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

2.  Findings (cont'd)

2.8 Meeting needs

2.8.1 Cost of meeting needs

There is little data upon which to base an answer to the question of the cost of addressing the unmet legal needs of prisoners. Statistics addressing legal aid coverage for federal prison inmates could not be obtained from any jurisdiction. While some jurisdictions indicated that they thought they would be able to draw information from their databases, it was not possible to do so. No jurisdiction has a code in its database that would enable it to definitely identify prison inmates receiving legal aid services[29] [30]. Given that it is not possible for Legal Aid Plans to provide service statistics for federal inmates, it is also not possible to provide the actual or estimated costs of service to those inmates.

We were able to obtain some data from the Prisoners' Legal Services of British Columbia. However, the clinic does not maintain separate statistics for federal and provincial inmates. Therefore, the figures may be somewhat misleading. In addition, the figures provided are only for services provided through Prisoners' Legal Services, and therefore deal only with prison law issues.

Prisoners' Legal Services has an annual budget of $650,000. Of this, $500,000 goes directly into operations of the office. The remaining $150,000 per annum is used for coverage of referrals to the private bar. Prisoners' Legal Services has a staff of eight, including one lawyer, three paralegals, and four administrative assistants.

The numbers of clients served is limited by the clinic's ability to handle intake. When all phone lines are busy, callers sometimes give up and, therefore, do not appear in the statistics maintained by the clinic. If no staff are available to take on a file, the issue is usually dealt with through summary advice rather than opening a file. There is more demand for service than there are phone lines and staff available to provide service. Over a year, the clinic does about 2135 intake interviews. Files are opened for any case that involves more than two hours of work or more than quick summary information/advice. The clinic opens about 1200 files per annum. Approximately 70 percent of these files (840) are for federal prisoners.

Disciplinary hearings account for about 46 percent of the files opened (552). About 40 percent of these are for federal inmates (220). Provincial inmate matters predominantly pertain to disciplinary hearings[31]. Federal prisoner issues include:

Federal prisoner issues
Issue % Number per year
administrative segregation 22% 143
involuntary transfers 15% 97
grievances 13% 84
parole suspension/revocation 13% 84
parole applications 8% 52
sentence calculations 7% 45
visits and correspondence 7% 45
all others (except disciplinary) 15% 97

2.8.2 Strategies for meeting needs

We asked key informants how the unmet needs of federal inmates might be addressed. Responses varied by province; however, the identification of increased funding (thereby allowing increased human resources) was common to all key informants. Specific responses for key informants from each province are listed below:

British Columbia
We were told that increased funding would allow all of the outstanding needs to be addressed. Key informants also believed, however, that the reverse is far more likely to happen. For that reason, they suggested ensuring that inmates have access to "self-help" legal education materials such as relevant legislation and legal texts. One respondent suggested creating a prisoner position of law librarian who could not only act as an advisor, but could also help protect the materials from damage. They also emphasized the importance of having lawyers with prison law expertise because federal prisoners require "specialized service from people who know what inmates' needs are."
As discussed above, key informants in this province pointed out that the lack of provincial legal aid legislation allows a great deal of latitude with respect to providing coverage for federal inmates. The result, we were told, is that there are few unmet needs since they have the flexibility to address any area of perceived need. They also noted, however, that increased funding and human resources would allow provision of regular clinics at all institutions, thereby ensuring that no inmate's legal needs would be unmet.
Funding was identified as the key factor in addressing the unmet needs of federal inmates. The increased use of public interest law centres was also suggested.
Key informants suggested ensuring that prisoners' advocacy groups have a better sense of what is covered by legal aid and what resources are available. More legal education for inmates[32], a system for duty counsel (trained in prison law)[33], more emergency certificates, increased tariffs (including disbursements), and, in one respondent's terms, a "properly funded" clinic would help address unmet needs. Another key informant believed that it would help for the CSC to "be serious" about using alternative dispute resolution. However, this respondent believed that some means of addressing the power imbalance between the correctional system and the inmate is necessary if mediation attempts are to be effective[34].
New Brunswick
Videoconferencing was suggested as a way to improve inmates' access to lawyers, while also addressing the safety concerns of some female lawyers about visiting federal penitentiaries.
Nova Scotia
We were told that there is a need to address the problems with legal aid in general. Specific suggestions included expanding the scope and value of legal aid certificates, developing the political will to adhere to international obligations regarding rights of the poor to representation, increasing funding and human resources, and creating a specialized prison law clinic.

2.9 Consequences of unmet needs

The document review found that a number of systemic issues can involve serious consequences for federal prisoners, particularly if they do not have access to legal counsel. The reports of the Correctional Investigator contain an extensive list of specific issues, including[35]:

  • excessive delays in responding to grievances
  • inaccessibility of programs and timely conditional releases (especially for Aboriginal prisoners)
  • excessive time spent in segregation before transfer
  • overuse of force in contravention of the law (Rule of Law issues)
  • use of force in support of mental health interventions; involuntary transfer of inmates to mental health facilities
  • use of restraint equipment
  • lack of adequate investigation of inmates' injuries
  • lack of adequate response to self-injury and suicidal inmates
  • lack of compliance with policies governing timely and fair investigation of prisoners' complaints of staff misconduct
  • sexual harassment of female prisoners by male staff
  • housing female prisoners in male penitentiaries in segregation units for excessive lengths of time
  • discrimination against Aboriginal offenders (with respect to segregation, transfers, discipline, temporary absence, work release, adjournments and postponements of parole reviews, detention referrals, suspensions and revocations of conditional releases).

In addition to the consequences for federal inmates of unmet needs, there can be consequences for the reputation of the justice system as well. Key informants pointed out that failing to allow proper access to legal representation could be interpreted as violating the Core Values of the CSC as well as the provisions of the CCRA.

Key informants in British Columbia stated that when federal inmates with serious legal needs (like those listed above) are denied access to legal aid, it could be considered a violation of the protections found in section 7 of the Charter. A discussion memo provided by Prisoners' Legal Services notes that "where the individual circumstances of the case lead to a conclusion that representation by counsel is essential to a fair process, then funded counsel is a component of the principles of fundamental justice"[36] .

From the documents reviewed and the key informant interviews, it is apparent that there are many areas in which prisoners need legal services to assist them in dealing with issues arising as a result of their imprisonment. Further, it is apparent that those with special needs (e.g., Aboriginal people, women, persons with mental/physical health problems) are even more vulnerable to the consequences of lack of legal representation.

  • [29] Some jurisdictions thought that they would be able to isolate the prisoners included in the database by the postal code of the institution. However, this was not possible.
  • [30] Nova Scotia is trying to determine if it is possible to definitely identify prison inmates by drawing files from the database that are dealt with by the paralegal. However, it is likely that this approach will also provide no data, given that some non-prison inmate files may also be included in the paralegal's list. The legal issues codes may or may not be sufficient to distinguish between prison inmates and others.
  • [31] Disciplinary hearings are those cases that arise as a result of the Winters decision.
  • [32] Legal Aid Ontario's (LAO) Prison Law Advisory Committee also identified the need for public legal information for inmates. A pamphlet on legal aid services will be available for inmates in early 2003.
  • [33] LAO has produced a prison law manual for duty counsel.
  • [34] LAO, through its needs assessment process and discussion with its Prison Law Advisory Committee, has identified the need for better access to counsel, particularly for prisoners in segregation or during a prison lockdown; improved access to treatment and programs, particularly for Aboriginal prisoners and prisoners suffering from mental illness (possibly through the strategic use of test cases); and the development of information dissemination methods that take into account prisoner literacy levels.
  • [35] The Correctional Investigator Canada, Annual Report 2000-2001, Annual Report 1999-2000, and earlier annual reports.
  • [36] Prisoners' Legal Services, Legal Services to Prisoners in British Columbia Mandated by Section 7 of the Charter (2002).
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