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Six Degrees from Liberation: Legal Needs of Women in Criminal and Other Matters

Executive Summary

The Department of Justice Canada, in co-operation with the provinces and territories, is developing a new legal aid policy framework. This paper will contribute to laying the necessary knowledge base for incorporating a gender perspective in the policy renewal process. It is based on a review of the literature and a limited number of key informant interviews. Its purpose is to examine the legal aid and other legal needs of women when they are accused of criminal offences; during the times when they are serving a penitentiary sentence or on conditional release; as survivors of intimate violence who are required to give evidence against their abusive partners; as complainants and as third parties in sexual assault cases; as claimants in criminal injuries compensation proceedings; and as participants in restorative processes.

In examining the possible differences in the experiences and needs of men and women, and of various sub-groups of women – particularly Aboriginal[1], immigrant, refugee and visible minority women – the report underscores the fact that experiences with the justice system, and the legal needs that flow from those experiences, are impacted by social position. It does not imply that men and women have totally different experiences and needs. Nor does it imply that Aboriginal, immigrant, refugee and visible minority people face totally different barriers in accessing legal services. However, it does show that factors such as gender, race, citizenship, and/or geographic location will produce additional barriers and compound disadvantages in accessing the justice system. The research findings suggest that the legal needs of women be considered more broadly.

Chapter 1 examines the relationship between the life circumstances of women in conflict with the law and their law breaking; recent government policies that have aggravated their social and economic marginalization; and their legal aid and other legal needs as accused persons in criminal courts.

Women’s life circumstances and law breaking: When the stories of women in conflict with the law are examined, their history of victimization is impossible to ignore. The majority of incarcerated women, and an even greater proportion of Aboriginal women, have experienced abuse, most often perpetrated against them by men they know. Many also have substance abuse problems. However, unlike those of their male counterparts, women’s addictions are frequently linked to their experiences of abuse.

Economic disadvantage can play a role in bringing both men and women into conflict with the law. However, the risk of living in poverty is greater for women than for men, and greatest among Aboriginal women, women of colour and immigrant women. Unlike their male counterparts, women in conflict with the law are frequently the primary or sole caregivers for their children. As a result, they have fewer opportunities to obtain an education, to establish marketable skills or to maintain employment.

Nonetheless, women are charged with far fewer and less serious offences than men. In 1999, they were most frequently charged with theft under $5,000, followed by level 1 or common assault, fraud (most frequently welfare fraud), and possession of or trafficking in cannabis – all of which accounted for 55 percent of the charges laid against women that year.

Women’s law breaking is inextricably linked to their poverty and abuse. As welfare incomes have dropped further from the minimum level of subsistence established by the poverty line, women have been increasingly prosecuted and imprisoned for welfare fraud. Women’s poverty is also a factor in their shoplifting items that they or their children need, their arrest for street prostitution, and their disproportionate imprisonment for fine default. While some jurisdictions have implemented fine-option programs, they rarely provide childcare, resulting in high failure rates for women with children. Charges for level 1 assault have increased significantly since 1987, in part because abused women are being counter-charged with assault when they call on the police to restrain an abusive partner.

Although women tend to be charged with less serious offences than men, the proportion of women in remand is roughly the same as for their male counterparts. Aboriginal women and women of colour are even more likely to be denied bail than White women. Like their male counterparts, women in remote and isolated communities – which include a large Aboriginal population – who are denied bail are detained in southern detention facilities because there are no such facilities in their home communities.

The role of the state in the increasing gap between the rich and poor: Recent government policies have aggravated women’s economic marginalization. Such policies include a reduction in state expenditures on programs that benefit the poor, of whom women are a majority. Although the widening gap between the rich and poor – an inevitable consequence of such policies – has fuelled growth in demand for legal services, legal aid funding has decreased. Reduced funding to community-based advocacy groups has reduced the ability of disenfranchised people to influence discourse and policy. Finally, the ascendancy of the law and order agenda has led to more numerous criminal sanctions, stiffer sentences, and allocating responsibility for crime exclusively to the individual, while ignoring the correlates of crime such as illiteracy, poverty, victimization, substance abuse, and the absence of employment opportunities.

Anecdotal evidence indicates an increase in the number of unrepresented accused. The consequences of being unrepresented at trial can be severe for both men and women, especially those with mental disabilities. Unrepresented accused are more likely to plead guilty even if they do have a defence; to be convicted if they plead not guilty; and to receive a harsher sentence since they are unable to engage in charge, plea or sentence negotiations. A criminal record can severely compromise people's ability to obtain employment or a professional licence, to advance to a more responsible position, and to become bonded or insured. However, the consequences of a guilty plea or conviction and the resulting criminal record can be particularly harsh for women and their children. Women without citizenship may lose their landed immigrant or refugee status. Those who are mothers may lose credibility in child apprehension cases and custody and access disputes. Those who are sentenced to imprisonment will be separated from their children.

Legal aid and other legal needs: Given the implications of a criminal record for women and their children, the view that incarceration is the only relevant criterion triggering entitlement to legal aid representation must be challenged.

Women need representation to assist them in court proceedings, to appeal trial decisions to higher courts, and to challenge the constitutionality of other decisions that impact on them and their children (e.g., welfare provisions). Legal counsel must be sufficiently knowledgeable about women's life circumstances in order to be able to contextualize their offences. Circumstances such as women being physically threatened by their abusive partners can form the basis of a valid legal defence. Women also need legal advice to assist them in determining whether they have a legal defence and should plead not guilty. Finally, like their male counterparts, they need information about their rights, entitlements and responsibilities under the law. Such information should be made available through a variety of media to accommodate different levels of literacy, in a variety of languages, be physically accessible and in remote locations. Target groups or communities should participate in the production and dissemination of information to increase the likelihood that it is accepted as legitimate.

Chapter 2 examines the legal aid and other legal needs of women – as prisoners, mothers and parole applicants – during the time that they are serving a sentence of two years or more in a federal penitentiary.

While the population of federally sentenced women is small, it has increased by 200 percent since 1990, with Aboriginal women, visible minority women and women with cognitive and mental disabilities – who are frequently criminalized because of their disability-induced behaviour – comprising a significant portion of the population. The relationship between women’s social and economic marginalization and the correctional system is clear and particularly pronounced for Aboriginal women.

Pursuant to the Corrections and Conditional Release Act, the Correctional Service of Canada has the authority to take a range of decisions – including involuntary transfers, disciplinary sanctions, administrative segregation and security classification – that can generate serious consequences for prisoners and, as a result, various legal needs. The Supreme Court of Canada has held that a prisoner still has an entitlement – albeit a pared-down one – to liberty interests within the correctional setting.

Government inquiries have repeatedly described an indifference to the rule of law on the part of correctional authorities, and a lack of awareness and training on prisoners’ entitlements to legal services among institutional staff. In the absence of fundamental respect for due process, prisoner complaints may not be viewed as legitimate challenges but as insubordination to be responded to with punitive measures. The use of non-litigious approaches such as mediation is also problematic because of the extreme power imbalance between prisoners and staff.

Given the above, both male and female prisoners need legal representation to ensure that deprivations of liberty are not expanded to an illegal degree. They also require legal advice about their rights to due process in disciplinary and other proceedings. Most basically, prisoners – and staff – require legal information. Such information would be most easily accepted if it were authored and distributed by prisoner, Aboriginal and mental health advocacy groups.

The circumstances of women’s offending, their program needs and the risk they pose to the public are different from men’s. Nonetheless, the instruments used to determine their security designation are the same as those developed and used for their male counterparts. The instruments contain a range of normative standards that put women, particularly culturally, racially, and cognitively marginalized women, at a disadvantage. The result has been a significant “over-classification” of federally sentenced women, based on classification criteria that de-contextualize their offending while ignoring systemic barriers. This is particularly true for Aboriginal women who are disproportionately classified as maximum security.

Legal advice is necessary in order to assist women to choose the appropriate avenue to challenge their security designation, as well as the individual and systemic discrimination present in the classification tools. Foremost, they need legal information to understand the implications of their security classification, and the legal avenues that are available to them to contest it.

A 1991 survey indicated that two thirds are mothers, and that 70 percent of these are single parents all or most of the time. While the Supreme Court of Canada has recognized entitlement to legal aid in child apprehension cases, the ability for incarcerated women to actually avail themselves of this constitutional protection is fragile at best. Their ability to do so is contingent on child protection workers informing them of their legal rights, on being served with notice of a hearing, on transportation to the hearing being made available to them, as well as on their ability to contact the legal aid system. Moreover, child protection workers and the judiciary focus on the individual caregiver (mother) without connecting the challenges of supporting and nurturing children to the problems of poverty, violence, the legacy of cultural marginalization and racism, and the way in which these compounding experiences of oppression affect women’s lives.

Legal representation is therefore required from the point at which the children are removed, or the mother is arrested, continuously through each stage of the child apprehension case. Legal representation at child protection hearings is critical to ensure that mothers have a full and fair opportunity to be heard in court, and/or to enforce their constitutional and legal entitlements. Women also require legal advice prior to signing placement forms so that they can understand the consequences for themselves and their children. In addition, they need legal information on the implications of their incarceration for their dependent children.

Parole hearings are becoming increasingly complex, in part because of increased opportunities for victims to participate in hearings. Parole Board members are required to take into consideration the submissions of victims, the veracity of those statements and the weight to be given them, as well as the due process to be accorded to an applicant in challenging those statements. Given these complexities, legal representation is required to assist parole applicants to counterbalance the enormous visceral impact of having victims participate in the hearing.

Chapter 3 examines the legal aid and other legal needs of women – as survivors of intimate violence[2] who are required to give evidence against their abusive partners; as complainants and as third parties in sexual assault cases; as claimants in criminal injuries compensation proceedings; and as participants in restorative justice processes.

Women as survivors of violence by intimate partners: A consideration of the legal needs of survivors of intimate violence inevitably merges with their experiences with mandatory charging policies. Recent assessments of women’s experiences with the policies, and the extent to which the policies met their expectations and needs, indicate that abused women are often reluctant to contact the police. They may fear state intervention in their lives from welfare, child apprehension and immigration authorities, or retaliation from their partners in the form of further abuse and counter-charging. Women who are economically dependent on their abusive partners may fear for their financial security should they be detained. Immigrant women may fear that their abusive partners will withdraw their sponsorship application. Women from closely knit cultural or rural communities may fear ostracism. Finally, Aboriginal, visible minority, immigrant and refugee women may fear a racist systemic response against their partners or themselves. Many women – almost 40 percent in one study – did not expect that their calls to the police would trigger a full criminal justice system response that would include arresting, charging and prosecuting the abuser.

Survivors of intimate violence may need independent legal representation to compel prosecution of a charge where the Crown declines to lay one or to lay a more significant charge, and to protect personal records from disclosure to the accused or the media. There is also a need for legal representation at inquests and public inquiries to examine the systemic failures that have led to women’s deaths. Similarly, to the extent that current immigration law and policy discourage women from leaving dangerous family situations, women need access to legal representation to assert their constitutional entitlements to liberty and security of the person, pursuant to Section 7 of the Charter.

The practice of counter-charging gives rise to a clear need for legal advice as soon as an abusive partner utters a statement that implicates the abused woman. Bearing in mind that the most frequent defence to an assault charge against an abusive partner is that he acted in self-defence, women require legal advice during any further questioning by the police, and certainly if charges are laid.

Abused women also need realistic information about the consequences of calling the police, the court process, and the protections available to them and their children. Women whose immigration status is unresolved, or who have been threatened with deportation, need basic information about their entitlements under immigration legislation and the child welfare implications of abuse within the home. They must have access to information before they call they police in order that they can assess how doing so might affect their immigration status.

Finally, abused women would benefit from legal support to assist them in weighing their options, including the risks and benefits of proceeding with a charge, to facilitate their access to different services, and to assist with different decisions throughout the criminal justice process.

Women as complainants or third parties in sexual assault cases: Legal representation may be required for sexual assault victims and sexual assault centres or therapists to defend against production of personal records in court. Women need counsel independent of the Crown, because the Crown’s interest is to represent the public, not the privacy or equality interests of the record keeper. Record keepers require legal advice when policy is being formulated regarding the kinds of records they are required to keep and what may be disposed of. In addition, advice at this preliminary stage will assist the centre or therapist to explain disclosure obligations to the client. Record keepers also require advice when they are served with a subpoena.

Legal representation before criminal injuries compensation boards would permit a challenge to documented systemic bias that implies that women survivors of sexual assault are the authors of their own misfortune. Furthermore, legal representation would be necessary to participate in any appeal from such discriminatory decisionmaking.

Women as participants in restorative justice and alternative dispute resolution processes: With few exceptions, the literature promoting restorative justice and other alternative dispute resolution processes has not taken gender and diversity into account. Upon examination, concerns have surfaced regarding the use of such processes for crimes of violence against women and children. Community members share different values, based on their social position within the community. Different values can lead to different expectations of what constitutes a just result. Moreover, it cannot be assumed that community members universally condemn male violence against women. There needs to be widespread community acknowledgment, not only of the relational imbalance between a particular abusive man and an abused woman, but also of the systemic factors that allow continuing acts of male violence against women. Otherwise, a clear denunciation of the acts of an abusive man cannot be issued. The structure of community-based circles or sentencing circles over-individualizes the conflict between a particular man and woman, and has the effect of obscuring the greater systemic factors at play.

In Aboriginal communities where many people are related, family and kinship might serve to silence a victim if her abusing partner is related to a powerful family or leader. The potential for a victim to feel pressured to participate in an alternative system can be great. Additionally, the dynamics of an abusive relationship can make the victim’s willingness to participate impossible to discern. Aboriginal women choosing the existing system may be criticized for not supporting “their own” system, and acting in ways that are not in the best interests of the community.

Many circles make no record of the comments of participants. As such, inappropriate utterances that may indicate a bias against the abused woman, or an equivocal attitude towards male violence against women in intimate relationships, cannot easily be challenged beyond the circle.

Furthermore, cautions have been raised that volunteers in restorative processes might not possess the appropriate background and training. The use of volunteers, and not paid professionals, removes the responsibility of supporting these processes from the government and moves it into the community.

Domestic violence or sexual assault survivors who participate in processes such as sentencing circles, community justice committees and victim-offender reconciliation processes require legal advice and, if necessary, legal representation to ensure that their participation is voluntary; that the process is representative of a broad diversity of interests; that their rights to privacy are protected; and that any aspect of the process or any agreement that is reached do not violate her rights to liberty, physical security and equality under the Charter.

In conclusion, it would be simplistic to suggest that identifying women’s legal aid and other legal needs, or even providing for them, would be sufficient to ensure women's access to justice. The aspects of marginalization that women experience, the political choices that permit their existence, and the social conditions that aggravate them, form the backdrop for virtually all of the experiences and needs described in this paper. These are broad issues that are not part of the dialogue around the provision of legal aid and other legal services and they cannot be resolved solely by the provision of legal services, no matter how broadly defined and how generously funded. They are essentially the timeless political controversies over the cost of providing basic human entitlements in society.

[1] Given the limited time and resources available, this research emphasizes the needs of First Nations women living in urban areas and on reserve. Although previous legal aid research in each of the territories was intended to consider possible variations in the experiences and needs of men, women and youth, these were not fully explored due to time, budgetary and other constraints. More research is required in order to better understand the particular experiences and needs of northern women generally, and Nunavut and Arctic women in particular. In accordance with Article 32 of the Nunavut Land Claims Agreement, research must provide opportunities for direct Inuit participation in the study and, therefore, allow direct input from Nunavut women and from persons working with Inuit women impacted by the justice system.

[2] Intimate violence refers to any and all forms of maltreatment committed in relationships of intimacy, trust, and dependence. Violence against women is defined in the United Nations' Platform for Action (1995) as “any act of gender-based violence that results in, or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. … The term embraces wife battering, battered woman syndrome, wife abuse, spousal assault … family violence, domestic abuse, domestic assault, and domestic violence.” Cited by McGillvray and Comaskey in Black Eyes All of the Time, Intimate Violence, Aboriginal Women, and the Justice System (Toronto: University of Toronto Press, 1999), p. xiv.

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