Statement made on 30 November 2011 by Senator Mobina Jaffer
Hon. Mobina S. B. Jaffer:
Honourable senators, the Standing Senate Committee on Human Rights, to which Bill S-2, Family Homes on Reserves and Matrimonial Interests or Rights Act, was referred, has examined the said bill and now reports the same with amendments.
Pursuant to rule 99, as the presenter of the report it is my responsibility to explain to the Senate the basis for and the effect of each amendment.
Clause 17(8), in its original form, stated:
On a rehearing, the court may, by order, confirm, vary or revoke the order made under section 16, but may only extend the duration of the order for up to 90 days beyond the period of 90 days referred to in subsection 16(1).
Clause 17(8) has been amended to state:
On a rehearing, the court may, by order, confirm, vary or revoke the order made under section 16, and may extend beyond the period of . . .
Clause 18(2), in its original form, stated:
The court may, by order, confirm, vary or revoke the order, but may only extend the duration of the order for up to 90 days beyond the period of 90 days referred to in subsection 16(1).
Clause 18(2) has now been amended to state:
The court may, by order, confirm, vary or revoke the order, and may extend the duration of the order beyond the period of 90 days referred to do in subsection 16(1).
Honourable senators, clause 16(1) of Bill S-2 states:
On ex parte application by a spouse or common-law partner, a designated judge of the province in which the family home is situated may make an order for a period of up to 90 days . . .
This clause provides those who are at immediate risk of harm with the protection they require. Although the emergency protection order under clause 16(1) lasts for a period of 90 days, Bill S-2, in its current amended form, now allows for this order to be extended, subject to the discretion of a judge upon rehearing.
Minister Duncan, when speaking to Bill S-4, which was this bill's previous incarnation, stated:
. . . this proposed legislation is the right thing to do [because it] affords residents of First Nation communities a level of protection similar to that enjoyed by other Canadians.
Honourable senators, Bill S-2, in its original form, did not do this, as it failed to provide Aboriginal women and men with a level of protection similar to that enjoyed by other Canadians.
During our committee's study of Bill S-2 we heard from a number of witnesses who stated that limiting emergency protection orders to a period of 180 days was problematic as it would fail to provide Aboriginal women with the protection they require.
In addition, placing a limitation of 180 days of protection also was not consistent with the protection provided to non-Aboriginal people.
Honourable senators, the majority of Aboriginal people reside in the provinces of British Columbia, Alberta, Saskatchewan, Manitoba and Ontario.
In British Columbia, the Family Law Act of 2011, section 183, deals with orders respecting protection. Section 183(4) states:
Unless the court provides otherwise, an order under this section expires one year after the date it is made.
In Alberta, the Protection Against Family Violence Act in section 7 states:
Subject to subsection (2), a protection order must be granted for such specified duration as the judge considers appropriate in the circumstances.
In Saskatchewan, the Victims of Domestic Violence Act under section 3(4) states:
An emergency intervention order may be subject to any terms that the designated justice of the peace considers appropriate.
In Manitoba, The Domestic Violence and Stalking Act under section 14(1) states:
. . . the court may make a prevention order with any terms or conditions it considers appropriate to protect the subject or remedy the domestic violence or stalking . . .
In Ontario, under section 24(1) of the Family Law Act, it is stated:
. . . exclusive possession of the matrimonial home or part of it for the period that the court directs . . .
Although this order is not granted on an emergency basis, the act does note that family violence is taken into consideration when granting possession. In addition, this section also relies on the discretion of the judge.
Honourable senators, non-Aboriginal people residing in the provinces I have mentioned are not bound by 180 days of protection. Instead it is left to the discretion of the judge to establish the length of the protection order.
Since Aboriginal people are often placed in exceedingly vulnerable positions and experience great difficulty accessing justice, allowing a judge to use his or her discretion upon a rehearing would not only afford Aboriginal people with the same protections as many other Canadians, but would also provide them with the protection they so often require.
During our study of Bill S-2, our committee had the opportunity to hear from Minister Duncan, who stated:
Bill S-2 is about rights and protection for people who need them . . . It is about responding to numerous calls for legislative action and, ultimately, it is about doing the right thing on behalf of all Canadians.
Honourable senators, granting Aboriginal people the same protections that are afforded to the rest of Canadians is the right thing to do. That is why our committee agreed, on division, to pass the amendments that I have just spoken of.