Review of Provincial and Territorial Domestic Violence Legislation and Implementation Strategies

3. INFRASTRUCTURE REQUIREMENTS

PART 1: A REVIEW OF KEY IMPLEMENTATION ISSUES

3. INFRASTRUCTURE REQUIREMENTS

Several features of models in the five jurisdictions are of particular importance in understanding infrastructure requirements for the government of Nunavut:

  • the emergency order requires team work among several players;
  • the role of the justice of the peace is critical in the process;
  • safety planning and follow-up capabilities are essential for the protection of the victim;
  • telecommunication capacities and methods of recording evidence are essential for an emergency order; and
  • some form of central staff support is critical for long term success.

Each of these factors is discussed in greater detail below.

3.1 Teamwork required for an effective emergency response

As shown in Figure 1, there are many players involved in securing and enforcing an emergency order. Each player has to have a clear understanding of his/her role. Equally important, an effective infrastructure requires that these players act together. Over time the training in the jurisdictions has evolved first from simply providing information about the act, secondly to clearly defining the technical requirements of individual players and thirdly, to reinforcing the notion of the interconnections between players. All three elements are important.

The first two of the team work requirements indicated in Figure 1 concerns shared understandings or knowledge. A Saskatchewan evaluation concluded that problems in three areas hampered implementation of emergency orders:

  • a lack of consistency in the interpretation of an emergency;
  • lack of a shared understanding of the situations in which orders are applicable; and
  • insufficient familiarity with the dynamics of family violence (Saskatchewan, 1996, Executive Summary).

There are obvious implications in terms of training in each of these areas, but also in terms of coordination. For example, in Saskatchewan some Justices of the Peace (JOPs) complained that people assisting applicants were usurping the JOPs’ role by failing to request orders in situations where they would have been appropriate. Other JOPs complained of the opposite problem: police or designated workers were just referring every case and not doing enough interpretation to screen out inappropriate cases (Saskatchewan, 1998, p.23).[3]

The remaining teamwork requirements concern specific actions of players or use of technology, and are dealt with in the sections below.

Figure 1: Processes and Teamwork Requirements in Emergency Applications

Key teamwork requirements:

  • knowledge: shared understanding of what constitutes an emergency
  • knowledge: shared understanding of dynamics of family violence
  • action: safety planning to protect victim
  • knowledge, technology: clear documentation and communication of evidence
  • action: protection of victim, assistance to victim

3.2 Role of the Justice of the Peace

With the single level trial court system in Nunavut, the role of the Justice of the Peace is achieving increased prominence and significance. On the one hand this suggests a good fit with the major role played by designated JOPs in regard to emergency orders in the five jurisdictions. On the other hand, two problems may emerge. The first is that JOPs may already be on a steep learning curve with their new responsibilities, and may not be able to assume yet another at this point in time. Secondly, domestic violence is an extremely sensitive area, and in an isolated community the JOP could be related to one of the parties. At a minimum this would require a system of back-up JOPs from other communities to avoid conflict of interest, and also the use of telecommunications to initiate an application.

3.3 Safety planning and follow-up capabilities

This is likely the single most critical infrastructure requirement to support this legislation. Contact persons in most of the jurisdictions expressed concern over whether in isolated communities in Nunavut the safety of victims could be ensured if an emergency order was made to permit sole occupation of the residence. They were not implying that domestic violence legislation was an unworthy goal, rather that it be a long term goal. More immediate goals would be, for example, to develop a victim services network.

In Alberta, training with police or RCMP emphasizes two critical safety-planning questions up front when considering an emergency protection order:

  1. Can police ensure a timely response to protect the victim if the respondent breaches the order?
  2. Are the police confident that the respondent will respect the order?

If the answer to these two questions is negative, then the police will elect to use another remedy. Some JOPs in the Saskatchewan evaluations said that Emergency Intervention Orders were not appropriate in areas where there is a lack of policing services. Desirable as it might be to have the victim remain in her own home, they felt in the interests of safety it was better that she be out of the home and possibly out of her community (Saskatchewan 1996, p.26). In terms of Nunavut, further development of a safe home system may be a more realistic alternative.

Safety is not just a matter of policing, but also involves protection of the victim emotionally. Victim services, agency services, safe homes or the assistance of other key people in the victim’s life are usually necessary to help the victim feel secure and plan her next steps. These services often act in tandem with police services, who do not have time to do follow-through with the victim. In PEI, for example, 66% of cases with emergency orders have involved victim services workers as follow-up (PEI 1998, p.3).[4] It may be relevant to explore whether in Nunavut health nurses or community justice workers may be able to play some role as a designated party that could bring an application to a JOP on behalf of a victim.

The capacity of a community to do safety planning and ensure the victim’s protection is one of the key elements that should be assessed during the consultative phase, as a way of deciding on the feasibility of domestic violence legislation in Nunavut. It should also be a critical component of training and of ongoing monitoring.

3.4 Telecommunications capacity and methods of recording evidence

Immediate access to the JOP is essential in applying for emergency orders. All jurisdictions allow for the use of telecommunications (phone, fax, e-mail) in the application process, as well as in-person applications. Whereas telecommunications are a great advantage in obtaining a quick decision, they can create difficulties in terms of communication of evidence from victim to police (or other designated party), from police to JOP, and from JOP to judge. In other jurisdictions it has also been important to gather other information such as where to serve respondents with documents, although in Nunavut the size and isolation of most communities may not make this as difficult an issue, as the respondent may often be known to the peace officer.

The five jurisdictions with domestic legislation have developed the following forms in most or all cases to facilitate documentation and transmission of evidence and location of respondents:

  • application forms;
  • JOP checklists; and
  • service information sheets.

Samples of these forms, together with a variety of other more standard court forms are listed in the Appendix.

A second issue related to technology is the method of locating the JOP. In Saskatchewan a “1-800” number is used and it automatically transfers the call to the first available JOP, all of whom carry a cellular phone when on duty. The JOP could reside anywhere in the province and is not necessarily in the same community as the victim. This system appears to work well, and as in all jurisdictions, is available 24 hours a day, 7 days per week.

PEI has a message centre that is accessed by designated persons. The centre maintains a list of designated JOPs on call for the week, as well as a system of recording which JOP took the most recent call. An available JOP is then paged. The PEI jurisdictional contact reports that this system has worked relatively well, but there have been some frustrating waits for police officers when the operator has failed to call the correct or available JOP. Since the system is not automated, it is susceptible to human error.

The Yukon does not have the technology to reach hand-held cellular phones outside of Whitehorse, so apart from Dawson City, the four JOPs up to now have all been in Whitehorse. However, the cell phones have frequently not been effective when the JOP is in a building, so the territory will soon change to a “1-800” number that connects to the JOP’s beeper. It was also felt that a cell phone was not a secure way to take evidence.

Obviously in Nunavut an appropriate technology would have to be proven feasible before an emergency order concept could be implemented.

3.5 Centralized staff support, and other human resource operating requirements

Although initially the true human resource requirements to develop and implement domestic violence legislation may be masked by adding extra tasks to the duties of existing staff, it is important to realistically assess ongoing human resource requirements. PEI described its resource utilization as follows:

  • working group and sub-committees added tasks to existing duties during development and implementation;
  • small project funding dollars were accessed for initial research and consultation, drafting of regulations and forms, and for an internal monitoring study;
  • RCMP provided funds for training and Saskatchewan contributed the assistance of their training officer. Police absorbed release time and travel for training of their officers; and,
  • JOPs were paid approximately 3 hrs per application (Appendix A.4, PEI,. Summary of Implementation Process).

In telephone conversation with Focus Consultants the PEI contact stressed that it would be more effective to have a .5 FTE staff position to do problem-solving, training, monitoring/evaluation and public legal education. In correspondence with Focus Consultants, the Yukon contact suggested that Nunavut would require at least one staff person on a full-time basis to assist with the consultation and implementation and then later someone part-time for ongoing training, monitoring and evaluation. All jurisdictions have emphasized that these requirements are ongoing rather than one-time tasks.

These types of requirements also assume that there is already a certain amount of infrastructure in the form of RCMP presence, victim services and/or safe houses in the communities and a capacity to serve documents, as discussed in Section 3.3.

Other typical operating costs would include education materials, training materials and associated workshop costs (travel, accommodation, meals, facilities), cell phones and/or beepers for JOPs, fax machines and materials for JOPs, costs for a paging service, and costs associated with ongoing maintenance of forms required for orders, service, etc. Manitoba has developed standard clause formats for developing certain documents (see Appendix 2). We were informed by the Manitoba contact that Nunavut has already made some inquiries about Manitoba’s standard clause capabilities.

There are also resource implications in terms of legal assistance. All jurisdictions have reported very low usage of Victim Assistance Orders (VAOs). They are more difficult to obtain than emergency orders and are bewildering legal processes for the victim. Legal Assistance is currently not available in PEI for VAOs or re-hearings and review of emergency orders unless clients meet financial eligibility requirements. By contrast, in Alberta a victim does not have to qualify for legal aid to receive assistance with a protection order.

Another important function of centralized office support is to ensure that emergency orders and victim assistance orders can be tracked effectively for research purposes. Both Saskatchewan’s evaluation and PEI’s monitoring reports identified major difficulties in undertaking research.

These included:

  • The lack of a common identification system for emergency orders to facilitate cross-referencing of police and court files;
  • Inconsistencies in police files pertaining to orders; and
  • Absence of a straightforward means of tracking breaches (which are recorded as breach of any type of court order rather than of emergency orders specifically) (Saskatchewan, 1998, pp.6-7, 32; PEI, 1998, p.27).

A Manitoba jurisdictional contact told Focus Consultants that prevention orders (called victim assistance orders in other jurisdictions) were exceedingly difficult to track because they are not distinguished from other court orders.


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