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

Chapter 3: Women as Witnesses, Complainants and Third Parties in Cases of Intimate Violence and Sexual Assault (cont'd)

Chapter 3: Women as Witnesses, Complainants and Third Parties in Cases of Intimate Violence and Sexual Assault (cont'd)

3.1 Women’s Experience with Mandatory Charging (cont'd)

3.1.1 Legal Aid and Other Legal Needs

In view of the harms that potentially flow from full criminal justice intervention – threats to immigration status, intervention from child welfare agencies, risk of retaliation from the abuser, ostracism from the community – women’s frequent dismay at the chain of events triggered by the call for intervention is understandable.

Need for Legal Representation

There are several reasons why an abused woman may need independent legal representation or legal advice. They include compelling prosecution where the Crown declines to lay a charge; laying a more significant charge than that laid by the Crown; and protecting personal records from disclosure to the accused or the media.[211]

To the extent that current immigration law and policy discourage women from leaving dangerous family situations, women need access to legal representation in order to assert their constitutional entitlements to liberty and security of the person, pursuant to Section 7 of the Charter.[212] In fact, where a woman’s immigration status is in flux or is linked to the status of other family members, a range of legal issues may surface – including how the breakdown of the family unit will affect the immigration process, and how a criminal conviction of an immigrant women’s husband will affect the immigration status of his dependants, including the woman.[213] If immigration policy is not to have the effect of heightening women’s vulnerability to intimate violence, women must not be forced to choose between living with danger in their home or putting their immigration status in jeopardy.[214] Women whose sponsorship has broken down require legal representation in order to ensure that their application to remain in Canada on humanitarian and compassionate grounds is correctly completed and supported by as much corroborating evidence as is necessary.[215]

Between 1978 and 1990, six of the ten Canadian provinces passed statutes characterizing childhood exposure to domestic violence as giving rise to a need to protect the child.[216] While not widely used, there is some indication from women’s shelter advocates that various provinces have applied these provisions to remove children from their abused mothers and place them in temporary wardship.[217] Successful legal representation of a mother’s interests in this kind of case requires substantial knowledge of the dynamics of domestic violence, not typically part of lawyers’ training. Suffice to say that women who face these applications require knowledgeable legal counsel who can contextualize the nature of the women’s position to the court, and challenge the assertion that removing a child from the mother is the most effective way to make the child safe.[218] Even without widespread implementation, the discretion available to child protection workers to remove children is real, and women require legal information about the potential consequences of alerting the state to their experience of violence.[219]

Need for Legal Advice

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 is that the abusive partner acted in self-defence, women require legal advice if any further questioning by the police is to take place, and certainly if charges are laid.

Recent inquests into murders of women killed by their partners highlight the need for survivors of intimate violence to receive legal advice before the bail hearing, so that they can realistically make decisions regarding their safety and the safety of their children[220] – as well as during criminal proceedings on issues of disclosure, Charter rights and privacy rights.[221] Since women who are survivors of intimate violence frequently have an ongoing relationship with the abuser, it is imperative that they have a strong voice in the proceedings before the courts.

Need for Legal Information

The overarching critique of the mandatory charging policy is that it takes the decision out of the hands of women. At best, this disempowers them; at worst, it puts them at real risk of harm.[222] Martin and Mosher noted the importance to women of having realistic information about the scope and limitations of the criminal justice process. As they noted:

Women are assured again and again that the criminal justice system provides an effective response; that it is the woman’s best source of immediate protection and the greatest deterrent of future violence by her husband against her. It (the literature giving advice to battered women) doesn’t tell women that most women who are killed by their partners are killed when they attempt to take action to stop the abuse. Women are told that the police will respond and will protect them. It doesn’t tell them that the police may listen to her husband and tell her she is to blame. … Women need to know that once the criminal process is initiated they have no ability to stop it; they need to know what to expect in cross-examination; … they need to know in the context of counselling that information given may fall into the hands of a defence lawyer and be used in a court proceeding; the list goes on. As noted earlier, frequently women are not given full and accurate information but rather an optimistic and reassuring spin.[223]

Women need clear and accessible information confirming that they are separate legal entities from their husbands, and that intimate violence is illegal in Canada. Women whose immigration status is unresolved, or who have been threatened with deportation, need basic information about their entitlements under the law, and about 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 calling the police or filing criminal charges on their own might affect their immigration status. They also require legal advice, once criminal charges have been laid, regarding the range of legal issues that may surface – including possible implications regarding the custody of their children, their immigration status, and their eligibility for social assistance.

A study of immigrant Latina women’s help-seeking behaviours has revealed that few of the women interviewed ever sought services from programs or professionals specifically designed to assist them – lawyers, police, battered women’s programs or crisis hotlines. Instead, most of them first discussed the abuse with women in their communities. This study suggests that information about the illegality of intimate violence, about peace bonds, restraining orders, and shelter services must be widely available in the community.[224] In addition, professionals from whom women seek other services – such as immigration lawyers and health care workers – should receive training to detect the signs of abuse, and education about the legal rights of and support services available to immigrant women, and should help distribute this information to all immigrant women whom they encounter.[225]

While a national assessment of such professionals’ awareness has not been done, immigrant-serving agencies in Alberta did not have basic knowledge of the laws affecting immigrant women in cases of intimate violence, and so were not in a position to provide basic legal information on the topic.[226]

Need for Legal Support

Martin and Mosher identified the need for someone to provide legal support to assist abused women in navigating the process of police intervention and prosecution in an informed manner. This person would also assist women in weighing their options, including the risks and benefits of proceeding with a charge; would facilitate the women’s access to different services; and would be available to assist at the various stages of decisionmaking throughout their engagement with the criminal justice system.[227]

Being an immigrant woman accentuates the isolation and fear that abused women typically experience and, hence, the need for legal support. Social isolation – increased by the lack of social contacts, limited mastery of English or French, and cultural alienation – enhances the risk of family violence because it interferes with detection and accountability, and promotes increased marital dependence.[228]

Regardless of their immigration status, women whose first language is neither English nor French require full translation and interpretation services so that they can fully interact with police, Crowns and the courts. Such services can assist in reducing the extent to which the legal process is an alienating one for them.

While, in provinces such as Ontario, respite from the onerous requirements of workfare are available to women who have left abusive relationships, the initial three-month deferral and any subsequent extensions are at the discretion of the caseworker. This exemption in not necessarily well understood. Women require legal support to enable them to make their case to the worker. Similarly, immigrant women who are applying for social assistance due to sponsorship breakdown may make application for an exemption from the $100 monthly deduction that is otherwise automatic. Immigrant women fleeing abusive partners whose first language is not English or French would not be aware of such details, and would also be helped by community support when making their claim.[229]

Notwithstanding the above, Martin and Mosher assert that an effective answer to the problem of meeting the needs of abused women requires a "de-centring" of the criminal justice system response as the definitive response to what abused women need.[230]

Certainly the data confirms that many of the needs that women identified are outside the realm of the criminal justice system, and points to social service and community-based supports.[231] Women spoke of their needs for medical attention, a need for healing and emotional security for themselves and their children, and a need for information about their eligibility for social assistance and subsidized housing. Many women indicated that what made the biggest difference to them was access to a shelter.[232]

Aboriginal women in Manitoba who had experienced intimate violence spoke positively about the agencies they contacted for help – including shelters, counselling services, treatment centres for substance abuse, healing centres, and crisis telephone lines.[233]

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