Study of the Legal Services Needs of Prisoners in Federal Penitentiaries in Canada
The Department of Justice Canada, in cooperation with the provinces and territories, is developing a new legal aid and access to justice policy framework. The Department has funded a number of studies to support the policy renewal process. The research program included two studies of the legal needs of prisoners in federal penitentiaries. Thérèse Lajeunesse and Associates Ltd. were retained to conduct the second study, which is based on the perceptions of inmates, corrections officials and prisoner advocates, in addition to a review of corrections and other relevant documents. The purpose of the research was: 1) to describe the range of legal matters faced by prisoners in federal penitentiaries and on conditional release, as well as legal aid services and related forms of legal information and support accessed by these groups; 2) to document the difficulties that prisoners experienced accessing legal advice and support and any unmet needs; and 3) to examine possible approaches for addressing those difficulties and needs, as well as the financial and other resources that would be required to do so.
In reviewing the legal context for the provision of legal aid services and legal information for inmates, it was found that the role of law inside prison walls has evolved extensively since the 1970's. A number of court cases and government reviews, as well as the creation of the Corrections and Conditional Release Act in 1992, have emphasized the need for due process, the Rule of Law and the Duty to Act Fairly. Also the Supreme Court has established that prisoners retain all of their civil rights other than those expressly taken away by law. It is clear that this framework provides an important backdrop to the assessment of the extent to which legal aid services should be provided in the penal environment.
A sample of 12 institutions was selected for the study which included a cross section of minimum, medium and maximum security institutions as well as penitentiaries that house Federally Sentenced Women and others, where the Aboriginal population is well represented. We also included two facilities for inmates with mental disorders. During site visits, another three units were included when time became available to conduct interviews there. Thus we added two maximum security units for Federally Sentenced Women and a minimum security institutions for men. This brought our total to 15 institutions or distinct complexes.
During our site visits we interviewed a 100 inmates, 49 Correctional Services of Canada (CSC) staff members, eight Stakeholders and five prison law lawyers for a total of 162 interviews. The number of staff member interviews was lower because many declined to be interviewed.
None of the inmates interviewed reported any public legal information activities in the sample locations. This was reported as being a big gap as many inmates just assume that they have no rights. The most common problems identified by inmates as areas where legal assistance would be critical are serious disciplinary offences (75%); family law matters (70%); appeals (69%); involuntary transfers or requests for administrative segregation (65%); and conditional release (60%). Many also mentioned that there are issues related to the accuracy of their individual files that at times need to be contested for being false and limiting their chances to cascade to lower security levels and to obtain conditional release. The provision of legal aid services varies dramatically across the country with some institutions in Kingston and Montréal receiving some service while none is available in the province of Saskatchewan.
Federally Sentenced Women (FSW) tended to mention their needs in the area of family law more than male inmates did, although male inmates also named this area as a top concern. It was reported that anxiety about children can derail the focus on rehabilitation when women worry about potential child apprehension, the need to resolve issues related to temporary or permanent custody, and the whole range of other family law issues such as access. As women tend to be the major caregivers for children, issues related to children tend to dominate their periods of imprisonment. As many FSW were involved in abusive relationships prior to their imprisonment, an added concern often can include the safety of the child during the mother's absence. In the same vein, transfers away from family can also be problematic given the few locations across Canada where FSW are housed.
Male inmates were more concerned about access to children during their time in prison, although custody was sometimes mentioned as well.
Many inmates mentioned that aversive dynamics within their respective institutions can have a major negative impact on obtaining legal advice, such as negative repercussions by staff when a lawyer gets involved, attempts by staff to prevent or delay contact, and/or staff not knowing how to go about facilitating access to lawyers for individual prisoners. Inmates also mentioned that some lawyers are not very familiar with prison law. In some penitentiaries, there is a lack of confidentiality for discussions with lawyers as these conversations may happen on an open range or in the visitors' room within earshot of everyone else in the room. Others reported that lawyers would at times present themselves for a meeting with their client only to be told there is no room available for them to meet.
When asked what option would be best to provide quality legal services, the consensus among inmates was for there to be a regular presence by lawyers, with assigned lawyers for each institution, perhaps by using a staff lawyer approach. Others also mentioned that law schools could develop formal arrangements with some of the penitentiaries to provide students with an opportunity to become familiar with prison law while providing paralegal-type services.
Respondents within the mental health area felt that there is a need for "patient advocates" similar to those used in some provincial mental health facilities, as many inmates with mental disorders are often confused and cannot make informed decisions about treatment.
Interviews with CSC staff members indicated a similar array of top concerns as did inmates, with family matters being the major concern at (57%), involuntary transfers or requests for administrative segregation at (51%) and serious disciplinary offences, appeals and new unresolved criminal charges all obtaining 21% or 22% of responses regarding common concerns.
When asked about barriers to obtaining legal advice, many cited inmates' lack of information about legal rights and the lack of clear legal aid criteria that would increase staff understanding.
Respondents in both groups mentioned the unacceptable delays in obtaining approval for legal aid in cases that involve segregation or disciplinary charges. In their experience, it is not unusual for legal aid to be granted after the situation has passed and is too late for legal representation. They also emphasized that few lawyers are knowledgeable about prison law and the particular issues faced by Aboriginal peoples, visible minorities and inmates with mental disorders.
When asked about how to improve access to legal aid for prisoners, there were fewer responses but those who did respond tended to favour a staff lawyer model where service would be assured. All acknowledged, however, the need to avoid the perception that lawyers work for CSC, which would defeat the purpose of such an arrangement.
Stakeholders and prison law lawyers interviewed also concluded that an improved legal aid presence is necessary. Tariffs are low and non-competitive which results in few lawyers working in prison law. They echoed the findings that there is a need for specialized understanding of youth, Aboriginal women and gangs, among others. (leave this sentence in, Ab)Many lawyers interviewed have observed and/or experienced staff attempts to block their access to their clients. Delays in obtaining legal aid certificates can lead to clients proceeding without legal representation as it often is too late for an intervention. The accuracy of inmate files was often cited as a big problem where lawyers often must intervene to contest vague information on file that is detrimental to their clients.
Stakeholders also were convinced that access to legal aid would improve institutional behaviour as attention can more appropriately be focused on programs rather than the on feelings of frustration and powerlessness with the justice system or with redress mechanisms.
Most also felt that inmates are generally not aware of their right to legal counsel although this is less the case in large male penitentiaries. Respondents expressed worry that because inmates have no "political capital" to lobby politicians, it is unlikely that legal aid coverage will be extended to something that is adequate to the needs.
Briefly the conclusions, organized according to the research questions in the Request for Proposal are as follows:
- What are the needs for legal advice and related forms of legal information and support experienced by prisoners in federal penitentiaries and on conditional release?
- Involuntary transfers to or requests for administrative segregation (s. 33 and 35 of the CCRA);
- Serious disciplinary offences (ss. 40 - 44);
- Urinalysis demands (although this area is now well-settled, and the need for legal counsel has diminished, s. 54 - 57);
- Search and seizure, including strip searches;
- Parole (accelerated, day and full parole) (ss. 122 - 126.1);
- Detention (ss. 129 - 131);
- Suspension, termination or revocation of parole or statutory release (s. 135);
- Suspension, arrest and charges regarding long-term supervision orders (s. 136.1);
- Assistance in making grievances (s. 90);
- Assistance in complaining to the Correctional Investigator (ss. 170, 171);
- Involuntary transfers to other institutions (s. 29, Act, s. 12, Regs.); and,
- Visiting privileges.
In addition, general public legal information and education is sorely needed in all institutions about legal aid criteria, rights under the CCRA, as well as the CSC policy framework for access to legal counsel.
What policies do Correctional Services Canada (CSC) and the penitentiaries in the study have concerning access to legal advice and related forms of legal information and support to prisoners? How are prisoners advised of the availability of such services?
CD 084 defines access to legal counsel. Knowledge about legal advice and access varies by institution but is generally not as well known as would be desired. Some penitentiaries include information about access in their inmates' handbooks but others do not. The lack of information about legal rights was noted in all institutions sampled for this research.
What are the mechanisms for requesting and accessing such services? What proportion of prisoners are denied access and for what reasons? Are these prisoners referred to other services and if so, what are they? What are the limitations of available alternatives?
Mechanisms vary by institution and by jurisdiction. It is not known how many are denied but many respondents indicated difficulty with access either due to eligibility or the lack of lawyers willing to work in prison law. There are no other services or alternatives.
How does the penitentiary context impact on access to legal advice and related forms of support, and the level and quality of such services?
The consensus was that the penitentiary context often is generally not conducive to facilitating access to legal advice, although there are exceptions. There is a wide variation in levels of service depending on the institution.
What is the nature and extent of actual or potential unmet need? Which areas of law/issues should be targeted for an expansion of current of new services?
Unmet needs exist in all areas of prison law. The greatest need was found to be in the area of serious disciplinary offences although family law was also high especially for FSW. Involuntary transfers and requests for administrative segregation were also identified as top inmate and staff concerns for improving legal aid services.
What, if any, are the financial staffing and other resources required to meet those needs at the institutional level? What are the considerations impacting on costs? To what extent do these vary by jurisdiction?
The favoured option is to have lawyers provide a regular presence in all situations. The cost would likely be quite high. Although institutions would vary according to their need, i.e. Kingston penitentiary would likely need several lawyers while smaller ones would only need a lawyer every week or two. The cost for services across Canada would likely be between five and six million based on an averaging formula of $100,000 - $150,000 per institution with a lawyer and perhaps a paralegal per institution times the number of institutions. The number of lawyers would then be adjusted according to need with more lawyers at the larger institutions. Ideally there would be no variance by jurisdiction. It is unlikely that legal aid plans would not want to finance this option given the very piecemeal services that exist or don't exist presently.
In reviewing potential models for meeting the need and increasing the adequacy and quality of legal representation for inmates, the favoured model was "staff lawyers" or "designated lawyers for each institution." Whether the mechanics of individual legal aid plans and the desire to include federal inmates are likely to be improved is unknown but may be improbable. This conclusion can be drawn from the very piecemeal services that exist or don't exist at the moment across Canada.
The arguments for the regular presence of lawyers in federal institutions have been well articulated by respondents in this research study. Many spoke of the total control institutions have on inmates and perceptions of unfairness on the part of inmates and some staff. Not one respondent was happy with the level of legal aid services anywhere. The needs were enumerated, are many, and solutions sorely lacking. But many said that having lawyers in the institution would improve institutional behaviour, decrease stress, violence and conflict within, decrease the feeling that justice systems, whether disciplinary or other, are stacked against inmates, and improve an inmate's ability to focus on himself or herself thus increasing the likelihood that inmates will more successfully integrate with society on their release and decrease recidivism. Some also mentioned the possibility that staff/inmate conflict would be reduced enabling staff and senior managers in the institutions to focus on other pressing issues. One CSC respondent indicated that if these changes were made, there would likely be a backlash against them among CSC staff at first but that they would adjust, just as they did to the presence of Independent Chairpersons for disciplinary court when they were first introduced.
Due to the consistent feedback against the use of jailhouse lawyers and to some degree, paralegals working alone, they were not the favoured options for improving legal services for inmates. The idea of a national trust fund was also not favoured due to the difficulties inherent in the administration of it and reaching consensus about which cases would be funded. Respondents were not sure that adequate funding could be obtained through this method.
The two most favoured options were that of staff lawyers "to provide a regular presence" and developing relationship with Law Schools so that students could provide services under the supervision of their professors. This is essentially the Clinic model that exists at the Correctional Law Project at Queen's University although the respondents interviewed for this study indicated that less service has been forthcoming of late due to the lack of student interest in prison law.
In order to test the suitability of either staff lawyers or other methods to ensure a permanent presence in institutions, a number of Stakeholders, i.e. CSC respondents and prison law lawyers, suggested the avenue of pilot projects to test this model for the delivery of service. The objectives of the pilot projects were outlined to be:
- To test the consistent use of lawyers in five pilot sites;
- To reduce the time of CSC staff in court and other formal procedures;
- To produce cash savings by reducing the need for out of court settlements that often result in large cash payments by CSC;
- To resolve conflict before the use of court and tribunals is needed;
- To develop relationships with Law Schools, where appropriate, from increased student and professor involvement;
- To develop more effective processes than formalized court or other formal settings; and,
- To identify funding sources after the pilot period.
It was suggested that five sites be selected to ensure a cross section of different types of inmates and to account for regional differences. The five sites suggested are: Dorchester; Montée St François; Grand Valley; Saskatchewan Penitentiary and Matsqui. It was suggested that cost savings in staff time and out of court settlements could eventually offset the cost of this approach. As the number of trials dramatically dropped after the introduction of Independent Chairpersons for disciplinary hearings it is also anticipated that increased access to legal counsel would result in substantial savings once this model is established.
This model also has the advantage of giving prison law a higher profile and creating a "critical mass" that will help that area of law to grow as is clearly very needed. It is assumed that rotation would be required to avoid perceptions that lawyers become part of the CSC environment and thus internalize that mentality, and rotation would also allow for supervision and choices for inmates. The inclusion of law students would again have the extra advantage of exposing law students to prison law and hopefully attracting some of them to pursue a career in it.
Respondents held different views on who should fund this model. Some respondents suggested that it be cost shared with the provinces by the Department of Justice Canada, because of its involvement in Legal Aid. Respondents also felt that the service could be funded by the Ministry of the Solicitor General Canada, but not by Correctional Services Canada (CSC). Although CSC is a part of Solicitor General Canada, the perception was that lawyers might be biased because they are funded by CSC. This problem might be partly assuaged if the funding came from a different source within Solicitor General Canada. Other respondents felt that the ideal solution would be to have this service totally funded by the provinces..
If the pilot projects cannot be established, at a minimum, PLEI organizations across Canada should be encouraged to provide legal information program for federal inmates and also staff members. Another option would be for the legal aid plans to encourage a Clinic approach with other Universities like the Correctional Law Project In Kingston.
What are the possible consequences of not providing adequate services for prisoners as well as the correctional and justice systems?
Not providing adequate services has profound impacts. Despite the legislative and policy frameworks and legal obligations such as the Duty to Act Fairly, the Rule of Law and due process, there is little indication of compliance by CSC and the legal aid plans. Respondents indicated that access to legal counsel would likely result in better institutional behaviour due to lessened feelings of frustration and powerlessness among inmates. This in turn would lead to an improved ability among inmates to focus on their programming needs while incarcerated. Presently, as evidenced by respondents in this research, there are multiple problems associated with lack of access to legal counsel including the fear of repercussions, in some institutions, against inmates who request access. This builds up resentment against "the system" adding to any earlier perceptions of injustice on the part of some inmates. Poor institutional behaviour may often result from this frustration.
All respondents have clearly indicated the need for increasing the level and quality of services of Legal Counsel to federal inmates. Legislative and policy frameworks clearly outline the need to provide this service. It is hoped that funding will be made available, in whatever manner is possible, to at least increase access and quality of service, to provide basic legal information for inmates and hopefully CSC staff, and to develop partnerships with Universities and also ideally to fund the pilot projects Although there are competing demands on restricted legal aid dollars across the country, investing in the future of the federal incarcerated population will have long term benefits that we cannot yet anticipate.
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