Study of the Legal Services Provided to Penitentiary Inmates by Legal Aid Plans and Clinics in Canada
This section presents conclusions and observations resulting from the analysis and integration of the information presented in the Findings section. Information in this section is organized according to the research questions (listed in the Terms of Reference for this study) that can be addressed through the methodology employed for this component of the research.
3.1 Legal needs of federal prisoners
3.1.1 Prison law needs are a priority
While prisoners face more practical problems in gaining access to counsel as a result of their incarceration, coverage for many matters is technically no different for federal inmates than for the general population. The situation is very different with respect to addressing the legal aid needs resulting from prison-specific matters. There is sufficient evidence to conclude that a number of prison law matters involve potential consequences (such as segregation, transfer, substantial fines, or loss of privileges) that are at least as serious as some matters for which coverage is routinely provided. These needs, therefore, should be given priority in any future consideration of access to justice issues for federal inmates.
3.1.2 The legal aid needs of inmate subgroups should be investigated
This research has provided evidence that subgroups within prison populations have legal needs beyond those faced by other inmates. There is evidence that Aboriginal people, women, and persons with disabilities face specific challenges in addition to those encountered by all inmates. Inmates with low levels of education, those for whom English is not a first language, and those with literacy problems can also experience additional obstacles to gaining access to legal services. While a general sense of several of these needs has emerged during the course of this research, they should be more thoroughly investigated in order to discover ways in which they can be addressed.
3.2 Legislative requirements for legal services to prisoners
3.2.1 Legal aid legislation is fragmented
Because legal aid legislation or regimes vary among jurisdictions, provision of legal services is inconsistent across the country. As noted above, most jurisdictions do not provide services that address the particular legal issues that arise as a direct result of imprisonment. For example, some jurisdictions, like Nova Scotia, provide prison law services in one geographic region on an ad hoc basis. Ontario, Alberta, and British Columbia have more institutionalized, province-wide coverage of prison law issues. Saskatchewan does not provide any specialized services for prison inmates. This inconsistency across the country can pose problems, especially for federal inmates, since they may be transferred among institutions in various jurisdictions. The result is a differential access to legal services for federal inmates based only on the province in which they are incarcerated. National standards on what services will be provided to federal inmates would help to mitigate this situation.
3.3 Policies for provision of legal services to prisoners
3.3.1 Discretion plays a major role in decisions surrounding legal service to federal inmates
Ample evidence supports the conclusion that discretion is a key factor in whether federal inmates receive legal services, especially for prison law matters. It is also clear that this discretion can work both for and against the interests of the inmate. That is, having the right of inmates to legal counsel in specific situations enshrined in legislation could certainly be seen as a step toward protecting their interests. On the other hand, more strictly defined rules could reduce the flexibility of legal aid staff and private lawyers to respond to emerging legal issues and/or to accept exceptional cases that, in the interests of justice, should be defended, even if they are outside the standard parameters for legal aid coverage.
3.4 Prisoners denied legal aid
3.4.1 Denial of legal aid should be based only on legal issues
The large number of requests for legal aid, coupled with limited human and financial resources, means that many requests for counsel will be denied. All Legal Aid Plans offer a process for appeal of decisions; however, it appears that inmates do not often avail themselves of the opportunity. In the case of frivolous requests, denial of legal aid coverage is warranted and is not a cause for concern. In the case of requests that have merit, however, where denial is due simply to lack of resources, access to justice for federal inmates is being denied.
3.5 Current level of legal advice and support to federal inmates
3.5.1 There is wide variation in availability of legal services
It is clear that the level of legal support, particularly legal aid, available to federal inmates depends on many factors. These include provincial policies for eligibility, the area of law involved, the level of funding for Legal Aid Plans, and even the particular institution involved. Whether or not a federal inmate receives legal support appears to be, in many cases, a matter of chance.
3.5.2 There are a number of forms of legal support
While this research has concentrated on legal aid, it is clear that there are other important related legal supports that can be provided to federal inmates. Legal orientation sessions for new inmates, toll-free legal advice services, and well-maintained law libraries in correctional institutions can provide a cost-effective supplement (or even an alternative) to legal aid, especially in light of past and potential cuts to legal aid funding. These related forms of support should also be available in a range of media to reflect the varying needs and abilities of federal inmates.
3.6 Obstacles to legal services
3.6.1 Reduced Legal Aid Plans are obstacles to meeting legal aid needs
The evidence indicates that recent changes to Legal Aid Plans (capping the level of coverage in response to increasing demand, inadequate tariff rates for certificates, and narrowing of the range of legal issues covered) are serious obstacles to meeting the legal aid needs of federal inmates. It may also be concluded that this situation has made specializing in prison law unattractive to many lawyers, despite the obvious demand.
3.6.2 Institutional priorities can be obstacles to meeting legal aid needs
The reduced right to privacy and the need to limit freedom of communication in the interests of institutional security conflict with providing legal services to inmates. While these are mainly the result of legitimate safety concerns, correctional policy needs to recognize inmates' rights to access legal counsel. While inmates naturally lose some of their rights as a result of their incarceration, the right to counsel is not among them.
3.6.3 Application procedures are potential obstacles to obtaining legal aid
It is clear that the various policies for application for legal aid coverage vary in ease of use. The toll-free telephone application system in British Columbia, for example, appears to provide federal inmates good access to legal advice. Each step added to the process will increase the degree of difficulty in obtaining legal support. Contacting private bar lawyers, completing application forms, submitting forms, etc. can all hinder access - especially when combined with the institutional priorities discussed above.
3.7 Unmet needs
3.7.1 A number of legal needs are unmet
It is clear that federal inmates have a wide range of legal needs that are not currently being met. As noted above, the magnitude of the problem varies greatly, depending on the jurisdiction in which the prisoner is located. The common factor, however, appears to be limited financial and human resources for legal aid services.
3.7.2 Unmet needs can have serious consequences
Disciplinary hearings, involuntary transfers, segregation, etc. can have significant consequences both for inmates' safety and for the protection of their Charter rights. Most Legal Aid Plans, however, base their eligibility criteria on the kinds of legal matters that are faced by the general population. It is important to ensure that federal inmates have access to legal aid for the serious legal issues that have no equivalent outside the context of a correctional institution.
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