Navigating Murky Waters Violence and Canada s Legal System: How to get Help

Transcription

1 Navigating Murky Waters Violence and Canada s Legal System: How to get Help It is your right to be safe and to use the resources around you to help you live in safety as an Aboriginal woman. Canadian law has harmed many Aboriginal people, or been unfair to them. Many women choose not to report violence or seek help from police and the courts. Aboriginal communities still also have their own ways of justice. You can make the choices that are best for you at this time. This chapter gives tips and information for if you do decide to access the Canadian legal system. The laws of Canada say that preventing violence is very important. Many acts that harm to another person or their property are against the law. When you experience physical or sexual violence from another person, that person may be breaking the law. Sometimes people talk about consent. Consent means saying a real, honest yes. When you consent to one thing it does not mean that you are saying yes all the time. An example: you may say yes and have sex with someone one time, but that does not mean that you have consented to have sex any time that person wants. Making you have sex when you do not want to is an act of violence against you. It is against the law. The law in Canada says that it is illegal for anyone to: Physically harm you. Make threats to harm or kill you. Lock you up without your consent. Have sex with you without your consent. Touch you in a sexual way you don t want. (This is true whether the person touching you is your husband, partner, girlfriend, boyfriend, a relative or a stranger.) Take away and hide your children. Attack you because of your race, gender, disability or culture. (This is called a hate crime. It can be its own crime or make another crime more serious.) There are many other things that are against the law. A good way to know if the law can help you is to speak with the police or someone at an agency.

2 If something makes you feel afraid, hurt or harmed, you should be able to get protection!!! Laying a charge is the way the police formally say that someone may have broken the law. Police lay charges against someone if there is evidence, or signs that may prove they broke the law. From that point the issue may move to the courts, where the evidence and the law will be presented to see if the person charged, the accused, is proven guilty beyond a reasonable doubt. Charges laid against people who harm Aboriginal women can include: assault assault with a weapon aggravated assault aggravated sexual assault criminal harassment (stalking) forcible confinement sexual assault with a weapon uttering threats Some people think that only strangers can get charged for crimes. That is not true. Relatives, boyfriends and even husbands can be charged for hurting you or for touching or sex you don t want. If you decide to report a crime to the police, here is what can happen: 1. You give a statement to the police. 2. The police look into whether they can lay a charge, or investigate. 3. The police talk to the person and lay one or more charges. 4. The person charged is let go with conditions, or the person stays in jail. 5. The Crown and the defence lawyer meet. 6. The person charged (who is now the accused) makes a plea an answer of guilty or not guilty. 7. There is a hearing where the person is found guilty or not guilty based on how the law applies to the evidence. 8. If the person is found guilty, there is a sentencing. 9. There can be appeals. The following sections will give more information about your options in some of these stages. WHERE CAN YOU GET HELP? The first step to safety is getting support and finding people who can help you.

3 There are many organizations that are funded by the government to help you for free. We encourage you to find support through community agencies and organizations. Workers in these agencies should give you support that is respectful. In most cases agencies will respect your privacy and even keep your secrets. BUT sometimes, such as if children have been hurt or seen someone get hurt, it is the law that a worker must report the situation to help make sure the children are safe. You can ask questions about the rules about what can be kept secret, or confidentiality, before you begin to talk. Some agencies are there just to help women get safe after violence. For a list of places to go when you need safety, please call the Assaulted Women s Helpline at or TTY: It is free just to talk with any social service agency. They can listen, give you information and help you to create a plan to move forward from the danger. Agency workers are supposed to support you, not judge you, care about you, and make sure not to cause you more harm. Some of the agencies you can talk to are: The Native Women s Resource Centre Aboriginal Legal Services The Ontario Native Women s Association or Nishnawbe-Aski Legal Services Corporation or Kinna Aweya Legal Clinic or Friendship Centres (Call this number to find the closest centre.) Pauktuutit Inuit Women of Canada or Metis Nation of Ontario or Ontario Aboriginal HIV Aids Strategy Oshki Kizis Lodge in Ottawa Atlohsa Native Family Healing Service Native Child and Family Services (416) At the end of this book is a longer list of organizations that can help you, support you and get you resources for safety.

4 LEAVING AN ABUSIVE RELATIONSHIP: If you are in a relationship where your partner is violent or threatens you or others, this considered abuse. You are not alone. Many other women have experienced abuse. Many people will take your experience very seriously. You have a right to not be abused. A women s shelter may be a safe place for you to go and begin to find help. Please call one of the numbers listed above. These workers need to have compassion, regardless of work experience or schooling. -- Focus Group, Niiijkiwendidaa Anishnaabe Kwewag Services Circle We know that you may find racism in the Canadian legal system, including from judges, lawyers and police. Still, many times people also get support and help from the legal system. You may be able to get useful help from lawyers, police and agency workers. FINDING A LAWYER: If you have been abused you have the right to free emergency legal services. It is best to get the name of a good lawyer from an agency or friend you trust. Legal Aid Ontario also has a list of lawyers you can call. You can speak with Native Court Workers or your Friendship Centre. You can keep looking and asking questions until you find a lawyer you can trust. In some cities you can find Aboriginal lawyers through organisations: such as Aboriginal Legal Services in Toronto or Nishnawbe Aski Legal Services in Thunder Bay. Duty Counsel: Both criminal courts and family courts have lawyers, paid by Legal Aid Ontario, known as duty counsel. These lawyers spend their time at the courthouse meeting with people who do not already have a lawyer. Anyone who has a matter before the court and who does not have a lawyer can ask for help from duty counsel. The duty counsel lawyer cannot become your long-term lawyer, or represent you. He or she can give you legal information, help with simple matters in the court, give you forms and make suggestions to the person. Questions you can ask before you hire your own lawyer: Will this lawyer treat me with respect? Does s/he listen to me? Does s/he explain things carefully? Do I feel comfortable with this lawyer?

5 Is this lawyer skilled in the area of law where I need help? Does s/he understand and respect Aboriginal people? Will s/he let me bring a support person with me to appointments? Can we meet somewhere other than in the lawyer s office? Does s/he answer my questions about fees and other costs openly? Is s/he willing to discuss different ways to resolve my problem rather than assuming s/he is the only one who knows what should happen? Does this lawyer respond promptly to telephone calls? Your lawyer is there to help you understand the rules and get the best treatment you can. In the end you are the boss. Your lawyer can explain what may happen, but the decisions about what to do are yours. DEALING WITH THE POLICE You can call the police by dialling 911 if you need immediate protection from abuse. If you are in a remote location, you will need to contact your Aboriginal Police Service. (Some northern communities, like Red Lake, now have 911.) If you are in danger and decide to call the police it is important to know that charges will likely be pressed. In Ontario there is a mandatory charging policy. This means that the police decide whether to lay the charge, rather than asking you to decide. Sometimes there are special police service workers who can help with families deal with abuse. A police service worker can meet with you and talk to you about what is illegal and what services exist that might help. Police are expected to treat you with respect if you call them. If you feel mistreated by the police you should get their name and badge number. It is very important to be careful what you say to police officers if they arrive at the scene of violence. Whatever you say can and may be used against you by the police or in court. What you say can also affect your custody matters. Police need to tell the victim at the time of first contact that she doesn t have to give a statement. Victim was bullied into giving a statement right away. She was never told it was her option, her choice. -- Focus Group, Niiijkiwendidaa Anishnaabe Kwewag Services Circle Where there are signs that both people in an abusive incident have used physical force, the police may charge both of the people. If you get charged, you have the right to a lawyer. Say very little until you have a lawyer or advocate who can support you. It is better to not make a statement until you have had legal advice.

6 The police are supposed to look at who is the primary aggressor, or the person who has been abusive throughout the history of the relationship. The police do not always do this. If you do get charged, it is important to have your lawyer to talk to the court about primary aggressor syndrome in your defence. If you have called the police in the past, even if no charges were laid, the police should have an occurrence report. This report can help the court see the primary aggressor. You never have to talk to the police, unless: You are a witness to a crime. The police have a warrant for your arrest. The police tell you they have reasonable grounds to believe you are in possession of drugs or a weapon, or they notice one in plain sight. If the police search you or your house and have not told you why, or you do not agree with their reasons, say I DO NOT CONSENT TO THIS SEARCH and write their badge names and numbers down. IF YOUR ABUSER IS CHARGED If your abuser has been arrested and charged, they may be released by the police on the condition that they follow some rules. These are called terms of release. The victim services office of the court is required to tell you these terms to help you stay safe. If you do not hear from victim services you can call them or the police to find out whether the person has been released. If your abuser is not released, there will be a bail hearing to decide whether they can be released. You have the right to go the bail hearing. The Victim Witness Assistance Program has staff at the court. If you speak with this staff person before the bail hearing, she or he can help you explain your concerns to the judge at the right time. Judges should know that women are afraid to speak in court, as they have been victimized by the abuser. -- Focus Group, Niiijkiwendidaa Anishnaabe Kwewag Services Circle Be sure to sit with the Victim Witness Assistance Program staff person and tell them what you need to stay safe. For example, you may want the abuser to stay away from you and your home, but understand you may be at the

7 same social functions like a Pow-Wow. You can ask for a condition that the abuser stay 500 meters away from you at all times, even when you are in the same space.

8 POLICE VIOLENCE AND STRUGGLES TO PROTECT OUR LAND Many of our communities are currently struggling over their right to protect land. Tyendinaga, Six Nations, the Ardoch Algonquins, and the Kitchenuhmaykoosib Inninuwug (KI) are all cases where the police have intervened in peaceful protests. Men and women have been detained, arrested and charged. Some have experienced violence at the hands of the police. Part of the abuse that Aboriginal women experience is abuse by the state, including the police, when we assert our rights to protect Mother Earth. Most commonly charges of mischief are laid against people who are standing up for their rights even when they are peacefully protesting. Each count can carry a sentence of up to two years. Some of our leaders are currently serving six-month sentences in jail for peacefully protesting on their own land. At this time, our strongest defence is to unite the struggles and make the Canadian public aware of these injustices. Many lawyers are working for free to support men and women involved in such actions. If you have been in a demonstration and have been charged it is best to let the organizers or spokespeople know they may have legal supports in place. DEALING WITH DETAINMENT If you are two-spirited and in a same sex relationship and end up being charged and arrested along with your partner, you should know that you have a right to be detained separately. If resources are limited, such as in a small towns, than you can still ask for special conditions so that you are not in each other s way all of the time. If you are a transgendered woman you should be aware that you will be housed according to your physical sex. If you are HIV-positive and are arrested and detained you do not have to disclose your condition to the administration. The only person you ever need to disclose your condition to would be a sexual partner. If you have a medical condition you have a right to receive your medication. Speak to the medical staff of the institution. You can also get your lawyer to help you.

9 SPECIFICS ON SEXUAL ASSAULT Any woman can be sexually assaulted. It is not her fault when the sexual assault happens. It does not matter what a woman is wearing, what she is drinking, what her job is or who she talks to, SHE ALWAYS HAS A RIGHT TO REFUSE sexual touching by another human being. Some women who do sex-trade work think they do not have a right to go to the police when they have been sexually assaulted. This is not true. Any woman who is sexually assaulted has a right to go to the police to make a complaint or to call the police when she needs protection. Sexual assault is a criminal offence. This includes any unwanted sexual act done by one person, regardless of their gender, to another. It can include anything from an unwanted kiss, touch or fondling, through forced penetration: vaginal, oral or anal. Sexual assault can also include being forced into sexual acts, such as being forced to touch someone else when you do not want to. Some women who are sexually assaulted have been using alcohol or drugs and were raped after passing out. Whether you are conscious or not, no one has the right to have sex with you without your consent. Whether you use substances or not you have a right to be safe and to say no to sex. REPORTING A SEXUAL ASSAULT 1. If you are still in danger, call the police (911), a shelter or a rape crisis line. You may want to talk to someone you trust and who can support you through the process. Most hospitals now have a sexual assault care coordinator, so if you go to the hospital you can ask to speak to this person. 2. If you want to report the crime and press charges, do so right away. Court hearings on sexual assault are based on evidence. Often a case is thrown out because of lack of evidence. You can save evidence by going to the hospital after the attack. You can bring a friend or someone to support you. Try not to shower first or throw away your clothes or items the attacker touched. 3. Use the resources that are available to you, depending where you live. You can look for agencies and service providers that are run by and for Aboriginal women. Many survivors of sexual assault feel more comfortable working with a woman lawyer and most comfortable with an Aboriginal woman lawyer. 4. Victims Services is located at the police station. The staff is there to give you support and help you find and use resources in your area.

10 5. If you go to court, you can use the Victim Witness Assistance Program. This program is located right in the courts. Staff can talk to the Crown attorney for you and help to make sure the judge hears your concerns. WHAT IS WORKPLACE VIOLENCE? Workplace violence is any act of physical, verbal, and sexual abuse which is the result of a person s employment. It can include sexual harassment, threats, intimidation. It is offensive or humiliating. Workplace violence can include: Threatening behaviour, including shaking fists, destroying property, or throwing objects; Verbal or written threats; Gestures, intimidation or bullying; Swearing, insulting or condescending language; Hitting, shoving, punching or kicking. Workplace violence can also include spreading rumors, swearing, pranks, arguments, property damage, vandalism, sabotage, pushing, theft, psychological trauma, angerrelated incidents, rape, arson and murder. If you are experiencing physical or sexual violence connected to your work, your abuser is breaking the law and you should reported to the police. A criminal investigation can be initiated. WORKPLACE HARASSMENT AND DISCRIMINATION Workplace harassment is when someone you work with harasses you while you are doing your job or when you are on your way to or from work. Harassment can come from anyone in the workplace: management, customers, clients or co-workers. The problem can include comments, jokes, name-calling, behaviour or a display of pictures. What matters is that the action humiliates, insults, or degrades you. Harassment is not just a joke. It is a cruel and destructive behaviour that can have devastating effects. Discrimination is unfair treatment based on one of the following:

11 ancestry ethnic origin color race religion citizenship place of origin sex (including pregnancy or trans-sexuality), disability (including mental and physical disabilities or being HIV-positive) age sexual orientation (two-spirited nature) family or marital status (having children or not, opposite or same-sex partners) Sexual harassment in the workplace is unwanted sexual attention from someone who knows or ought to know that the attention is unwelcome. They may know their attention unwelcome because you have told them, or because it is clearly not appropriate. The unwanted attention may include comments, requests, touching, pictures or staring. It may be directed at women merely because they are female, or it may single people out because of their sexual orientation. If the person targeted finds the behaviour objectionable, offensive or humiliating, that is enough. If you are experiencing harassment or discrimination in the work place you have a right to file a complaint with Ontario Human Rights Commission. You can call this toll free number for more information about filing a complaint with the Ontario Human Rights Commission: For those with a hearing disability call KEY FAMILY LAW CONSIDERATIONS: Family law is very complicated. It is highly recommended that you get legal advice about your own facts. It is very hard to know in advance what the law will be in your own situation by talking to friends or reading. Family law court decisions can determine how much and when you see your children, so it is very important that you have legal representation. Legal Aid Ontario offers certificates for custody and access issues but not for divorces.

12 Tip: While the first step is always about getting to safety, if you leave the house with the kids do make sure that you have informed someone that you are leaving with the kids. If you don t have full custody you could get into trouble for not informing anyone who could inform the other parent of the child. 1) The Divorce Act: Applies if you are legally married to your child s mother/father and you apply for custody at the same time as you apply for a divorce. 2) The Children s Law Reform Act: Applies if you are separating from your common-law partner or you have never lived with the parent of your child. 3) Children and Family Services Act: Can affect some circumstances of abuse if it has been reported that your child has witnessed abuse and the Children s Aid Society becomes involved. CONSIDERING THE NEEDS OF CHILDREN If you have children you are responsible for ensuring their safety. Children s Aid Societies (CASs) were created by the government to help make sure children are safe from harm. Some people do not trust Children s Aid Societies because they have had bad experiences or they have heard that CAS just takes people s children away from them. Aboriginal organizations were asked to form Children s Aid Societies to help build trust between Aboriginal people and the government s role of protecting children. Aboriginal organizations that are now Children s Aid Societies are: Dilico Anisnhawbek Family Care in Thunder Bay Tikinagan Sioux Look Out Native Child and Family Services You can call these organizations and ask questions without telling them who you are. Children s Aid Societies may intervene in cases where children are witnessing abuse between adults or are at risk for being abused themselves. That means if you are in a physically or sexually abusive relationship, your children who live with you will be seen to be at risk of experiencing harm, even if they are not directly being abused. Poverty is not a crime. CAS needs to understand that people do not have the money to follow through on things that the CAS recommends and this does not make them bad parents. -- Focus Group, Niiijkiwendidaa Anishnaabe Kwewag Services Circle

13 PROPERTY DIVISION DURING A DIVORCE: When married people get a divorce, their property gets divided between them in court. Rights are so varied, it is really best to get help. Property division for any status Aboriginal person who lives on a reserve people is still governed by the Indian Act. The Ontario Native Women s Association is working hard to improve the situation for women living on reserve and is making some progress. You can find out more by contacting NWAC or visiting their web site: You will have to get a lawyer who can initiate the divorce for you and work on getting you the custody and financial support that you think is fair and that the court would see as fair. As with custody, it is very hard to know in advance what the law will be in your own situation by talking to friends or reading. OTHER KEY SUPPORTS FOR DEALING WITH VIOLENCE Victim Crisis Assistance & Referral Services (VCARS) provides immediate, on-site service to victims of crime 24 hours a day, seven days a week. Police usually arrange for this service. VCARS staff and/or specially trained volunteers will provide short-term assistance to victims and make referrals to community agencies for long-term assistance. This program is run by the Ontario government. You can call the Victim Support Line toll-free: or in the Toronto area. Criminal Injuries Compensation Board (CICB) This program is funded by the Ontario government and provides compensation to survivors of violent crime, and those who have been harmed as the result of an injury to another: for example, the child of a murder victim. You can apply for compensation from the CICB if you have suffered physical, mental, emotional or psychological injuries as a result of a crime of violence against you such as: assault, sexual assault, criminal harassment, child abuse, domestic violence and murder. In order to apply you must live in Ontario. If the perpetrator of the crime was charged or convicted then the CICB will assume that the crime took place and it will be easier to go ahead with your case. If no one was charged or convicted then you must show "more likely than not" that the crime of violence occurred.

14 Whether there is a conviction or not, you must show that your injuries are "more likely than not" a result of that crime of violence, and not from some other cause. You can apply by writing or phoning the CICB and asking for an application up to two years after the crime occurred. In some special cases an extension can be granted but you need to find out if you qualify. Criminal Injuries Compensation Board 439 University Avenue, 4th Floor Toronto, Ontario M5G 1Y8 Telephone: (416) or More Information on Legal Issues For a more thorough description of all of the issues discussed in this chapter, please visit our website: