Natalia Antolak-Saper, Faculty of Law, Monash University
Sexual assault is a deeply traumatic experience that leaves lasting emotional, psychological, and/or physical impacts on victim-survivors. Navigating the complex landscape of legal recourse can be equally daunting, adding further stress to victim-survivors. In this context, an Independent Legal Representative (ILR) may provide trauma-informed legal assistance and representation for victim-survivors through both the criminal and civil justice systems.
Without independent legal representation, a victim-survivor is seriously inhibited from effectively participating in the criminal justice system, and their rights may not be adequately protected or exercised. Although not a party to the proceeding other than being a witness, reforms in recent years have afforded victim-survivors additional rights that go beyond the traditional rights of a victim. For example, a victim-survivor may require legal advice and representation to object to the introduction of confidential communications or evidence of sexual history. Further, with the proliferation of technology there is likely to be a significant increase in requests for digital and third-party disclosures which can intensify victim-survivor scrutiny. Legal advice and representation can reduce ‘needless scrutiny of victim-survivors’ personal lives.’
One of the primary functions of ILRs is to therefore safeguard the legal rights of sexual assault victim-survivors. This may include ensuring that their right to privacy is protected, advocating for their interests in court, and assisting in securing protective orders when necessary. ILRs may also help victim-survivors understand their rights within the criminal justice system, such as the right to be informed, present, and heard during key stages of the legal process.
Further, victim-survivors often encounter a range of unresolved legal needs that are beyond the criminal justice system, which may escalate if unttended. These needs can include family law matters, child welfare considerations and applying for intervention orders. In the civil justice system, ILRs could therefore assist victim-survivors with these intersecting issues as well as providing advice about the avenues available to them to pursue compensation for damages through civil lawsuits. This might involve claims for emotional distress, medical expenses, lost wages, and other related costs. Finally, ILRs could also provide advice to victim-survivors who are the subject of lawsuits, as in the recent Australian high-profile case of Lehrmann v Network Ten Pty Ltd where the complainant was sued for defamation.
By advocating for victim-survivors in both criminal and civil contexts, ILRs can help to ensure a more comprehensive and just resolution to their cases. Drawing upon the laws of Australia, Canada and Ireland, this presentation examines the stages at which victim- survivors require independent legal advice and representation and the potential role for ILRs to provide trauma-informed legal assistance.
Michelle Choe, Advocacy Centre for Tenants Ontario (ACTO)
Keren Harvey, Advocacy Centre for Tenants Ontario (ACTO)
Douglas Kwan, Advocacy Centre for Tenants Ontario (ACTO)
In a presentation delivered by the Advocacy Centre for Tenants Ontario (ACTO) participants will learn about the development and launch of Canada’s first specialized rental housing legal service for survivors of gender-based violence (GBV).
To inform service design, ACTO conducted a provincial research study that asked “how survivors’ of GBV experienced the process of securing and maintaining permanent housing in Ontario.” The team identified barriers that prevented survivors’ long-term housing stability by completing 80 qualitative interviews with service providers and tenants with lived experience. Overall, ACTO found that the current legal, policy and service landscape does not reflect the gendered experience of homelessness, the severity of the housing crisis, and impeded survivors’ access to justice.
Consistent with existing research, ACTO found that the burden of escaping violence typically fell onto survivors. All but 1 of 22 lived experience participants had to leave their rental housing to find safety. Across the province, shelters and social housing continued to be overburdened by high demand; while at the same time market rent soared beyond what low-income tenants could afford. This meant that survivors found themselves trapped in dangerous living situations with nowhere to go.
Survivors’ safety is further hindered by the lack of available rental legal services. Even when survivors accessed new housing, they continued to experience issues with their rental units, such as receiving eviction notices due to rental arrears or facing landlord harassment. Yet, survivors reported they did not know that they had tenant rights or that legal help existed. When survivors attempted to access legal help through their local community legal clinics, they were often turned away due to capacity or income ineligibility. Due to being overburdened with rental housing matters, the legal clinics also shared that they must prioritize eviction prevention over tenant applications. This left tenants experiencing violence, harassment, or interference in their units unable to enforce their tenant rights and forced to remain in inadequate housing. Tenants experiencing GBV thus not only experienced a higher risk of homelessness, they could not access rental housing legal help when they needed it the most.
Finally, if tenants experiencing GBV made it to a hearing at the Landlord and Tenant Board (LTB), they faced a severely backlogged, virtual system governed by poorly trained members. Appointed adjudicators at the LTB are not required to be a legal professional trained in rental housing law, nor are they held to the same professional standards as lawyers. Further, adjudicators were not live to the unique rental housing issues tenants experiencing GBV faced. This meant that they did not acknowledge GBV as an extenuating circumstance for granting relief from an eviction in their final orders. The negative experiences and outcomes survivors had after engaging with the legal system dissuaded them from enforcing their tenant rights and caused them to lose trust in the legal system altogether.
A presentation at the Access to Justice Forum will spotlight the need for survivors’ access to rental housing legal help in order to improve their long-term housing stability.
Loralei Colquhoun, Community Legal Education Association
The Victims of Intimate Partner Violence Project is part of a Justice Canada initiative intended to help people impacted by relationship and gender-based violence access and navigate the legal system.
Without timely access to legal information and support from professionals trained in trauma-informed care and issues related to abuse, victims are denied their right to meaningful outcomes.
To achieve a just result, a person must understand the applicable legal framework and be given an opportunity to exercise agency within, or outside of, that framework. Access to a lawyer or court does not guarantee a conclusion reflecting individual needs and values. To facilitate access to justice, every point of contact for the victimized must involve engagement with service providers competent in all respects.
At the micro level, we set up a phone line and dedicated email address to afford everyone prompt access to information about the law and resources related to domestic and gender-based violence. This service is provided by an experienced, trauma-informed and domestic violence aware lawyer.
At the meso level, within the past two years, we have partnered with 46 host agencies and experts to offer 33 educational opportunities with a view to improving our response for victims and survivors. These events have taken place in-person and online at no cost to attendees. The webinar format has allowed us to extend our reach throughout Manitoba and to welcome experts from outside of the province.
At the macro level, with our efforts extending to the public, schools, the faculty of law, professional associations, service and umbrella organizations, we attract a wide audience, raising awareness of domestic violence as an epidemic in need of an improved systemic response.
Print materials about Intimate Partner Violence topics have been distributed throughout Manitoba. Our web site now has a section devoted to guidance in this area. Recordings and materials from presentations may be accessed by way of this page.
Our programs have been widely accessed by a multitude of non-law service providers acting in various capacities. This affords an enhanced understanding of legal remedies and procedures to enrich the direction and comfort that can be provided prior to engagement with lawyers or courts.
Our sessions about legal topics and procedures have been popular within the legal community as well. We have welcomed highly qualified speakers to illuminate areas where specific knowledge will equip counsel to provide more effective representation. Counsel struggle with capacity to manage cases involving allegations of abuse. Our consumable programming about related issues serves to inform and to inspire further learning. By joining with social service agencies in creating these events, we provide a platform for front line workers to aid lawyers in appreciating the non-legal supports that are essential to achieving just outcomes and how to access those resources.
Removing barriers to retaining counsel and accessing legal processes is only part of improving access to justice. Consumable basic information about the law should be readily available to all. We also must understand how to see and hear the people whose issues we hope to address.
Janet Mosher, Osgoode Hall Law School, York University
Jennifer Koshan, Faculty of Law, University of Calgary
Wanda Wiegers, College of Law, University of Saskatchewan
As early as 2014 UN Women characterized violence against women as a pandemic. More recently, several Canadian jurisdictions have declared gender-based violence to be an epidemic. In this context, there is no doubt that access to justice for survivors is critically important. Particularly in light of legal reforms over the past few decades, various domains of law – criminal, family, child protection, social assistance, residential tenancy – are often assumed to provide accessible legal remedies capable of enhancing the safety and well-being of survivors of gender-based violence. While this is true in some instances, all too often survivors face insurmountable challenges in their attempts to access justice. These challenges are many, but among them is the reality that legal processes are strategically manipulated by perpetrators to further their control and cause harm to their targets. The authors (Koshan, Mosher, and Wiegers) have recently completed a review of family law decisions decided under Canada’s Divorce Act after the introduction of major reforms related to “family violence” in March 2021. The review has yielded important insights into the multiplicity of ways in which legal systems abuse is enacted, including extensive cross-examinations of survivors by self-represented perpetrators, false reports made by abusers to various legal system actors designed to curtail survivors’ access to supports and deplete their resources, and complaints made by abusers against experts and other professionals in an attempt to discredit corroboration of family violence. These tactics, which are deployed not only in the family law realm but across multiple legal domains, create major hurdles to survivors’ access to justice and undermine the efficacy of legal system responses to gender-based violence. While sometimes legal systems abuse is detected by courts and backfires against perpetrators (e.g. in credibility assessments or costs awards), it all too frequently goes unidentified by courts. There are many reasons for this, but one we explore is the challenge of any one decision-maker having a grasp of the entire picture of the conduct of the parties when multiple legal domains are engaged – as is so often the reality in cases involving intimate partner violence – and there is little, if any, cross-system communication. In this research we identify not only the multiple forms that legal systems abuse takes but a range of corrective measures that have been – or could be – taken by courts once the abuse is identified. In considering these measures, we draw upon cross-system comparisons, considering for example, how testimonial aids in the criminal context might be more fully utilized in the family law context, or trauma-informed guidelines in immigration and refugee law adjudication transposed to other adjudicatory contexts.
Miriam Roger, Justice for Children & Youth
Our presentation will describe our unique community-based, collaborative program model for providing services to survivors of gender-based violence.
Your Way Forward (YWF) is a Canadian federal Department of Justice-funded collaborative program offered by nine clinics in the Ontario non-profit legal clinic system. Since early 2022, this program has brought new energy and leveraged existing clinic expertise and knowledge to provide dedicated legal services to survivors of sexual assault and intimate partner violence.
YWF’s collective goals are:
- To increase access to just outcomes for survivors of gender-based violence (GBV); and
- To develop and put into practice a collaborative structure that will facilitate the equitable and efficient provision of holistic services to Survivors, and support activities aimed at necessary systemic change.
Our presentation will explore these goals and how our project has been built along the way, including the structures that have been established, our data collection methodology, our evaluation strategy, research conducted and our underlying principles. We will also describe the successes and challenges that have come with working in a collaborative environment and in working with survivors of GBV.
The legal needs of survivors are varied, complex, and often span multiple overlapping legal domains. Each individual clinic’s program delivery approach is unique and based on the needs of the local community, as well as resourcing and clinic infrastructure. Clinics are very adept at being nimble and responsive to our community and client needs. Our presentation will examine the notable approaches of some of our partner clinics, and the research and needs & capacity assessments that were undertaken to arrive at those service delivery models.
A collaborative model is central to our functioning. We will share some of the strategies that have worked for us, as well as the obstacles that we are working to overcome as a group. The infrastructure that is required to establish a collaborative such as YWF will be discussed, highlighting the challenges and benefits of service delivery within this framework, including the ways collaboration can support staff’s wellbeing in this difficult work.
Laura Snowdon, Law Commission of Ontario
The Law Commission of Ontario’s (LCO) Improving Protection Orders project is considering law reform options and other strategies to improve legal protections for intimate partner violence and family violence. To produce these recommendations, our project is examining challenges relating to access, process, evidence, conditions, duration, and enforcement of protection orders in Ontario.
Our project is also comparative in nature. The LCO is comparing the legal landscape in Ontario with the approach that other jurisdictions have taken to protection orders for intimate partner and family violence, to identify promising practices. Of particular note is the fact that almost every province and territory in Canada except Ontario offers standalone civil protection orders to people experiencing intimate partner and family violence. One of the goals of the LCO’s project is to study whether Ontario should have standalone emergency civil protection order legislation like other Canadian jurisdictions.
There is even more for Canada to learn from international approaches to protection orders. Like other countries that are bound by international agreements, Canada has positive obligations under international law to protect women and children from gender-based violence. With these shared obligations in mind, our project is canvassing strategies for protection orders in almost 100 jurisdictions around the world.
In addition to our international research, the LCO is looking at the lack of coordination across different types of protection order legal processes in Ontario, as well as the lack of coordination between legal, justice, policing, community service, and other sectors in the context of protection orders for intimate partner and family violence. Finally, the LCO is exploring supplementary strategies for protection, in recognition of the reality that protections offered by the legal system are inaccessible and ineffective for many people affected by intimate partner and family violence.
The LCO’s presentation will touch on an internationally-recognized issue of access to justice; highlight findings from our comparative review of global protection order strategies; and serve as a resource for advocates who are interested in improving responses to intimate partner and family violence in their countries.
Erin Weaver, Innovation for Justice
98% of low-income DV survivors experienced at least one additional civil legal problem in the past year. This session describes i4J’s community-engaged research exploring whether DV advocates are interested in providing legal advice, think it would be helpful for survivors to receive legal advice from somebody in their position, best practices for service provision, and the policy implications of UPL reform. In answering these research questions, this research relies heavily on DV advocate perspectives of the work they do with survivors as individuals who already help survivors navigate the court system with or without an attorney. DV advocates are generally interested in receiving training to assist survivors with common civil legal needs and DV organization leadership is generally open to having their advocates participate in such training. Advocates and organization leaders believe that it would be helpful to the survivors they serve and the organization as a whole if advocates were authorized to give some legal advice to survivors. Advocates identified several civil legal needs that survivors frequently experience; the top five civil legal needs identified by advocates are protective orders, custody, divorce, eviction, and property protection. Advocates were the most interested in training to assist with these civil legal needs: protective orders, custody, divorce, eviction, and immigration. Advocates identified several training components that would make them feel more confident in providing legal advice to survivors; these components include scope of authorization, how advocates will know when they’ve reached the end of that scope, what to do after advocates reach the end of that scope, family law, legal procedure, assisting with forms, scope of services, and negotiation skills.
Subject matter experts identified several best practices regarding legal advocacy for DV survivors; these best practices are related to trauma-informed care, cultural humility, burnout prevention, training and certification, supervision and mentorship, ethics and professional responsibility, and advocate skills and qualities. As part of this project, we compiled a database of UPL prohibitions and exceptions to these prohibitions to promote UPL reform in jurisdictions across this country. This database lists all exceptions to UPL prohibitions for any reason, providing advocates with examples of language used in UPL exceptions to use to enact change in their own jurisdiction.