Six Degrees from Liberation: Legal Needs of Women in Criminal and Other Matters
The governing legislation for the management of confinement and treatment of prisoners in federal penitentiaries is the Corrections and Conditional Release Act, 1992. Pursuant to this Act, the Correctional Service of Canada has authority to take a range of administrative decisions. These kinds of decisions can have significant implications for a prisoner’s liberty. They can generate a range of needs for legal advice and, depending on the seriousness of the consequences for the prisoner, for legal representation. These decisions include involuntary transfers, disciplinary hearings, administrative segregation, and classification issues.
The legal basis for challenging these decisions rests either on a breach of one or more provisions of the Corrections and Conditional Release Act or on a violation of the Charter. In this latter regard, the Supreme Court of Canada has held that a prisoner still has entitlement – albeit a pared-down one – to liberty interests within the correctional setting. Decisions affecting discipline, segregation and transfer must not violate constitutional entitlements to liberty and security of the person, under Section 7, and must also be made in accordance with principles of fundamental justice.
In the report of the Commission of Inquiry into Certain Events at the Prison for Women, Madame Justice Arbour documented the events triggered by a physical confrontation that took place between six prisoners and correctional staff in April 1994. In the days following the confrontation, the prisoners in question were placed in segregation, were subjected to a strip search and, later, a body cavity search. The six women remained in segregation for many months and were not ultimately released until between December 1994 and January 1995.
The mistreatment of these prisoners violated the fundamental principles contained in international human rights covenants, the Charter and correctional law. Madame Justice Arbour wrote:
… the facts of this inquiry have revealed a disturbing lack of commitment to the ideals of justice on the part of the Correctional Service. … the deficiencies that the facts have revealed were serious and detrimental to prisoners in every respect, including in undermining their rehabilitative prospects. There is nothing to suggest that the Service is either willing or able to reform without judicial guidance and control. [emphasis added]
Madame Justice Arbour also observed that, during the time that the inmates were in segregation, inmates were neither advised of their right to counsel nor given access to counsel. Inmates’ specific and repeated requests for lawyers were denied. She concluded that correctional staff were not familiar with these entitlements, and failed to recognize the purpose of the entitlement or the need to comply with it. It is worth noting that even before the Commission of Inquiry into Certain Events at the Prison for Women, the Commissioners of the 1991 Aboriginal Justice Inquiry of Manitoba also reported that rules entitling an inmate to assistance from another person of the inmate’s choice were being interpreted by prison staff to exclude lawyers. It has been pointed out that part of the corporate disregard for law can be traced to staff ignorance about prisoner’s entitlements and staff responsibility.
The Rule of Law establishes rights and interests under law, and protects these rights and interests against the illicit or illegal use of any power, private or official, by providing recourse to the courts through the legal process. Madame Justice Arbour concluded that the absence of the Rule of Law that she documented in her report was apparent both within the prison and at the highest level of management. In her view, the correctional culture was unlikely to significantly revise its inert attitude toward respect for due process. She wrote:
The Rule of Law has to be imported and integrated … from the other partners in the criminal justice enterprise, as there is no evidence that it will emerge spontaneously.
A conviction for a disciplinary offence can result in an involuntary transfer to a higher security classification, and can undermine prospects for parole or other forms of conditional release. As such, the disciplinary process grants significant powers to correctional staff, which they are required to exercise with due regard for the Rule of Law and the constitutional entitlements of prisoners. Yet, correctional staff receive little or no training relating to the disciplinary process, and receive no education with respect to legal and factual elements required to prove particular offences.
Need for Legal Representation
In light of the Correctional Service’s corporate indifference to the Rule of Law, so thoroughly documented in the reports of the Commission of Inquiry into Certain Events at the Prison for Women, the Aboriginal Justice Inquiry of Manitoba and the House of Commons Sub-Committee on the Penitentiary System in Canada, and in light of the possible consequences for women deprived of liberty, the only question is what form of advocacy for federally sentenced women is optimal.
In his book, Justice Behind the Walls: Human Rights in Canadian Prisons, Michael Jackson wrote with caution about promoting the formal adversarial process within prisons, given prisoners’ limited access to legal aid:
One of the other problems with excessive reliance on a due process model, ultimately superintended by the courts through judicial review, is that it is subject to the vagaries of litigation and the limited access prisoners have to legal aid. This results in few cases reaching the courts and, for those that do, a heightened adversariness between the parties. For all these reasons, the development of alternatives to litigation, emphasizing non-adversarial and more informal dispute-resolution processes, has been identified as a necessary part of an effective system of prison justice.
Jackson went on to explore the scope and limitations of such non-litigious mechanisms as the prisoner grievance process and the role of the Office of the Correctional Investigator (O.C.I.). The grievance process is intended to resolve individual complaints; the O.C.I. is intended to raise the profile of individual as well as widespread allegations of abuse within institutions.
The recurring critiques of these mechanisms are that the Correctional Investigator does not report to Parliament but to the Solicitor General – thus missing an opportunity to elevate the profile of violations of prisoners’ entitlements – that the grievance process does not subject the grievance to a review by an authority independent of the present system, and that prisoners do not have a voice in the process. Aboriginal inmates confirmed this latter criticism in 1991, in that 69 percent reported that, when they did make their complaints known, their concerns were ignored. Additionally, the grievance process is compromised by the sheer delay that frequently vitiates any satisfactory resolution to a grievance.
The greater issue with the O.C.I., the grievance process, and with more non-litigious forms of dispute resolution, is that they are tainted by the well-documented indifference to the Rule of Law in correctional settings. In the absence of fundamental respect for due process, prisoner complaints may not be viewed as legitimate challenges but as insubordination to be responded to with punitive retaliation. In the experienced voice of one prisoner in administrative segregation:
You want to complain about the rags you get for clothes but you know the cleaners will spit in your food or urinate in your coffee if you do. You want to complain about the guard who miscounted your phone calls for the month, only giving you one or two, but you know next month you won’t get any if you do. You want to complain about not being transferred but you know that this will piss somebody off and you will never get out.
The 1991 Aboriginal Justice Inquiry of Manitoba concluded that no satisfactory, culturally appropriate process is in place to enable Aboriginal prisoners to challenge or appeal disciplinary treatment. In its survey, the Inquiry found that 64 percent of Aboriginal prisoners had not made any complaints during their time in prisons, compared with 40 percent of non-Aboriginal prisoners. Thirty percent of Aboriginal prisoners felt there was no one they could go to with complaints about the way that they were treated. This suggests that culturally appropriate outreach is necessary in order to make the grievance process more accessible.
However, the reality is that when the prisoner is totally dependent for the tiniest increments of liberty on the goodwill of a large bureaucracy that can retaliate viciously if it feels provoked, the supplicant will be reluctant to complain.
Mediation has recently been used to deal with prisoner complaints. Within the context of two parties whose power is imbalanced to an absurd degree, the most likely result of this non-litigious approach will be a further winnowing away of prisoners’ entitlements set forth in the Corrections and Conditional Release Act, the Charter and human rights legislation.
It is easy to predict – based on the conclusions that Madame Justice Arbour drew in her report – that the Rule of Law will be routinely ignored and flouted without vigilance to compel adherence to it. The need for protection of these entitlements cannot be overstated. Nothing less than full legal representation in the correctional setting will ensure that deprivations of liberty are not expanded to an illegal degree.
Need for Legal Advice
The Commissioners of the Aboriginal Justice Inquiry of Manitoba also concluded that rules for disciplinary board hearings, requiring inmates to know the case they were to meet, were ignored. Given this repeated observation that disciplinary charges against prisoners routinely lack the specificity and clarity necessary for prisoners to know the case they have to meet, at a minimum, prisoners require legal advice about their rights to due process in disciplinary proceedings.
In addition to legal problems arising from their incarceration, prisoners routinely face a host of legal problems that arise from family law matters – custody issues, divorce proceedings, child apprehension matters – that also require legal advice.
Need for Legal Information
Most basically, prisoners require legal information in order to assist them to frame a problem as one with a legal dimension to it. Given the cultural alienation most federally sentenced women experience, legal information would be most easily accepted if it were authored and distributed by such community-based prisoner advocacy organizations as Elizabeth Fry Societies. Other organizations – that could bridge the cultural divide with Aboriginal women or offer information in an accessible format to women with mental health challenges – would be able to assist women to identify their legal issues as well as the recourses available to them.
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