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)

3.2 Sexual Assault Proceedings and Implications for Legal Aid and Other Legal Needs

Need for Legal Representation

There is already precedent for granting enhanced legal representation to victims, a trend that would well serve the needs of sexual assault complainants. A number of European jurisdictions grant victims the right to have a lawyer represent their interests in criminal proceedings. In Norway, this right is extended in cases of rape and other violent crimes to the provision of legal aid to the victim. The victim's lawyer has several responsibilities:

  • protecting the victim during questioning by police and in court;
  • preparing the victim for the court process;
  • contacting local care agencies;
  • updating the victim on developments in the case;
  • appealing against decisions to drop the case;
  • ensuring that compensation claims presented in conjunction with the criminal case are complete; and
  • ensuring that questioning during the case is conducted properly and is not irrelevant to the case [234]

Legal representation may be required to defend against production of sexual assault survivors’ personal records in court. Counsel independent of the Crown are necessary for women wishing to prevent disclosure, because the Crown’s interest is to represent the public, not to represent the privacy or equality interests of the record keeper.[235]

This has been confirmed by the Supreme Court of Canada in A.(L.L.) v. B.(A.),which recognized the right of the record keeper to be so sufficiently separate and compelling that it provided for a direct appeal to the Supreme Court of Canada in cases where third parties wish to challenge a court order to produce records, including those kept by a women’s shelter or a rape crisis centre.[236]

Where the record keeper is a rape crisis centre or a therapist, it is preferable that the complainant and the record keeper have independent legal representation for the range of issues arising from the subpoena of a complainant’s personal records, since their privacy interests are different and may diverge.[237]

Counsel of choice is very important in these kinds of cases. In recognition of this, Legal Aid Ontario has developed a training program and implemented a specialized panel of lawyers designated to accept legal aid certificates in legal proceedings in which the opposing side is seeking access to a victim’s or witness’s medical or therapeutic records.[238]

Need for Legal Advice

For the sexual assault centres and therapists who counsel women who have been raped, and who have increasingly been subpoenaed for the production of records they have kept about a complainant, the need for legal advice frequently arises. In view of recent jurisprudence on the issue, record keepers will require legal advice regarding the kinds of records they are required to keep and what may be disposed of. [239] Advice at this preliminary stage will also assist the centre or therapist to explain to the client what disclosure obligations exist.[240] In addition, legal advice is required when the record keeper is served with a subpoena, firstly in respect of the obligation to produce records, and, secondly, to defend against the frequently served but incorrect general subpoena.[241] Finally, in one instance legal advice has been required for a sexual assault centre during a Law Society investigation into a defence counsel’s widespread dissemination of a complainant’s personal records.[242]

It should be noted that the jury in the May-Iles Inquest, recognizing the irreplaceable role that front-line workers play in assisting women survivors of intimate violence, urged the government to consider enacting legislation to protect the confidentiality of communications between women’s advocates and their clients.[243]

3.3 Criminal Injuries Compensation Proceedings and Implications for Legal Aid and Other Legal Needs

Criminal injuries compensation schemes are available to provide damages to victims of crimes. The presence of this form of compensation recognizes that a state sanction against an accused does not address the needs of victims.

Compensation is frequently awarded as a matter of course to victims of offences in which the offender was a stranger, as in the case of robbery, for example. Less successful before such boards have been women who do not fit the typical stereotype of an innocent bystander who is seen to be deserving of compensation.[244] Thus, in a Nova Scotia case, a sex trade worker who was assaulted with a hammer, and kidnapped for two days during which she was sexually assaulted, was initially denied compensation because such dangers were seen to be consequences of her work rather than criminal acts deserving of compensation.[245]

Even where women experience violence at the hands of their abusive partners, and their partners have been convicted, compensation boards have been judgmental and dismissive of their claims where their behaviour does not fit within the board members’ expectations of the "deserving" victim. Thus, for example, in the case of L.(A.), the Saskatchewan Crimes Compensation Board initially denied and then, later, provided reduced compensation to a woman whose husband was convicted of assaulting her, on the grounds that remaining with her husband and throwing his clothes into a suitcase during an argument amounted to sufficiently provocative behaviour that she should not be entitled to full compensation.[246]

Virtually every legislative scheme that creates the victim's entitlement to compensation in criminal cases also permits an award of compensation to be reduced or denied, based on the victim's conduct. Suffice to say that legal representation to an applicant in these situations would permit a challenge to the kind of systemic bias that views women survivors of sexual and intimate violence as the authors of their own misfortune. Furthermore, legal representation would be necessary to participate in any appeal from such discriminatory decisionmaking. In some cases, multiple appeals have been necessary in order to correct the injustice that results from this kind of systemic bias.[247]

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