Study of the Legal Services Needs of Prisoners in Federal Penitentiaries in Canada
Research findings are summarized according to the research questions included in the RFP 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?
The needs of federal inmates for legal advice and related forms of legal information are predominately related to the following:
- Involuntary transfers to or requests for administrative segregation (s. 33 and 35 of the CCRA);
- Serious disciplinary offences (ss. 40 - 44);
- Urinalysis demands (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 the availability of legal assistance varies by institution, although generally, the information is not as widely available 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 by respondents in all of the 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 for accessing legal aid vary by institution and by jurisdiction. It is not known how many inmate applications are denied. However, many respondents indicated difficulty with access either due to eligibility or the lack of lawyers willing to work in prison law.
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 is generally not conducive to facilitating access to legal advice, although there are exceptions. There is a good deal of variation depending on the institution. No institution in the sample was found to offer a high quality of access or service, although many of the problems were attributed to the restrictions of respective legal aid plans.
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?
Respondent identified unmet legal needs with respect to all types of legal matters. However, the greatest need was found to be in the area of serious disciplinary offences. Needs in the family law area were also deemed to be 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 penitentiaries. 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 institutions would only need a lawyer every week or two.
What are the possible consequences of not providing adequate services for prisoners as well as the correctional and justice systems?
Both inmate and staff respondents expressed a high level of unmet need. 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.
Conclusions about specific sub-groups in the penitentiary system are summarized as follows:
Federally Sentenced Women
Although family law was expressed as the major need for legal counsel by inmates and staff, it is particularly the case among federally sentenced women (FSW). It was reported that anxiety about children 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 can disrupt the focus on rehabilitation. As women tend to be the principal or sole caregivers for children, issues related to children tend to dominate during the period 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.
In addition to family law concerns, other issues include involuntary transfers, administrative segregation and need for legal counsel for serious disciplinary offences.
Issues Related to Mental Health
Respondents indicated a number of concerns specific to inmates with mental health problems. The major issue was about the need to explain and obtain legal consent for treatment to avoid the use of forced treatment, at times by the Emergency Response Teams. Inmates with mental disorders also need legal advice and support for disciplinary hearings. As one respondent explained, "they tend to be shy and don't understand and automatically plead guilty to circumstances they don't understand". Finally, inmates with mental disorders need access to legal counsel during their annual or biannual reviews as required by the Criminal Code of Canada. Staff respondents working with these inmates expressed a desire for patient advocates as used in some of the provincial mental health systems.
Aboriginal inmates tend to be among the most marginalized in the penitentiary system. In addition, Aboriginal inmates tend to experience significant illiteracy problems related to the general low educational attainment rate among Aboriginal peoples in general. As with FSW, the level of dispossession tends to result in inmates not knowing what questions to ask and assumptions that there is no entitlement to rights, including access to legal counsel.
Many Aboriginal respondents indicated that they need lawyers who have specific knowledge about the socio-economic conditions of Aboriginal peoples in order to have a better understanding of their specific needs while inside institutions. In addition, specialized knowledge about Aboriginal law was also deemed to be a desirable attribute among lawyers.
Lifers are particularly affected by any actions which result in further loss of liberty through involuntary transfers and administrative segregation due to the longer spans of time they must spend in prisons. They also have special requirements such as the need for legal counsel for Faint Hope applications. Although they were viewed as being a pertinent group to become so-called "jailhouse lawyers", and to provide a certain level of service within prisons, as previously reported, this idea was not popular among all types of respondents.
General Options for Consideration
In the vocabulary of rights there is a popular saying that there is no right if there is no remedy. In a similar vein, the Community Legal Association of Manitoba's motto is: "unknown rights are not rights at all". It would seem that both these sayings ring true when assessing the extent to which legal aid plans are able to provide adequate services for inmates to access the remedies, and to be aware of their rights.
As mentioned in the Introduction to this report, inmates are not only typically from the lower echelons of society but also live in an environment where legislation, policy directives and rules govern every aspect of their lives. Many inmate respondents spoke at length about instances of injustice where prison officials exercised discretion in a way that had a negative impact on their lives. They also spoke of their lack of understanding of what their rights are, and if they knew them, how difficult it is for them to be able to obtain access to legal aid. Some staff members also acknowledged these same difficulties.
This reality is even more grave given the legislative and regulatory framework that has evolved, particularly in the 90's, as described in the section entitled: "The Legal Landscape and Penitentiaries in Canada". Many of these same court cases have called for greater accountability and transparency on the part of CSC. Given the fact that principles of the Rule of Law, the Duty to Act Fairly and due process must be applied to the penitentiary environment, it would seem that improving access and quality of legal representation is long overdue.
The fact that this needs to happen was not denied by any of our respondents, although we can speculate that the lower number of staff respondents may indicate that only those who were at least somewhat supportive of this notion agreed to be interviewed.
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." 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 respondents indicated that less service has been forthcoming of late due to the lack of student interest in prison law.12
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.
Interview respondents held different views on who should fund this model. Some respondents have suggested that it be cost shared by the Department of Justice Canada, because of its involvement in Legal Aid, and the Solicitor General Canada. However, it was felt that Correctional Services Canada should not be involved in funding legala services. Although CSC is a part of Solicitor General Canada, the fear of the perception that lawyers are biased because they are funded by CSC could 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 provincial governments.
If the pilot projects cannot be established, at a minimum, PLEI organizations across Canada should be encouraged to provide legal information to 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.
All respondents have clearly indicated the need for increasing the level and quality of legal services 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.
12 As previously mentioned, this perception was not confirmed by data provided by the clinic director, which indicated that service levels had remained constant.
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