Accessing justice for victims and survivors of sexual assault and intimate partner violence

By Susan McDonaldFootnote 30

Access to justice is a broad, somewhat ambiguous phrase that means different things to different people (see McDonald 2019). For victims and survivors of gender-based violence (GBV), such as sexual assault and intimate partner violence (IPV), it could mean having a nurse or a police officer believe that a sexual assault happened; or understanding your options and knowing that you could report it if you wished; or filing a civil suit in a case of historical abuse and either winning, or not, but nonetheless feeling like you were able to tell your story. This article presents the findings from a small, exploratory research study on the Independent Legal Advice and Independent Legal Representation (ILA/ILR) projects for victims and survivors of sexual assault or IPV funded by the Department of Justice Canada (JUS). The projects and the findings illustrate one way victims and survivors of sexual assault and IPV are accessing justice.

Introduction

In 2016, Ontario’s Ministry of the Attorney General established a new program – Independent Legal Advice for Survivors of Sexual Assault. The program, the first of its kind in Canada, was, and continues to be, open to all women, men, trans, and gender-diverse people, aged 16 years and older, living in Ontario, and where the sexual assault occurred in the province. Individuals complete a voucher request form and submit it. If deemed eligible, the requestor is sent a voucher for up to four hours of free legal advice and a list of lawyers – criminal and civil – who are qualified to provide this advice.Footnote 31

Following the establishment of Ontario’s program, JUS offered funding to provinces and territories to set up their own pilot projects through the Victims Fund.Footnote 32 Several provinces, including Nova ScotiaFootnote 33 and Newfoundland and Labrador, accessed funding to establish their own ILA/ILR projects, and Ontario accessed JUS funding to expand theirs. SaskatchewanFootnote 34 received funding from the Victims Fund for its pilot projects in 2018, and Yukon received funding in 2019. Budget 2021 provided $85.3 million over five years, starting in 2021–22, for the Department to further support a national program for ILA and ILR for victims of sexual assault and to support pilot projects using a similar ILA/ILR service delivery model for victims of intimate partner violence (IPV), who are also disproportionately women and girls. These projects fall under the third pillar of Canada's Strategy to Prevent and Address Gender-Based Violence – A Responsive Justice System.Footnote 35

In the mid-2010s, there was a great deal of public discourse about sexual assault, consent, and reporting to police. The sustained focus was likely due, at least in part, to the media coverage of some high-profile cases in Canada -- University of Ottawa hockey players,Footnote 36 Dalhousie University dentistry students,Footnote 37 allegations against CBC host Jian Ghomeshi,Footnote 38 and the “Unfounded” series in the Globe and Mail that began in February 2017.Footnote 39 When the allegations against Harvey Weinstein in the United States surfaced in October 2017,Footnote 40 the resulting #metoo and other social media movements fuelled additional public discussion.Footnote 41

In 2018, the Federal-Provincial-Territorial Ministers Responsible for Justice and Public Safety approved the release of a report entitled Reporting, Investigating and Prosecuting Sexual Assaults Committed Against Adults – Challenges and Promising Practices in Enhancing Access to Justice for Victims (hereinafter “the report”). The report was the culmination of two years of work by government officials on the criminal justice system’s response to sexual assault against adults. One of its many recommendations was that independent legal advice and representation for complainants be provided in sexual assault cases. Recommendation 17 of the report (2018) reads:

The Working Group recommends consideration be given to:

  • providing government funding for victim’s counsel in third party records applications; and,
  • examining the experiences of the current pilot projects that are underway to provide various forms of independent legal advice to victims of sexual assault, with a view to considering developing similar initiatives. (Subsection 5.4.7)

The Working Group report built upon years of research and writing, in academia and by advocacy groups, that examined the criminal justice system’s response to sexual assault against adults, not only in Canada, but in the United States, Australia, and other common law countries (for example, Johnson and Dawson 2011; Craig 2018). Many academics and advocates have long been calling for independent legal advice and representation for victims of sexual assault (Garvin and Beloof 2015; Walton and Palmer 2014). Here in Canada, Karen Bellehumeur (2020), a former Crown prosecutor with Ontario’s Ministry of the Attorney General, proposed:

a fully funded confidential trauma-informed model of victim representation for survivors of sexual violence to better protect their rights and facilitate equal access to justice. I find support for my proposed model by looking to systems of victim representation internationally, in the U.S. Military and in the International Criminal Court.

In a 2023 article, Bellehumeur argues that female sexual assault victims are systematically discriminated against by how their cases are handled in Canada’s criminal justice system. She asserts that one way to address the discrimination is to provide trauma-informed legal representation for all victims (Bellehumeur 2023). It is within this ongoing discussion and scrutiny of the criminal justice system’s response to adult sexual assault cases, and to IPV cases, that understanding how the ILA/ILR projects are working – through this research project – remains a priority.

This research project was designed to explore, through qualitative, in-depth interviews, a sample of the ILA/ILR projects that received funding through Budget 2021–22 and had been running for 18 months or longer in September 2023. This article presents the statistics on sexual violence and IPV in Canada to understand their prevalence and the low rates of reporting to police, and a description of the methodology and the findings of the research project.

Statistics

There are two primary methods of measuring IPV and sexual assault in Canada: 1) administrative data collected from the police; and 2) survey data collected directly from Canadians. Sexual assault and IPV are both underreported to police, so it is important to complement the police reports with self-reported data. This is collected on the General Social Survey on Canadians’ Safety (2019 GSS on Victimization), which is carried out every five years. The GSS on Victimization measures spousal violence – a narrower form of IPV that would not include dating partners but does include common-law and married (current and former) partners. Police-reported data through the Uniform Crime Reporting Survey does capture dating relationships, so both IPV and spousal violence will be used below. The GSS also asks whether it was respondents, or someone else, who reported their victimization to police.Footnote 42

According to police-reported data, rates of IPV declined from 2009 to 2014, reaching their lowest levels in 2014. In 2015, rates began increasing year over year until 2022 when rates of IPV remained unchanged from the previous year. In 2022, there were 117,093 victims of IPV aged 12 years and older, with an overall rate of 346 incidents per 100,000 population (Statistics Canada 2023).

The rate of IPV for women and girls aged 12 to 24 years was almost seven times higher than the rate for men and boys (776 vs. 114 incidents per 100,000 population). Physical assault was by far the most common form of IPV in 2022 (253 victims per 100,000 population), followed by sexual assault (24), uttering threats (23), and criminal harassment (20). Intimate partner sexual assault showed the highest increase – 163 percent – since 2014 (Statistics Canada 2023).

According to the 2019 GSS, self-reported spousal violence was significantly lower in 2019 than in 1999. While one quarter (25 percent) of Canadians reported that they had experienced violence by a current or former spouse in the five years preceding the 1999 GSS on Victimization, this had fallen to just over 1 in 10 (11 percent) in 2019. That year, spousal violence continued to be significantly more common among women, with 4.2 percent of women experiencing such violence compared with 2.7 percent of men. As well, in 2019 one in five (19 percent) spousal violence victims said the violence they had experienced in the past five years was reported to police, either by the victim or another person. A large majority (80 percent) of spousal violence victims said the violence they experienced was not reported to police (Conroy 2021).

Turning to statistics on sexual assault, the rate of police-reported level 1 sexual assaultFootnote 43 rose 3 percent from 2021 to a rate of 90 incidents per 100,000 population in 2022, an increase of 1,574 incidents. While there was a decrease in 2020, the rate of level 1 sexual assault has been rising since 2014 (Statistics Canada 2023). As in previous years, level 1 sexual assault accounted for 98 percent of sexual assaults in 2022, with 33,215 incidents reported to police in 2022. Rates of level 2 and level 3 sexual assault, two more serious offences, remained stable, with 627 and 123 incidents reported, respectively, and both decreased 4 percent from 2021.

As with IPV/spousal violence, sexual assault is largely underreported. Only an estimated 6 percent of sexual assaults are reported to police (Cotter 2021). The results from the 2019 GSS on Victimization show that there were 30 sexual assaults per 1,000 population aged 15 years and older. Rates of sexual assault were seven times higher among 15- to 24-year-old women (187 per 1,000) and five times higher for 25- to 34-year-old women (85 per 1,000) when compared with men aged 15 to 24 years (25 per 1,000) and men aged 25 to 34 years (16 per 1,000). The rates in these two age categories are higher than in any other age group. Overall, the sexual assault rate was over five times higher among women (50 per 1,000) than men (9 per 1,000) (Cotter 2021).

Methodology

The purpose of the research was exploratory - to better understand how the different ILA and ILR projects were working based on their first 18 to 24 months of operation. JUS program managers sent an invitation to the contact person at each funded organization to participate in the research study. The researchers then contacted those interested and sent a letter of information and consent, as well as the interview guide.

Interviews took place by video using MS Teams (one interview was by phone) and lasted about one hour. Interviews were recorded with permission from participants to assist with notetaking. Most of the interviews included two or more participants representing different team members of the project. A total of 18 people were interviewed in the fall of 2023.

All the participants were from not-for-profit organizations, rather than government, and came from five jurisdictions: Prince Edward Island, Ontario, Manitoba, Alberta, and British Columbia. Those interviewed included lawyers, social workers, and community legal workers/navigators. All interviews were conducted in English, except for one that was conducted in French. Once interviews were completed, the transcripts and notes were reviewed, and the data was analyzed thematically.

Limitations

As with all small, exploratory studies, the findings represent only the views of those who volunteered to participate and cannot be generalized to all the ILA/ILR projects. As noted, all the participating organizations were not-for-profits so there were no participants from government, or other entities, such as legal aid plans. Also, only five jurisdictions participated so the study is not national in scope.

Findings

In this section, the findings are presented by theme, based on the questions posed to the participants.

Project structures

The ILA and ILR projects explored through this research study were all run from not-for-profit, community-based organizations and usually became another project/program in an already existing organization. Funding from JUS also went to provincial and territorial governments or legal aid plans, where, in many cases, ILA and ILR projects for survivors of sexual assault are run.

Most of the projects researched involved ILA for survivors of IPV. To a lesser extent, the projects included ILR for survivors of IPV. The funding announced in Budget 2021–22 took the ILA/ILR model developed to support survivors of sexual assault and applied it to survivors of IPV as pilot projects.

For most projects, survivors complete an intake process with one of the team members upon initial contact with the organization. This might be a social worker, navigator, or intake worker, but rarely a lawyer. Someone other than a lawyer may provide basic information – also called public legal education and information (PLEI) – but when advice is requested, a lawyer will always be available, with the caveat that they can only provide advice for that specific jurisdiction.

One specific model/structure stood out among the projects: the community legal clinics in Ontario. A group of nine specialty and community legal clinics came together to submit a proposal for a project entitled “Your Way Forward.” The clinic model, funded by Legal Aid Ontario, has a long history dating back to the early seventies. It is premised on serving specific communities, whether geographic or demographic, or by areas of law. Today, there are 59 general community legal clinics, 7 student legal aid services societies, and 13 specialty clinics across the province.Footnote 44 The clinics are independent, not-for-profit organizations with boards of directors that reflect the community membership and can speak to legal needs and priorities. Legal aid in Ontario has been structured to focus on poverty law issues such as housing, social benefits, and human rights issues, among other areas of law, but not family or criminal law. Clinics provide a range of services, from PLEI to advice to legal representation, as well as community development and test cases in the courts. While clinic models exist in other jurisdictions (see Roberts 2021), their long history in Ontario has fostered a more comprehensive approach to poverty law issues in the province.

Several participants from the Your Way Forward group noted in their interviews that building ILA/ILR for sexual violence and IPV into their existing clinic model leverages the benefits of the model. Because it is a fairly large group of clinics, they have been able to pool resources, and learn from and support each other and their community of practice.

Services provided

Participants noted that they provide a range of services, including information, referrals, and advice. Depending on their funding, they might also provide brief services, which could involve writing a letter on behalf of a client, up to and including representing the client.

Survivors of IPV might have questions about any number of areas of law: criminal, family (and within family, division of property, tax, separation, divorce, and parenting arrangements), child protection, or immigration. All the participants noted that they do not have expertise in some areas of law, so they would refer clients on to other professionals. The biggest demand from clients is for family legal advice.

The organizations stressed the importance of using “warm referrals,” which means making a connection, with the permission of the survivor, to an external service provider who can respond to a need that the survivor has identified. In the context of the ILA/ILR projects, it means that those making the referrals have confirmed that the professionals were receptive to referrals, that they understand trauma-informed practice, and that they are not too busy to see new clients in a timely way. This referral could include a heads up by phone or email that would be sent to the professional. Warm referrals are intended to remove as many barriers to access as possible, by ensuring that there is no conflict of interest. One participant described their work this way:

And, and that's often what we see our role there, as has been really helping them to get going, understand the services, understand their right.

So that by the time they're talking to somebody else, who we're gonna refer them to, they're doing that from a place of, you know, some empowerment and certainly some information also ... with the offer to come back if it doesn’t make sense... I'll often say if you come away and you're very confused, you know, come back and we'll keep talking you through the system...

This participant noted that this is what they mean “when we're talking about really enhancing the services that we provide to offer more trauma informed service.”

The ILA/ILR projects are focused specifically on victims and survivors of sexual violence and/or IPV. For both types of gender-based violence (GBV), this has meant that these lawyers become experts in many different areas of law, including criminal, family, and child protection law. But it has also meant that during intake and during main meetings, they must try to spot issues of GBV. One participant asked: “How can we be more attuned to those things without maybe clients being really upfront about them?”

Participants noted that within their organizations, their capacity to use trauma-informed practice has improved beyond the work of the ILA/ILR team. And in doing so, the community legal clinics have been able to create stronger networks and partnerships with other community-based organizations, such as shelters. These partnerships are built on connection and trust. One organization was invited to sit on their regional collaborative review committee, where they review sexual assault cases and discover how the cases were handled by police.

All the ILA/ILR projects provide legal advice orally, whether by phone, by video, or in person. One organization has taken an extra step and provides each client a follow-up written memo outlining the information and advice they provided. This aspect is unique to this particular ILA project.

Outreach

All the participants interviewed indicated that there had been targeted outreach at the beginning of the projects to groups with which victims and survivors of IPV would generally connect. This included putting flyers up at public health and drop-in centres, victim services and shelters, libraries, legal aid offices, and other public centres, as well as notices placed in community newspapers, speaking to different groups of professionals, etc. The outreach did not always work, particularly with certain communities, such as when no one showed up for a workshop at a local library. Regardless, most or all the organizations had more clients than they could realistically handle shortly after they opened their doors.

Organizations across the country took different approaches to setting up their project/program. One participant noted:

I think we took the approach that we were going to slowly start taking on clients, respond to their needs and then based on what we learned, build, continue building the project... I'm glad that we did that because I don't think we could have anticipated some of the client concerns that we got if we had done it another way.

Outreach varied depending on the specific community. A couple of organizations found that they had to use more formal approaches to building relationships and accessing relevant committees. This involved setting up a meeting to introduce themselves and the ILA/ILR project, and when the meeting kept getting rescheduled, ensuring that it did not fall off the calendar.

Training

All those interviewed indicated that they had taken advantage, and would continue to do so, of multiple training opportunities, whether they were conferences (such as the Ending Violence Against Women Annual Conference), webinars hosted by the Centre for Research and Education on Violence Against Women and Children (CREVAWC) at Western University, or self-learning opportunities. Topics include trauma-informed lawyering and other practices, self-care, professional legal education on areas of law such as property division, and civil claims in sexual assault cases, among others. Participants also make use of JUS’s HELP Toolkit, a resource designed for family law lawyers to ask their clients questions about violence within relationships.Footnote 45

Almost all of those interviewed also provide training or information workshops to the public and to targeted audiences of both professionals (e.g., bar associations) and possible clients (at a shelter). Participants view this training and PLEI as essential parts of their projects to raise awareness about IPV and sexual violence generally, but also to raise awareness about the services they provide.

One participant, who had previously worked in private practice in family law, noted feeling disappointed about the lack of awareness of IPV and trauma-informed practice within the family law bar in their jurisdiction. They said that despite organizing learning events, they found that the number of private bar lawyers who attended was small.

Accessibility

During the planning stages, accessibility was, and continues to be, important to all the projects, and the participants spoke about ensuring that the services were as accessible as possible. For one organization, the participants acknowledged that they were only open during regular work hours, although they would have liked to have one late night (for example, when they might be open until 7 or 8 p.m.) or a Saturday morning when they could meet with clients. At the time of the interview, this was not possible, but was something they were aiming for in the future.

Many of the projects could be initially contacted by phone, by email, or by text. Those interviewed saw this choice as important for their clients. So often violent victimization takes away one’s sense of agency, and interacting with the criminal justice system or the family justice system can again feel like one is not in control of anything. Participants noted that small choices, such as being able to decide how or when to contact a lawyer or other supports, can be very meaningful to victims and survivors.

All the projects serve a geographic area within a city, a region, or even the province. Because the ILA/ILR projects participating in the research do not impose income eligibility criteria, clients did not have to prove they qualified for the service because of their low income, as would be necessary for legal aid. There were also projects that served a particular demographic – for example, francophones or tenants.

Research and needs assessments

For the group of legal clinics that make up the Your Way Forward project in Ontario, five general service and one specialty clinic undertook a legal needs study to better understand the needs of their respective communities. The studies differed slightly in that while each included interviews with service providers, not all interviewed clients and only one incorporated data on statistics on gender-based violence.

For the specialty clinic, which focuses on tenants, the study included a review of research literature, a scan of residential tenancy and social housing legislation in all provinces and territories, interviews with key informants and tenants (n=80), as well as a survey of service providers (n=120). These findings have helped inform the design of their service delivery model.

Key findings from these studies include: significant PLEI needs for survivors’ rights and legal options, for victims and survivors, as well as service providers; a need for trauma-informed training for legal professionals; and a lack of family lawyers, particularly those who accept Legal Aid Ontario (LAO) family law certificates and two-hour domestic violence (DV) certificates, as significant issues. There were many similarities in the research methods, findings, and recommendations, but the studies highlighted how local service providers function and interact differently.

Evaluation, data collection, and performance metrics

The Department of Justice Canada has specific reporting requirements for their funding recipients. Recipients must submit annual reports with a long list of data that need to be collected. They are also required to evaluate the project. Half the organizations reported that they found the reporting requirements burdensome, not just for themselves, but for their clients, for whom they were particularly problematic. This was especially true for the ILA projects.

As part of the interview guide, each participant was asked about collecting data on their projects, including demographics on the clients and types of services provided. This question prompted discussions on how to collect the data and the ethics of doing so when the client wants to remain anonymous or has only a short meeting for legal advice, as can occur in the ILA projects. On this issue, participants noted that

People call and want to remain anonymous. So [there are] ethical issues with collecting the identifying information.

[R]eally the ethical issue of asking for this type of data for somebody who is again maybe in crisis, maybe in some kind of emergency mode, but just has so much going on and where you don't have a relationship with them beyond you know the two or three hours of that initial intake and the information and advice session and it's really because of course it's important you know and there's that tension there.

With the ILA projects, the organization has little to no ongoing contact with the client after the advice has been given. This makes it hard to record outcomes or go back to the client to capture data that was missed. Most of the organizations capture the demographic data requested during the intake process when a social worker or other community worker, sometimes joined by a lawyer, goes through the intake form to capture gender, race/ethnicity, Indigenous status, and other demographics. However, none of the questions are mandatory and many clients choose not to answer. One participant expressed the concern that:

[I]f it's a very truncated relationship, it's not the appropriate space to collect data.

While it is completely understandable for funders to want data on whom the projects are serving or not serving, demographic questions about sexual orientation, income, and other aspects of a client’s identity can feel intrusive and unnecessary in receiving legal advice. Several of the organizations had worked to figure out ways to report back to the funder without being intrusive. One organization spoke highly about the support they received from the JUS program manager to be flexible on the reporting requirements.

Another organization commented on how much time the reporting requirements took and noted that they were having a full evaluation done by a third party, so they felt they were doing double-duty reporting.

There's simply the practicalities of it, you know ... we have such limited time and we want to do client service and every minute that we're spending, you know, collecting data is taking us away from that, which I realize is the, you know that is not, we are not unique in that within any of the profession.

This organization also hopes that the data they continue to supply to the evaluation team will be shared back with the organization every six months or so to support their own assessments of what is working or not working. This continuous feedback loop can be a very effective way to assess performance and correct issues in a timely and efficient way.

All the organizations interviewed recognize the need for data to understand how the projects are running. One participant rationalized that,

The funder, you know, needs the evidence base in order to, say, advocate for additional, you know, longer term funding.

Another participant noted that in collecting data on identity:

[T]hese are the people who don't have access to the same resources but are subject to a higher risk of experiencing these things.

However, we need this data somehow because I have heard from racialized communities. I have heard from folks with disabilities. I have heard from trans people and non-binary people that they are not being captured in this data, so we really need qualitative data on the experiences of people.

And another participant added:

But what gets dollars and funding is quantitative data, and so particularly, and I've heard this from a lot of folks in the healthcare sector, particularly around COVID like the need to collect data on how this virus and the resources were differently affecting people of different races where the dollars were going, where the money was going, who was being disproportionately impacted, who had access to these things.

In the end, the organizations and the participants reported doing the best they could to adhere to the reporting requirements from the funder. These findings point to the need to have additional conversations about reporting. As can be seen from the participants’ own words, there should be ways to collect data and report back to the funder thoughtfully and ethically, while respecting some ILA clients’ need for anonymity and the very short, truncated nature of providing one-time, limited legal advice.

Advice-only challenges

The nature of ILA projects is that they often involve only one meeting with a lawyer. Sometimes just talking about the facts of a case can take up a lot of time, leaving little time for the lawyer to provide advice. To respond to this issue, several of the participants of this study noted that they do not limit meetings to only one nor do they put a time limit on meetings. Most participants noted that clients could return for additional advice. Some did, but not all.

Clients in one organization first met with navigators, who provided them with PLEI to orient them to what the relevant legislation could or could not do. The organization was not prepared when their clients requested that the navigators then attend the client meetings with lawyers because they had not budgeted the resources to do so. The travel time plus meeting time could take up to two to three hours out of a day, but the clients felt safe with the navigators, whom they had gotten to know and trust. For those experiencing IPV, feelings of shame, blaming oneself for the violence, and not knowing who to trust are all significant barriers to reaching out for help.

Overall, the participants shared that:

For projects offering ILA only, participants said that the most challenging aspect was not knowing what happened next for their clients. Sometimes, clients would call and report back, but most often this did not happen.

One organization, which provided legal advice province-wide using a virtual platform, said that they felt far better providing advice on emergency protection orders or legal aspects of safety plans when the client had the support of a shelter or other community services worker. The lawyers would then know that there was on-the-ground support for that individual, and if the client wanted to get a restraining order in place, a shelter worker would be there to make sure it was done. In situations where the IPV was ongoing, the lawyers felt quite frustrated at not being able to do more than provide advice.

Another organization that provided advice noted that it was important for their staff to remember that they do not provide crisis or emergency services. Their phone lines and other communication links, such as websites, include emergency/distress phone numbers, but they are not monitored after hours and on the weekends. While this can be difficult when there are safety concerns, the more experienced lawyers believe strongly that boundaries are essential, or people quickly burn out.

Challenges

Socio-economic conditions

Several of the organizations noted that with the additional pressures of rising inflation and costs since Budget 2021–22, as well as limited housing, there have been many pressures on households, and these pressures can often exacerbate tensions, leading to violence. Most of the organizations noted that there were high levels of IPV in their geographic areas and that their capacity to respond adequately in a trauma-informed way is limited because it has been challenging to support each individual client and their specific needs.

Lack of lawyers fluent enough in French to litigate in family law cases

Participants from one francophone organization in a province where French is a minority official language noted that there is a lack of French-speaking lawyers in the province. While their clients are French speaking, the lawyers representing the other spouse are not always able to negotiate or litigate in French. This poses challenges in accessing justice in an official language.

Lack of lawyers with substantive knowledge and understanding of trauma-informed practice, and conflict of interest

Participants also noted that lawyers were not willing to take on IPV or sexual violence cases, sometimes because they lacked substantive knowledge about IPV or sexual violence, but also because of how busy they are. Lawyers are also unwilling to take on these difficult, high-needs cases when their own capacity for trauma-informed practice is limited. At one organization that provides intake and general legal information and then connects the client with a lawyer, the challenge is to ensure that this meeting with a lawyer occurs in a timely manner, at least within four weeks, if not sooner.

Conflicts of interest can also occur. In some smaller, rural, or remote communities, especially where solo and small practices have been merged into larger firms, there is the potential that the ex-spouse will already have met with a lawyer, who then cannot meet with the spouse because of a conflict of interest.

Silos

Many participants noted that the legal system is very siloed. One participant noted that criminal and family courts do not talk to one another. Another participant noted the value of the Legal Sexual Violence Group, an informal group of lawyers based primarily out of Toronto that provides support to survivors of sexual violence. This group deals with a lot of civil disputes and sections 276 and 278 of the Criminal Code (i.e., rape shield and third-party record applications). Many in this group have years of experience with both the criminal and civil justice systems and can provide both substantive input and peer support to those newer to these areas of law.

Legal clinics in Ontario have always used communities of practice (CoPs) to problem-solve and share information and practice tips. The group of legal clinics in Ontario with the Your Way Forward project brought that model into these projects and while, overall, these communities are working well, it has been harder to connect with some of the other funded ILA/ILR projects. Participants noted that this can be due to scheduling conflicts or language barriers, among other challenges.

Overall, the legal profession recognizes the siloed nature of the different justice systems, especially in cases of IPV or family violence where a client might have a case in the family justice, criminal justice, and child protection systems at the same time.Footnote 46 Participants from the group of legal clinics in Ontario noted that their community-based structure, with many partnerships across the community, as well as their multidisciplinary teams, facilitates breaking down those silos and responding to all of a client’s justice needs.

Unrepresented litigants in the family justice system

Participants providing advice were concerned about the number of unrepresented litigants in the family justice system. This is a significant issue that the ILR projects for victims and survivors of IPV are trying to address, but there remain many unrepresented litigants in the system. And when these unrepresented litigants get into a courtroom, they are interacting with ex-partners who are represented, and judges who expect them to know what they are doing. As one participant observed:

I am hearing from people that they are treated like they are dumb. They are treated like they have failed. Somehow, they are treated like they have made a moral error, and it's really hard for them.

The treatment of unrepresented litigants is a huge barrier to accessing justice and the ILA/ILR projects are making a difference to those who would ordinarily have little legal support. This participant shared that there will always be more resources needed than are available.

When victims and survivors of IPV do have representation through a legal aid plan (not through the ILA/ILR projects), the limits of that can also be frustrating for lawyers who are trying to approach these cases with trauma-informed lawyering.Footnote 47 Participants interviewed in two organizations discussed the challenges with the legal aid certificate system in that jurisdiction. They said that a trauma-informed practice would require lawyers to spend more time with the client to ensure that they trust the lawyer and that they feel safe enough to disclose the personal details of the relationship. A certificate would not necessarily cover the time needed to do that. The community legal worker noted that she regularly takes clients to other appointments and meetings, but the family law lawyers in the area working on legal aid certificates are reluctant to do this because they are not funded for anything outside of legal work. Yet often this extra work is essential in a trauma-informed practice.

Funding

Participants recognized that all the funding in the world would not resolve all the challenges that victims and survivors of IPV and sexual assault face. This participant shared that there will always be more resources needed than are available, noting:

We could be resourced to the hilt and I don't think we could still do everything for a client … where the needs are really, really complex... but no matter how you build your project, there's always going to be something that you can't do and like that is just the nature of kind of trying to slay the beast.

At the same time, everyone spoke about the need for secure funding, which is more sustainable than the project funding provided by the Department of Justice. As one participant observed:

You know we always celebrate like 5-year funding, yes!! And it is a blessing ... but also funding that is temporary is funding that is temporary ... 5-10 years you know it's going to come to an end.

Another participant spoke about the effect of time-limited funding on the partnerships they need to build with other service providers:

The funding is so crucial because I think that it not only affects our perspective, but it also affects the types of partnerships that we can build with others because they're asking that as the first question and the fact that it's only five-year funding, you know it influences how they engage with us.

One participant outlined three possibilities for the future of ILA/ILR projects, if they prove successful in helping victims and survivors of IPV. In the best-case scenario, projects would have access to sustainable permanent funding. Less ideal would be having to continue to rely on project funding. The worst-case scenario would be that no new funding is found, and the pilot projects just end.

Self-care and vicarious trauma

Participants for all organizations spoke about the need to mitigate their own exposure to trauma because of what their clients are experiencing. Many have learned to give clients the space to talk, but at the same time the lawyers and other professionals do not need to know every detail. Limiting those details can minimize retraumatizing the client as well as minimize traumatizing the people on the team who are trying to help.

One participant observed that their Community of Practice is both good and bad. The good is that legal clinics in Ontario have been “in the trenches” doing difficult work for many years. The bad is that clinics have been “in the trenches” doing difficult work for many years. Another participant noted that the work seems never-ending and self-care must be a priority.

Everyone interviewed for this research, whether they were new to working with cases of sexual violence and IPV or had decades of experience, spoke about the need for self-care. Many participants had taken training on trauma-informed lawyering and the impact of trauma on memory and learning in the context of sexual violence and IPV. At the same time, they learned about vicarious trauma and the importance of setting boundaries around their work to protect their personal lives, to recognize the limitations of the systems and projects such as these, to share their concerns with others, and to develop healthy coping strategies. Where the ILA/ILR project was part of an already established organization (e.g., one of the legal clinics in Ontario or Calgary Legal Guidance in Alberta), participants noted that more resources were available and more people with experience working with clients who have significant needs.

Successes

The list of challenges was lengthy, but, overall, participants were positive about the impact the ILA/ILR projects have been having at this early point in their implementation. Interview participants were also asked about what they consider to be their successes, and there were many. For example, one organization said it was proud that it had been able to get the program up quickly and running in early 2022, shortly after receiving funding.

Others said they were proud to help clients take at least one concrete step to achieving their goal that could help them feel safer, stronger, and more in control – whether that was to leave an abusive relationship, report abuse or a sexual assault to police, or file divorce papers. Being able to do this is important for the clients, but the participants noted that it is also important for those working on the ILA/ILR projects. For many victims of IPV and sexual violence, making big decisions, such as leaving a relationship, can be extremely difficult and take months or years. A trauma-informed practice involves not passing judgment on the amount of time a decision takes, or ultimately what that decision is.

Another success participants reported was the support from the different communities’ stakeholders and legal community in having a great roster of lawyers who really care about the clients and meeting their clients’ often very complicated and difficult needs.

And importantly, one significant success has been the ability to build trust with each client, as a result of all the different professionals involved communicating consistently and clearly with one another. With that trust, there is a better chance of being able to reach out to those in need and for clients to feel safe enough to contact the professionals for help when they are ready.

Using the written memo to summarize advice given to clients is an excellent example of a solution to the challenges many victims face absorbing all the information and advice they are given over the course of a meeting with the ILA lawyer. Research shows that trauma has an impact on memory (Haskell and Randall 2019) and on learning (Horsman 1999; McDonald 2001). Providing a written summary afterwards allows the victim to return to the information again and again, when they are able to absorb it, at a time and in a place where they feel comfortable and safe. It also provides a reference tool for a lawyer who might represent the client later.

The group of clinics in Ontario feels that having a central coordinator has been important in pulling the groups together weekly, in supporting the clinics by compiling the data as required by the funder, and by creating spaces for collaboration.

One clinic noted that website upgrades have been an important part of the project, so that the information online is value added and easy for most clients to access. This updated PLEI has been possible because the clinics have been able to work together, pooling their resources so they can be more efficient. One of the identified needs from the community legal needs assessments was to increase legal literacy, that is, increase trusted intermediaries’ (such as shelter workers) understanding and capacity , through training. The ILA lawyers and other professionals hold training events for shelter workers and other service providers in their communities who meet with victims of sexual violence and IPV. This work is essential for extending the reach of the ILA projects.

In sum

This research project was exploratory in nature to understand how ILA/ILR projects were running more than 18 months after they first received funding from the Department of Justice Canada. A total of 18 participants were interviewed from not-for-profit organizations in five jurisdictions. While many challenges were noted, some – such as the state of the economy or the number of family law lawyers practising in a certain area – are beyond the scope of the pilot projects to address. It was clear that other challenges – such as improving access to justice for victims and survivors of sexual violence and IPV – were well within their mandate and were being addressed. Victims and survivors were accessing justice in ways that they had not been able to prior to the projects, beginning by speaking directly with lawyers and other professionals who were providing information and advice in trauma-informed ways.

The literature is clear about the many benefits of trauma-informed legal representation for victims: protection from retraumatization that may occur during cross-examination, increased satisfaction with the criminal justice process, full information and advice, and having an advocate (Bellehumeur 2020; Garvin and Beloof 2015; Randall 2013).

Those providing only independent legal advice expressed some frustration that they often did not know what their clients had done next, which path to justice they had taken, if any. Organizations that were able to leverage other services and community supports felt more confident than those less connected that their clients would continue to get support, for example, in seeking an emergency protection order. The one organization that provided a follow-up written memo to their clients summarizing the advice they provided, noted that the memo would serve the clients well if they went on to access legal representation.

As part of the funding requirements, the organizations will be evaluated and will be able to build further on this exploratory research. While the model is not new, it has been well received in every jurisdiction and it will be important to follow the work by these committed individuals to ensure access to justice for victims and survivors.

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