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

4. Findings (continued)

4. Findings (continued)

4.3 Interviews with CSC Staff Members

Provision of Public Legal Education and Information

As with inmates, staff members were first asked whether they were aware of any community organizations or groups that provide basic legal information for inmates. Responses were identical to those of inmates, as none of the staff respondents reported any PLEI activities in the sample locations.

Most Common Problems

Staff members were then asked to list "the most common problems for which inmates here need legal education or help". Table 4 illustrates their responses:

Table 4 - Most Common Problems Identified by Staff

Family matters was the area most often identified by staff respondents about legal aid needs, at 57% of responses. The category of involuntary transfers or requests for administration segregation was the next highest at 51%. Unresolved criminal charges and appeals of conviction or sentences attracted the next most frequent number of responses.

For the category of "other", respondents identified:

  • Use of force;
  • The taking of DNA samples;
  • The need for reviews of segregation;
  • The dangerous offender designation; and
  • Allegations about assaults inside the prison.

Most Serious Problems

Respondents were asked: "Based on your experience, what would you say are the most serious problems for which inmates here need legal advice or help"? There were similarities between most common problems identified in the first question and responses to this question. The most serious problem by far was family matters, followed by institutional charges, involuntary transfers, outstanding charges and appeals. Some of the others included:

  • Racism and bias against First Nations', peoples;
  • "Female offenders have rights but no access, they don't seem to believe they have rights because they have such low self-esteem, they don't ask and they feel they don't deserve";
  • Lack of comprehension about the complexity of mental health cases;
  • "If an offender asks for a legal phone call it sometimes depends on the staff member's ability to know how to do this";
  • "Lawyers think NPB hearings are like court"; and,
  • "Inmates feel frustration when they don't get help" (from Legal Aid).

Barriers to Obtaining Legal Advice

As with inmate respondents, the next two questions asked staff members "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?" with a follow-up question of "anything else?"

Not all respondents answered but those who did provided the following information. Many identified multiple barriers, all relating to difficulties with the legal aid systems rather than CSC related barriers. The only CSC barrier identified was about access being a problem at times and that staff are not clear about legal aid criteria.

Table 5 - Barriers Identified by CSC Staff Members
Type Number of Mentions
Inmates lack information about legal rights 13
Legal aid criteria not clear to staff and access is a problem 10
Not enough time for lawyer or unavailable when called 9
Legal aid limited or denied 8
Lawyers lack understanding of prison law 7
Delays by legal aid 4
Lawyers have negative views about offenders 3
No help with language barriers 2
Not enough legal help with detention reviews 2
Lawyers forcing guilty pleas 2
Not enough lawyers handle prison law 2

Staff respondents who answered these questions were clearly sympathetic to inmates' legal rights. Those who indicated a need to protect legal rights and to provide more legal help with detention reviews made comments such as "there is no rhyme or reason why one gets help and another doesn't" and "we should be policed by outside agencies" to ensure that there is a systematic process for accessing legal aid. When identifying that access is a problem, one respondent stated " staff are uncomfortable in legal areas, some staff interfere (to prevent contact with lawyers) when they shouldn't" and "there are systemic barriers for women offenders". These systemic barriers had to do with the fact that women in the penitentiary system, because of their small numbers, , do not have their unique features addressed by the larger system, and tend to experience greater disempowerment which translates into less knowledge about legal rights. Others indicated that it is difficult to put collect calls through to lawyers, and that lawyers often do not answer. Lack of literacy was identified by three of the staff respondents who emphasized a need for legal information for inmates. Many spoke of their own need to understand the legal aid system better so as to be able to provide more accurate information to inmates. When indicating that some lawyers have negative views of inmates they cited the case of women offenders as well as inmates with mental disorders. The use of "supplements" in Québec was cited by two respondents under "legal aid limited or denied".

Required Resources for Adequate Services

As previously mentioned, the final section of the interviews concerned "what kinds of resources would it take to really meet the legal needs of inmates in here?" As with inmate respondents, discussions about this question probed for respondents' reactions to staff lawyers in the institution with or without a paralegal, training so-called "jailhouse lawyers" to be paralegals, the need for written information or presentations about PLEI, and the idea of a national trust fund supported by inmate contributions for class actions and any other options respondents wanted to discuss.

As for staff lawyers, they said:

  • "Need a dedicated lawyer for each institution";
  • "Good idea but likely costly";
  • "They would be overwhelmed by little issues";
  • "Lawyer would at times have trouble picking sides";
  • "I would worry about their independence from CSC";
  • "Would need to be in an arm's length relationship with CSC";
  • "Yes, but would need education about prison law and would be called on to provide legal education to inmates in general";
  • "Could adjudicate segregation reviews and establish a firm process";
  • "Staff would say why not us, we have a right to legal advice too"; and
  • "It's better for individuals to have their choice of lawyers, and I would be afraid of there being a perception of a CSC bias".

As for paralegals, it was indicated that there is some merit but it would involve a lot of supervision by lawyers and it would be complicated and maybe lead to delays.

As with inmate respondents, few liked the idea of so-called "jailhouse lawyers" because of the difficulties inherent in setting up such as system within the institutional context. They stated:

  • "They (inmates) know just enough to get things confused and inmates have their own agendas";
  • " It would create chaos";
  • "Confidentiality would be a problem"; and
  • "It would create an underground economy".

A few respondents indicated that jailhouse lawyers, with the benefit of training, could operate as paralegals although this was a minority view. Those who opposed the notion were primarily concerned about the creation of an underground economy and confidentiality issues.

Many emphasized the need for PLEI for inmates as well as staff and indicated that lawyers who take cases need to be more visible.

4.4 Interviews with Stakeholders and Lawyers

Exploratory interviews with prison law lawyers as well as informal interviews with the stakeholders listed in the Methodology Section concentrated on the following research questions as identified in the original research proposal. Interviews were semi-structured to allow for a fuller discussion.

  • To what extent are incarcerated offenders unable to access various legal aid services?
  • What steps do they need to take to obtain services?
  • What are the possible consequences of not providing adequate services to incarcerated offenders?
  • What are the key barriers that may prevent the provision of expansion of legal aid services to incarcerated offenders?
  • Which service areas (e.g., prison law, family law, immigration/refugee law, criminal law) should be targeted for an expansion of services offered to incarcerated offenders?
  • Based on the legal aid delivery model in place (judicare, staff lawyers, and clinics), what unique challenges exist in order to provide an expansion of legal aid services offered to incarcerated offenders?
  • What is the cost estimate of implementing identified new legal aid services to incarcerated offenders?

Briefly, respondents indicated that inmates face a number of difficulties in accessing legal aid services. Many provincial/territorial legal aid plans do not provide funding for prison, law matters, and federal penitentiaries are often located in more remote locations, thus necessitating considerable travel by lawyers in some cases. In addition, none of the respondents were aware of any PLEI initiatives. Also, three of the five lawyers interviewed in Ontario mentioned that there has been no financial review of tariffs in 15 years. Respondents indicated that the following topics are those most likely to require access to Legal Counsel:

  1. Involuntary transfers or requests for administrative segregation (s. 33 and 35);
  2. Serious disciplinary offences (ss. 40 - 44);
  3. Urinalysis demands s. 54 - 57);
  4. Search and seizure, including strip searches;
  5. Parole (accelerated, day and full parole) (ss. 122 - 126.1);
  6. Detention (ss. 129 - 131);
  7. Suspension, termination or revocation of parole or statutory release (s. 135);
  8. Suspension, arrest and charges regarding long-term supervision orders (s. 136.1);
  9. Assistance in making grievances (s. 90);
  10. Assistance in complaining to the Correctional Investigator (ss. 170, 171);
  11. Involuntary transfers to other institutions (s. 29, Act, s. 12, Regs.)
  12. Visiting privileges.

In addition to the above, areas of law where inmates are most likely to require legal expertise include:

  1. Appeals of conviction and sentence;
  2. New criminal charges;
  3. Serious disciplinary offences;
  4. Parole hearings;
  5. Detention issues, such as "gating";
  6. Faint hope applications (CCC s. 745);
  7. Family law- (divorce, custody and access);
  8. Extradition;
  9. Contractual and estate matters (wills and power of attorney);
  10. AIDS law issues;
  11. Civil suits (usually industrial accidents and negligence);
  12. Broader Charter issues; and
  13. Dangerous offender designations.

Lawyers also indicated that it is difficult to develop a client-solicitor relationship and rapport when legal aid limits the amount of time they can spend on files. For instance, some reported that it is not unusual to only have 30 minutes to interview an inmate, which is not very long to gain an inmate's trust. When acting as duty counsel, there cannot be a solicitor-client relationship.

The time frame for obtaining legal aid certificates can also be a problem. If it takes too long to obtain approval, it may be too late to intervene in prison law matters concerning segregation or involuntary transfers. Segregation is noted as being a "big problem" in the Kingston area. According to the stakeholders and lawyers interviewed, it is not unusual to see inmates "plead out"(i.e. plead guilty) just to have the process move faster and because they are not aware of their rights.

Lawyers are extremely concerned about issues relating to the reliability of the information included in inmate files. As mentioned earlier in this report, this includes circumstances where information is noted on file that "an anonymous inmate has informed us that inmate x is selling drugs" or any number of other activities. Many respondents argued that this information is fabricated in many instances, and reported some success in having this type of information removed. The repercussions can be quite serious, from an inmate being involuntarily transferred to being placed in administrative segregation to having his or her chances of parole being nullified. Respondents also indicated that inmate rights, as outlined in the Corrections and Conditional Review Act, are often not respected, for instance when placed in administrative segregation of when an inmate is the subject of a proposed involuntary transfer. They were also concerned about inmates with mental disorders who are shy, do not understand the charges against them, and automatically plead guilty to circumstances they do not understand.

Most respondents felt that inmates are generally not aware of their right to Legal Counsel, although this is less the case in larger men's institutions where "jailhouse lawyers" are more likely to be present. Jailhouse lawyers, however, are not viewed as being a realistic option to meet the legal needs of inmates. The more marginalized groups, e.g., Aboriginal inmates and immigrants, are less likely to be aware of their rights. There is a presumption of disentitlement among the more marginalized groups.

Assistance in dealing with suspension, termination or revocation of parole or statutory release, as well as assistance in lodging grievances and accessing the Correctional Investigator's Office were also identified as particular needs. Respondents also argued that many complaints lodged with the Office of the Correctional Investigator (CI) needs to make services better known and to hire more staff. Many complaints lodged with the CI do not get resolved.

As contact with families is linked to the will to successfully complete their sentences, respondents argued that not meeting the needs of families has a profound impact on inmates' institutional behaviour and ability to cope, especially for federally sentenced women, but also for male inmates

There are few Aboriginal lawyers to meet the needs of Aboriginal inmates which is very unfortunate as there are "heavier degrees of dispossession, the more marginalized they are the less they know how to ask for help" and "the lack of knowledge is a key barrier given the high illiteracy rate"

Knowing rights and how to access legal aid is a big problem. To a certain extent the access problem relates literacy levels of inmates. (leave this section in - Ab) Legal advice and assistance would be useful in mental health cases. In particular, assistance would be useful in explaining and obtaining legal consent for specific treatments, among other needs.

Part of the problem is viewed as "prisoners don't have political capital". Theyhave no political lobby to advocate for rights that already exist but are not respected. The lack of funding for legal aid and the lack of availability of lawyers who will do prison law exacerbates the situation. Respondents indicate that there has not been enough research completed on this topic

All respondents indicated the need for more access to legal counsel than currently exists. A few cited the Prisoners Legal Services model that existed in B.C. prior to the cutbacks, as a good model. (However, the inmates interviewed in B.C. felt that Prison Legal Services were not that useful, based on their perception that they have always only taken cases that could result in further incarceration.) Others mentioned the need for staff lawyers directly placed in penitentiaries, along with a paralegal, perhaps in a Clinic setting. It was noted that after the introduction of Independent Chairpersons for disciplinary hearings, fewer cases went to trial. It is strongly believed by those respondents who mentioned this option that having a lawyer looking after legal needs would lead to better behaviour in institutions. There would be less frustration and powerlessness and "lawyers can settle things down, sort and focus issues and advise" clients. Their role, however, would not necessarily be limited to the solicitor/client relationship, as lawyers could also negotiate, mediate and find resourceful ways of resolving conflict, which could also assist staff in difficult situations. As a lot of inmates feel victimized by the system, this approach could help alleviate these feelings, and the inmates will feel that they have been "heard" by having a neutral assist them in problem-solving.

4.5 Comparison of Staff and Inmate Interviews

It has been a surprising finding to note the number of areas where staff and inmates share the same perceptions. Table 6 below compares the top five most common concerns of inmates and staff members.

Table 6 - Comparison of Top 5 Inmate and Staff Concerns

Although there were fewer staff members than inmates interviewed, and even fewer staff persons who chose to respond to the last questions, their responses, as for the top four concerns, are identical. Issues relating to conditional release were, in fact, the sixth top concern for staff. Inmates named it as number five. New unresolved criminal charges was also among the top concerns for inmates.

As well, there was complete consensus among staff respondents in the sample locations about the lack of, and need for, PLEI for inmates about legal rights. A number of staff respondents mentioned that PLEI for staff in this area would also be very useful.

As many inmate respondents indicated that the institutional "mentality" does not support rights, which is not surprising given their other responses about repercussions for those who do obtain lawyers, so too did a few staff members mention that they had observed this phenomenon. Both groups of respondents indicated that lawyers, in general, lack sufficient knowledge about prison law and both commented extensively about the lack of adequate service by legal aid. Difficulties inmates experience in accessing legal services were noted by some respondents from both groups. Comments also indicated a need for lawyers obtaining specialized understanding when dealing with Aboriginal inmates, as well as inmates who suffer from mental disorders.

Both groups of respondents expressed a desire for higher visibility for lawyers and that having a specific lawyer "designated" for each institution would go a long way in not only increasing the profile, but presumably in ensuring that these lawyers become specialized in prison law and can reduce delays. Reduced delays would also ensure that matters such as involuntary transfers, that need to be acted on swiftly, would be more likely to attract the necessary action within the required time frame.

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