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

4. Findings


4.1 Policy Framework

The Correctional and Conditional Release Act defines the obligations of the Correctional Service and inmates in addition to addressing issues related to conditional release. CD 084 is a Commissioner's Directive entitled: "Inmates' Access to Legal Assistance and the Police" and its scope includes "instructions on inmates' access to the police, the right to counsel under the Canadian Charter or Rights and Freedoms and a requirement for considering legal counsel in minor disciplinary charges under certain circumstances".

Its policy objective is:

To ensure respect for the rights of inmates by providing them with reasonable access to legal counsel and the courts, as well as to appropriate legal and regulatory documents, and to ensure the right of access by inmates to the police in a secure and confidential manner.

The key description about access to and representation by Legal Counsel is found in Section 7 as follows:

According to Section 10 of the Canadian Charter of Rights and Freedoms, everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. Subsections 97(1) and (2) of the Corrections and Conditional Release Regulations specify some of the situations in a penitentiary context in which access to counsel is to be provided. There may be other situations in which section 10 applies.

Other Sections describe when an inmate should be informed of his rights and define "without delay" as meaning within 24 hours. Inmates may retain counsel to act in the capacity of an assistant at National Parole Board hearings and must be given an opportunity to retain counsel prior to a disciplinary hearing on a serious disciplinary charge. Although there is no right to counsel for minor disciplinary proceedings, the Institutional Head or designated staff member conducting the hearing must consider any request for counsel based on the circumstances of the case, including its complexity.

In addition to CD 084, Regulations 97(1) and (2) of the Correctional and Conditional Release Act specify that an inmate is given reasonable opportunity to retain and instruct legal counsel without delay where the inmate:

  1. is placed in administrative segregation; or
  2. is the subject of a proposed involuntary transfer pursuant to section 12 or has been the subject of an emergency transfer pursuant to section 13.

Regulation 97 (3) states that "the Services shall ensure that every inmate has reasonable access to:

  1. legal counsel and legal reading materials;
  2. non-legal materials, including
    1. Commissioner's Directives,
    2. Regional instructions and institutional standing order, except those relating to security matters, and
  3. a commissioner for taking oaths and affidavits.

There do not appear to be regional or institutional standing orders relating to access to Legal Counsel.

Regulation 31 speaks to the right to counsel at disciplinary hearings for serious offences.

4.2 Interviews with Inmates

Provision of Public Legal Education and Information

Inmates were first asked whether they were aware of any community organizations or groups that provide basic legal information for inmates. Almost none of the inmates interviewed reported any public legal education and information program or activities in any of our sample locations. A few long term inmates in Saskatchewan Penitentiary indicated that a local public legal education and information (PLEI) association used to provide such a service but that was the only mention of any PLEI made.[9]

Most Common Problems

Inmates were then asked to list "the most common problems for which inmates here need legal education or help". Table 2 illustrates their responses:

Table 2 - Most Common Problems Identified by Inmates

Serious disciplinary offences, at 75% of responses, was the area most often identified by inmates as the most common problem where legal help is needed. Family matters was a close second at 70% and appeals of conviction or sentence followed closely at 69% of responses. Involuntary transfers and requests for administrative segregation also received a high rate of responses at 65%. Clearly, the inmates interviewed indicated a strong need for legal advice in administrative law and family matters.

For the category of "other", inmates identified:

  • The fact that the legal system is not receptive to the needs of inmates;
  • Accuracy of file (five mentions);
  • Forbidding visits used as instrument of punishment;
  • Not knowing how to appeal denial of legal aid;
  • Need for specialized lawyers, i.e. lawyers familiar with both Aboriginal law and the socio-economic conditions of Aboriginal peoples, for Aboriginal inmates;
  • Illegal cell searches;
  • Police brutality; and
  • Delays in investigations and procedures.

Most Serious Problems

Next, inmate respondents were asked to identify the most serious problems. Their responses tended to focus on the types of situations, i.e. disciplinary hearings, and/or on aversive dynamics within institutions.

In terms of types of situation, the most common responses were:

  • Institutional charges;
  • Family matters;
  • Involuntary transfers;
  • Lack of regular reviews when in segregation; and
  • Parole hearings.

Federally Sentenced Women 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 primary or sole 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.

As for aversive dynamics, they identified:

  • Negative repercussions by staff when a lawyer gets involved (ten mentions);
  • Lawyers don't know enough about prison law (eight mentions);
  • Attempts by staff to prevent contact with lawyers (eight mentions);
  • Lack of information about legal rights of inmates (eight mentions);
  • Delays in getting legal aid, at times too late e.g. involuntary transfers (six mentions);
  • No money to hire lawyers (five mentions);
  • The use of "supplements" in Québec where legal aid lawyers demand additional funds to take a case (five mentions);and
  • The erroneous perception that there is a $25 user fee in Ontario,[10] which is half of canteen money for two weeks.

Many of these issues were also raised at other times during the interviews. In addition to mentions of attempts by staff to prevent contact with lawyers, many inmates indicated that the accuracy of their files is an important problem that can be the result of trying to obtain a lawyer. The most common example of this provided by respondents is that information like "an anonymous source has indicated that inmate x is selling drugs inside" placed on file can then have disastrous ramifications for cascading down to lower security levels and for the ability to obtain parole. The issue of accuracy of files was also raised in other contexts later during interviews.

Barriers to Obtaining Legal Advice

The next two questions asked inmates "what barriers are there that get in the way of inmates who want to get legal advice or help and cannot afford their own lawyer?" A follow-up question asked for "any other barriers" to ensure that we captured all their thoughts.

Table 3 outlines major barriers identified by inmates. Most inmates mentioned more than one barrier thus this Table represents all mentions.

Table 3: Barriers Identified by Inmates
Type Number of Mentions
CSC related barriers: Access through staff difficult 12
Institutional mentality against rights 11
Inmates not understanding rights &/or process 7
Transfers between provinces 2
Legal Aid related Barriers: Lawyers lack of knowledge about prison law 20
No money to hire private lawyers 10
Legal Aid Turned Down 8
Lawyers not interested or too constrained 8
Delays in getting legal aid 5
Lack of confidentiality 3
Lack of help in family matters 3
Lack of knowledge of Aboriginal needs 2
Legal Aid lawyer pressuring for guilty pleas 2

Again the issue of staff beliefs and attitudes was raised in answer to these questions. Typically comments such as " there is a mentality within the institution against rights - there are ramifications for those who try to obtain lawyers - institutions don't like lawyers - if you fight the system it could negatively hurt your parole chances" were made. Many inmates felt that the lawyers they had dealt with lacked sufficient knowledge about prison law, this despite the presence of many prison law lawyers in the cities of Montréal, Kingston and Vancouver.

As for the category of "access through staff difficult", comments included: "you have to fill out a requisition that goes through staff before you can call a lawyer and they decide", and "it's hard to get access to the telephone" as well as "they claim there is no interview room when my lawyer arrives despite advance notice". Others made comments like, "calls are made through V and C (visiting and correspondence) and we get the run around" and "the guards have the list of lawyers and it is hard to get them to tell us who is on that list". Many commented on the lack of adequate legal information in prison libraries and also that access is at times limited to these libraries, as in "it depends on who is in charge".

Issues relating to lack of confidentiality usually had to do with experiences when inmates had to meet their lawyers on their ranges within earshot of everyone else. Other complaints related to meeting lawyers in the regular visiting room where other inmates and/or visitors can also hear what is discussed.

The other categories are self-explanatory. The second last category, i.e. "lawyers not interested or too constrained" included situations where arrangements had been made and the lawyer "didn't show up" as well as situations when lawyers only have legal aid coverage for a certain amount of time per case and can only have a 30 minute interview with the inmate prior to the case proceeding. A few made comments like "if there was more Legal Aid coverage, there would be less frustration and violence in here".

Required Resources for Adequate Services

A final set of questions asked, "what kinds of resources would it take to really meet the legal needs of inmates in here?" During discussions about this question we probed for their reactions to a number of models such as staff lawyers in the institution with or without a paralegal, training so-called "jailhouse lawyers" to be paralegals and natural helpers in the institution, the need for written information or presentations about PLEI, the idea of a national Trust Fund supported by modest contributions by inmates for class action types of cases, and any other options respondents wanted to discuss.

The favoured option was to "have lawyers in here regularly", and there was some support for staff lawyers although some felt that these lawyers might become too associated with the mentality of CSC staff. Respondents who had those concerns, however, felt that if lawyers were rotated, and if they maintained an office on the outside, there would a reduced chance that lawyers would be perceived as being too close to CSC. Respondents also felt that when there is a formal arrangement made for a permanent presence, lawyers' private offices within the institution would be available to ensure confidentiality and improve access. Also, these lawyers would, as a function of their role, become experts in prison law, something inmates feel is really needed. The presence of lawyers in the institutions would also ensure, through presentations and the production of written materials, that inmates are aware of their rights, a point that was made many times. They thought that "a lawyer affiliated with each institution would be important especially to deal with institutional charges which can affect chances of parole". Respondents expressed frustration and confusion about why duty counsel who come in to take legal aid applications in most, but not all, institutions, are not able to represent them on the same matters. We assume that is the case because lawyers are generally not allowed to solicit and Law Societies could view the duty counsel role as such. Inmates get frustrated because they develop a relationship with these lawyers and then feel that the system doesn't work when their cases are delayed during the approval process and again when a new lawyer arrives to begin the process of collecting information. It was also understood by respondents during the course of these discussions that the availability of a lawyer would depend on the size of the institutions, i.e. smaller institutions would only require the presence of a lawyer once a week or every two weeks while the larger institutions would merit at least one full time rotating lawyer position. Most Aboriginal respondents mentioned the need for native lawyers who understand the culture and socio-economic situations of those who get in trouble with the law.

Inmate 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. Respondents indicated that the need for patient advocates should be considered a higher priority within correctional settings than within provincial psychiatric facilities.

Inmates in Québec saw a big advantage to staff lawyers in not being asked to pay "supplements" on top of their Legal Aid tariffs, which affects an inmate's ability to buy cigarettes, toiletries etc. Since the interviews in Ontario were completed, we were informed that user fees had been abolished, another indication of how inmates (Use the original phrase)

Many respondents from almost every institution suggested that law students could play an important role both in learning and in acting as paralegals for either staff lawyers or private bar lawyers on the outside. Arrangements like these used to exist with Dalhousie University, the University of Manitoba, the University of Saskatchewan and the University of British Columbia. It was reported by both inmates and by Stakeholders in the following section that Queen's University is not as active as it once was in providing students for prison law in the Kingston area and that it is becoming more difficult to attract law students to this subject matter.[11]

The idea of training "jailhouse lawyers" to be paralegals was not a popular one. Many felt that jailhouse lawyers may not be able to respect confidentiality and respondents indicated that the jailhouse lawyer might find himself or herself in difficult situations when knowing too much information about other inmates. Also it was indicated that these inmates would be in a position to extract personal gain. Finally there were fears that CSC staff members might "punish" jailhouse lawyers for helping other inmates.

There is a strong need expressed by almost all respondents for increased information, written and verbal, about inmates' legal rights. This was a theme that pervaded almost all questions asked in these interviews.

Final conclusions about preferred models and costing can be found in the last section of this report.

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