Study of the Legal Services Provided to Penitentiary Inmates by Legal Aid Plans and Clinics in Canada

Executive Summary

Life in federal penitentiaries involves continuous challenges arising from the desire to balance the protection of society and maintenance of control in the institution with the protection of inmates' rights. In this environment, prisoners can face difficulty navigating the prison system and dealing with the legal issues that can arise. While there are undoubtedly many in the correctional system who work well with prisoners, situations occur where this is not the case. A number of inquiries into the correctional system have found instances where prisoners were mistreated and where there has been a lack of recognition of prisoners' legal needs and rights.

The legal aid system in Canada is intended to provide eligible low-income people with legal counsel or funding to retain legal counsel. Each province and territory maintains its own Legal Aid Plan, with funding from both the provincial and federal governments. To receive legal aid services, applicants are expected to meet both financial eligibility requirements and a number of other criteria that differ substantially among jurisdictions. The nature of the penitentiary environment, coupled with these variations in Legal Aid Plans across Canada, can affect the level of access that prisoners have to legal aid services.

The Department of Justice Canada (DOJ), in co-operation with the provinces and territories, is developing a new legal aid and access to justice policy framework. The Department has been conducting a number of studies to support the policy renewal process. The research program included two studies of the legal needs of prisoners in federal penitentiaries. Prairie Research Associates Inc. (PRA) and SPS Research and Evaluation (SPS) were retained to conduct the first study, which is based on the perceptions of lawyers and other legal professionals serving inmates, !FLAGin addition to a review of legal aid and other relevant documents[1] . The specific objectives of the research are as follows:

The methodology for this component of the research consisted of a review of relevant literature and documents, and interviews with legal aid lawyers and other professionals involved in the provision of legal services to federal inmates. The literature review situated federal inmates within the correctional system and provided a brief overview of federal inmates' legal aid needs and the legal aid coverage that currently exists in each jurisdiction. The costs of providing legal aid coverage to federal prison inmates were not available, since they are not recorded separately from those of the general population.

Key informant interviews were conducted with a total of 25 lawyers and other professionals with experience in providing legal services to incarcerated federal offenders. The group comprised legal aid staff lawyers (10), private bar lawyers (8), paralegals (3), and others (4) - a provincial court judge and representatives from a non-profit legal clinic, a provincial parole board, and a non-profit legal advocacy group. Legal needs of federal inmates

The legal needs of federal prison inmates span a range of areas and issues but may be divided into two main categories.

The first category includes the "general" legal needs that all members of the Canadian population might have, such as criminal, civil, and family law. The second category includes the specific legal needs that arise as a direct result of imprisonment, often referred to as "prison law."

In the second category, the need for representation, legal advice, and/or legal education is most often associated with:

In addition to these prison law needs associated with general inmate status, there are also particular issues and needs faced by subgroups of the prison population. For example, Aboriginal people may face language and/or cultural issues that can affect their need for, and access to, legal supports.

Provision of legal supports to federal inmates

In Canada, there is a statutory guarantee of the right to legal counsel. What is subject to discretion is the extent to which the state must provide counsel at the state's expense. Each province maintains its own legal aid program, most governed by legislation, with varying rules for the nature and scope of legal matters covered. Few jurisdictions routinely provide comprehensive legal aid coverage for prison law issues.

The most important factors in determining eligibility for coverage include whether the matter involves "liberty issues," whether it is reasonable that a person would want representation for such a matter, and whether there is likelihood of success. The legal aid provider's discretion is an important factor in answering these questions. Legal aid policies and approaches vary widely across the country, especially with respect to prisoners. Most employ some mix of staff lawyers, judicare (using a per diem or tariff system), and/or duty counsel. British Columbia is unique in that prisoners' legal needs are served by a dedicated agency (Prisoners' Legal Services).

Obstacles

The main obstacles to meeting the legal aid needs of federal inmates are related to changes made in the 1990s to the various legal aid systems in Canada. Many Legal Aid Plans had to cap the level of coverage in response to increasing demand for legal aid services. Some Plans also made other adjustments to coverage, such as reductions in the tariff levels for certificates. Some Plans attempted to reduce costs by narrowing the range of legal issues covered by legal aid. These changes resulted in a related reduction in the legal profession's willingness to accept legal aid cases, especially in jurisdictions that use a judicare model of service delivery.

There are also structural/technical obstacles to the provision of legal services in the closed environment of the correctional institution. The restriction of communication between inmates and those outside the prison can restrict access to counsel and to the legal aid application process.

Unmet needs

The nature and extent of unmet legal needs vary along with the different policies for eligibility and coverage in each province. In many instances, inmates are without representation at hearings that can result in serious consequences such as segregation, involuntary transfer to another institution, or revocation of parole.

Key informants suggested that the unmet needs of federal inmates could most effectively be addressed through increased funding and human resources, and secondarily by ensuring that inmates have access to "self-help" legal education materials.

Prison law needs are a priority

While prisoners face more practical problems in gaining access to counsel as a result of their incarceration, coverage for many matters is technically no different for federal inmates than for the general population. The situation is very different with respect to addressing the legal aid needs resulting from prison-specific matters. There is sufficient evidence to conclude that a number of prison law matters can involve consequences (such as segregation, transfer, substantial fines, or loss of privileges) that are at least as serious as some matters for which coverage is routinely provided. These needs, therefore, should be given priority in any future consideration of access to justice issues for federal inmates.

The legal aid needs of inmate subgroups should be investigated

This research has provided evidence that subgroups within prison populations have legal needs beyond those faced by other inmates. There is evidence that Aboriginal people, women, and persons with disabilities face specific challenges in addition to those encountered by all inmates. Inmates with low levels of education, those for whom English is not a first language, and those with literacy problems can also experience additional obstacles to gaining access to legal services. While a general sense of several of these needs has emerged during the course of this research, they should be more thoroughly investigated in order to discover ways in which they can be addressed.

Legal aid legislation is fragmented

Because legal aid legislation or regimes vary among jurisdictions, provision of legal services is inconsistent across the country. As noted above, most jurisdictions do not provide services that address the particular legal issues that arise as a direct result of imprisonment. For example, some jurisdictions, like Nova Scotia, provide prison law services in one geographic region on an ad hoc basis. Ontario, Alberta, and British Columbia have more institutionalized, province-wide coverage of prison law issues. Saskatchewan does not provide any specialized services for prison inmates. This inconsistency across the country can pose problems, especially for federal inmates who may be transferred among institutions in various jurisdictions. The result is differential access to legal services for federal inmates based only on the province in which they are incarcerated. National standards on what services will be provided to federal inmates would help to mitigate this situation.

Discretion plays a major role in legal service to federal inmates

Ample evidence supports the conclusion that discretion is a key factor in whether federal inmates receive legal services, especially for prison law matters. It is also clear that this discretion can work both for and against the interests of the inmate. That is, having the right of inmates to legal counsel in specific situations enshrined in legislation could certainly be seen as a step toward protecting their interests. On the other hand, more strictly defined rules could reduce the flexibility of legal aid staff and private lawyers to respond to emerging legal issues and/or to accept exceptional cases that, in the interests of justice, should be defended, even if they are outside the standard parameters for legal aid coverage.

Denial of legal aid should be based only on legal issues

The large number of requests for legal aid, coupled with limited human and financial resources, means that many requests for counsel will be denied. All Legal Aid Plans offer a process for appeal of decisions; however, it appears that inmates do not often avail themselves of the opportunity. In the case of frivolous requests, denial of legal aid coverage is warranted and is not a cause for concern. In the case of requests that have merit, however, where denial is due simply to lack of resources, access to justice for federal inmates is being denied.

There is wide variation in availability of legal services

It is clear that the level of legal support, particularly legal aid, available to federal inmates depends on many factors. These include provincial policies for eligibility, the area of law involved, the level of funding for Legal Aid Plans, and even the particular institution involved. Whether or not a federal inmate receives legal support appears to be, in many cases, a matter of chance.

There are a number of forms of legal support

While this research has concentrated on legal aid, it is clear that other important related legal supports can be provided to federal inmates. Legal orientation sessions for new inmates, toll-free legal advice services, and well-maintained law libraries in correctional institutions can provide a cost-effective supplement (or even an alternative) to legal aid, especially in light of past and potential cuts to legal aid funding. These related forms of support should also be available in a range of media to reflect the varying needs and abilities of federal inmates. Reduced Legal Aid Plans are obstacles to meeting legal aid needs

The evidence indicates that recent changes to Legal Aid Plans, such as capping the level of coverage in response to increasing demand, inadequate tariff rates paid for certificates, and narrowing of the range of legal issues covered, are serious obstacles to meeting the legal aid needs of federal inmates. It may also be concluded that this situation has made specializing in prison law unattractive to many lawyers, despite the obvious demand. Institutional priorities can be obstacles to meeting legal aid needs

The reduced right to privacy and the need to limit freedom of communication in the interests of institutional security conflict with providing legal services to inmates. While these are mainly the result of legitimate safety concerns, correctional policy needs to recognize inmates' rights to access legal counsel. While inmates naturally lose some of their rights as a result of their incarceration, the right to counsel is not among them.

Application procedures are potential obstacles to obtaining legal aid

It is clear that the various policies for application for legal aid coverage vary in ease of use. The toll-free telephone application system in British Columbia, for example, appears to provide federal inmates good access to legal advice. Each step added to the process will increase the degree of difficulty in obtaining legal support. Contacting private bar lawyers, completing application forms, submitting forms, etc. can all hinder access - especially when combined with the institutional priorities discussed above.

A number of legal needs are unmet

It is clear that federal inmates have a wide range of legal needs that are not currently being met. As noted above, the magnitude of the problem varies greatly, depending on the jurisdiction in which the prisoner is located. The common factor, however, appears to be limited financial and human resources for legal aid services.

Unmet needs can have serious consequences

Disciplinary hearings, involuntary transfers, segregation, etc. can have significant consequences both for inmates' safety and for the protection of their Charter rights. Most Legal Aid Plans, however, base their eligibility criteria on the kinds of legal matters that are faced by the general population. It is important to ensure that federal inmates have access to legal aid for the serious legal issues that have no equivalent outside the context of a correctional institution.

[1] The second study, which was conducted by Thérèse Lajeunesse and Associates, is based on the perceptions of inmates, corrections officials and prisoner advocates, !FLAGin addition to a review of corrections and other relevant documents.