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)

1.3 Legal Aid and Other Legal Needs

Need for Legal Information

The inter-relationships between poverty, low levels of education, literacy challenges, cultural alienation and contact with the justice system have implications for providing both men and women with information about their rights, entitlements and responsibilities under the law. Of Aboriginal women accused of criminal offences, the Aboriginal Justice Inquiry of Manitoba found:

A number of women commented that they did not understand the court procedures. Some said they could not understand the language that was being used. Some knew nothing other than they were told to plead guilty, so they did.[112]

Information must be provided to those people who are unaware of the presence of law regulating particular conduct or of the existence of some legal avenue, and to those who have been frustrated in their efforts to access it.[113]

Information must be made available through a variety of media to accommodate different levels of literacy. Providers of legal information also must overcome such accessibility barriers as geographic isolation and language.

Whether a community has participated in the production and dissemination of information will help to influence the extent to which its members accept the information as legitimate. There are at least two reasons for this. Firstly, communities that have experienced systemic discrimination in Canada and/or have a history of repression from their countries of origin will be more inclined to accept information from a non-governmental source. Secondly, such communities are able to bridge the gaps that frequently prevent their culturally and linguistically marginalized members from accessing information.[114]

The Native Court Worker program is an example of such a community-based service. Funded by the federal government and most of the provincial or territorial governments, it has assisted Aboriginal people who are charged with criminal offences by providing them with legal information. The courtworkers also educate the judiciary and Crown prosecutors about the marginalized circumstances of Aboriginal people who are charged with criminal offences.[115]

It is worth noting that in southern jurisdictions, courtworkers were meant to complement legal counsel. Now, however, some community service agencies report that they have, essentially, replaced legal counsel, due to reduced legal aid coverage and a lack of lawyers prepared to work for legal aid rates – a devolution of their role that some feel is unacceptable.[116]

Pilot projects that provided legal information to accused while alerting accused people to the nature of their situations, the options available to them, the nature and consequences of the charges against them, the nature of the criminal process, and possible sources of assistance were found to be effective.[117]

While women need information about all kinds of offences, current legal information is particularly important in respect of criminal offences such as welfare fraud, the treatment of which has changed in the last several years. It is important for women receiving social assistance to understand, for example, that there is a broad continuum of what is perceived as constituting fraud, ranging from systematic and flagrant abuses of the system, to failure to report babysitting money or gifts from friends.[118]

Need for Legal Support

The need for legal support arises from the stress and culture shock accused persons and others experience when they are implicated in the criminal justice process. People who can act as legal supports for women include Native courtworkers, court-based advocates, front-line shelter workers, staff from organizations serving people in conflict with the law, and community service agencies. These individuals are not lawyers. They typically provide practical and emotional support for women accused. They interpret the court process for them. They also intervene with justice personnel where women accused are too frightened, or incapable.

The service these non-legal advocates provide – often as volunteers – is admirable and essential but, increasingly, it is insufficient. So is legal advice and representation in some cases. This is best illustrated by the horrific circumstances of Kimberly Roger’s life and death. As outlined in the application by the Canadian Association of Elizabeth Fry Societies to Legal Aid Ontario for test case funding, the facts are as follows.

Kimberly Rogers applied for and received social assistance from the Ontario government from 1996 to 1999. During that time, she was a student attending the social work program at Cambrian College in Sudbury, and received an OSAP loan in the amount of $49,000. As a result, she was ineligible for social assistance.[119] Kimberly was charged with fraud under section 380(1) of the Criminal Code and pleaded guilty on April 24, 2001. At that time, she was 40 years old, alone and pregnant with a child due in August. Kimberly had no prior criminal record.

The Crown and the defence counsel – paid for through legal aid – made the following joint submission on sentence: Kimberly would be given a six-month conditional sentence, to be served under house arrest, followed by an eighteen-month probation period. The joint submission also included a restitution order.[120] Kimberly’s house arrest was subject to her ability to shop for the necessities of life on Wednesdays only, between the hours of 9:00 a.m. and noon.

As a result of the criminal conviction, Kimberly’s welfare payments were automatically suspended for three months. During the sentencing proceedings, it was made clear to the judge, the Crown and defence counsel that Kimberly would be without income for three months.

A constitutional challenge to the automatic three-month suspension was brought by Kimberly in May 2001 and was successful. Kimberly’s benefits of $520 per month were re-instated by Justice Epstein on May 31, 2001. Her monthly entitlement was reduced by $52 as part of the restitution order, leaving her with $468 per month. Of that amount, $450 went to rent. Kimberley was therefore left with $18 per month, $0.60 per day, to cover all of her monthly expenses including food, transportation and telephone.

Kimberley was found dead in her apartment on August 11, 2001, during a heat wave in Sudbury. For the six days preceding her death, temperatures were above 30 degrees C. Her unborn child did not survive and the cause of Kimberly’s death remains unknown.

An inquest is scheduled into the circumstances of Kimberly’s death. This tragedy raises the issue of the feminization and criminalization of poverty.[121] It also raises the broader problem of the systemic manner in which criminalization obscured the consequences to humanity of the state’s failure to alleviate hardship and, in this case, inflict that hardship. Finally, it raises the harder systemic questions of responsibility for the consequences of a sentence that left Kimberly Rogers unable to buy food. The results of the inquest should be carefully examined.

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