The information contained in this publication provides general legal information only and is not intended to replace expert advice of any kind. The contents of this publication in whole or in part may only be reproduced with the written permission of the Calgary Association of Women and the Law. The Calgary Association of Women and the Law, a caucus of the National Association of Women and the Law, is a non-profit organization incorporated under the Societies Act of Alberta.

This booklet is the result of the ongoing commitment of the Calgary Association of Women and the Law to improve the status of women by informing the community about laws that affect women and by providing information on the resources available. Information is the power. Women with knowledge are better able to seek what rightfully belongs to them, and to make free, informed, choices.

This booklet is meant to be a guide only. It is intended to answer commonly asked questions and provide general information on certain legal matters.

After reading the booklet, if you have any questions about your legal rights, please consult a lawyer. If you do not have a lawyer, call Lawyer Referral Service which is listed in Legal and Community Resources at the end of the booklet. Remember, this booklet is meant to be a guide only; it is not intended to replace expert advice of any kind.

This publication is a revision of a booklet called Women and the Law: Your Rights In Alberta, published in 1978 and revised in 1983, 1985, 1989, and 1995. The text for the 1995 publication was used as a basis for research and in some cases remains unchanged.

This booklet could not have been published without the generous support of its founder, The Alberta Law Foundation.

Neva Ramsay conducted the legal research needed to begin the revisions to the booklet. As well, board members of the Calgary Association of Women and the Law were involved in the research and editing. They Are:

(1) It is important that you find a lawyer who has a good record in the area in which you require assistance; and

(2) It is just as important to find a lawyer who is sensitive to your needs and in whom you have confidence.

One way to find such a lawyer is to ask other people who have experienced similar legal problems for their recommendations. Remember though, a lawyer who has successfully handled a friend's house sale may not be the one to handle your divorce. You may also call Lawyer Referral Service at the telephone number listed in the Appendix. Through the Lawyer Referral Service, you will be given the names of three lawyers who have an interest in the area of law in which you require assistance. You may make an appointment with one or all of the lawyers but you must tell them that you got their names from Lawyer Referral Service. The lawyer will see you to discuss your legal problem and will not charge anything for the first 30 minutes. After that, the lawyer will charge legal fees so make sure that you time the interview and make good use of your 30 minutes.

Be prepared for your first appointment with any lawyer. Make a list of questions. You will want to know how much experience the lawyer has had in handling cases like yours, how much the entire process will cost and how you can arrange to pay, and how much will be charged for phone conversations. Ask the lawyer what your legal rights are, whether you have a strong case and whether it is worth pursuing. If you do not understand something, say so and ask the lawyer to explain the process in clear simple language. If you are not satisfied with the lawyer after the initial appointment, or at any time during the handling of the case, find another lawyer. Once a lawyer has agreed to take on a case and has done work on your file, the lawyer does not have to give you the file until the entire bill has been paid.

If your lawyer does not send you a letter confirming the arrangement for fees, you should send one confirming the arrangement to the lawyer. Keep a copy of this letter for your own records. If the terms in the letter are not identical to your or the lawyer's understanding of the arrangement, the person who is in disagreement should contact the other person immediately to straighten out the matter. If your lawyer does not bill you for her services on a regular basis, and if the matter is carried on for a long period of time or becomes more complicated than expected, you would be wise to contact her and ask what your costs are to date. This will give you the chance to keep track of the legal fees and to decide if the matter is worth continuing.

Make notes during the appointments with your lawyer. Most lawyers will make notes of the things that are said during an interview or phone call. Often you may feel frightened or emotionally upset and may not remember all of what was said to you. Your notes will help to jog your memory.

Always keep in mind that the lawyer is working for you. You hired the lawyer and you are paying her. You have the right to know what she is doing on your behalf and to have input into any decisions that are made on your behalf.

If there is a dispute over your lawyer's bill for legal services, either you or the lawyer may have the bill reviewed by an independent third party. This review process is called "taxation". The third party is called a taxation officer and is a deputy of the Court of Queen's Bench who has been specially appointed to handle fee complaints. There is a $100 fee for this process.

To tax a lawyer's bill, you must make an "Appointment for Taxation" with the Clerk of the Court of Queen's Bench. You should fill out an Appointment for Taxation form with your name and the lawyer's name, the date and the time of the appointment, your address and the necessary information required. Generally, the Clerk will give you a sample Appointment for Taxation to use as a guide when filling out your own form. You must make copies of the Appointment form and the lawyer's bill and file these at the office of the Clerk of the Court of Queen's Bench. You will then have to "serve" a copy of the Appointment and the lawyer's bill on your lawyer. Service on your lawyer can be done in one of three ways:

(a)Mail a copy of the documents by double registered mail and file an Affidavit of Service at the office of the Clerk of the Court. You must attach the original Appointment and the completed "proof of service" form (which you must obtain from the post office) as exhibits to your Affidavit. You may swear your Affidavit of Service in front of one of the Commissioners for Oaths at the Clerk's Office.

(b)Drop the Appointment off at the lawyer's office and have someone at the office sign and date the back of the original Appointment to show that service was made. You should bring the signed original Appointment to the taxation so that you can show the taxing officer that you have proof of service.

(c)>Have a process server serve the document for you. The process server will prepare and swear an Affidavit of Service which will then be given to you so that you can show the taxation officer that you have proof of service. Since the process server will charge you for serving the documents and preparing the Affidavit, you should find out the cost of employing a process server.

Service must be completed at least five days before the taxation hearing. To calculate the five days, you do not count: (i) the day on which the lawyer receives the Appointment, (ii) the day of the hearing, (iii) weekends, or (iv) holidays. If you paid the lawyer's bill more than six months ago, or if the bill was sent to you more than a year ago, permission of the court is needed before either you or the lawyer may have the bill taxed. The taxation office of the Court of Queen’s Bench will be able to assist you with the procedure that you must follow to get the permission of the court.

You should bring to the taxation hearing all relevant documents and correspondence that you might wish to use in support of your case. Be prepared to give the taxation officer your arguments as to why you feel the lawyer charged you too much. You and the lawyer will each have a chance to present your own side of the story. The taxation officer will then make a decision, depending on the evidence, to leave the bill as it is or to reduce it. If you do not agree with the decision of the taxation officer, you may appeal the decision to a judge but your Notice of Appeal must be filed within 10 days of the date when you are notified of the taxation officer's decision. The taxation hearing is recorded in the event there is an appeal by either party.

If you have other complaints about the way your lawyer handled your case or the manner in which you were treated, you may make a complaint to the Law Society of Alberta. Your complaint must be in writing. The Law Society will send a copy of your written complaint to the lawyer and give the lawyer an opportunity to answer the complaint in writing. The Law Society may recommend that you and your lawyer attend mediation at their office and attempt to reach a solution to the problem with the assistance of one of their trained mediators. If mediation is not successful, the Law Society will review your complaint and the lawyer's reply. If your complaints are valid, there will be an investigation into the matter which could have very serious consequences for the lawyer. The Law Society will advise you of the outcome of its investigation and whether or not the matter will be investigated further.

If you feel that you need a lawyer but cannot afford to retain one privately, then you may apply for legal aid. If your case, whether criminal or civil, is the kind of matter covered by Legal Aid, and if you fall within the financial guidelines for legal aid, then your application will be approved.

Contact the Legal Aid office closest to you for information. Telephone numbers are provided in the back of this book. Legal Aid officers also make regular visits to remand centres and correctional and psychiatric institutions to take applications. You may arrange for an interview by requesting it from the staff in these places.

If there is a Legal Aid office in your area, and if you are not in custody, then you should call the local office to arrange an interview.

When you go to the appointment, bring with you any legal papers you may have been served with and all of the documentation that you have regarding your financial situation, such as last year's income tax return, pay stubs, loan statements, proof that you are receiving Social Assistance, and so on. The Legal Aid officer will want to know how much money you earn, how many dependents you have, how much money you owe and the value of any property which you may own, for the purpose of deciding whether you qualify financially.

You should apply as soon as you are charged with a criminal offence. If you are under investigation by the police and charges

In a civil matter, you should apply as soon as you have been served with legal documents by someone else, or as soon as you see the need to bring a legal action against someone else. If the matter is urgent, as in the case of a Restraining Order or Emergency Protection Order, indicate this when you make your appointment.

If your application is refused by the Legal Aid staff, you have the right to appeal the refusal to the Regional Legal Aid Committee for your area. Your appeal must be in writing and delivered to the Legal Aid Office which refused you within 30 days of the date on which you were refused. It is often in your best interest to make a personal presentation to the Regional Committee. You must make sure to request this in your written appeal in order that you will be notified of when and where to attend. If the Regional Committee rejects your appeal, you may then appeal to the Appeals Committee of the Board of Directors. The decision of the Appeals Committee is final.

Legal Aid may be cancelled when it appears that information given in the application was inaccurate, if you did not abide by the conditions for coverage or if there was a material change in your financial circumstances since legal aid was granted. You will be notified in writing if the coverage is to be cancelled and you have the right to appeal.

Legal Aid is available for all serious offences including those under the Criminal Code, Narcotic Control Actand Youth Criminal Justice Act. Serious offences are known as indictable offences and conviction for such an offence generally will result in imprisonment and/or a large fine. In less serious matters, known as summary conviction offences, legal aid is only available if a conviction would mean that you would go to jail, lose your means of earning a living or there are some other special circumstances involved such as a complicated and important legal issue. Some examples of less serious matters are traffic violations, breaking city or town bylaws or criminal charges such as causing a disturbance or theft under $5,000. Normally, in such matters, the penalty is only a fine unless there are other circumstances (for example, you are a repeat offender or your conduct showed that you have no respect for the law) which would justify a sentence of imprisonment. The Legal Aid staff will be able to tell you if your problem will be covered by Legal Aid.

Legal Aid may be available for any civil case within the jurisdiction of the courts. There are limitations, so check with the Legal Aid Office to find out what coverage is available.

In 200l, Legal Aid commenced a pilot project to deliver family law services through salaried staff lawyers operating out of Calgary and Edmonton. Any request for family law services in both these cities is referred to the Family Law Office (FLO). Clients residing outside these centres will continue to be referred to lawyers in the private bar, although you may request representation through the Family Law Office.

Legal Aid may be available for appeals from a decision of a court. There are special rules of eligibility; check with your local Legal Aid Office.

Services provided by Legal Aid are not free. The fees paid by the Society are substantially less than private fees because lawyers who accept Legal Aid cases do so at less than normal fees. When your case is finished, the Society will normally seek repayment. No person is refused Legal Aid coverage only because she may not be able to repay the money later.

If it would cause real hardship for you to make the repayment, the Society will work out terms which will not put too great a strain on your resources. Occasionally, you may be asked to provide some sort of security for repayment such as signing a promissory note or a mortgage at 0.0% interest. If you fail to meet the requirements set by the Society, your coverage may be refused or cancelled.

Young people under 18 charged with offences under the Youth Criminal Justice Act are entitled to legal aid regardless of their parents' income. In some cases, where the parents or youth are well off, Legal Aid will initially refuse the application, and the youth will then have to ask the Youth judge to order the appointment of a lawyer and send the matter back to Legal Aid.

In Calgary and Edmonton, young people who receive legal aid are referred to the Youth Criminal Defence Office and, except for very rare circumstances, must use one of the lawyers working in that office. (This differs from the adult system, where you can choose any lawyer who accepts Legal Aid cases.) Even for young persons, legal aid is not free. When the case is concluded, the young person receives an account for the services provided by lawyers appointed by the Legal Aid Society. These accounts are generally for much lesser amounts than those of lawyers retained privately, and the Society is usually sensitive to the financial situation of the young person when attempting to collect payment.

is a service provided by lawyers in the Calgary area to persons who qualify because of their low income. Free legal advice is given but you must make an appointment beforehand. The interviews are usually held during the evening. The lawyer will give you advice on how to handle your problem, what the law means and how it affects your situation. In certain special circumstances, the CLG staff lawyer (who may not be the lawyer you met with initially) may attend with you in court. Calgary Legal Guidance also provides free practical legal information on tapes, accessible 24 hours a day by telephoning Dial-a-Law. (See Appendix for telephone numbers.) The Social Benefits Advocacy Program assists low-income clients to obtain and maintain social benefits such as Social Assistance, Assured Income for the Severely Handicapped (AISH), WCB, EI, CPP and any other social benefit. The Court Preparation and Restraining Order Program provides legal and emotional assistance to victims of domestic violence by working with clients to prepare them for the court experience. Retraining Orders and Emergency Protection Orders can also be obtained through this program.

is a community based program that exists to provide legal assistance, representation, information in areas of civil and administrative law and referral for persons with low income that would not otherwise have access to such services. Individuals who cannot afford to retain a lawyer and who may face cultural, disability, literacy and other barriers to accessing legal assistance receive support at no cost in matters such as Landlord and Tenant, Employment Issues, Human Rights, Debtor and Creditor, and Immigration Law. Through social benefits advocacy, the ECEJ supports individuals who require the expertise of a representative at appeals. ECEJ offers free legal services at law clinics every Tuesday and Wednesday evenings from 6 to 9 PM. Clients make an appointment with the Intake Coordinator.

The clinics run with the support of volunteer lawyers who provide summary legal advice, referral to other agencies as appropriate or a recommendation to ECEJ’s legal team for further assistance. Clients who face issues that cannot be resolved through the legal clinic, or people with emergent situations who were not able to attend the clinic, can receive further legal services from our Staff Lawyer and Legal Assistant. Services that include: direct legal representation, assistance with preparation of legal documents, negotiations or mediation and court/hearing preparation. The ECEJ recognizes that legal problems can arise out of or contribute to the social and economic circumstances of poverty. The Outreach Worker, a Registered Social Worker, supports vulnerable clients to access housing, emergency financial aid, government services, community referrals and provincial and federally funded social benefits programs. (See Appendix for telephone numbers.) The law schools at The University of Calgary and The University of Alberta both offer free advice in legal matters to those with low income. Assistance includes information and representation in the civil, criminal, traffic and family divisions of the Provincial Court of Alberta. The services are provided by law students who are supervised by practicing lawyers.

Alberta offers information, guidance counselling and referral services to Native people charged with offences. Courtroom assistance and speaking on your behalf are also provided.

will help women (and men) in adult and youth court by providing legal information, support and assistance throughout the court process. The Society offers a prison program (including short-term counselling and practical assistance) for women during their incarceration and upon release. Elizabeth Fry also offers: The Bridges Program, pre-employment counselling for women who have had problems with the legal system or are at risk of having problems with the legal system. The Aboriginal Healing Circle, a traditional aboriginal treatment for women dealing with abuse and trauma issues.

offers assistance and programs for men and women, youth and adult who are at risk of conflict or currently involved in the Criminal Justice System. Workers can assist you with problems and help you look for a job, write a resume, or improve your education. They can also help you find housing and clothing. The Crime Impact Program for youth aged l2-l8 focuses on raising awareness of the impact of crime on individuals, families and the community. The Youth Advocacy and Support program provides support and advocacy services. Bedford House, a half-way house provides parole supervision for special needs offenders. Berkana House provides apartments for women on day parole who need help to reestablish themselves in the community. Emergency Intake and Referrals provides assistance to those who need help integrating into the community. They are given assistance through direct service and/or community referrals. Services include clothing and furniture, referrals, resume preparation, faxing, personal counseling, as well as job targeting and skill development. The Learning Enhancement Education Program provides employment training. The Literacy Program provides free one on one tutoring and The Office, Career and Technology Program provides basic computer training in MS Word, Excel, Power Point, Windows 98, keyboarding skills, resume preparation, writing and job search techniques.

There are two types of law in Canada. Civil proceedings are those which concern matters between two or more private individuals or corporations. Criminal proceedings are those matters between a defendant (i.e., the accused person or business), and the Crown (i.e., the State).

Duty Counsel is a lawyer provided by the Legal Aid Society who is present at the provincial criminal courts in most centres as well as provides assistance to victims of abuse in family law matters in provincial family courts. The Criminal Law Duty Counsel is there to give advice to people before court. The Duty Counsel may speak on your behalf in court or assist you with entering a plea, making a bail application, seeking an adjournment or speaking to sentence. The Duty Counsel's services are free to anyone who needs immediate assistance; your financial circumstances are not material. Duty Counsel will also assist persons who are in custody. You should try to see the Duty Counsel before court begins, but if your case is called and you have not had a chance to see him or her, ask the judge to allow you time to speak with the Duty Counsel before dealing with your case. The Family Law Duty Counsel is also there to give advice to people before court and to assist victims of family violence to obtain an Emergency Protection Order. Calgary Legal Guidance provides a lawyer to act as Duty Counsel in Court of Queen’s Bench to assist unrepresented parties in family law matters.

If you are charged with a criminal offence and you are unable to speak English, the judge should be told at the time of your first appearance in court that you will require an interpreter, and one will be provided at government expense. If you are French-speaking, you may have the matter dealt with in the French language. Since many judges, Crown counsel, defence lawyers, court reporters and court clerks do not speak French, (or any language other than English), arrangements will have to be made to have French-speaking personnel available for your hearing.

Before the enactment of the Canadian Charter of Rights and Freedoms, there was no legal requirement that an interpreter had to be provided in civil proceedings. Section 14 of the Charter guarantees that any party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted, or who is deaf, has the right to the assistance of an interpreter. This section does not say that the interpreter must be provided free of charge however. If you are involved in legal proceedings and you need an interpreter, and if you believe that some of your rights or freedoms will be denied because you cannot afford one, you should ask the court to appoint an interpreter. The judge will be able to look at your particular situation and decide if an interpreter should be provided at government expense. Any requests for an interpreter should be made early in the proceedings so the court and other parties are not inconvenienced by any delay.

Limitation dates are deadlines or time limits imposed on you by law and which limit the amount of time you have to start legal proceedings, file appeals or make formal complaints. These deadlines are often set out in individual statutes, regulations or bylaws, otherwise, the Limitation of Actions Act sets out the deadlines. The length of time before your right to start or continue proceedings expires will depend on the type of problem that you have. For example, you have 30 days from the day that you receive your property tax assessment from the city to file a notice that you wish to appeal the assessment. Another example: if someone does not pay the money that she owes to you, you have two years from the time that the debt is due or she refuses to pay, to sue for the amount owed.

There are also limitations dates which affect certain criminal matters. Speak to a criminal lawyer if you have questions about such limitation dates.

One exception regarding limitations is the "reasonable discoverability" exception. This means that the limitation period does not begin to run until the plaintiff (the person bringing the suit) could have reasonably discovered the material facts upon which their case is based. Applying this principle in a sexual abuse case where the plaintiff has suffered a memory block over a number of years provides an example. Until the memories of abuse surface, the plaintiff cannot possibly appreciate that she has a cause of action.

Limitation dates are very important because if the time passes before you start your action, you will be prevented from making your claim. For example, if you obtain a Divorce Judgement from your spouse, you have two years from the date of the judgment to start your action under the Matrimonial Property Act for a share of the property that you acquired during your marriage. If you do not start your action before the two-year period is up and, if there is no fraud involved, you will not be able to obtain assistance under the statute from the court.

If you think that you may have a legal action against someone or if you wish to appeal a decision made against you, contact a lawyer or Legal Aid office to find out how long you have before your right to take action is gone. Don't delay; always leave plenty of time to make sure that all necessary documents can be prepared and necessary information can be obtained.

The term "rape" no longer appears in the Criminal Code; instead, a new category of sexual assault has been created. "Assault" is defined as the intentional application of force without the victim's consent. But when does an assault turn into a "sexual" assault? The courts have struggled with the definition, and the Supreme Court of Canada has concluded that there is no one test, such as, for example, whether direct genital contact was involved. Rather, courts will look at all of the circumstances of the assault, including the words and gestures used, whether the motive was sexual gratification, the nature of the contact, and what parts of the body were involved.

With the change in terminology, the focus has moved from the sexual aspect to the violent nature of the crime. Unlike rape, sexual assault can be committed by women as well as by men and may be committed by one married spouse against the other. The victim may be female or male.

The Criminal Code provides for three levels of sexual assault. Under Section 271, the first level, the accused may be charged either by summary conviction (a less serious offence), which has a maximum sentence of 18 months imprisonment or a $2,000 fine or both; or by way of indictment, which has a maximum sentence of 10 years of imprisonment.

Under Section 272, the second most serious level of sexual assault, the maximum penalty is 14 years imprisonment. A charge may be laid under this section if a weapon is used, threats to cause bodily harm to someone other than the victim are made, the victim suffers bodily harm or more than one person is involved in the commission of the assault.

The third level, aggravated sexual assault, is defined in Section 273. Aggravated sexual assault involves the wounding, maiming, or disfiguring of the victim, and carries a maximum sentence of life imprisonment. Because the law allows for the offence of sexual assault to be committed against both men and women, it will not be necessary for the Crown to prove that vaginal penetration by a penis occurred. Oral and anal intercourse without consent comes within the scope of sexual assault offences.

Under the law, the victim's past sexual history may be introduced only in certain circumstances. The accused's lawyer must give written notice that he/she intends to introduce the victim’s past sexual history. The judge, in closed court proceedings, must then determine whether such evidence is used merely to rebut evidence put forward by the Crown Prosecutor to establish the identity of the accused, or to reveal that more than one person committed the offence and the victim was intimidated by the first assailant and thus consented to the second assailant. For example, a woman is sexually assaulted by one man and another man comes along who does not use force, but the woman goes along with the sexual intercourse because she is too afraid to say no.

Generally, the main issue in a sexual assault case will be whether or not the victim consented to the act. Obviously, if the victim consented, then no crime has been committed. Consent is not valid if it has been obtained by: use of force against the victim or someone other than the victim; threat or fear of the use of force against the victim or someone else; fraud; or a person in authority, such as an employer, teacher, or parent who uses this authority to obtain consent.

If you are sexually assaulted, call the police or a Sexual Assault Centre. (In Calgary, the sexual assault centre is called Calgary Communities Against Sexual Abuse or CCASA). A Sexual Assault Centre will generally provide moral or emotional support, will call the police for you if you wish, will send someone to be with you, or will accompany you to the police station or the hospital. A friend could serve this same function; however, the centre volunteers are trained to assist sexual assault victims and will explain what you can expect to happen.

The police recommend that you do not do anything that will destroy any evidence of the attack. Do not take a bath, douche, or change your clothes. If you have been forced to perform oral sex, do not rinse your mouth or drink anything. Do not wash your hands or file your nails, since there may be a sample of the attacker's skin underneath your nails. If you report a sexual assault to the police, you will be questioned about the assault. The volunteer from the sexual assault centre may remain with you during the questioning, if you feel that her support would help. You will also be taken to the hospital for a medical examination to treat any injuries you may have suffered during the attack and to gather evidence. You will be given an internal examination and have swabs taken to test for semen. Your pubic hair will be carefully combed to extract any hairs that may identify the ATTACKER. Clippings will be taken from your nails to examine for skin traces. You will be thoroughly examined for any evidence of bruising or injury. These procedures are necessary if the attacker is to be successfully prosecuted. You should also ask the doctor about a pregnancy test, a "morning after" pill, and tests for HIV and venereal disease. Usually the doctor will warn you of the necessity of these tests; if she does not; do not hesitate to ask.

In Calgary, you are usually taken to the Rockyview Hospital or requested to have someone take you there. The Calgary Sexual Assault Support Team located there consists of doctors, nurses and sex crime police. They are a group of professionals from medical and police services who do most of the assessments of sexual assault victims in Calgary. Their assessments include domestic violence, suicide risk, safety and appropriate accommodation.

In Calgary, CCASA offers a 24 hour crisis service (the telephone number is found in the Appendix), short term crisis counselling and information nights, an anonymous drop-in for victims, those assisting victims and support workers. CCASA offers also offers support services to male victims of sexual assault.

If the attacker is caught and charged, you will be the main witness at his trial. You will have to testify at the preliminary hearing (if the Crown proceeds by way of indictment) as well as at the trial. Many months may pass between the attack and the trial, and you may find it difficult to remember all the details. It will be necessary for you to give detailed evidence about the incident. As pointed out above, the major issue in most sexual assault trials is whether or not the woman consented to the act. The accused's lawyer will try to convince the court that you did give consent. The lawyer may only question you on your past sexual activities if she meets the requirements already set out above.

You might feel that it is you, and not the accused, who is on trial. This is a common feeling among many victims of sexual assault. The accused is not required to testify and may not. It is up to the prosecution to prove guilt beyond a reasonable doubt, and not for the accused to prove innocence. Only through your testimony, and any evidence that may support it, can the accused be convicted.

Occasionally, a witness does not want to testify in court proceedings. This can happen for many reasons, but generally, in sexual assault cases, a witness is afraid to testify for fear of retaliation by the accused or someone else. Without the testimony of the witness, there may not be enough evidence to convict the accused. A witness who refuses to testify because her testimony will indicate that she was involved in the commission of a crime should ask the court for protection from prosecution under the Charter and the Evidence Act. If a witness does not want to testify because of fear of the accused, the Crown Prosecutor can take whatever reasonable precautions are necessary to protect the safety of the witness.

If the court does not excuse the witness from giving evidence, the witness must testify. If the witness does not testify, there may be a hearing to determine if the witness can show an acceptable legal reason to the court why the testimony need not be given. If the court decides that testimony must be given and the witness still does not testify, the witness will be held in contempt of court. The witness can be imprisoned for a set period of time or until the testimony is given. There is a dispute between those who believe it is unjust to punish a frightened witness who refuses to testify and those who believe that the interests of the public and the legal system require such testimony at any cost in order to bring a dangerous offender to justice. Without crucial testimony, a dangerous offender may be released and will be free to commit the offence again.

If you are called as a witness in any legal proceedings and you are not willing to testify, you should see a lawyer or contact Legal Aid to find out your rights and duties as a witness.

You may sue the attacker in civil court for damages, just as you would sue someone who damaged your car in an accident. To initiate a civil action, you should hire a lawyer. This may be a fairly expensive procedure and there is no point in it unless the attacker has assets from which he could pay damages. Damages in a civil suit are compensation for any losses or expenses arising out of the attack; for example, ruined clothing, lost wages, or medical expenses, as well as compensation for your pain and suffering.

If you were injured as a direct result of a violent crime in Alberta you may be eligible for an award under the Victims of Crime Act. The Financial Benefits Program created by the Act, provides direct assistance, with a one-time financial benefit based on the severity of the victim’s injuries. The benefit amount is set in the regulation to the Act. For further information, refer to the section of Victims of Crime Financial Benefits below.

A volunteer from a sexual assault centre will help you make out a third party report, if you wish one. This is a report to the police about the incident and it contains all the details about the attack except your name. No charges will be laid as a result of the report, but these reports are very helpful to the police when they investigate other crimes of sexual violence.

Many women who have been sexually assaulted feel that perhaps they are somehow to blame. Studies indicate that a woman's age, appearance or dress have little to do with the assault. It is primarily a crime of violence, not of sex. A woman is sexually assaulted because she happens to be vulnerable and to be in a certain place at a certain time.

Studies also indicate that a substantial proportion of all sexual assaults against women are committed by someone that the victim knows. It may be a friend, an uncle, a neighbour, or even a date. This is one reason why many attacks go unreported; a woman may be unwilling or too embarrassed to testify against someone she knows.

Sexual assault is an experience that may leave a victim emotionally and physically scarred. Emotional help is often necessary even years after the event. Sexual Assault Centres offer counselling and will also refer victims to other agencies or counselling services. A woman who lives in an area where there is no centre should ask her doctor to refer her to a counselling service.

A man, who beats a woman, whether it be his wife, his girlfriend, or his common-law partner, has committed a criminal offence. A woman who is subjected to assaults by her husband or boyfriend has the right to be protected from such violence. However, the right to be protected can only be enforced if a woman is prepared to seek help. There are many courses of action available to a woman who has been beaten and only she can decide which option is best for her.

If you are in immediate danger, your first concern will be for the safety of yourself and your children. You can call the police by using the emergency number (911). Make it clear to the police that you are in danger of immediate physical violence. This will speed up their response to your call. You should be aware that the police may charge your husband with assault (a criminal offence).

In cases of domestic violence, the choice of whether criminal charges should be laid used to be the responsibility of the individual woman. This is no longer the case. The policy of the police is to lay charges if they believe an assault has occurred or is likely to occur. If the police lay the charge, the charge can only be dropped at the discretion of the Crown Prosecutor.

Some police departments, including the City of Calgary, have crisis units consisting of counselors who will attend after the police have made a preliminary investigation. It is within the discretion of the police to call in a crisis unit worker, but you may request that one be called to assist you. The crisis unit worker can provide referrals to appropriate agencies and follow-up counselling.

If you choose not to call the police and do not want to stay in the house, get in touch with one of the women's emergency shelters. They will provide you and your children with emergency accommodation (usually for up to 2l days). They also offer counselling, clothing, day care, and will assist you in getting legal help and Social Assistance if necessary. If there is no shelter in your area, you can also get emergency assistance from the Department of Social Services to pay for temporary accommodation. (See listing in the chapter under Legal and Community Resources.)When you leave, take enough clothing for a few days, your house keys, medication and identification. If you are unable to take anything, the police may go back to the house with you a day or two later while you collect the basic necessities that belong to you and your children.

If the police do not charge your husband, you may lay the charge yourself. This involves laying a private information before a Justice of the Peace. An information is a sworn statement which states that you have reasonable and probable grounds to believe an offence has been committed. You will be required to provide proof of the attack if the case goes to trial; therefore, you should request that the police make a written report, seek medical attention for any cuts etc., and have the doctor record

any evidence of the attack. Before you start with criminal charges, you should be sure that you are prepared to follow through with them. Even if convicted, the man may only receive a fine, probation or a discharge, unless he has a previous record of violence or you were seriously injured.

If you are concerned that your husband partner or boyfriend will subject you to further violence or if he is harassing you, you may apply for an Emergency Protection Order (EPO). The police or RCMP may make application for an EPO 24 hours a day, seven days a week. You may also make application for this order at Provincial Court, Family Division. You would be given advice and assistance to help you complete the forms. Once you obtain the Order, your partner will be advised to stay away from you. The Order must be reviewed at a hearing at Court of Queen’s Bench within seven days from the day the order was first granted. The documents are filed at the Court of Queen’s Bench. The Court of Queen’s Bench automatically forwards the documents and a transcript of the hearing to Calgary Legal Guidance (CLG). Usually, a lawyer from CLG will contact you by couriered letter, at the earliest time possible, to advise that she is available to assist you at the EPO hearing at Court of Queen’s Bench, free of charge and to seek your instructions. The CLG lawyer also provides information about community services available, discusses safety issues and ensures service of your Order has been completed. She also provides further legal advice that would be appropriate to your circumstances. This lawyer is also Duty Counsel for all claimants in the Calgary area granted to contact Legal Aid immediately, and a lawyer would be assigned by Legal Aid to assist you at the review hearing. If there is a breach of the Order by your partner, the CLG lawyer will attend court with you even months after the "review", if you do not have a lawyer and sometimes even if you do.

A second remedy for your safety would be a Restraining Order. This procedure is best used if you have already retained your own lawyer. A Restraining Order must be obtained in combination with another legal action such as a matrimonial property action, a divorce action or a civil action. It is possible to obtain other relief at the same time you apply for a Restraining Order such as custody of your children or possession of your home.

When you get either Order, you or your lawyer must file it with the police. A copy must be served with an Affidavit of Service. In case of breach of the Order, the police will arrest your partner and keep him in police cells until he can be brought in front of a judge, which may take a night or a weekend. The judge may impose a fine, or a jail term, or may simply give him a reprimand.

If you do obtain a court Order that requires your partner to stay away from you, make sure that you also comply with the terms of the Order. Once the Order has been made, you should not ignore its terms and allow your partner to have contact with you. If you do, you are encouraging your partner to break the law but, more importantly, you are ignoring the help which the court has given you. Should you reconcile with your partner or decide that you do not need the Order any longer, ask your lawyer to apply to the court to remove it. In this way, if you need another Order in the future, the court may be more sympathetic to your situation. Generally, such Orders are good for a limited period of time, for example, 90 days, and you must apply to the court if you need to extend that period of time.

A third remedy available to you is a peace bond. This is simply a promise made by your partner to the court to behave and keep the peace. In order to get a peace bond, you will have to lay a private information at the police station. Both you and your partner will have to appear in court to testify. It can take up to six weeks to obtain a peace bond and the police are more reluctant to enforce them than an EPO or Restraining Order.

A further remedy, available to legally married persons only, is an order under the Matrimonial Property Actfor exclusive possession of the matrimonial home. This could include an order forbidding your husband from coming to or entering the home. Such an Order can apply to both owned and rented property. When making a decision to award one spouse exclusive possession, a judge will consider the availability of other accommodation within your means and your husband's means, the needs of your children and both of your financial positions.

A "no contact" Order can be imposed by the police after an assault charge has been laid. A "no contact" Order is usually a condition of the accuser’s release: in other words, he will be charged and released provided he not have contact with the person he abused. If the "no contact" Order is breached, the accused may be remanded to sit in jail until his next court appearance.

If you have decided to leave your husband but are unable to support yourself and your children after you leave, you can apply for welfare. Funds will be provided for food, clothing and shelter, as well as training if you have no marketable skills. You should also apply immediately for interim custody of your children. If you are married, and if you do not have a court order or agreement for custody of the children, your husband could simply grab the children from you, or could even lay kidnapping charges. (The consent of the Attorney General will be needed before the charge is laid.) The only defence to these charges is that the children were taken to remove them from a situation that was dangerous to them. Do not delay seeking interim custody of your children. This can be done through Family Court by yourself or through the Court of Queen's Bench by your lawyer.

Victims of violent crimes may be eligible for financial assistance under the Victims of Crime Act, Financial Benefit Fund which provides direct assistance with a one-time financial benefit based on the severity of the victim’s injuries. This benefit amount is set in the regulation to the Act. You must have been injured as a direct result of a violent crime in Alberta. If the crime results in death, a surviving family member or any other person acting on behalf of the deceased may apply for a death benefit. There is only one benefit awarded for a deceased victim and it may be split among eligible survivors. The program recognizes child victims and significantly incapacitated adults are not in a position to apply on their own. In those instances, a guardian or someone acting on the victim’s behalf may apply. You are not eligible for benefits if you are charged and convicted of an offence as a result of the incident, you are a victim of motor vehicle or property offenses such as impaired driving or break and entry or are secondary victims such as family members of the victim or witnesses to the crime.

You may be eligible for financial benefits if you have suffered physical or emotional injury as a direct result of being a victim of violent crime that occurred in Alberta. The crime must have been reported to police within a reasonable period of time and the victim cooperated with the investigation into the incident. The application for financial benefits must be received within two years of the date of the incident. Do not wait for a conviction or for charges to be laid. (Additional time to apply may be considered under certain conditions if the applicant was unable to apply due to circumstances). For example, a victim who was hospitalized for an extended period suffering from a brain injury or if the victim was a child and the parent or guardian did not apply on the child’s behalf.

The Financial Benefits Program does not pay compensation for costs or losses. It does not cover property damage, medical expenses, funeral costs, loss of wages or pain and suffering. Victims may seek restitution or take civil action for the recovery of costs or losses from the offender.

Application forms are available from the Financial Benefits Program for an application form through local victim service programs associated with police services or through the Government of Alberta website. (http://www.gov.ab.ca/just/victims). In almost all cases, a completed application form is the only information you will need to submit. Additional information on the process is provided after the application is submitted. The average time for a decision is about four months but this can vary greatly.

Criminal offences are classified as either summary or indictable. The simple distinction between summary and indictable offences is that summary offences have lower maximum penalties and less serious consequences in other respects. There are important differences in the legal procedures which apply to each type of offence.

Some of the most common criminal offences, such as impaired driving, assault on a peace officer, theft, or possession of stolen property where the value of what is taken or possessed is less than $5,000, may be summary or indictable at the option of the prosecutor. This also includes many criminal charges under the Controlled Drugs and Substances Act, including possession of marijuana, hashish, heroin, cocaine, and so on. The prosecutor has a right to elect whether to proceed against the accused by summary proceedings or by indictable offence. In such cases, the prosecutor normally opts to proceed summarily on a first offence and may choose to proceed by indictable offence for a second or subsequent instance, or for a particularly aggravated set of allegations on a first offence.

In the Criminal Code, summary offences are generally punishable upon conviction by a maximum $2,000 fine or six months' imprisonment, or both. The maximum penalty for most minor indictable offences, such as theft or possession under $5,000, where these are proceeded with by way of indictable offence, is two years' imprisonment. The two-year maximum also applies to the indictable offences of leaving the scene of an accident ("hit and run driving") and skipping bail. More serious indictable offences bear maximum jail terms of five, seven, 10, 14 years, or life. There is no restriction on the amount of the fine that can be imposed as sentence for most indictable offences.

Under the Controlled Drugs and Substances Act, a first conviction for a summary offence carries maximum penalties of a fine of $1,000 or imprisonment for six months, or both. A subsequent conviction for a summary offence carries maximum penalties of a fine of $2,000 or imprisonment for one year, or both.

If the Crown Prosecutor proceeds by indictment on a charge of possession of a narcotic, the maximum penalty is seven years. Section 6(3) of the Controlled Drugs and Substances Act states that offences such as importing a narcotic (e.g., cocaine, heroin, or marijuana) carry a maximum term of life.

Offences under the drinking and driving sections of the Criminal Code carry the same minimum penalties for conviction of a summary offence or an indictable offence. Penalties are increased on the basis of whether the offence is a second, third or subsequent conviction. For example, for a first offence of impaired driving, the minimum penalty is a fine of $600.

For a second offence, whether for impaired driving, summary or indictable, there is an automatic jail term of not less than 14 days. For any subsequent offences, there is an automatic imprisonment for a term of not less than 90 days. Where the offence is prosecuted by indictment, there is a maximum term of imprisonment not exceeding five years, and where the offence is punishable on summary conviction, imprisonment shall not exceed six months. The same penalty provisions apply to the offences of refusing to take a breathalyzer test.

There are important differences between being charged with a summary or indictable offence in these respects. The Criminal Code does not permit arrest of a person who is to be charged with a summary offence, unless there is a warrant for that person's arrest or unless the officer finds that person committing the offence.

In contrast, in the case of indictable offences, an officer can arrest a person who, on reasonable and probable grounds, the officer believes has committed or is about to commit an indictable offence.

The Criminal Code obliges a police officer not to arrest a person for a summary offence, or an offence which may be

prosecuted by summary proceedings or by indictment, or an indictable offence where there is a mandatory trial by a Provincial Court judge, unless the arrest is deemed necessary to safeguard public interest. Public interest is defined in the Criminal Code as meaning the need to establish the identity of the accused, to secure or preserve evidence, or to prevent continuation or repetition of the offence or another offence. An officer can also make an arrest where she has grounds to believe that the person will fail to attend court.

Booking procedures are substantially the same for summary and indictable offences. However, the usual procedure of an arrest for an indictable offence or an offence which may be summary or indictable is fingerprinting and photographing pursuant to the Identification of Criminals Act.

A person accused of a summary offence is usually released on her own recognizance. An accused person charged with an indictable offence, who has been denied bail, is entitled to automatic review of bail after she has been in custody for 90 days. In the case of a summary offence, an accused is entitled to an automatic review of bail if the trial has not proceeded within 30 days of the detention.

Another important distinction between summary and indictable offences is that an accused need not appear in person in a summary case. She may appear through her lawyer or an agent to set a date for the trial, to enter a plea, and for the trial itself. However, the provincial court judge may require the accused to appear in person.

In the case of indictable offences, the accused must appear in person, unless she signs a designation of counsel allowing counsel to appear on her behalf.

In summary cases, there is no right to have a preliminary hearing. The usual method of obtaining information before trial is for defence to obtain disclosure from the Crown Prosecutor. There is a provision in the Criminal Code for making a formal application for disclosure, although it is rarely resorted to. In the case of indictable offences, pre-trial discovery in the form of a preliminary hearing is available for all indictable offences except those for which the Code provides a mandatory trial by Provincial Court judge, such as theft under $5,000, false pretenses under $5,000, or possession of stolen property under $5,000. Right to Preliminary Inquiry has been severely restricted by legislation effective June 2004.

In other cases of indictable offences, the accused has the right to choose to be tried by a Queen's Bench Judge without a jury, a Provincial Court Judge without a jury, or a Queen’s Bench Judge and a jury. A preliminary inquiry may be held to determine whether there is sufficient evidence to commit the accused for trial. If there is insufficient evidence to commit the accused for trial, then she will be discharged at the end of the preliminary hearing and there will be no trial.

Arrest is the term given to the process of depriving a person of her liberty. Private citizens as well as police have powers of arrest. An arrest can be made with or without a warrant depending on the circumstances and the offence. A warrant is an order issued by a court official (judge or justice) authorizing the arrest of the person named on it. A person who commits or is suspected of committing an offence will not necessarily be arrested. The police may let her off with a warning or issue an appearance notice or summons for her to appear in court at a specified date and time. The police do not make an arrest in every case.

In cases of indictable offences, the Criminal Code provides that a police officer can usually arrest without a warrant, a person who has committed an indictable offence, or who the officer believes has committed or is about to commit an indictable offence.

An officer can arrest a person she finds committing a criminal offence, whether it is a summary or indictable offence. In addition, an officer can arrest a person for whom he or she believes, on reasonable and probable grounds, that there is a warrant in force within the territorial jurisdiction in which the person is found.

Once again, the distinction between summary and indictable offences becomes important and governs the powers of arrest. A police officer cannot arrest a person on the basis of a belief that the person has committed a summary offence unless the officer has reasonable and probable grounds to believe that a warrant is available. In the case of summary offences, the officer must actually find the accused committing the offence before there can be an arrest without a warrant or at least without a warrant being in existence

There are also powers of citizen arrest in the Criminal Code. A citizen may arrest any person who is committing an indictable offence or any person who, on reasonable and probable grounds, the citizen believes has committed a criminal offence whether it be summary or indictable, and is escaping from and is freshly pursued by persons who have lawful authority to arrest that person.

In addition, a citizen who is the owner or lawful possessor of property or a person who is authorized by the owner or lawful possessor of property, may arrest without warrant any person found committing a criminal offence on or in relation to that property. A citizen who makes an arrest must deliver the arrested person to a police officer immediately.

A police officer or a civilian is also justified in using force to prevent the commission of an offence or to prevent anything being done that a person on reasonable and probable grounds believes would, if it were done, be an offence. This power is restricted to offences for which, if committed, an arrest without warrant would be justified and to offences that would be likely to cause immediate and serious injury to the person or property of some person. No more force than is reasonably necessary can be used for the purpose of preventing the commission of an offence.

In law, there is no power to arrest persons on mere suspicion that they have committed a criminal offence, or for the purpose of further investigating a suspicion that they have committed a criminal offence. Where police arrest a person on mere suspicion that she has committed a criminal offence and where that suspicion does not amount in law to reasonable and probable grounds for believing an offence has been committed, a wrongful arrest will have occurred and the police may be liable for damages in civil law.

Section 9 of the Charter of Rights and Freedoms specifically provides that everyone has the right not to be arbitrarily detained or imprisoned.

Evidence obtained as a result of an unlawful arrest may not be allowed in court if it violates the provisions of section 9 or the right to be secure against unreasonable search and seizure in section 8 of the Charter. A trial judge can exclude evidence under section 24(2) of the Charter where she finds the evidence was obtained in a manner that infringed or denied any of the rights or freedoms guaranteed in the Charter and where it is established that the admission of the evidence would bring the "administration of justice into disrepute". That is, it would display a lack of integrity within the justice system.

Police officers can ask a suspect to voluntarily submit to questioning and even to accompany them to the police station for that purpose. A person who voluntarily goes to the police detachment for questioning cannot later claim damages for false arrest, in the absence of evidence of coercion or threat of coercion by the officers. In the case of voluntary submission without coercion or threat, there would not be a violation of the right not to be arbitrarily detained or imprisoned.

To make a lawful arrest, a police officer should identify herself or himself, tell the suspect that she is being arrested, inform the suspect of the reason for the arrest or show the suspect the warrant if there is one, and, where feasible, touch the suspect on the shoulder as a physical indication of the confinement.

In addition, section 10 of the Charter of Rights and Freedoms must be complied with. This section provides that everyone has the right on arrest or detention to:

(2) retain and instruct counsel without delay and to he informed of that right, and

(3) have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. Habeas corpus means "you have the body." It is a way in which a person in custody can ask a court to decide whether her detention is lawful.

(1) "Actus reus" - the guilty act. The Crown must prove that it was a voluntary act by the accused. It can be classified as the doing or action part of the offence.

(2) "Mens rea"- the guilty mind or intent. Did the accused intend that act to occur? In a murder case, an individual could be charged with negligence instead of murder if unable to form intent. An insane person cannot form mens rea and therefore will not be found guilty. Any child under the age of seven does not have the ability to reason and form intent and therefore cannot be charged under the Youth Criminal Justice Act.

Both elements must be present in order for the person to be found guilty. However, although the majority of offences require a mental element or mens rea, some do not. Where mens rea is required it consists of two parts: the awareness of the act, and the intent or knowledge. The accused docs not have to know that it is an offence. It is sufficient that she does the act intentionally.

Offences may be divided into three categories for purposes of determining the mental clement required:

(1)GENERAL INTENT OFFENCES: require a positive state of mind which the prosecutor must prove. Such offences will usually contain such words as intent, knowledge, or reckless.

(2)STRICT LIABILITY OFFENCES: the prosecutor must prove that the accused committed the act. The accused can then avoid liability by showing that she took all reasonable precautions to avoid committing an offence, otherwise known as a due diligence defence.

(3)ABSOLUTE LIABIL1TY OFFENCES: the prosecutor only has to prove that the accused committed the act. It is no defence to the accused to show that she took all reasonable precautions to avoid committing the offence.

Provincial Court is the first level of court in Alberta. The judicial process begins here for everyone accused of a criminal offence. The judges in this court may also sit on the Family Court and in Provincial Court Civil Division where they hear civil cases involving debt, breach of contract or tort falling under the monetary value of $25,000.

Provincial Court Judges handle 90% of all criminal cases. Besides presiding over the first appearance court for all criminal cases, they have absolute jurisdiction over summary offences, including provincial and municipal violations, as well as all

indictable offences under Section 553 of the Criminal Code of Canada, for example theft under $5,000. Judges in Provincial Court are referred to as "Your Honour.", "Madam" or "Sir".

The Provincial Court Judge must also determine how an individual elects to be tried if she is accused of an indictable offence. For example she can elect to be tried by a Judge of the Provincial Court, a Judge of the Court of Queen's Bench, or by a Judge and jury of the Queen's Bench

All indictable offences in the Criminal Code, except those in section 553, are under the absolute jurisdiction of the Court of Queen's Bench. Judges in Queen’s Bench are referred to as "My Lord" or "Sir" and "My Lady" or "Madam".

If the accused is sentenced to a period of incarceration, she will be held at a Remand Centre during the 30-day right to appeal period. Both the person convicted of the crime and the Crown has the right to appeal the sentence or the conviction. The Attorney General will determine other appeal applications beyond the 30-day limit. An appeal of the trial decision on a summary conviction offence would be made to the Court of Queen's Bench; on an indictable offence to the Court of Appeal of Alberta. The Supreme Court of Canada is the highest appeal court in the country.

The Supreme Court of Canada is the Federal Court of Appeal. Usually, the only cases that are heard by the Supreme Court of Canada are appeals from the Appellate Divisions of the various provinces. As a rule, proceedings cannot be commenced in this Court as all cases must be conducted originally in the Provincial Courts. Because it is the final Court of Appeal in Canada, it hears appeals from the Appellate Divisions of the Provincial Supreme Courts and Queen’s Bench courts and the Federal Court.

In criminal cases, an appeal may only be made to the Supreme Court of Canada in cases in which an important point of law or the constitutional validity of a statute is involved.

A trial involves complicated rules of evidence and procedure. This section only touches on the most basic procedural points.

The trial for a summary offence can be held in the absence of the accused (unlike a trial by way of indictment), but this is rarely done. Usually, the Judge will require the accused to be present.

The trial begins with the Prosecutor calling evidence, usually in the form of witnesses. Each witness must be sworn in or affirmed.

The Prosecutor questions each witness as to his or her involvement in the case. This is called "examination-in-chief" or "direct examination." In direct examination, the questions can only relate to facts (what the witness saw, felt, heard, etc.). A witness cannot usually be asked for an opinion unless the witness is a qualified expert or the opinion concerns something common to everyday experience, for example, an opinion as to speed or distance. The questions must also be such that the witness tells the story and is not "led" to a "yes" or "no" answer by the lawyer. Another restriction on the types of questions that can be asked is the "hearsay rule." Normally, a witness cannot be asked what he or she was told by a third person outside of court. Confessions by the accused, however, form one of the many exceptions to this rule.

In addition to the testimony of witnesses, the Crown Prosecutor can also enter relevant evidence such as photos, weapons, etc., called "real evidence."

A third kind of evidence is "certificate evidence," which is common, for example, in impaired driving or drug charges. The rules surrounding this sort of evidence are very strict and complex.

When the Crown Prosecutor finishes questioning a witness, the defence can then "cross-examine" that witness. In cross-examination, the questions can be leading, and almost any question that tests the accuracy or the credibility of a witness is allowed, as long as it is relevant and not vexatious or repetitive.

At that point, the defence can elect to either call defence evidence, or call no evidence. If the defence does call witnesses, it is restricted to essentially the same kinds of questions as the prosecution was in "direct examination" with no leading questions. When the defence has finished questioning, the prosecution can then cross-examine. This process continues until the defence "rests its case."

When the evidence has been presented, each side sums up its case, reviewing the evidence and referring to applicable law. If the defence calls no evidence, then the prosecution sums up first. If defence evidence is called, then the defence sums up first.

The Judge then reaches a decision as to guilt or innocence. If satisfied beyond a reasonable doubt that the accused is guilty as charged, then the Judge considers a sentence. Otherwise, the accused is acquitted. Before a sentence is imposed, however, each side has an opportunity to "speak to sentence," where the same factors come into play as discussed above.

An accused person who puts forward a defence is saying either that she did not commit the offence or, that while she may have committed the actus reus required by an offence, there are circumstances which either prevented her from forming the mens rea or which excuse her from liability for the offence. For example, not everyone who kills another person is guilty of murder. A police officer may have to kill in the course of duty to protect his or her life or that of an innocent bystander

A person may claim a defence of duress where she commits an offence under threat of immediate death or serious injury should she refuse. She must believe that the threats will be carried out and must not be part of the original plot to carry out the offence.

The threat does not have to be against her. For example, it might be against her child, spouse, or a stranger.

The person making the threat must be present and in a position to carry out the threats.

This defence is not available for all offences. Excluded offences include murder, attempted murder, robbery, arson, forcible abduction and sexual assault.

The accused must raise the defence and provide sufficient evidence to raise doubts as to whether she was acting under duress.

This defence arises from the requirement that the Crown proves beyond a reasonable doubt that the accused committed the guilty act and had the necessary guilty mind.

Mistake of fact may be used as a defence where the mistake is such that it misleads the accused into thinking that she is either not committing an offence at all or is committing a less serious offence than the one she actually commits. For example, Ann is told by Bill that Charlie has taken his bicycle. Bill asks Ann to get it back. Ann has seen Bill riding the bicycle in the past and believes that Bill owns the bike. Ann takes the bike and returns it to Bill. The bike in fact belongs to Charlie. Ann may have a defence of mistake of fact.

It is true that ignorance of the law is no excuse. We cannot avoid liability for committing a wrongful act by claiming that we did not know that it was an offence, despite the fact that it is impossible to be aware of every law and regulation.

The Charter of Rights and Freedoms has had some effect on this doctrine. Recently there have been cases where the courts have decided that it would be unfair to convict the accused where she was not informed of the offence and had not been

properly informed. In reaching their decisions, the courts have looked particularly at section 7 of the Charter which provides that a person should not be deprived of the right to life, liberty, or security of the person except in accordance with the principles of fundamental justice.

The issue of not criminally responsible on account of mental disorder may be raised by the defence or the prosecution. The accused can be not criminally responsible on account of mental disorder at the time of the offence or at the time of trial.

A hearing will be conducted to see whether the accused is fit to stand trial. The Judge may send her for observation for up to 30 days (60 in some circumstances). If she is found unfit to stand trial, she will be kept in custody at the pleasure of the Lieutenant Governor.

If the accused is tried but acquitted by reason of being not criminally responsible on account of mental disorder, the Judge will order her kept in custody until the Lieutenant Governor makes an order as to where she will be kept. An order may be made for the safe custody of the accused in a place and manner directed by the Lieutenant Governor or for the discharge of the accused either absolutely or subject to conditions. When considering whether to release the accused, the Lieutenant Governor must look at the best interests of the accused and the public.

A person who is attacked by another has the right to defend herself. She must use no more force than is necessary to repel the attack. She may be justified in killing her attacker or causing him serious bodily harm if she has reasonable grounds to believe that it is the only way to save her from death or serious injury.

She must have been in reasonable apprehension of death or serious injury from her attacker at the time. In assessing the probability of such apprehension the court may consider evidence of the attacker's violent nature.

A person who assaults another and is then attacked by that person may be justified in using force to repel the attack. She must not have commenced the original assault with the intention of causing death or serious injury. She may only use as much force as is necessary to repel the attack and must be able to show that she declined further conflict and tried to retreat from the attack. For example, Ann pushes Bill. In response Bill punches and kicks Ann. Ann tries to run away but is stopped by Bill. Ann is justified in using force to repel Bill's attack.

A person may also use as much force as is necessary to prevent an assault, or to prevent someone from taking her property, or to prevent someone from breaking into her home.

PMS is not a defence but has been accepted as a mitigating factor when considering sentence. If there is some clear medical evidence that the woman suffers from PMS and did so at the time of the offence, it may serve to reduce her sentence.

Drunkenness has been accepted by the Supreme Court of Canada in R. v. Daviault as a defence for committing an offence. If a person is intoxicated to such an extent that she is incapable of forming the necessary specific intent for the crime, then the person can not be found guilty. However, a person may still be found guilty of a lesser offence requiring a less specified degree of intent. In the case of murder, drunkenness may reduce the offence from murder to manslaughter.

Provocation does not justify, and is not a defence to, an assault although it may mitigate the sentence. Provocation includes blows, words or gestures.

Provocation is a limited defence to a charge of murder. Section 232 of the Criminal Code states:

(l) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

(2) A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power and self-control is provocation for the purposes of this section if the accused acted upon it on the sudden and before there was time for his passion to cool.

The 1990 Supreme Court of Canada decision in the Lavallee case questioned the presumption that only immediate danger is the basis for an acquittal on the basis of self-defence. According to Lavallee, if a judge or jury finds that a woman reasonably anticipated death or grievous bodily harm (even though it wasn't a threat at that very moment), and that she used an appropriate amount of force in response to that threat, she should be acquitted. Expert evidence will explain the violence cycle, and the psychological effect of the victim of repeated violence.

Sentencing takes place in a court following a guilty plea or a finding of guilt by the judge or the jury. Sentencing may take place immediately after the plea or finding of guilt or be delayed pending preparation of a pre-sentence report.

A pre-sentence report is prepared by a probation officer at the request of the judge or on the suggestion of either lawyer. The report assists the judge to decide on the most appropriate sentence for the offender.

The probation officer looks at the offender's background, previous convictions, family life, work record, current employment, any treatment or counselling the offender is receiving, and the offender's attitude towards the offence. The probation officer may talk to the offender, her immediate family, and/or the police.

Copies of the report should be provided by the clerk of the court to the accused or her lawyer, to the judge and the prosecutor. If the defendant disputes the accuracy of statements in the report, the onus is on the Crown to prove that they are true; otherwise the judge should not take them into account.

While the report is being prepared, the judge may order that the offender remain free on bail or recognizance or be held in custody.

Prior to passing sentence, the judge gives the accused, her lawyer and the prosecutor an opportunity to speak to sentence. The defence should provide information on the accused's background, employment, education, dependents. The prosecutor provides information on the accuser’s criminal record (if any) and on the circumstances surrounding the offence, such as whether the accused was drunk. The defence may also wish to explain the circumstances.

An absolute discharge means that the person pled or was found guilty but is deemed not to be convicted. However, having been granted a discharge becomes part of the criminal record. A check of the person's record would reveal a record of Absolute or Conditional Discharge, not a criminal conviction.

The RCMP will automatically remove information about discharges given after July 24, 1992 from their computers one year after the court decision. Information about absolute discharges given before July 24, 1992 will not be removed automatically. After one year, you can write to the RCMP in Ottawa and ask for the information to be removed.

The terms attached to a conditional discharge are similar to those found in a probation order. If the offender meets all the conditions in the allotted time period, the Court will grant a conditional discharge. The RCMP will automatically remove information about conditional discharges given after July 24, 1992 three years after the court decision. Information about conditional discharges given before July 24, 1992 will not be removed automatically. After three years, you may write to the RCMP in Ottawa to request removal of the information.

The court may place the offender on probation for a period of time or probation may be added to any of the other sentencing alternatives. Probation is a disposition of the courts that allows the individual to serve her sentence in the community within certain conditions. The only mandatory conditions are that the individual "keep the peace and be of good behaviour and report to the courts when required to do so." Common added conditions are: supervision (reporting to a probation officer); refrain from the use of alcohol and drugs; refrain from associating with certain individuals. The longest period of probation is three years.

Breach of probation is a summary offence. The individual can be returned to court and given a further sentence on the original crime.

In many cases, a fine is given as a penalty for committing an offence. While maximum fines are stated in the Criminal Code,

e.g.maximum $2,000 for a summary offence, the actual amount given within that limit is at the discretion of the judge. In Alberta, persons who do not have funds to pay a fine may be eligible to work in the community under the Fine Option plan. The Fine Option plan allows people to work their fines off in the community at the rate equal to the provincial minimum wage rate, which is presently $5.90 per hour, to be raised to $7 per hour on September 1, 2005. For example, for a $600 fine, the person would have to work just under l02 hours. There is no actual exchange of money with the offender; the minimum wage rate is a rate used to determine the number of hours the individual must work.

The Criminal Code indicates maximum and minimum sentences for a wide variety of offences. For example, robbery has a maximum sentence of life, assault causing bodily harm has a maximum of ten years, and importing narcotics has a seven year maximum. All summary offences have a maximum of six months in jail, $2,000 fine and/or both. As well, the court may order that the sentences, if there is more than one, be served concurrently or consecutively.

Concurrent Sentences -- All sentences commence on the same date and the total jail time is concluded when the lengthiest of the concurrent sentences is complete. Usually, related offences that occur the same day or week are sentenced concurrently. Also if the person is already serving a sentence, she is likely to get concurrent time. If you are dealing with several charges at the same time, you are more than likely to get concurrent time.

Consecutive Sentences -- These sentences are served one after the other and related to totally separate offences. If an offender is convicted of robbery and sentenced to three years, and on the same date is convicted of sexual assault and sentenced to two years, a total term of five years would be imposed if the sentences were consecutive and three years if concurrent.

Conditional Sentences --- A conditional sentence avoids actual incarceration behind bars and allows criminals to serve their period of incarceration under a term of "house" arrest. There are three pre-requisites for a conditional sentence: 1) the sentence of incarceration must not be more than two years less a day; 2) the offender must not be a danger to the public, and . 3) the offence must be one for which no minimum sentence is required by the Criminal Code. If these three pre-requisites are made out, the judge may consider a term of "house arrest".

If the judge sentences someone to a term of less than two years in jail (a day less), the sentence will be served in a provincial institution, while two years or more are served in federal penitentiaries.

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Provincial Sentences

Anyone who received a sentence of two years less a day is considered to be a provincial inmate. The judge has a variety of options available when passing sentence.

CUSTODY ---The judge can sentence a person to custody, anywhere from one day to two years less a day.

INTERMITTENT--- This type of sentence allows the person to serve their time on weekends. This is usually done in conjunction with special circumstances, as long as the offence was not a serious or violent offence, e.g. serving a weekend sentence would allow a single mother to keep her job and children, while satisfying the court at the same time.

FINE --- A judge can sentence a person by handing down a fine. The judge can not only stipulate the amount in the fine, but can also sentence the accused to the fine or time in jail (default). The accused may end up serving part of the disposition in

custody until the fine is paid.

TEMPORARY ABSENCES (TAs) --- Provincial inmates are eligible for release after they have served l/6th of their time. Inmates would normally receive day TAs to begin with. This would enable the inmate to be in the community during the day, and return to the centre in the evening. All inmates who are in the community have to have TA status. TAs allows offenders to reside at halfway houses, treatment centres, or return home.

Provincial offenders are released at their 2/3 date. Unless their sentence was accompanied by probation, they are free and clear.

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Federal Sentences

The federal system also uses TAs; however the purpose of the TA is quite different from the provincial system. Most federal TAs are granted for a period of up to 74 hours per three-month period by the authority of the Warden of the Penitentiary. An inmate will often be granted a number of "Escorted Temporary Absences" (ETA) for a short period of time, e.g. two to four hours, before she will be granted an "Unescorted Temporary Absence" (UTA). UTAs may be granted to allow the inmate to apply for a job, attend an interview with a prospective landlord, and attend family functions or simply to visit with family or friends.

The National Parole Board (NPB) is the only body which has the authority to approve a TA for more than three days but not exceeding 15 days. These TAs are granted for humanitarian reasons and for rehabilitation purposes. Eligibility for TAs usually arises at the same time as eligibility for day parole (1/6) and is usually the first form of release that an inmate will be granted. The federal system also utilizes parole for the release of inmates back into the community.

DAY PAROLE --- Inmates are usually eligible for day parole six months prior to their full parole eligibility. Day parole will be granted only when the National Parole Board considers that it will aid the inmate's reform and rehabilitation without constituting a risk to society. The NPB will set the conditions which the inmate must follow while on day parole, e.g. return to centre or halfway house every evening. Day Parole generally only lasts for a six-month period. It may be revoked or terminated if the inmate has become an undue risk to society.

FULL PAROLE --- This allows the inmate to remain at large until the end of sentence, unless the release has been suspended, terminated or revoked. An inmate is generally eligible for full parole after serving 1/3 of their sentence. Full parole is usually granted to those who do not constitute an undue risk to society, and who have derived maximum benefit from imprisonment, and whose reform and rehabilitation will be aided by granting full parole.

The NPB may deny release only in a number of special circumstances where the commission of the offence caused death of or serious harm to, another person and in the opinion of the NPB there are reasonable grounds to believe that the inmate is likely to commit another such offence prior to expiration of her sentence. This also applies to offenders who are believed likely to commit a serious drug offence prior to sentence expiry.

The NPB may also grant one -chance statutory release. This type of release, once revoked, calls for the inmate to serve the rest of her sentence in a penitentiary with no possibility of a further release until sentence expiry. The release of an offender may be

suspended:
(1)	when a breach of a term or condition of parole occurs;
(2)	to prevent such a breach from occurring; or
(3)	to protect society.

Normally, a release would only be suspended when the situation indicates that the continued release would constitute an undue risk. Revocation or termination of parole occurs when the inmate has become an undue risk to society, either by committing a further offence, by violating the conditions of her parole, or because she is likely to do so. Where the parole or statutory release of an offender is terminated or revoked, the offender shall be recommitted to custody and shall serve the portion of the term of imprisonment that remained unexpired on the day which the parole or statutory release was terminated or revoked.

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CRIMINAL RECORD

Individuals who have been found not guilty or who have had their cases dismissed will not have a criminal record. A criminal record does accompany the following: suspended sentence, probation, and fine or prison sentence.

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PARDONS

If you have been convicted of an offence under the Criminal Code or any other federal legislation, you may make an application to the National Parole Board for a pardon in respect of that offence. The Board must investigate your circumstances since the date of your conviction. You must not have reoffended and be of good behaviour. The effect of the grant of a pardon is to automatically remove the record of the conviction in federal documents, and when applying for employment in connection with a job that is under the legislative authority of the federal government, remove any disqualification to which you are subjected because you had a conviction. While a pardon is a federal creature and only applies to federal records, many provinces and municipalities will voluntarily restrict access to your record upon application, establishing you were granted a pardon by the federal government.

You may be eligible for a pardon from a summary conviction three years after you have paid your fine or completed your sentence. A pardon from an indictable offence may be obtained five years after the completion of your sentence or payment of your fine.

If you received an absolute discharge, you are eligible to have this removed from your record after one year; if it was a conditional discharge, the waiting period is three years. If the discharge was received after July 24, 1992, the RCMP will automatically remove this information from their computer after the specified waiting period. If you received the discharge before July 24, 1992, you must request the RCMP to remove the discharge from their system.

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"YOUNG PERSONS" RECORDS

If you are a "young person" (under 18), and convicted of an offence under the Youth Criminal Justice Act, a finding of guilt may remain on your record after you turn 18. On summary matters, your juvenile record stays with you for three years after conviction and you have complied with all conditions of sentencing. On indictable matters, your youth record stays with you for five years after your conviction and you have satisfied all conditions of sentencing. If you commit another offence during the three years after you complied with all conditions of sentencing on a summary conviction matter or five years after complying with all conditions of an indictable matter, your youth record will remain with you until you have complied with all conditions of your further offence, plus three to five, depending upon whether your further conviction was for a summary or indictable offence.

Warning: Once a youth record has been terminated (there are some exceptions), any disqualification in respect to the offence is removed, and no application form for or relating to employment with the federal government or any Crown corporation, Canadian Forces, or employment with any business within the legislative authority of the federal government shall contain any question requiring you to disclose a youth record. However, some police departments do not clear their records and a "record check" may disclose a youth criminal record which has been terminated

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TRAVELLING WITH A CRIMINAL RECORD

If travelling outside of Canada, be aware that each country has the right to refuse entry to any person with a criminal record. When planning a trip, the individual should contact the Consulate of the country they wish to visit.

A pardon under the Criminal Records Actwill not automatically entitle a person to enter a foreign country. A pardon is a means of formally recognizing that an individual has been rehabilitated and reintegrated into society. Pardons do not "erase" criminal records; rather records of pardoned convictions are kept separate and will not be disclosed without specific permission of the Solicitor General of Canada. As a result of agreements between Canada and the United States, American immigration officials receive a computerized record of all convictions in Canada. The record of a criminal conviction in Canada remains on record in the American system even after a pardon has been issued. Therefore a Canadian travelling to the United States is just as likely to be refused entry after receiving a pardon as without it. The United States does not have to recognize a pardon granted in Canada. If you have a conviction for a drug offence under the Controlled Drugs and Substances Act, the United States has a zero tolerance for those offences and will not grant entry and this includes "in transit" stopovers.

Absolute discharges and convictions in Youth Court might not be classified as "criminal offences" and normally will not bar admission to the U.S. A person receiving a conditional discharge will probably be considered to have a criminal record. U.S. immigration policy is subject to change, especially after September llth, so it is a good idea to call U.S. Immigration as soon as you decide to travel

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If you are not sure whether you would be granted admission to the U.S., it may be helpful to contact a border crossing to get information on your particular case as soon as possible before you plan to travel. The phone number for U.S. Customs and Border Protection at the Edmonton International Airport is (780) 890-4486. The number for U.S. Immigration at the Calgary International Airport is (403) 221-1730. You can also call the U.S. Consulate in Calgary at (403) 266-8962.

There are two possible methods for a person with a criminal record (i.e. a person who would otherwise be inadmissible) to enter the United States:

(1)Parole Admission and

(2)Waiver.

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(1) Parole Admission

U.S.Immigration Officers have discretion to admit people to the U.S. who would not automatically be admissible. This discretion will be exercised based on an interview with the person either prior to, or at the time of, attempting to enter the U.S. There are two grounds for admitting a person.

Public Interest --if the admission of a person is in the public interest, the individual can be admitted at the discretion of the Immigration Officer.

Humanitarian Reasons --if there are compelling humanitarian reasons such as a death in the immediate family, the Immigration Officer has discretion to admit the person.

Parole admission will only be granted in rare circumstances. It must also be emphasized that parole admission is discretionary and there is no certainty that a person admitted one time would be permitted to enter the U.S. on a later occasion.

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(2) Waiver

The waiver process is similar to the process of applying for a pardon under the Criminal Records Act. The applicant must complete a number of forms and send fingerprint samples, a photo, and a copy of their criminal record. All of the material necessary to apply for a waiver can be picked up at any border crossing, (including the Calgary or Edmonton International Airport).

The successful applicant will be notified of the waiver following an investigation by the U.S. Immigration authorities. The entire process will take at least three to four months to complete. The waiver itself will expire after one year, but it may be possible to take the waiver to either the airport or a border crossing and apply for a regular border crossing card which will allow access into the United States indefinitely -- until it is revoked. Being convicted of another crime will cause the regular border crossing card to be revoked.

The Canadian Charter of Rights and Freedoms ("the Charter") became part of the Canadian Constitution on April 17, 1982. Most of the provisions of the Charter came into effect that day. Section 15 of the Charter came into effect on April 17, 1985.

The

Access to the Legal System	4
Women as Victims of Crime	11
Women and the Criminal Justice System	17
Women's Rights	30
Women, Money, and Property	47
Women and Work	67
Women and Marital	75
Women and Children	89
Women and Health	105
Legal and Community Resources	113
Glossary	118

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