Legal Ease, May 25

After I wrote a short piece on emergency protection orders, which are civil orders that restrain family abuse, I received a number of emails asking if they could be used to restrain bootleggers or drug pushers.

The short answer is no — the existing system does not apply to that.

This poses a problem. At least in the hamlets everyone knows who is bootlegging and selling drugs. Everyone knows who is getting rowdy and being a bully at events at the community hall.

But there is not much that can be done other than trying to get the RCMP to lay some charges.

And criminal charges are a blunt weapon that don’t always change the behaviour — indeed sometimes criminal charges make things worse.

But if we look beyond Canada there is a system that could be used to try to restrain bad behaviour without using the criminal law. The concept raises issues of civil rights — which must be protected — but may also allow communities to live in peace and security.

In Scotland, there is a system of civil orders that could, if implemented in Nunavut, be used to restrain bad behaviour.

The legislature would have to create and pass the legislation, and care would have to be taken to make sure civil and constitutional rights were protected, but the concept is viable.

In Scotland an antisocial behaviour order, or “ASBO,” is a court order intended to stop a person from behaving in a way that hurts the community.

It’s not meant to be a punishment — the idea is to prevent antisocial behaviour before it happens rather than to punish someone for bad behaviour afterwards.

Antisocial behaviour is behaviour that causes, or is likely to cause, alarm or distress to at least one person. It has to be repeated at least one time. It could include drug dealing or bootlegging – which are, of course, already illegal.

Just like an emergency protection order an ASBO is a civil court order. This means that it does not give a person a criminal record.

However, someone can be prosecuted criminally if they breach the terms of the ASBO.

Another aspect of the ASBO being civil is that it is easier to get than a criminal conviction — that’s important and makes it easier to use to clean up problems.

It is a criminal offence to break the terms of an ASBO. Breaching an ASBO can lead to arrest and jail time.

ASBOs contain very specific terms that say exactly what the person subject to the order cannot do.

For example, an ASBO may say that a person can’t come to the community hall while drunk. The conditions in an ASBO can apply for a limited period of time or indefinitely.

Whether Nunavut should adopt the concept of ASBO is a political question. It could be seen as an extension of traditional community self governance but it could also raise civil rights issues.

That said, it is an option and one, perhaps, worth considering in the legislature.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.