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

Introduction

The Department of Justice Canada, in co-operation with the provinces and territories, is developing a new legal aid and access to justice policy framework. This paper will contribute to laying the necessary knowledge base for incorporating a gender perspective in the policy renewal process, given the well known fact that the differences in individual experiences in the legal system are often based on gender as well as race and class. Other legal aid research projects have focussed on the unmet needs of Aboriginal peoples, immigrants, refugees and visible minorities, people living in rural and isolated locations, and accused persons and prisoners. This research will begin to identify the particular barriers and unmet needs faced by women within these subgroups.

The objectives of the research were three-fold:

  1. To document the issues impacting women’s need for legal aid and other forms of legal support when they come into contact with the criminal justice system as accused; when they are serving a penitentiary sentence; as survivors of intimate violence[4] 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.
  2. To examine the nature of actual or potential unmet needs.
  3. To describe a variety of recommendations outlined in the literature to address those needs.

The report was intended to make explicit the impact of women’s diversity on their experiences with the criminal justice and correctional systems, particularly the experiences of Aboriginal women,[5] and immigrant, refugee and visible minority women.

Examining the possible differences in the experiences and needs of men and women, and of various sub-groups of women, acknowledges the fact that men’s and women’s experiences with the justice system, and the legal needs that flow from them, are impacted by their social position. This is not meant to imply that men and women do not share many experiences and needs. Nor is it meant to imply that Aboriginal, immigrant, refugee and visible minority people do not face similar barriers in accessing legal services. However, it is to say that factors such as gender, race, citizenship, and/or geographic location will likely produce additional barriers and compound disadvantages in accessing justice.

The research tasks were:

  • To review current Canadian literature concerning legal aid and other forms of legal support as they pertain to the aforementioned categories of women.
  • Where no legal aid literature pertaining to these categories of women exists, to review relevant literature on the women’s relevant life circumstances and justice experiences, and conduct a limited number of interviews with key stakeholders to identify possible implications for the delivery of legal services.

Assessing legal aid and other legal needs is a murky and inexact science, an area of research unto itself. Moreover, meeting those needs depends on a range of variables, including:

  • The client’s ability to recognize that he or she has a problem or an issue that is open to some resolution, and that the resolution has a legal component to it. Recognizing these two facts is dependant on factors such as level of education, literacy in matters of the law, age, gender, ethnicity and citizenship.[6]
  • Whether meeting the need has been mandated by case law or by the Charter.
  • Whether the need for services falls beyond those that are currently covered by legal aid plans.
  • Whether the issues and remedies are beyond those that are typically provided by a lawyer.[7]

Nonetheless, needs assessments in the area of legal aid may serve to remedy a glaring oversight in the delivery of subsidized legal services. The access to justice movement of the 1960s failed to differentiate clearly the compounding disadvantage experienced by low-income people when differing forms of marginalization intersect and multiply. As a consequence, people responsible for the development of legal aid programs never assessed the legal needs of low-income women, nor the fact that their experiences could necessitate a different approach to the delivery of legal aid services, as well as the eligibility and coverage criteria, in order to provide them with effective access to the justice system.[8]

As a matter of course, the legal needs of people charged with criminal offences were not assessed to any elaborate degree. Need was presumed to flow directly and exclusively from the criminal charge. Meeting a client’s need according to this model has meant providing the accused person with the services of a legal aid lawyer to provide legal advice and, if necessary, representation.

The prevailing critique of this approach has been that it does not meet the unique needs of clients living in poverty.[9] Reflecting on the inadequacy of this approach, one author wrote:

Even if it is sometimes possible to deal with just an "isolated" legal issue, poverty imposes a bundle of disadvantages which make that issue and its resolution much more difficult than would be the case for a person of even modest means. Poverty results in a lack of formal and informal access to information and help; negative stereotyping; difficulties based on literacy and language; and additional discrimination, sometimes overt, and frequently hidden and systemic, resulting from the intersection of race or gender or disability with poverty. All of these compound in serious ways the general difficulty most people would face in confronting the legal system without legal advice or assistance.[10]

This apparent tunnel vision attitude toward providing access to justice did not take into account the uniquely stark economic reality of women that arises from their societally gendered roles as unwaged workers in the home or as poorly remunerated workers outside the home. It also did not consider the linkage between woman’s experiences of poverty and their histories of physical and sexual abuse, their age, race, citizenship, sexual orientation, mental and physical health needs, or their compounding experiences of discrimination. This restrictive approach to the provision of subsidized legal services – restrictive in coverage, financial eligibility criteria, as well as in delivery of services – has severely hampered women’s ability to resolve their problems effectively.[11]

The characterization of the criminal charge as the hub from which legal aid services and funding arrangements radiate has also had the effect of artificially isolating criminal legal aid needs from those in the civil domain. Previous studies have linked the failure of many legal aid plans to provide adequate coverage for the range of legal issues people encounter to this compartmentalization of legal problems.[12]

There are at least three reasons to consider in tandem the legal needs of women not only when they come into contact with the criminal justice system as accused persons, but also when they encounter the justice system as witnesses, complainants and third parties.

Firstly, a criminal record – inevitable when a person is convicted of a criminal offence – can give rise to a host of legal problems in the non-criminal context. A criminal record will impact on women’s interests in such matters as child apprehension proceedings, custody and access disputes, and employment. As such, a criminal record will have grave and lasting implications for a woman’s economic security, on her ability to nurture her children and, more generally, on her autonomy in making meaningful choices about her life.

Secondly, the division of governmental responsibility for providing legal aid services for criminal or civil matters can no longer be defended. Despite the fact that the federal government sees its role in developing policy restricted to criminal legal aid, the reality is that the federal government played a very significant role in the provision of civil legal aid services in the provinces[13] when it decided to repeal the Canada Assistance Plan (CAP) and replace it with the Canada Health and Social Transfer (CHST).[14]

The significance for women cannot be overstated. The primary clients for criminal legal aid certificates are men – approximately 80 percent of criminal legal aid certificates are issued to male applicants.[15] While federal funding for criminal legal aid has diminished and that diminution has had significant consequences for the delivery of services, the provinces remain accountable for the money they receive from the federal government. Under cost-sharing agreements, the provinces agree to provide legal services as a basis for receiving federal contributions.[16] Moreover, they are constitutionally required to provide criminal legal aid to an accused person if necessary to ensure a fair trial.[17]

By contrast, the introduction of the CHST corresponded to the loss of important national standards in respect of the provision of civil legal aid services in the provinces as well as a massive reduction in the amount of funding they received.[18] The result has been a freefall in the provision across the country of civil legal aid, of which women are by far the primary clients.[19] Consequently, it no longer makes sense to restrict inquiry about the federal government’s role solely to the provision of criminal legal aid services.

Finally, from a policy perspective, there is good reason to document the manner in which, increasingly, day-to-day behaviour is being subjected to criminal sanction. It has been observed that social problems over the last century have been addressed by criminalizing the conduct, rather than by considering whether the problem could be solved or contained without recourse to criminal sanction.[20] The criminalization of welfare infractions is one example of this trend. The poorer individuals are, the more likely that they will be subjected to state scrutiny. For women, as will be discussed in greater detail, this means that their survival skills, their efforts to alleviate their poverty and the poverty of their children, will increasingly bring them into conflict with the law.

Whether as an accused person or as someone who is a witness in a criminal process:

… any woman who fights to keep her wits, and her roof, about her as she helplessly experiences … the currents of criminal justice "knows" the true brutality of the system and the extensiveness of its destruction. If she is a racial/ethnic minority person, which she is likely to be, and/or if she is poor, which she surely is, she intuitively knows the nature of the interaction between criminal justice practices and the racist and/or classist [and/or sexist] structure of her society, as well as its impact on her life, her family, and her community.[21]

To date, the social construction of crime and the manner in which women’s coping strategies are criminalized have obscured rather than illuminated the linkages between women’s realities and their contact with the criminal justice system. The remainder of the research will focus on clarifying the "connections" between the diversity of women’s experiences and the impact of these experiences on their needs for legal aid as well as their legal support needs when they come into contact with the justice system in criminal and other legal matters. Legal aid includes legal representation, legal advice and legal information. Legal support includes liaising with justice personnel, information gathering, and attending at court or during the restorative justice process with the accused person or witness. This is the work typically performed by community-based agencies, grassroots organizations, front-line workers and other nongovernmental organizations that provide service to people who come into contact with the justice system.


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