Emergency Protection Orders and Bail Conditions: The Two Orders You Have to Follow

You were released from the Calgary Remand Centre on Tuesday with a release order that says no contact with your partner. On Thursday a police officer knocks on your brother’s door and serves you with a second document, an Emergency Protection Order. It is signed by a Justice of the Peace, you were never told about the hearing, and it says you cannot return to the house you pay the mortgage on.

Most people assume the second order is a duplicate of the first, or a mistake. It is neither. You are now bound by two orders, made under two different statutes, by two different courts, and complying with one does not mean you are complying with the other.

Two systems running at once

Your bail conditions come out of the criminal system. A Justice or Judge imposed them under the Criminal Code because you are charged with an offence, and they last until your charge is resolved.

An Emergency Protection Order comes out of Alberta’s Protection Against Family Violence Act, a civil statute. It exists independently of whether you were ever charged, whether the Crown proceeds, and whether you are ultimately acquitted. A complainant can hold an EPO against you even if the criminal charge is withdrawn tomorrow.

Three differences matter most:

• The standard of proof. A criminal charge must be proven beyond a reasonable doubt. An EPO is granted on a balance of probabilities.
• The definition of harm. “Family violence” under the Act is broader than assault under the Criminal Code. It captures threats that intimidate, reckless acts causing property damage, stalking and forcible confinement, not just the application of force.
• Who can obtain one. The Act covers spouses, adult interdependent partners, people who have lived together in an intimate relationship, and parents of a child. A dating relationship where the parties never cohabited generally falls outside it, even though the criminal law treats that same person as an intimate partner for bail and sentencing purposes.

What an EPO can do that your bail conditions cannot

A release order restricts your conduct. An EPO can do more than that. It can grant the claimant exclusive possession of the family home regardless of whose name is on the title or lease, direct police to remove you from the residence, require you to surrender weapons, and prohibit you from attending a workplace, school or daycare.

It can also be granted without notice to you, at any hour of the day, by telephone. You will typically learn of it when an officer serves you with it, which is also the moment it becomes enforceable against you.

The nine-day review: your first real opportunity

This is the part almost nobody knows about. Once an EPO is granted, it must be reviewed by a justice of the Court of King’s Bench in a hearing held no later than nine working days after it was made. At that review the judge can confirm the order, replace it with a longer King’s Bench Protection Order, or set it aside entirely.

That hearing is the first time you get to be heard, and it comes fast. The review proceeds on affidavit and other sworn evidence, which creates a problem people walk into unrepresented: anything you swear in a civil file about the night in question exists while a criminal charge over the same night is outstanding. Evidence filed in the review should never be prepared in isolation from your criminal defence. The two files have to be run together.

Missing the review is common and costly. An unopposed order is usually confirmed, and undoing it later is far harder than responding to it in the first nine days.

Breaching an EPO is its own offence

Contravening a protection order is an offence under s. 13.1 of the Protection Against Family Violence Act, carrying a fine of up to $5,000 or up to 90 days’ imprisonment, or both, for a first offence. A breach can also be prosecuted under s. 127 of the Criminal Code as disobeying a lawful court order.

Note what that means in practice. A single act, answering a text from your partner, can simultaneously breach your bail conditions and breach the EPO, producing charges in both streams from sending one text message. Our post on breaching bail conditions in Calgary explains why the invitation coming from the other person is not a defence.

The practical rule while both orders are live: follow whichever is stricter, on every point, without exception.

What this means for your house, your children, and your things

Because an EPO can give exclusive possession of the home, you may need somewhere to live within hours. Retrieving your belongings requires a term allowing a single supervised attendance with a police escort: ask for it, do not improvise it.

If there are children, a third set of orders can enter the picture through the family courts, and parenting arrangements will be shaped by what the criminal and protection orders say. That overlap is why these files should not be handled by criminal and family counsel who are not speaking to each other.

Get advice before the nine days run

If you have been served with an EPO, the clock on your review hearing is already running. Call (587) 355-8889 for a free, confidential consultation at any hour, or send us your case details. See also what happens in the first 48 hours after a domestic assault arrest and how we defend domestic violence charges in Calgary.