5th Session, 40th Legislature

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Bill 11

THE DOMESTIC VIOLENCE AND STALKING AMENDMENT ACT

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. D93 amended

1

The Domestic Violence and Stalking Act is amended by this Act.

2(1)

Section 1 is renumbered as subsection 1(1) and is amended

(a) in the definition "court", by adding ", and includes the Provincial Court of Manitoba in sections 7, 20 and 21, subsection 6.1(2) and clause 14(1)(p)" after "Manitoba";

(b) by replacing the definition "telecommunication" with the following:

"telecommunication" includes the use of a telephone, the Internet, e-mail or fax; (« télécommunication »)

(c) by adding the following definitions:

"chief firearms officer" means the person designated as the chief firearms officer of Manitoba under the Firearms Act (Canada); (« contrôleur des armes à feu »)

"firearm" means a firearm as defined in the Criminal Code (Canada); (« arme à feu »)

2(2)

The following is added as subsection 1(2):

Reference to "Act" includes regulations

1(2)

A reference to "this Act" includes regulations made under this Act.

3

The following is added after clause 2(3)(b):

(b.1) using the Internet or other electronic means to harass or threaten the other person;

4

Section 3 is amended by renumbering it as subsection 3(1) and adding the following as subsection 3(2):

Standard of proof

3(2)

All determinations made by a designated justice of the peace on an application for a protection order are to be made on a balance of probabilities.

5(1)

The following is added after subsection 4(2):

Conduct of hearing

4(2.1)

At a hearing on an application for a protection order, the designated justice of the peace may adopt any procedures he or she considers appropriate to put the subject at ease and help the subject understand the application process.

5(2)

The following is added after subsection 4(3):

Submissions

4(4)

The subject and any other person described in subsection (2) may make submissions to the designated justice of the peace respecting the application.

Support person

4(5)

When a subject applies for a protection order in person, he or she may be accompanied at the hearing by a family member, friend or other person providing support to the subject.

6

Subsection 6(1) is replaced with the following:

Granting a protection order without notice

6(1)

A designated justice of the peace may grant a protection order without notice if the justice determines that

(a) the respondent

(i) is committing or has committed domestic violence against the subject, or

(ii) is stalking or has stalked the subject;

(b) the subject believes that the respondent will continue or resume the domestic violence or stalking;

(c) the subject requires protection because there is a reasonable likelihood that the respondent will continue or resume the domestic violence or stalking; and

(d) due to the seriousness or urgency of the circumstances, the protection order should be made without delay.

7

The following is added after section 6:

Considerations

6.1(1)

When determining whether to grant a protection order, a designated justice of the peace must consider, in addition to any other relevant consideration, the following risk factors:

(a) the history of domestic violence or stalking committed by the respondent;

(b) the nature of the domestic violence or stalking committed by the respondent;

(c) whether the domestic violence or stalking is repetitive or escalating;

(d) whether the domestic violence or stalking is evidence of a pattern of coercive or controlling behaviour respecting the subject;

(e) other previous incidents of violence committed by the respondent, including any violence against animals;

(f) any mental health concerns involving the respondent;

(g) the current status of any relationship between the subject and the respondent, including any recent separation or intention to separate;

(h) any other circumstances of the respondent that may increase the risk to the subject, such as

(i) substance abuse,

(ii) employment or financial difficulties, or

(iii) access to firearms or other weapons;

(i) any circumstances of the subject that may increase the risk to the subject, such as pregnancy, age, family circumstances, health or economic dependence.

Consideration of legal proceedings

6.1(2)

When determining whether to grant a protection order, the designated justice of the peace must consider any information available at the hearing from court registries respecting any criminal proceedings, family law proceedings and other legal proceedings involving the respondent. That information forms part of the record of the hearing.

No bar to granting protection order

6.1(3)

The designated justice of the peace may grant a protection order even if one or more of the following circumstances exist:

(a) a protection order has previously been granted against the respondent, regardless of whether the respondent has complied with that order;

(b) the respondent no longer resides in the subject's residence or in the same community where the subject resides;

(c) the respondent is incarcerated at the time the application is made;

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

(e) the subject is residing in an emergency shelter or other safe place;

(f) the subject has a history of resuming a relationship with the respondent.

Reasons

6.2

A designated justice of the peace must provide oral reasons at the time he or she makes a decision on an application for a protection order.

Notice to chief firearms officer

6.3

If a protection order is granted, the designated justice of the peace must arrange for the chief firearms officer to be provided with a copy of the order.

8

Subsection 7(1) is amended

(a) by replacing clause (g) with the following:

(g) a provision directing the respondent to deliver up to a peace officer — until a further order or disposition is made under the Criminal Code (Canada), the Firearms Act (Canada) or this Act — one or both of the following:

(i) any firearm and ammunition that he or she possesses,

(ii) any specified weapon that he or she possesses;

(b) by replacing clause (h) of the French version with the following:

h) une disposition permettant à un agent de la paix, si l'intimé ne remet pas les articles que vise l'ordonnance, de pénétrer dans tout endroit où l'agent de la paix a des motifs de croire que se trouvent ces articles afin d'y perquisitionner et d'y saisir les articles, et ce, en recourant à l'aide et à la force que justifient les circonstances.

9

The following is added after section 7:

Surrender of firearms

7.1(1)

If a protection order is granted and the designated justice of the peace determines that the respondent is in possession of a firearm, the order must include

(a) a provision directing the respondent to deliver up to a peace officer any firearm and ammunition that the respondent possesses, until a further order or disposition is made under the Criminal Code (Canada), the Firearms Act (Canada) or this Act; and

(b) a provision that, if the respondent does not deliver up the items referred to in the order, a peace officer may for the purpose of seizing the items enter and search any place where the officer has reason to believe the items are located, with such assistance and force as are reasonable in the circumstances.

Dealing with items delivered up or seized

7.1(2)

An item delivered up under clause (1)(a) or seized under clause (1)(b) must be dealt with in accordance with the regulations.

10

Subsection 11(1) is amended by adding "or to make an order in relation to an item that has been delivered up or seized pursuant to the order" at the end.

11(1)

Subsection 12(1) is amended

(a) by striking out "to set aside a protection order" and substituting "under subsection 11(1)"; and

(b) by adding "or make any order in relation to an item that has been delivered up or seized pursuant to the order that he or she considers appropriate" at the end.

11(2)

Subsection 12(2) is amended by adding "or that an item that was delivered up or seized pursuant to the order should be dealt with in the manner requested" at the end.

12

Clause 14(1)(h) is replaced with the following:

(h) a provision directing the respondent to deliver up to a peace officer — until a further order or disposition is made under the Criminal Code (Canada), the Firearms Act (Canada) or this Act — one or both of the following:

(i) any firearm and ammunition that he or she possesses,

(ii) any specified weapon that he or she possesses;

13

Clause 27(e) is replaced with the following:

(e) respecting the handling, storage, forfeiture or disposition of items delivered up or seized pursuant to a protection order or prevention order, including authorizing the court to make orders respecting any of those matters;

Coming into force

14

This Act comes into force on a day to be fixed by proclamation.