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

Chapter 1: Legal Aid and Other Legal Needs of Women Accused (cont'd)

Chapter 1: Legal Aid and Other Legal Needs of Women Accused (cont'd)

1.2 Role of the State

The statistical picture presented of women’s offending is that much more modest when it is viewed against a confluence of policy choices that have disadvantaged economically marginalized people in general, and women in particular, at every turn.

Firstly, the state has retreated significantly from its obligation to alleviate the consequences of poverty. Historically, resources provided through the Canada Assistance Plan (CAP) funded services such as social assistance, worker’s compensation, rent control, mental health legislation, legal aid for poverty law and other civil matters, criminal injuries compensation, human rights legislation, employment standards, and matters related to occupational health and safety legislation.[78]

In 1995, the federal government announced its intention to repeal CAP and replace it with the Canada Health and Social Transfer legislation which, unlike its predecessor, contained no national standards in respect of social assistance programs. It also did not prohibit workfare, the practice of forcing applicants to work for welfare that was understood to have been prohibited under CAP.[79] Further, the CHST also introduced a massive cut in federal transfer payments to the provinces. The consequence of this reduced contribution to social services for disadvantaged people, including women, was predicted at the time:

Sadly, what the future holds is all too clear: far more poverty and insecurity, an explosion of hunger and homelessness, illness and family breakdown; and this will hit certain groups – single mothers, people with disabilities, visible minorities, Aboriginal peoples, young families, to name a few – much harder than others.[80]

It should be noted that this emphasis on budget balancing and deficit-reduction at the federal level – the same motivation for the introduction of the CHST – was achieved by disproportionately targeting government programs that benefited the poor, of whom women are a majority. For example, it has been estimated that while the total value of federal support for health care and post-secondary education declined by 4.4 percent by 1997/98, federal support for social assistance declined by 39 percent during the same period.[81]

Secondly, the state’s withdrawal from the alleviation of disadvantage means that poverty shows no sign of abating.[82] Prior to the cuts to social assistance made in Ontario in 1995, welfare incomes of single parents in 1992, 1993 and 1994 reached 80 percent toward the poverty line, a widely used benchmark of income adequacy.[83] In the years since 1985, welfare incomes in Ontario dropped to an all-time low of 59 percent of the poverty line in 2001. In Alberta in 2001, the social assistance rate for a single parent was 49 percent of the poverty line. In Quebec, it was 57 percent in 2001. In 27 percent of welfare cases, the recipient required welfare because of a disability.[84]

As the National Council of Welfare recently concluded:

It is absurd to think that cutting benefits and excluding people from social assistance programs is going to result in a reduction in poverty levels. We believe it is wrong to imagine that reducing the number of welfare recipients will cause the number of workers to increase. It is more logical to believe the opposite: if more people are working, fewer people will need last-resort income. In addition, it is wrong to think that poor families all fit the same homogeneous pattern.[85]

The conclusion seems inescapable – as social assistance rates drop, the number of poor people will increase. Government-authored reports have predicted that a widening gap between the rich and poor – an inevitable consequence of policies such as these – will fuel growth in the demand for legal aid services.[86]

Thirdly, since 1993, equality-seeking organizations that advocate on issues of systemic inequality and disadvantage have either sustained major funding cuts or have been completely de-funded at the federal or provincial level.[87] This has effectively reduced the ability of disenfranchised people to collectively influence the discourse at the policy level and in advance of legislative initiatives. The unstable funding that non-governmental organizations receive has also compromised their willingness to speak out against regressive measures, based on a fear that their funding will be further cut. Even where non-governmental organizations still exist, normally, the demands on the resources of non-governmental organizations are sufficiently great that they are unable to react to the range of interventions that affect their constituencies.

Fourthly, the ascendancy of the law and order agenda has been characterized by legislation that carries more numerous criminal sanctions and stiffer sentences. The social solutions to crime that were proposed in the 1960s have been replaced, in the late 1980s and 1990s, by what British criminologist David Garland calls the "economic response." In the crime context, the economic response posits that crime is occurring because the individuals committing the crime have looked at its cost and concluded that it is not a sufficient deterrent to prevent them from committing offences.[88] The response, which forms the basis of the law and order agenda, is to make the price of crime higher and more certain. This has, in turn, meant a higher penalty structure, more police powers, and allocating responsibility for crime exclusively to the individual – while ignoring the social correlates of crime such as illiteracy, poverty, substance abuse, physical and sexual abuse, and the absence of employment opportunities.

Corresponding to this new view is the change of focus from the offender to certain kinds of victims. The political movement in the last decade has been to give voice to individual victims, making the response to crime less a societal one and more an individuated one. This has taken the form of an increased use in sentencing hearings of victim impact statements, Victims of Crime offices at the provincial and federal level, the introduction in many jurisdictions of a "victim’s bill of rights," and, increasingly, enhanced participation for victims in the parole process.[89]

Dianne Martin has written about the role that victims play in the state’s justification for one highly visible component of the law and order agenda, the war on drugs:

As criminal justice rhetoric and punishment ethic play out in the drug war, poor neighbourhoods are actively policed, and poor and addicted women and men are put into jail for long periods of time, in the name of saving families, protecting children, preserving neighbourhoods and making the streets safe for families.[90]

A measured response to law breaking and underlying social problems has been replaced by the growth of police resources, punitive responses and the growth in the correctional population, particularly of federally sentenced women – what some have termed "the national housing plan" in Canada.[91] The irony cannot be ignored: while get-tough law and order proponents frequently extol the virtues of smaller government, the increased criminalization of what for many is day-to-day survival behaviour has given rise to "the prison-industrial complex."

An increased use of mandatory minimum sentences means that judges are not permitted to exercise their discretion to take account of the life circumstances that contribute to the law breaking behaviour of women and members of other marginalized groups.

The law and order agenda has also responded to youth behaviours with legislation designed to crack down on homeless and squeegee kids, with zero-tolerance policies in school that remove discretion from a principal to meet the needs of individual students, and with the Youth Criminal Justice Act, which was developed as a response to the perceived lenient treatment of young people in the courts.

Equality-seeking women's organizations have been wise to this for years, and have denounced the anti-stalking legislation, the DNA data bank legislation, mandatory minimum sentences, dangerous offender legislation, consecutive sentences, etc., precisely because of this punitive and discriminatory response.[92] As it has been summed up by one feminist, "We are offered vengeance, not equality".[93]

The agenda has also had a particularly devastating effect on a large number of women. In effect, it criminalizes such day-to-day behaviour as living on the street, and a range of activities – such as not declaring income when collecting social assistance, or being prostituted – that are undertaken for the sole purpose of trying to make ends meet for themselves, their children and the elderly relations for whom they are increasingly responsible.

Finally, the governmental attitude of fiscal conservatism in respect of social program spending in the 1990s has had an impact on the provision of legal aid services. Overall government contributions – both federal and provincial – reached a plateau in 1992-93 and, starting in 1995-96, began to diminish. In 1999-2000, total government contributions were $482.7 million dollars, a decrease of 6 percent from the previous year.[94] Legal aid expenditures – adjusted for inflation – have decreased by 31 percent since 1994-95.[95] As a result, provincial legal aid plans across the country have restricted both the kinds of legal matters for which legal aid is available and the financial eligibility criteria.

In most jurisdictions, coverage is available for those charged with indictable offences. Generally, in Canada, the coverage of summary conviction offences is limited to cases where there is a likelihood of imprisonment or a danger of loss of livelihood. However, in Ontario and British Columbia, both indictable and summary conviction criminal cases are covered only when there is a threat of imprisonment.[96]

Very little data has been collected to assess the extent to which the current provision of criminal legal aid meets men's or women’s needs. However, the number of approved criminal applications declined between 1991-92 and 1997-98 by 38.6 percent. For the same period, the number of criminal offences cleared by charges declined by only 18.2 percent. Observations from researchers, lawyers and the judiciary point to a significant unmet need for criminal and civil (where 70 percent of clients are women) legal aid.[97]


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