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

Chapter 1: Legal Aid and Other Legal Needs of Women Accused

Chapter 1: Legal Aid and Other Legal Needs of Women Accused

Section 1.1 will examine the relationship between the life circumstances of women in conflict with the law and their law breaking. Section 1.2 will set forth recent government policies that have aggravated their social and economic marginalization. Section 1.3 will consider the implications for women’s legal aid and other legal needs as accused in criminal courts.

1.1 Statistical Picture

It is impossible to discern all of the factors that contribute to women’s law breaking. However, when the life stories of women who are charged with criminal offences are examined, the history of victimization in their lives is impossible to ignore[22] – 72 percent of provincially sentenced women, 82 percent of federally sentenced women and 90 percent of federally sentenced Aboriginal women have histories of physical and/or sexual abuse.[23] As well, 43 percent of federally sentenced women have substance abuse or addiction problems. However, unlike those of their male counterparts, women’s addictions are frequently linked to their experiences of abuse.[24]

The kinds of offences in which women participate to the greatest extent – theft under $5,000, fraud, and prostitution – reflect the poverty that women in conflict with the law routinely experience. It has been observed that:

After experience with abuse, poverty is probably the next single most unifying factor among women in conflict with the law, and it plays a major role in the crimes that women commit.[25]

Abundant documentation has highlighted the role that economic disadvantage plays in bringing both men and women into conflict with the law.[26] However, women are much more likely to be economically marginalized. Whether as single persons or as sole-support mothers, women consistently are the poorer of the poor. According to 1998 data,[27] women comprised 57 percent of all persons living in poverty. Similarly, 58 percent of all single-parent families headed by mothers were living in poverty.[28] Single-parent mothers under 65 with children under 18 had incomes, on average, more than $9,000 below the poverty line.[29] These arid statistics do not do justice to the abysmally high number of children – 546,000 – who were living in poverty across Canada at that time.[30] Moreover, the proportion of poor children living with single-parent mothers has grown substantially in recent years. In 1980 the figure was 33 percent; in 1995 the figure was 40 percent; and in 1998 the figure rose to 41 percent.

A majority of women are likely to be poor relative to men at every stage of their lives, with the exception of ages 45 to 54, when they experience poverty to the same extent.[31] The gap between men and women widens with age, with women aged 65 and older 3.5 times as likely to be living in poverty as men in the same age category.

Poverty rates are likely higher for immigrant women as well. In 1998, the poverty rate for heads of families born in Canada was close to 11.9 percent. The rate for heads of families born elsewhere was 16.7 percent. Poverty rates were lower for families who immigrated prior to 1980, and higher for those arriving in the last twenty years.[32]

The incidence of poverty among Aboriginal people is more than double the rate for other Canadians. Using Statistics Canada's Low Income Cut-offs (which exclude people living on-reserve or in the territories), the poverty rate in 1995 for Aboriginal people aged 15 and over was 42.7 percent for women and 35.1 percent for men.[33] The poverty rate for Aboriginal children under age 15 was 59 percent – compared to 25 percent for other children.[34] The poverty rates for Aboriginal people would be even higher if reserve populations were included in the calculations. According to a Statistics Canada study that mapped the conditions of these communities, nearly all had a lower standard of well-being compared to the average Canadian community.

A 1995 study found that 28.6 percent of respondents to the 1991 Aboriginal Peoples Survey reported receiving social assistance – over three times the rate of the population in general. The rates went from a high of over 40 percent for reserve populations to the low 20s for off-reserve Indians, Métis and Inuit.[35]

The data detailing the offences committed by women illustrates that, proportionately, women commit fewer crimes than men and significantly fewer violent crimes. As the Table on the following page makes clear, in 1999, women were charged with slightly more than 3 percent of all offences.

Women were most frequently charged with property offences of theft under $5,000, a category that includes shoplifting. They were next most frequently charged with "level 1" or common assault. The next most common charge was fraud, which includes cheque fraud, credit card fraud, and welfare fraud. Of the three, women were most frequently charged with welfare fraud.[36] Next most frequently, they were charged with possession of or trafficking in cannabis – accounting for 3,602 (or 54 percent) of the 6,076 drug charges laid against women.[37] These four offences – theft under $5,000, level 1 assault, fraud and those related to drugs – accounted for 55 percent per cent of the offences with which women were charged in 1999, yet they amounted to less than 2 percent of all charges laid. Each of these offences, as well as incarceration for non-payment of fines, will be discussed in greater detail. Women’s experiences with bail will also be reviewed.

Selected Police-Reported Incidents, Canada and the Provinces/Territories, 1999 [38]
Offence Reported Offences Adults Charged Females as Percentage
Male Female
Homicide 536 351 35 6.53
Attempted Murder 685 451 69 10.07
Sexual Assault 23,872 7,361 154 0.65
Non-Sexual Assault 233,465 80,467 15,045 6.44
Abduction 726 92 61 8.40
Robbery 28,745 5,797 594 2.07
Violent Crime 291,330 95,382 15,987 5.49
Break and Enter 318,448 20,880 1,416 0.44
Theft Of Mot.Veh 161,415 7,762 598 0.37
Theft Over $5000 22,478 1,635 448 1.99
Theft Under $5000 679,095 42,100 17,712 2.60
Poss'n Stolen Prop. 28,656 13,616 2,233 7.79
Fraud 90,568 17,535 7,132 7.87
Property Crime 1,300,650 103,528 29,539 2.27
Prostitution 5,251 2,296 2,607 49.64
Drugs 79,871 36,938 6,076 7.61
Total Incidents 2,613,348 429,239 83,911 3.21

1.1.1 Theft

In 1999, more women were charged with theft under $5,000 than with any other single crime. The majority of women who are charged with this offence have shoplifted items for themselves and their children.[39] Research has confirmed that women typically shoplift such items as food, clothes and makeup – items they need or feel they need but cannot afford.[40] A study by Coverdale Courtworkers of charges laid against women between 1984 and 1988 in Halifax confirmed that the number of women charged with theft under $1,000 started to increase in August, when kids were preparing to return to school, and peaked in December. According to the study, December was the month with the highest number of theft charges.[41]

1.1.2 Assault

Since 1987, the number of charges laid against women for level 1 assault has almost doubled – from 7,669 in 1987 to 15,045 in 1999. The police practice of "counter-charging" or "double-charging" is partially responsible for this. In several jurisdictions in Canada, it is now common for police, when responding to women’s requests to intervene in cases where they are experiencing abuse by their intimate partners, to charge both the man and the woman. This practice is triggered by the assertion that what was engaged in was less a case of the man’s violence against his partner than mutual sabotage or violence.[42]

Data has confirmed that this is an effective tactic. In a study of the ways in which prosecutors and defence counsel in the United States approach their work in cases of domestic violence, 72.1 percent of attorneys indicated that the most common and most effective defence tactic in cases of domestic violence was to assert that the defendant had acted in self-defence.[43] Notwithstanding the deterrent effect this might have on women’s calls for intervention, which will be discussed in greater detail later, this practice has had the effect of driving up the number of assault charges against women.

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