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(cont'd)

Need for Legal Representation

Theft is the offence with which women are most frequently charged. This offence carries a maximum penalty of six months incarceration or a $2,000 fine or both. It does not typically result in a jail term for a first-time offender. As a result, legal aid lawyers are not available to provide representation to people charged with this offence, unless conviction is likely to lead to incarceration.

Yet it can hardly be assumed that any adversarial proceedings are sufficiently transparent that individuals – and particularly those with mental disabilities – can represent themselves. As Andrew Ashworth has noted:

At the most basic level, words may be spoken too quickly, regular participants may assume that everyone understands certain things and there may be neither the time nor the inclination to stop and explain. Without denigrating the efforts of some magistrates’ clerks to assist the unrepresented defendant, it remains true that even a fairly intelligent and self-confident citizen might fail to grasp the significance of some important steps in court procedure.[98]

There is abundant data to conclude that individuals who are unrepresented are more likely to plead guilty, even if they do have a defence, and, if unrepresented, are more likely to be convicted if they plead not guilty.[99]

Some individuals who do not have representation will plead guilty – irrespective of the existence of a defence – merely to "get it over with" or to avoid the frightening prospect of a trial. In a recent case, a woman charged with shoplifting was not on the premises at the time of the alleged incident. However, rather than face the frightening prospect of a trial unrepresented, the woman pleaded guilty and entered a diversion program.[100] A wrongful conviction is no less wrongful merely because a term of imprisonment does not issue from the conviction.

Moreover, unrepresented defendants are unable to engage in charge, plea or sentence negotiations. The result may be sentences that are more severe than for those defendants who are able, through their lawyers, to negotiate a charge or sentence bargain. The criminal justice system has evolved into a state where plea bargaining is the norm, at least for serious offences. Because police may anticipate charge reduction by laying a larger number of, and more severe charges than are warranted, those unable to enter into negotiations may, by default, be convicted of these inflated charges.

The consequences of a criminal record can be devastating and far-reaching for both men’s and women’s ability to obtain employment, obtain a professional licence, advance to a more responsible position, and/or become bonded or insured. Men and women who are not Canadian citizens may face a deportation hearing and loss of their immigrant or refugee status. However, the consequences of a criminal record can be particularly severe for women. It will further compromise their ability to attain economic autonomy and/or support their children. It will also adversely affect their credibility in child apprehension cases and in disputed custody and access matters.

Given the potential stakes for women and their children of a criminal record, the view that incarceration is the only relevant criterion triggering entitlement to legal aid representation must be challenged. Legal representation is required in cases where the accused person has a defence precisely because a criminal record will result from conviction. This should be considered a necessity in view of the adverse impact of a criminal record on a woman’s ability to maintain economic autonomy and to nurture her children.

Legal representation is also required to assist litigants to appeal trial decisions to higher courts. Madam Justice Louise Arbour of the Supreme Court of Canada recently expressed concern about the effect of not appealing decisions:

It leaves some bad law – or bad precedents – on the books … It undermines the confidence that the public has in the correctness of a decision if it appears – or is alleged – to be wrong, yet there is no access to review. In a society that relies on very complex law to regulate social order, you cannot at the same time deprive people of legal assistance. Even if an unrepresented litigant manages to conduct an appeal single-handedly, he or she is far less likely than a trained lawyer to scrutinize the trial record properly and state the legal principles that ought to be appealed. To have a theoretical right of review you cannot exercise is very harmful, not only to the person who should have had some redress, but very damaging for the system generally.[101]

Of all of the offences with which women are commonly charged, welfare fraud trials are typically the most complex, and require many hours of preparation on the part of a lawyer to go through the paperwork. Legal aid coverage must be sufficiently generous to cover this time. Women must also have access to lawyers who are able to contextualize the offence and have sufficient time to prepare a comprehensive defence. Circumstances such as women being physically threatened by their abusive partners if they report their actual, true living situation to welfare authorities can form the basis of a valid legal defence. The point is that only a lawyer who understands the woman’s experience of living with an abusive partner will be able to successfully convey that.[102]

Legal representation is also required to challenge the provisions of various provincial social assistance regimes that may be constitutionally invalid, such as banning recipients who have been convicted of welfare fraud from receipt of welfare for life; banning them from using the services of battered women’s shelters; cutting off their subsidized drug benefits; going after other family members for overpayments; plans to test welfare recipients for alcohol and drug use; and the scrutiny which accompanied the new initiative to disqualify social assistance for single persons living in shared accommodation if they are considered to have a relationship of financial interdependence and mutual support.[103]

Need for Legal Advice

Most jurisdictions have a duty counsel system. Duty counsel lawyers provide legal advice to detained persons and persons appearing in courts without a lawyer. They may guide them in obtaining legal services and give on-the-spot representation, providing immediate advice at arrest and detention. In several jurisdictions, duty counsel services have been expanded to also include full representation up to and including the determination of guilt or non-guilt (in criminal cases), and representation at sentencing.[104] Expanded duty counsel services are but one in a series of service-delivery models, including assisted self-representation and early intervention strategies that seek to provide clients with services that are less expensive than full legal representation.[105]

The role of duty counsel can be particularly valuable, as duty counsel can discern whether an individual has a defence, represent people who plead guilty, and help to explain the consequences of obtaining a criminal record. However, as the Canadian Bar Association noted, duty counsel can be overworked, sometimes seeing 30-40 people in a day.[106] The Commission on Systemic Racism in the Ontario Criminal Justice System noted that duty counsel have no control over the rate at which prisoners are transported to courts. Consequently, if large numbers of unrepresented prisoners arrive at the same time, duty counsel may be unable even to interview them properly.[107] This is of even greater concern if it means that duty counsel is unable to provide adequate representation to an accused person at a bail hearing, particularly since judges are now permitted to take the subjective concerns of the public into account.[108] The Commission also expressed concern with many part-time duty counsel’s qualifications:

… per diem duty counsel receive no systematic training and may work without any assistance or supervision from senior counsel. … over-reliance on such lawyers is unfair to them and unjust for accused persons.[109]

The concern that duty counsel may not be able to adequately represent their clients’ interests resonates for women who are seeking divorce from abusive husbands. If the woman is cross-charged following a violent episode, then she is faced with the challenge of obtaining legal counsel experienced with criminal law for the domestic violence matter, and with family law for the divorce and child custody matters. Duty counsel may not have the range of competence or the flexibility of time to meet this range of needs.[110]

Legal advice is also needed to provide women with information regarding the implications of a criminal record or a guilty plea. Since diversion carries no risk of incarceration, many people plead guilty to avoid the daunting prospect of representing themselves at trial, and enter a diversion program even if they have a defence because of the potential consequences of going to jail. However, those working with women, particularly young women in conflict with the law, have challenged the veracity of stated policy that individuals who complete a diversion program do not have a record. Anecdotal evidence suggests that the court is oft-times provided with information regarding an individual’s participation in a diversion program, contrary to the stated policy.[111]

As previously stated, the consequences of obtaining a criminal record are sufficiently damaging that, irrespective of the penal consequences, legal advice is necessary to assist individuals to determine whether they have a legal defence.