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The Domestic Violence Protection Act

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The Law Times

July 16, 2000

"The Domestic Violence Protection Act Throwing out common sense and good judgment"

By Lynn Cohen

If you’ve been wondering what happened to the Domestic Violence Protection Act after receiving Royal Assent last December, “the bill did not die,” says Brendan Crawley, communications director for the Ontario attorney general.

That would be wishful thinking on the part of Ontario defence lawyers, who hate and fear the bill, believing it to be not only unconstitutional on its face, but also bad for families and relationships in general.

“All that remains to happen before the bill becomes law is for it to be proclaimed,” Crawley explains. “We are putting together the necessary infrastructure so that we will be ready to provide services under the act. I can’t be specific about how long that will take.”

Don’t be in any hurry, says P. Berk Keaney, a director of Ontario’s Criminal Lawyers’ Association and a defence lawyer at the Sudbury firm Weaver Simmons, who sees the act as “another example of the government pandering to the clamouring of special-interest groups.”

Namely, women’s groups that want to make it as easy as crying wolf to push a violent man out of the home and life of his family.

“This law is very much part of an agenda,” says Keaney. “And what is so disturbing is that there are a lot of special interest groups that have agendas. But there are only a few that can compel the powers that be, the legislators, to act in a way that is contrary to common sense. And this is that special-interest group.

“Moreover,” he continues, “this act is also contrary to the Charter of Rights. It is just running roughshod over rights. But ultimately, it is the relationships of people who are suffering, including, and especially, the children” who get caught in fights between their parents.

Coupled with departmental directives taking away the discretion of officers responding to domestic disputes, as well as separate courts for prosecuting spousal assaults, the act does nothing to help distinguish between serious domestic violence and minor problems.

According to Ottawa defence lawyer Bruce Engel, the whole spousal abuse justice system is already “very problematic. It often ensnares the wrong type of family. The families where it is a one-time push-shove type of event which can be easily dealt with are caught in it.”

It is unfair and “discriminatory,” he says, because “for a theft charge against first-time offenders, there is a diversion program. There should be the same thing for one-time and first-time offenders in domestic violence.”

Instead, the province is introducing the DVPA, a “legislative scheme that is draconian,” says Keaney. “It runs roughshod over the rights of respondents who, in the vast majority of cases, will be men. A clear presumption is created in favour of complainants, particularly by virtue of what are called emergency intervention orders, which are particularly insidious. The provisions are crazy.”

He is referring to the DVPA’s s. 4(1): “On application, without notice to the respondent, the court may make an emergency intervention order if it’s satisfied on a balance of probabilities 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 and temporary basis for the protection of the person or property that is at risk.”

Such an order can, in its effect, leave a respondent homeless and destitute, say defence lawyers. Among its 15-odd provisions, the act allows a court to restrain the respondent “from attending at or near any place that is attended regularly by the applicant” or to require the respondent to vacate the applicant’s residence “immediately.”

The act can also restrain someone from contacting or communicating with the applicant, plus grant her “exclusive possession of the residence shared by the applicant and the respondent, regardless of ownership.” On top of that, the respondent can be summarily ordered to pay compensation, including lost wages, medical expenses, and legal fees, to the applicant.

Keaney notes the act could apply to couples in a long-term marriage or even to students in a dating relationship. “The court could order the respondent, without any notice or opportunity for response, to not attend his job, classes, or church,” he says.

“The government does not even recognize the existence of the Charter of Rights and Freedoms. It’s hypocritical for the legislature to pass laws that ignore entrenched rights, for whatever political advantage members perceive,” he says.

The broad legislative language is particularly upsetting to him. “One of my favorites is, ‘An act of the domestic violence includes a reckless act which causes damage to property.’ This means an act of domestic violence could be dropping a picture and breaking the frame.

“Anyone familiar with the criminal process,” especially the spousal abuse courts, “can absolutely manipulate it.” All a woman has to do is “just call the police, claim assault, and guess what? [Her guy] is out the door in handcuffs, taken into the police station, remanded for a bail hearing.

“Everyone in the criminal justice system, at least most right-thinking people, recognize that resources are being poured into this one element of the system at the expense of others,” he says.

Keaney says he knows police officers who would like to be able to exercise “their good judgment and common sense, to be able to just separate the disputing couple for a cooling-off period. But they are forced by their superiors to lay charges.”

He adds: “These governmental directives and legislative initiatives are trumpeting a certain viewpoint, which is not justified on a case-by-case basis.”

Normally, in the criminal justice system, “we are expected to use our common sense and good judgment to make determinations on a case-by-case basis,” he says. “We don’t apply preconceptions.”

But with the DVPA and the other initiatives, “we are doing exactly the contrary,” he says.

He says the act represents “an application of a theoretical standard which may or may not have anything to do with a particular fact situation. But no one is allowed to exercise common sense and good judgment anymore.”

COPYRIGHT 2001) THE LAW TIMES

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