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The Alberta Family Violence Protection Act



Commentary


Here's how I understand this Act:

Victims have to 'hurry up and wait' for what little so-called 'protection' they can get from the justice system. While they're waiting for a judge to decide whether or not to grant a restraining order/peace bond/etc., the abuser is absolutely furious, and looking for revenge.

Assuming that the abuser can even be found - that they haven't gone into hiding - the wait for police or some other law enforcement agency to serve the abuser could make the difference between life and death for the victim. But, because of the clauses currently in place in this Act, it would appear that the hands of the justice system are tied...

This Act has to undergo a dramatic overhaul:

(1) Where police are called out to a domestic violence complaint, and where no weapons are involved, the police should arrest and charge the accused, and hold them in jail until a hearing - which should take place immediately upon the arrest - can be scheduled. Where an immediate hearing cannot take place, the accused should then be held in jail until such time as a hearing CAN be held. This affords the victim a measure of protection that allows for making arrangements to get to a place of safety.

(2) Where an abuser is threatening to use a weapon, a domestic violence expert and a psychologist should be called in immediately, and every effort made to convince the abuser to release their victim to police custody.

(3) Where a person has been arrested and charged with domestic violence, that person should be denied the right to claim a denial of access to their children. Any and all access should be denied.

Under the current laws, it is no wonder victims of domestic violence tend to recant their statements, return to their abusers, drop their charges of assault, or request that charges of assault be dropped. What is the point of trying to get help, when the justice system seems to offer greater protection to abusers than to the abused?

The Alberta Family Protection Act



ALBERTA REGULATION 80/99

Protection Against Family Violence Act

PROTECTION AGAINST FAMILY
VIOLENCE REGULATION


Table of Contents

Definitions 1
Designated justices of the peace 2
Designated persons 3
Applications in person or by telecommunication 4
Evidence at hearing 5
Emergency protection order 6
Service 7
Substitutional service 8
Actual notice 9
Proof of service 10
Warrant 11
Expiry 12
Coming into force 13



Definitions
1(1) In this Regulation,

(a) "Act" means the Protection Against Family Violence Act;

(b) "designated person" means a member of a category of persons
designated in section 3;

(c) "judge" means a judge of the Provincial Court or a designated justice of the peace.

(2) For the purposes of the Act and this Regulation,

(a) "peace officer" means

(i) a police officer as defined in the Police Act, while exercising or discharging those powers or duties,

(ii) a person appointed under the National Defence Act (Canada) regulations for the purposes of section 156 of the National Defence Act (Canada), while exercising or discharging those powers or duties in a defence establishment as defined in that Act, and

(iii) a First Nations police officer appointed under section 42 of the Police Act, while exercising or discharging those powers or duties;

(b) "telecommunication" means any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by a wire, radio, visual or electromagnetic system and includes communication by telephone.

(3) For the purposes of section 2(6) of the Act, "working day" means any day on which the courts in Alberta are open for operation.


Designated justices of the peace
2 All persons who are designated as presiding justices of the peace under the Justice of the Peace Act are designated justices of the peace for the purposes of the Act and this Regulation.


Designated persons
3 The following categories of persons are designated pursuant to section 6(1)(b) of the Act for the purpose of applying for emergency protection orders:

(a) a peace officer or a person authorized by a police service to assist it in applying for emergency protection orders;

(b) a person acting on behalf of an agency authorized by the Minister of Children's Services to apply for emergency protection orders.
AR 80/99 s3;206/2001


Applications in person or by telecommunic-ation
4(1) An application for an emergency protection order must be made in person by

(a) a claimant, or

(b) a person who has the leave of a judge to make an application on behalf of a claimant.

(2) An application for an emergency protection order by a designated person may be made in person or by telecommunication.

(3) An order based on a telecommunication application has the same effect as an order based on an application made in person.


Evidence at hearing
5(1) At the hearing of an application for an emergency protection order, a judge shall

(a) take the evidence under oath in accordance with the Alberta Evidence Act,

(b) ensure that a record of the evidence of each person is made

(i) in legible writing in the form of notes made by the judge or a statement of the person giving the evidence, or

(ii) by a tape recording of the proceedings,

and

(c) schedule a review of the emergency order before a Court of
Queen's Bench justice at the judicial centre where the claimant resides or
at any other judicial centre determined by the judge to be the most
appropriate.

(2) For the purposes of subsection (1), an oath may be administered by
telecommunication.


Emergency protection order
6 If a judge decides that an emergency protection order should be made,
the judge shall

(a) complete the original and 3 copies of the order, or

(b) complete the original order and direct a designated person to
complete the 3 copies of the order with the same information and provisions
that are contained in the original order completed by the judge.


Service
7(1) A copy of an emergency protection order shall be served on the
respondent as soon as reasonably possible by a peace officer or by any
other person that the judge directs.

(2) Where the applicant for the emergency protection order is not the
claimant, the applicant shall provide a copy of the emergency protection
order to the claimant.


Substitutional service
8(1) Where it is impractical for any reason for a peace officer or any
other person directed by a judge to personally serve a respondent with an
emergency protection order, a designated person may apply to a judge, in
person or by telecommunication, for an order that authorizes substitutional
service of the emergency protection order.

(2) An application for substitutional service is to be supported by
evidence setting out why personal service is impractical and proposing a
method of service that is likely to bring notice of the order to the
respondent.

(3) In making an order that authorizes substitutional service of an
emergency protection order, the judge shall direct, on any terms that the
judge considers appropriate, any one or more of the following methods of
substitutional service that the judge is satisfied is likely to bring
notice of the order to the respondent:

(a) serving a member of the respondent's family or another person
who is able to bring the order to the respondent's attention;

(b) serving a person with whom the respondent is residing or
leaving the order at the place where the respondent is residing;

(c) posting the order in a public place;

(d) publishing the order in a newspaper;

(e) sending the order by electronic mail to the respondent's e-mail
address;

(f) any other method the judge considers appropriate.


Actual notice
9 For the purposes of section 5 of the Act, a respondent has actual
notice of an emergency protection order if

(a) the respondent is personally served with a copy of the order,
or

(b) there are other circumstances that, in the opinion of the
court, provide the respondent with actual notice.


Proof of service
10(1) Service of a document may be proved by the oral testimony or
affidavit of the person who served it.

(2) A peace officer who serves an emergency protection order on a
respondent shall as soon as practicable after service forward the completed
affidavit of service with a copy of the order attached as an exhibit to the
Clerk of the Court of Queen's Bench at the judicial centre named pursuant
to section 5(1)(c).


Warrant
11(1) For the purposes of section 10 of the Act, peace officers are
designated as a category of persons who may apply for a warrant.

(2) An application for a warrant by a peace officer may be made in person
or by telecommunication.


Expiry
12 For the purpose of ensuring that this Regulation is reviewed for
ongoing relevancy and necessity, with the option that it may be repassed in
its present or an amended form following a review, this Regulation expires
on February 28, 2012.
AR 80/99 s12;354/2003


Coming into force
13 This Regulation comes into force on the date the Act comes into force.