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Here’s How Ontario’s New Free Legal Advice For Sexual Assault Survivors Will Work

Survivors can now apply for up to four hours of legal advice covered by the province in order to figure out the best course of action post-assault.

Sarah Ratchford

Kathryn Borel speaks to reporters after the conclusion of Jian Ghomeshi's assault trial. Photo by Canadian Press

Ontario just announced a new pilot program offering free legal advice to survivors of sexual assault.

Under the program, survivors in Toronto, Ottawa, and Thunder Bay will be able to access up to four hours of counsel paid for by the province. People can apply for the legal advice no matter how much time has passed since their assault.

Until this point, survivors who go through criminal proceedings have not been entitled to any legal counsel, and have only been able to access it if they pay out of pocket. Amidst conversations that took place post-Ghomeshi, better access to counsel was suggested both by lawyers and rape crisis centre workers as one of the ways the system could better support survivors.

There are technically two ways to access the advice on offer. Survivors can fill out a form and choose from a roster of lawyers with whom they can communicate either by phone or in person. Or, if they identify as a woman and live in Toronto, they can seek advice through the Barbra Schlifer Commemorative Clinic in Toronto, meaning they can access counselling and other services provided by the clinic in conjunction with legal advice.

The goal of this program isn't necessarily more reporting of sexual assaults, more prosecutions, or more convictions. Rather, the point is to educate survivors on what their options are, and what they might expect if they do choose to go through a criminal trial.

Simona Jellinek is one of the lawyers on the province's referral list. She's been handling sexual assault cases for nearly 20 years, and she says many people who are assaulted don't realize they have any options beyond a criminal trial. In reality, they can take a number of different paths: they can sue civilly, work through healing with a therapist, or in some cases, file an application with the Human Rights Tribunal of Ontario.

Ontario Premier Kathleen Wynne. Photo by Canadian Press

"Hopefully [this program] will level the playing field in some way, because complainants don't get any help. All the help is really geared towards the accused and all the breaks are given to the accused," she says. She hopes this program makes the process of pursuing a criminal trial less painful for survivors who do choose that route, since it'll help them know what to expect.

"If we're able to help somebody understand the process and make a healthy informed decision as to what it is they want to do, that for me is a success," she says.

Amanda Dale is the executive director of the Schlifer Clinic, and she expressed similar sentiments. She says the clinic's role is to find the best outcome for an individual woman's needs. If someone's goal is to put the assault behind them and move on with their life, Dale says, the criminal system might not be the best way to go. Instead, they might decide to go for therapy or become active in community engagement surrounding sexual assault.

"We know the law is a very partial and often unsatisfying avenue for women," she says. "I don't have a predetermined goal that there should be more prosecutions of sexual assault in the current system, because we really haven't changed anything else except the legal information that a woman will get."

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"For me, the goal is to ensure that survivors are well-informed, well-supported, and given real options in the real world, not fake options that are based on how we wish the system was."

The pilot project is expected to operate until March 2018. Attorney General Yasir Naqvi tells VICE that ideally, this project will remain in place permanently, but he wants to make sure there's evidence it'll work before that happens. He says the three pilot areas were chosen carefully: Toronto is the largest, most diverse city in Canada, Ottawa is bilingual, and Thunder Bay is home to many Indigenous people. He says he expects the sampling of these populations and how they use this counsel will give government a sense of whether the program works.

"The most important thing is that survivors feel empowered to access this program and know what their options are and be able to make decisions based on that," he says. "I think the second part is that, as a result of this, more crimes of sexual assault will be reported to police."

While this announcement is good news for survivors, there are some restrictions as to who can access the new services. For example, one must be 16 or over to access this program. That's because youth under 16 need parental or guardian approval to access legal advice. (Those under 16 can call the ministry's 24/7 support line).

Further, the language the government used to roll out the program Tuesday is not the most inclusive. Materials said the program is for "men and women" and "male and female" people, leaving out some trans and non-binary people who don't identify as a member of either of those groups.

Naqvi is clear that this program is for everyone, and no one will be discriminated against for their gender or for any other reason. He says he will look at changing the language going forward so that everyone knows they can expect to be extended the same care.

It's similar with the Schlifer Clinic: Dale says women who go there have expressed a preference for a women-only space, but that all women-identifying and nonbinary people are welcome.

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