UPDATED September 2015
ANSWER: A woman who has experienced abuse in her relationship could find herself involved in criminal court in one of two ways. She might be the complainant/witness because her partner has been charged or she might have been charged inappropriately either because her partner lied to the police and claimed she assaulted him or as a result of acting in self-defence or to protect the children.
There is some legal aid assistance for women in both situations.
Women who are complainants/witnesses
Victim/witnesses in criminal court are not parties to the criminal proceeding. They are there to provide evidence to support the Crown’s case against the accused but are not there in their own right. As a result, they generally do not have their own lawyer or have access to assistance from Legal Aid Ontario.
Many women who have experienced violence who are involved with criminal court have no understanding or knowledge about criminal law or court process and so may be very confused about their role, the role of the Crown, the purpose of criminal court and so on.
Further to this, not all women whose partners have been charged are happy about this. In some cases, the call to the police was made by a child or neighbour and not the woman. In other cases, she has called the police without knowing that the police operate under a mandatory charging policy that requires them to lay a charge in all domestic violence cases where they believe there is a reasonable likelihood of getting a conviction. (See our mandatory charging FAQ.)
Legal issues can arise for women in these situations if they consider recanting their evidence or asking the Crown to withdraw the charges against their partner. These kinds of issues can also arise if the woman does not want a no-contact provision in her partner’s bail conditions and, perhaps, has enabled him to breach any such provision.
Ideally, a woman would be able to obtain some legal information and advice before she makes decisions that could have significant implications for her.
Women who have been charged
One of the unanticipated negative outcomes of mandatory charging has been an increase in the numbers of women who are improperly charged in domestic violence situations. (For more about this, see our FAQ about dual charging.)
Until recently, most women in this situation did not qualify for legal aid because it is a first offence and there is no prospect that they will face jail time if they are found guilty. As a result, women often proceeded through the entire process with only the support of duty counsel, whose role and time are very limited. It has not been uncommon for women to plead guilty, even in situations where they have a valid defence (for example, of self-defence), just because they wanted to get the matter dealt with or because, without legal representation, they did not realize they had a defence to put forward.
What does Legal Aid Ontario offer?
It is important for you to know that Legal Aid provides some coverage for complainants/witnesses as well as accused persons who need legal advice or representation with respect to a criminal court proceeding and who qualify financially for legal aid services.
Most importantly, in June 2015, Legal Aid Ontario announced expansion of its criminal law certificates to include coverage for those who meet the LAO financial eligibility criteria in these situations:
- for first-time accused when the accused is a victim of domestic violence who has been charged with an offence related to their partner
- where there may be secondary (i.e. non-custodial) consequences of a criminal conviction, including a significant impact on access to family and child custody, risk of deportation, immediate loss of public housing, social assistance or other public benefits/social services or immediate loss of employment or professional accreditation
For more information about these new services, please see this legal aid eligibility backgrounder from Legal Aid Ontario.
Legal Aid Ontario can also issue the following certificates:
- For a client to obtain advice and negotiations regarding potential criminal charges. This might be helpful to a woman who is considering recanting her police statement or testimony and has been told she might be charged if she does so or for a woman who faces potential charges in a dual charging scenario. This certificate offers up to 4 hours of coverage. The code is CC013.
- For a consultation in a family violence criminal matter. This would allow a woman to consult with a lawyer about any criminal matter related to a family violence situation for up to 2 hours. The code is DOMOG.
In addition, we have been told that LAO’s Director Generals can authorize up to 10 hours of legal representation at their discretion.
It appears that this information is not widely known, so we encourage you to support the women you work with in contacting LAO’s Client Service Centre for more information or to apply for appropriate coverage. Where necessary, you may want to assist a woman in contacting the Director General in your area about a discretionary authorization.