Access to Justice, Denied – Redux
Legal Aid in BC
By Annie Zhang & Samantha Kearney
On October 13th, 2011 the Canadian Bar Association BC released a statement regarding a campaign they have launched to build support for additional provincial funding of legal aid in BC. In their statement, President Sharon Matthews comments on the current condition of legal aid in British Columbia, “What we are seeing is that because of the under-funding of legal aid, more and more people are representing themselves. This means that our courts are being jammed up with cases that otherwise could be dealt with in a more fair and cost effective manner outside of court. Aside from the costs to the system, this is one reason for delays that lead to more and more criminal cases being dismissed because they aren’t heard in a timely manner. This is bad for taxpayers and bad for public safety.”.
Battered Women’s Support Services (BWSS) has from the time the cuts to legal aid occurred in 2002 been voicing our concerns that such cuts have on the safety of women and children in cases of violence in relationship and how it is an injustice to women’s rights . In 2008, BWSS wrote a report, A Women’s Right to Legal Representation: a critical examination of Legal Aid in BC, which closely looked at the current situation of legal aid as it applies to cases of violence against women.
Three years later and the situation of legal aid in BC has not improved in any way. This is what we know from being on the front-line at BWSS. The West Coast Leaf just released the CEDAW 2011 Report Card which supports what we see on the front-line. In their report, Women & Access to Justice received a “F” (meaning total INACTION or DETRIMENTAL action) this year (which is the same grade given in 2009 and 2010). The report further states, “Recommendations from a Public Commission have not resulted in adequate funding for legal aid, with disproportionate impacts on women”.
As a legal advocate and as an anti-violence worker on the front-line…this is what we see…
There are an overwhelming majority of women accessing our services who are self-representing, as they do not qualify for legal aid and cannot afford the high costs of a private lawyer. This problem is compounded by the fact that more often than not their abusive partners “hold the purse-strings” and have the financial resources to hire a lawyer. It is little surprise then that the family law system fails to achieve its purpose of justice when the imbalance of power, already existent in the woman’s relationship, manifests itself in the courtroom. The self-represented woman, usually armed with little more than cursory knowledge of her legal rights through self-research, working with an advocate, and perhaps a half-hour’s worth of advice from a pro-bono lawyer, struggles to communicate her story in an environment that is downright hostile to the lay litigant.
We have witnessed the self-represented woman re-victimized through the legal system, as she is forced to face her abuser in the courtroom. She is also expected to take on the overwhelming task of cross-examining him, if she hopes at all to contradict his version of the facts, which he had the opportunity to rehearse beforehand with the advice of his lawyer. She is forced to sit in the witness box and undergo a gruelling cross-examination from his lawyer, without the aid of her own counsel to protect her interests and voice objections. She is forced to recall traumatic, intrusive details of her life and then painstakingly grilled on every detail by opposing counsel in an attempt to discredit her own experience. Overwhelmed, intimidated, and severely disadvantaged, she may end up succumbing under pressure and conceding to propositions without realizing or understanding what she is agreeing to. The judge, assuming agreement between the parties, will use that as the basis to form a judgment on child custody and access and financial support issues that will have an enormous impact on the rest of the woman’s life, as well as that of her children. Such judgements that are based on assumptions of mutual agreement, cooperation, and negotiation will set up an unsafe and dangerous situation for women who have experienced violence in that relationship.
The legal system is not user-friendly. There are strict rules and procedures on how to present evidence, as well as the admissibility and relevance of evidence. Without the aid of a lawyer who can help the woman navigate these issues and advocate for her case, not only is she disadvantaged in the justice system, but the court hours allotted to her case are not put to most efficient use. This further exacerbates the problem of backlog in the court system, where women often find themselves having to wait months, even years, to have their case heard. In the meantime, she must continue to face the reality of ongoing abuse, fear for her safety and/or the safety of her children, and impoverished circumstances.
The eligibility criteria for legal aid are stringent to the point of inaccessibility for most women in need of its services. The current monthly income cut off for legal aid in British Columbia is $1450 (net) for a single-household family, up to $4920 if she has seven or more family members to support. A woman whose income is slightly above the cut-off line is still hardly in a position to afford the services of a private lawyer, whose hourly rate rarely dips below $200, according to our lawyer referral list. In addition, her assets will be taken into consideration when screening for eligibility. This becomes particularly problematic for women who access our services, as most of who have fled or are in the process of fleeing abusive relationships. The woman will often be without a source of income, yet remains ineligible for legal aid as her name is on the property her abuser still occupies, or other jointly-owned assets she no longer has access to.
Even if a woman does meet the income cut off, the issues covered by legal aid are narrow, to say the least. Short of immediate danger, child apprehension and kidnapping type situations, it is extremely difficult to receive legal aid in family law cases. While other situations may be covered on a “discretionary” basis, the enormous cuts to legal aid funding have ensured that very few cases can receive the benefit of the discretion. The vast majority of women involved in volatile custody, access, and support battles with their abusers do not meet the “serious” threshold set by legal aid. Some women also minimize the severity of their situation when applying for legal aid, as they are apprehensive and/or unprepared to disclose abuse to a stranger conducting an intake. As an unfortunate and unjust result, many women who originally may have qualified for legal aid end up being denied, simply for not knowing the “ropes” or are not mentally prepared to recogni
ze/disclose the abuse.
When a woman manages to bypass the hurdles and receive legal aid, her legal aid lawyer is allotted a very limited amount of hours to spend on her case. As a result, her lawyer may not have enough time to fully prepare for her case, cover all the issues, or gain her trust enough to understand and address the complex abuse dynamics underlying her situation. If her trial does not yield a fair result, at that point her legal aid hours are depleted and she is unlikely to qualify for an extension. In many circumstances her hours are used up far before she ever reaches trial, often through her abuser using delay tactics, litigation harassment, and/or other strategies to eat up her lawyer’s hours. This places the woman in a vulnerable position, where she is forced to choose between self-representing the rest of the process or paying lawyer fees. For many women there is no choice…it is self-representation for them.
The chronic underfunding of legal aid and the resulting onerous restrictions on eligibility, effectively bar many women’s access to justice. The high threshold placed on what is “serious” enough to qualify for legal aid and the corresponding demand for intimate disclosure, results in many – too many – women slipping through the cracks of the legal system. In light of the barriers faced by unrepresented battered women and the impact of judicial decisions on their lives and their children’s, greater accessibility and coverage of legal aid is a critical step toward a fairer and more accountable justice system.
How We Are Taking Action
At BWSS, we are committed to supporting women with advocacy and legal advocacy in a large part of the work we do. We are also working for change by advocating within the larger legal system. Here is a snapshot of our legal advocacy work over the past year:
- 1335 requests for support was received by our Legal Advocate – requests such as for information, assistance, or accompaniment in dealing with the legal system
- 60% of the 9,500 crisis line calls we answered involved requests with legal-related content
- Organized for and continue to hold a Pro-bono Family Law Clinic and Immigration Law Clinic ongoing for women at BWSS
- BWSS wrote a number of toolkits in helping women and front-line workers in dealing with the legal system. Two recent publications are: Toolkit for Lawyers: Best Practices in Working with Battered Immigrant Women and Toolkit for Immigrant Women Working with a Lawyer.
- Provided 17 Legal Advocacy Workshops
- Delivered training to Peer Crisis Volunteers, the Canadian Council for Refugees
- Continue to network and organize with other agencies for better practices and systemic changes in MCFD
- Participated and contributed a report in response to the proposed changes to the Family Relations Act
- Participated and contributed a report regarding the Public Commission on Legal Aid
- Participated in addressing concerns surrounding Missing and Murdered Aboriginal Women and Girls in Canada and in the research of the legal remedies
- Continue our law reform work on police arresting battered women
- Continue our investigation of how Vancouver’s Refugee Board has been deciding gender-related claims using the Gender Guidelines issued in 1993