Bill 47 - Intimate Partner Violence Intervention Act

BILL 47

Intimate Partner Violence Intervention Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions

1 The following definitions apply in this Act.

“applicant” means a person in respect of whom an emergency intervention order is sought or made under this Act. (requérant)

“best interests of the child” means best interests of the child as defined in the Family Services Act. (intérêt supérieur de l’enfant)

“child” means a child who normally or periodically resides with an applicant, is under the age of 19 and is unmarried, whether or not the child is a child of the applicant and the respondent or either of them, and includes a child in the care and custody of the applicant. (enfant)

“Court” means The Court of Queen’s Bench of New Brunswick. (Cour)

“deputy sheriff” means a person appointed as a deputy sheriff under the Sheriffs Act. (shérif adjoint)

“designated authority” means a person or category of persons designated by the Lieutenant-Governor in Council to hear applications for emergency intervention orders and make decisions on those applications. (autorité designée)

“firearm” means a firearm as defined in the Criminal Code (Canada). (arme à feu)

“intimate personal relationship” means a relationship between two persons, regardless of whether they have lived together at any time, (relation personnelle intime)

(a) who are or have been married to each other,

(b) who are or have been in a conjugal relationship, or

“judge” means a judge of the Court. (juge)

“Minister” means the Minister of Justice and Public Safety and includes any person designated by the Minister to act on the Minister’s behalf. (ministre)

“peace officer” means a police officer as defined in the Police Act and a member of the Royal Canadian Mounted Police. (agent de la paix)

“police force” means the police force, as defined in the Police Act, or the detachment of the Royal Canadian Mounted Police that is responsible for providing policing services to the area where the applicant resides. (corps de police)

“property” means an interest, present or future, vested or contingent, in real or personal property and includes (bien)

(a) property that a person owns;

(b) property that a person does not own but

( i) uses or enjoys,

( ii) is available for the person’s use or enjoyment,

( iii) is in the person’s care or custody, or

( iv) is at the person’s residence; and

“residence” means a place where an applicant normally resides and includes a residence that an applicant has vacated due to intimate partner violence. (résidence)

“respondent” means a person against whom an emergency intervention order is sought or made under this Act. (intimé)

“telecommunication” includes the use of a telephone, e‑mail or fax. (télécommunication)

“weapon” means a weapon as defined in the Criminal Code (Canada). (arme)

Intimate partner violence

2( 1) The following definition applies in this Act.

“intimate partner violence” means violence committed against a person by another person who is or has been in an intimate personal relationship with the person and includes the following: (violence entre partenaires intimes)

(a) abusive, threatening, harassing or violent behaviour used as a means to psychologically, physically, sexually or financially coerce, dominate and control the other member of the relationship; and

(b) deprivation of food, clothing, medical attention, shelter, transportation or other necessities of life.

2( 2) A respondent who encourages or solicits another person to do an act which, if done by the respondent, would constitute intimate partner violence, is deemed to have done the act personally.

Application for emergency intervention order

3( 1) The following persons may apply to a designated authority for an emergency intervention order:

(a) a victim of intimate partner violence; or

(b) on behalf of a victim of intimate partner violence and with the consent of the victim, a person or a category of persons prescribed by regulation.

3( 2) An application for an emergency intervention order shall be made on a form provided by the Minister and may be made by telecommunication.

Emergency intervention order

4( 1) On application in accordance with section 3 and without notice to any other person, a designated authority may make an emergency intervention order if he or she determines on a balance of probabilities that

(a) intimate partner violence has occurred or is likely to occur, and

(b) the seriousness and urgency of the situation warrant the making of the order.

4( 2) A designated authority shall make an emergency intervention order under subsection (1) within 24 hours after the application is made.

4( 3) In determining whether to make an emergency intervention order, a designated authority shall consider the following factors:

(a) any history of intimate partner violence committed by the respondent toward the applicant;

(b) the nature and impact of the intimate partner violence committed or likely to be committed by the respondent toward the applicant;

(d) whether the intimate partner violence is evidence of a pattern of coercive or controlling behaviour toward the applicant;

(e) the best interests of any children in the care and custody of the applicant or the respondent;

(f) threats against family members of the applicant, including threats of violence and threats of abduction;

(g) other previous acts of violence committed by the respondent, including intimate partner violence toward other persons and violence against animals;

(h) any mental health concerns involving the respondent;

(i) the current status of the intimate personal relationship between the applicant and the respondent, including any recent separation or intention to separate;

(j) a recent change in circumstances of the respondent or any other circumstances of the respondent that may increase the risk to the applicant, including the following:

( i) substance abuse;

( ii) employment or financial difficulties;

( iii) access to firearms or other weapons; and

( iv) release from incarceration;

(k) a particular vulnerability of the applicant or any circumstances of the applicant that may increase the risk to the applicant, including pregnancy, age, family circumstances, disability, health or economic dependence; and

(l) the applicant’s need for a safe environment to arrange for longer‑term protection from intimate partner violence.

4( 4) The following factors do not prevent a designated authority from making an emergency intervention order:

(a) an emergency intervention order, restraining order or order of any court ordering the respondent not to contact or communicate with the applicant has been made previously;

(b) the respondent has previously complied with an emergency intervention order, restraining order or order of any court ordering the respondent not to contact or communicate with the applicant;

(d) the applicant is temporarily residing in an emergency shelter or other safe place;

(e) criminal charges have been or may be laid against the respondent; and

(f) the applicant has a history of reconciling or residing with the respondent after an act of intimate partner violence.

4( 5) An emergency intervention order may contain one or more of the following provisions:

(a) a provision restraining the respondent from going to or near a specified place or person;

(b) a provision restraining the respondent from communicating with or contacting the applicant or a specified person, either directly or indirectly;

(d) a provision granting the applicant or respondent temporary possession and exclusive use of personal property;

(e) a provision directing a peace officer or a deputy sheriff to accompany a specified person to the residence to supervise the removal of specified personal belongings;

(f) a provision directing a peace officer to remove the respondent from the residence;

(g) a provision restraining the respondent from taking, converting, damaging or otherwise dealing with property in which the applicant may have an interest;

(h) a provision granting temporary care and custody of a child to the applicant;

(i) a provision directing a peace officer to seize weapons, including firearms and ammunition, and any documents related to the right to possess or purchase firearms;

(j) a provision prohibiting the publication of the name and address of the applicant or a child or other information that may identify the applicant or a child;

(k) a provision restraining the respondent from further acts of intimate partner violence;

(l) a provision restraining the respondent from terminating basic utilities for the residence; and

(m) any other provision that the designated authority considers necessary for the immediate safety of the applicant.

Duration and effective date of emergency intervention order

5( 1) A designated authority may make an emergency intervention order for a period of not more than 180 days.

5( 2) Subject to subsection 6(1), an emergency intervention order takes effect immediately.

Notice of emergency intervention order

6( 1) A respondent is not bound by any provision of an emergency intervention order until served with the order under subsection (2).

6( 2) A peace officer or a deputy sheriff shall serve an emergency intervention order on the respondent as soon as practicable and in accordance with the regulations.

6( 3) The designated authority shall send a copy of an emergency intervention order to the following persons in accordance with the regulations:

(a) the applicant;

(b) the chief firearms officer for the Province;

(d) a person or category of persons prescribed by regulation.

Transfer of documents to Court

7 Within two days after making the order, the designated authority shall forward a copy of the order and all supporting documentation to the Court in accordance with the regulations.

Review by Court

8( 1) Subject to subsection (2), within five days after the receipt of an emergency intervention order and supporting documentation, a judge shall review the order and if the judge is satisfied that there was sufficient evidence before the designated authority to support the making of the order, the judge shall

(a) confirm the order, or

(b) vary the order.

8( 2) If a judge is not available within the period of time referred to in subsection (1), an emergency intervention order shall be reviewed by a judge as soon as the circumstances permit.

8( 3) If, on reviewing an emergency intervention order, the judge is not satisfied that there was sufficient evidence before the designated authority to support the making of the order, the judge shall direct a hearing of the matter in whole or in part before a judge.

8( 4) If a judge directs that a matter be heard, the administrator of the Court in the judicial district where the hearing is to be held shall

(a) issue a summons requiring the respondent to appear before the Court, and

(b) give notice of the hearing to the applicant, and the applicant is entitled to attend and may fully participate in the hearing personally or by counsel.

8( 5) The evidence that was before the designated authority shall be considered as evidence at the hearing.

8( 6) If the respondent fails to attend the hearing, the emergency intervention order may be confirmed in the absence of the respondent.

8( 7) The onus is on the respondent to prove that the emergency intervention order should not be confirmed.

8( 8) At the hearing, the judge may confirm, set aside or vary the emergency intervention order.

Application to vary or set aside emergency intervention order

9( 1) Within 21 days after a respondent has been served with or notified of the emergency intervention order or at any time if there is a material change in circumstances, a judge, on application by the applicant or the respondent named in the order, may do one or more of the following:

(a) confirm the order;

(b) make changes to or set aside any provision of the order;

(d) decrease the period of time for which any provision of the order is to remain in force;

(e) extend, by up to 180 days, the period of time for which any provision of the order is to remain in force;

(f) set aside the order; or

(g) make an order with respect to any item that has been seized.

9( 2) On an application under subsection (1),

(a) the evidence before a designated authority on previous applications under this Act shall be considered evidence,

(b) the onus is on the respondent to prove that the emergency intervention order should be varied or set aside, and

9( 3) The variation of one or more of the provisions of an emergency intervention order does not affect the other provisions in the order.

9( 4) If the applicant and the respondent agree to set aside the emergency intervention order but the judge is not satisfied that the applicant has voluntarily agreed to set aside the order, the judge may adjourn the proceeding to allow the applicant to obtain legal or other advice.

Emergency intervention order continues in effect

10 Unless otherwise ordered by the Court, an emergency intervention order continues in effect and a direction for a hearing under subsection 8(3) or an application under subsection 9(1) does not operate as a stay of the order.

Notice of variation or setting aside of order

11 The administrator of the Court in the judicial district where a proceeding was held shall send a copy of an emergency intervention order that has been varied under section 9 or give notice that an emergency intervention order has been set aside under section 9 to the following persons in accordance with the regulations:

(a) the chief firearms officer for the Province;

(b) the police force; and

Priority over other civil orders

12( 1) An emergency intervention order prevails over an existing order under Part VII of the Family Services Act and the Divorce Act (Canada) to the extent necessary to provide for the immediate safety of the applicant and any child.

12( 2) An emergency intervention order is subject to and is varied by an order that is made under the Family Services Act or the Divorce Act (Canada) after the emergency intervention order is made.

Confidentiality

13( 1) No person shall disclose to another person any information in a court document or record relating to a proceeding under this Act that identifies or may identify the home or business address of an applicant, other than information contained in the application for an emergency intervention order or in the order, or that is necessary to enforce the order.

13( 2) The Court may exclude the public from a hearing or any part of a hearing if, in the opinion of the judge, the possibility of an injustice, harm, hardship or adverse effect to or on the applicant or a child outweighs the desirability of holding the hearing in public.

13( 3) At the request of an applicant, on a review under section 8 or on an application under section 9, the Court may make an order prohibiting the release of information pertaining to an emergency intervention order or a hearing if the Court believes that the release of the information

(a) is not in the best interests of the applicant or a child,

(b) may identify the applicant or a child, or

13( 4) An order referred to in subsection (3) does not prohibit access to Court files with the consent of a judge for research or statistical purposes if there is no public disclosure of the name or other information that could identify a person named in a report, hearing or other matter prohibited from being disclosed by the order.

Property

14( 1) An emergency intervention order does not in any manner affect the title to or an ownership in any real or personal property jointly held by the applicant and the respondent or solely held by one of them.

14( 2) If a residence is leased by the respondent under an oral, written or implied agreement and the applicant who is not a party to the lease is granted exclusive occupation of the residence, no landlord shall evict the applicant solely on the basis that the applicant is not a party to the lease.

14( 3) At the request of the applicant referred to in subsection (2), the landlord shall advise the applicant of the status of the lease and any related claims.

Right of action

15 An application for an emergency intervention order is in addition to and does not diminish any existing right of action for the applicant.

Rules of Court

16 To the extent that they are not inconsistent with the provisions of this Act and the regulations, the Rules of Court apply in respect of proceedings under this Act.

Offences and penalties

17 A person commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category J offence if the person

(a) violates or fails to comply with any provision of an order made under this Act or the regulations,

(b) knowingly makes a false or misleading statement in an application referred to in section 3 or 9,

(c) obstructs, hinders or interferes with a person who is performing any function authorized by this Act or by an order made under this Act or the regulations, or

(d) violates or fails to comply with subsection 13(1).

Arrest without warrant

18 A peace officer may arrest without warrant a person who the peace officer believes on reasonable and probable grounds has violated or failed to comply with a provision of an order made under this Act or the regulations.

Immunity

19 No action or other proceeding lies or shall be instituted against a peace officer, deputy sheriff, administrator of the Court or any other person for any loss or damage suffered by a person by reason of anything done or purported to be done in good faith, or by reason of anything omitted to be done in good faith,

(a) in the exercise or intended exercise of a power conferred by this Act, or

(b) in the carrying out or the purported carrying out of a decision or order made under this Act or the regulations under this Act, or a duty imposed by this Act.

Administration

20 The Minister is responsible for the administration of this Act and may designate one or more persons to act on the Minister’s behalf.

Regulations

21 The Lieutenant-Governor in Council may make regulations

(a) governing the procedure that applies for making an application under section 3;

(b) governing the procedure that applies for making an emergency intervention order under section 4;

(d) prescribing persons or categories of persons for the purposes of paragraphs 3(1)(b), 6(3)(d) and 11(c);

(e) governing the procedure that applies for serving or giving notice of orders made under this Act or the regulations and of other documents, including the procedure that applies when a person is evading service;

(f) governing the process that applies for forwarding a copy of an emergency intervention order and all supporting documentation to the Court under section 7;

(g) governing the procedure that applies for sending copies of emergency intervention orders under subsection 6(3) and section 11;

(h) governing the handling, storage, forfeiture or disposition of items seized under an emergency intervention order, including authorizing the Court to make orders respecting any of those matters;

(i) governing forms for the purposes of this Act;

(j) defining words and expressions used in this Act but not defined in this Act for the purposes of this Act, the regulations or both;

(k) governing any matter that the Lieutenant‑Governor in Council considers necessary for the administration of this Act.

Commencement

22 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.