Study of the Legal Services Provided to Penitentiary Inmates by Legal Aid Plans and Clinics in Canada

2.  Findings (cont'd)

2.6 Obstacles

The literature review found that perhaps the major obstacle to meeting the legal aid needs of federal inmates is related to changes made in the 1990s to the various legal aid systems in Canada. Many Legal Aid Plans had to cap the level of coverage in response to increasing demand for legal aid services. Some Plans also made other adjustments to coverage, such as reductions in the tariff levels paid for certificates. Some Plans attempted to reduce costs by narrowing the range of legal issues covered by legal aid. The literature indicates that these changes in coverage have resulted in reduction in both the level of coverage and the scope of issues eligible for legal aid.

These changes resulted in a related reduction in the legal profession's willingness to accept legal aid cases, especially in jurisdictions that use a judicare model of service delivery. The relevant literature shows that when reductions in the type, level, and payment schedules of legal services were announced, many members of the legal profession determined that they would no longer accept legal aid clients. Thus, even clients who were able to obtain a certificate for legal aid services were often unable to find a lawyer who would take a certificate case. Those lawyers who continued to take legal aid certificates became overburdened and, therefore, were often unavailable to accept certificates. In recent years, lawyers have protested publicly the lack of coverage under Legal Aid Plans[28].

The responses of key informants regarding the obstacles to meeting federal prisoners' legal aid needs mirrored the findings of the literature review. Respondents unanimously identified insufficient financial and human resources as major obstacles to legal aid service delivery. The most common responses are listed below; frequency of response appears in parentheses:

  • lack of funding/low tariffs (7)
  • few lawyers interested in doing prison law (5)
  • few lawyers with the specialized expertise required (3)
  • staff lawyers/duty counsel overworked (2).

Key informants also reported a number of structural/technical obstacles to the provision of legal services. Many of these are related to the fact that the correctional system naturally restricts communication and the passage of information. It is important to note that many of these are only potential obstacles, since they are not encountered in all cases or in all institutions. Furthermore, we were told that prison law experience enables lawyers to mitigate or avoid many of these obstacles. Specific obstacles identified by key informants are listed below:

  • There is a lack of information/legal materials for inmates.
  • There are communication problems (lack of access to telephones, mail sometimes opened by correctional staff, deliveries not getting into and out of institutions).
  • Legal aid staff are no longer given time to make a legal orientation presentation to new inmates.
  • There are difficulties/delays in obtaining disclosure documents.
  • Notice of parole hearings is not long enough for qualified clients to obtain legal aid.
  • Corrections staff can deny or limit inmates' access to legal resource materials and/or legal representation, and the grievance process can be slow to address it.
  • Some inmates are only allowed to make collect calls, and/or can only call persons on a list (which does not necessarily include a lawyer).
  • Corrections does not necessarily provide service in both official languages (which can be an obstacle when staff assistance/permission is required to contact a lawyer).

Finally, key informants reported some individual-level factors that can act as obstacles to provision of legal services to federal prison inmates. These included matters of competency such as language and/or literacy barriers and mental health issues.

2.7 Unmet needs

Not surprisingly, we found that the nature and extent of unmet needs vary along with the different policies for eligibility and coverage in each province. By province, key informants identified the following unmet needs:

British Columbia
According to key informants, the major unmet need in this province is access to legal information for inmates. We were told that law library resources, especially books, are often in a state of disrepair or are missing altogether. It should be noted that information provided by the CSC indicates that a CD-ROM containing statutes and other legal documents is distributed to each CSC library on a quarterly basis. Other unmet needs included help with civil issues such as medical care, dietary requests, and visits. Key informants noted that all of these needs could be met with increased funding but that resources would likely continue to decrease. Therefore, they believed that providing inmates with self-help legal materials is crucial.
Alberta
Alberta is the only province without legal aid legislation. We were told that this allows considerable internal flexibility to provide coverage for any issue that is perceived to be reasonable and that it allows legal aid staff to respond when new needs emerge. For that reason, legal aid staff consulted in Alberta believed that "inmates' legal needs are pretty well met."
Manitoba
Key informants reported that the major unmet needs are in the areas of launching civil suits (against the institution or other inmates) and suits for increased liberties. We were told that the need could be met through better funding and management of public interest law centres.
Ontario
The major needs identified in this province are related to the lack of information on the range of legal resources available to prisoners; the limited number of lawyers with knowledge of prison law; the insufficiency of legal aid coverage for institutional disciplinary, transfer and /segregation hearings; and the fact that most inmates are attending parole hearings without counsel. Two potential needs identified were based on an expectation of future need for increased legal services for women and their children (in light of increasing incarceration of females), and the complexity of the process for section 690 applications.
Québec
The major unmet need identified by key informants in this province is that appeals of correctional decisions (e.g., involuntary transfers) are not covered by the provincial Legal Aid Plan.
New Brunswick.
Key informants reported that, since so few prison law issues are eligible for legal aid coverage, the major needs are numerous and broad. Specific needs listed are legal aid coverage for disciplinary hearings and "other administrative prison law."
Nova Scotia
The major need identified by key informants was for "prison law services" in general. They cited some specific examples: there is no legal aid coverage for civil matters; there is no provision for disbursements to cover the costs associated with having an opinion letter developed by a lawyer; and there is a lack of lawyers with expertise in prison law.

[28] Public protests have occurred in both Ontario and British Columbia.

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