Study of the Legal Services Needs of Prisoners in Federal Penitentiaries in Canada

1. INTRODUCTION

In Canada, there has not to date been an extensive review of the legal needs of federally incarcerated inmates. Past treatments of the coverage provided by legal aid and the legal needs of traditional users of legal aid services have focused on the poor in general, and women in particular.[4] Although inmates tend to be at the lower-income levels, and a great deal of work has been done on the risks and needs of so-called "Federally Sentenced Women", little attention has been paid, in a systematic way, to broad legal needs of, and access to legal aid for inmates, and how these differ from those of other low-income Canadians.

Inmates have both similar and unique legal needs as compared to the general Canadian population. Three general observations can be made about the legal needs of federal inmates. First, inmates require legal assistance in the traditional fields of law. For example, they need criminal legal counsel to conduct appeals of conviction and sentence, provide legal representation on new criminal charges and to make "faint hope" clause applications under Criminal Code s. 745. They require representation to deal with family law matters, such as divorce and the custody and access of children. They sue and can be sued. They have immigration and refugee problems. Extradition law issues have increasingly arisen. Contractual and estate matters arise. Because they are inmates, however, the content of the criminal law issues, family law issues, torts, contract and estate issues requires special knowledge and awareness of institutional issues on the part of Counsel.

Secondly, the nature of the penitentiary population raises unique issues: knowledge of AIDS law issues[5] ; special understanding of youth, Aboriginal and gang issues; and, special realities and needs of the female penitentiary population.

Thirdly, the penitentiary population is unique because legislation, Correctional Services Canada (CSC) policy directives and rules governing individual institutions govern an inmate's entire existence. Where inmates live, how they live, when they get up, what, if any work they do, how much they are paid, who can visit them and for how long, with whom and how they can communicate etc., is determined according to law and policy directives. However it should be noted that there remains a considerable amount of staff discretion within these legal and policy directives. Thus there is a discrete area of administrative law known as "prison law." Legislative provisions governing inter alia, the placement, classification, transfer, internal discipline and release of inmates are comprehensively set out in the federal Corrections and Conditional Release Act, 1992, c.20 and the regulations passed pursuant to the Act, the Corrections and Conditional Release Regulations, SOR/92-620. Determinations made about those issues by the Correctional Service and the National Parole Board are of enormous significance to inmates.

Access to legal aid also varies widely across the country and is further compounded by issues relating to financial eligibility, location, the availability of lawyers and their interest in penitentiary law. As a result of the need to further clarify the situation of Legal Aid and federal inmates, the Department of Justice Canada has commissioned this research study, which is based on the perceptions of lawyers and other legal professionals, as well as a review of corrections and other relevant documents.[6]

As identified in the Request For Proposal, the objectives of the study are:

  1. to describe the range of legal matters faced by prisoners in federal penitentiaries and on conditional release, as well as the legal aid services and related forms of legal information and support accessed by these groups;
  2. to document the difficulties that prisoners may experience in accessing legal advice and support, and any unmet needs;
  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 addition to the objectives the following research questions were identified:
  • 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?
  • What policies do Correctional Services Canada (CSC) and the penitentiaries included 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?
  • 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?
  • How does the penitentiary context impact on access to legal advice and related forms of support, and the level and quality of such services?
  • 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 or new 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?
  • What are the possible consequences of not providing adequate services for prisoners as well as the correctional and justice systems?

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