
will be more to come. I look forward in the days ahead to hearing
some of the oral presentations that will be made by different
individuals.
Domestic violence is a
serious crime that this government won't tolerate in Ontario.
It's particularly insidious because it not only affects the
person being abused but deeply affects children who are exposed
to violence in the home. This shatters the traditionally held
perception that the home should be the place where we all feel
protected, where we feel safe and secure and where children learn
the time-honoured values of kindness and respect to others.
Domestic violence undermines those things, the foundation of our
province, which is strong families. So we're committed to
creating safe communities. During the past five years we've taken
a leadership role in helping to protect victims of domestic
violence.
We've demonstrated that we
stand on the side of victims. We created and expanded the
domestic violence court program. It's the largest and most
comprehensive of its kind in Canada. We allocated an additional
$8 million annually to ensure that crown attorneys have
sufficient time to meet with victims and witnesses in preparing
their cases for prosecution. This gives victims a stronger voice
in the justice system.
To support more victims of
domestic violence, we expanded the victim/witness assistance
program and plan to do more. To get victims in touch with the
services they need, we expanded the victim crisis assistance and
referral service and
the SupportLink program. To support families in crisis, we
expanded the supervised access program.
We're proud of these
achievements and we make no apologies for the so-called
law-and-order agenda.
Improvements in the justice
system are critical in helping victims of domestic violence. The
justice system holds abusers accountable for their actions and it
clearly delivers the message that domestic violence is a crime.
This is one way of breaking the cycle of violence.
When the police enforce and
when crown attorneys prosecute domestic violence cases, the
message that domestic violence is a crime rings loud and clear.
For many years, domestic violence was perceived as a private
family affair. The enforcement of the law and prosecution of
cases is an important reminder that domestic violence is a crime.
The work in the criminal justice systems keeps the public and
abusers focused on the message that domestic violence will not be
tolerated in Ontario.
This bill is one more step
we are taking to protect victims of domestic violence and hold
offenders accountable. The members opposite have minimized our
achievements in the justice system. They have focused almost
entirely on the need for front-line community-based programs to
help prevent domestic violence.
This government also
provides substantial funding and community-based services. Madam
Chair, I guess I don't have time to give those. We'll give that
information at a later date. I'll guarantee it.
The Chair:
You have-I think it's a 10-minute bell, isn't it?
Mr Bryant:
Let him finish.
The Chair:
It's a 10-minute bell. That's why I sort of limited you to eight
minutes. You still have a couple of minutes if you wish.
Mr Tilson:
If I could continue on some of the funding that we have provided
to date: as an example, $51 million has been allocated to support
the emergency shelters and related services in 2000-01. We're
committed to supporting women's shelters because they keep abused
women and their children safe. They also provide practical and
emotional supports that are essential to helping women escape
violence in their lives and support children who witness
violence.
We funded shelters,
including $1.7 million which was allocated to the Ministry of
Community and Social Services in 1999 and 2000 for crisis lines
across Ontario. These lines operate 24 hours a day, seven days a
week, and fielded over 150,000 calls. We recognize the important
role these lines play by offering support and assistance to women
in crisis.
We're always trying to
improve our services: $1.5 million annually has been allocated
since 1996 for the victim support line, a province-wide, 24-hour,
toll-free information line funded by the Ministry of the
Solicitor General.
By calling, a victim can
speak directly to an information counsellor, who will provide
information on supports and services available in their
community, register for automated notification about any releases
of a specific adult provincial offender and get general
information about the criminal justice system. Recently the
Ministry of Community and Social Services announced $10 million
annually to enable shelters to hire transitional support workers
and establish programs specifically designed to help children who
have witnessed violence in their homes.
In 1998-99, almost 3,000
women received assistance through our emergency legal aid service
for women in shelters program. We also created specialized
services for abused women in partnership with the Barbra Schlifer
Commemorative Clinic. This pilot project assists women who want
to leave abusive relationships by providing direct legal
services, advocacy and information about family law,
landlord-and-tenant and immigration issues.
The Chair:
Thank you, Mr Tilson. Do I have a motion to adjourn?
Mr Tilson:
So moved.
The Chair:
We'll reconvene at 3:30 tomorrow afternoon in this room.
