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

2.  Findings

This section presents the findings of the literature and document review and the key informant interviews. Following a description of the Canadian correctional system and legal aid in Canada as they pertain to this research, the findings in this section are organized in accordance with the research questions addressed in this study.

2.1 Context of the research

The purpose of this section is !FLAGto situate federal inmates within the correctional system and provide a brief overview of legal aid issues in Canada.

2.1.1 Federal penitentiaries

Federal penitentiaries are governed by the Corrections and Conditional Release Act (CCRA). The Act provides for prisoners' rights, governing structures within the penitentiaries, procedures for discipline, and requirements for segregation. Under the CCRA, the Correctional Service of Canada (CSC) is mandated to maintain and operate all federal penitentiaries. The work of the CSC is guided by its Mission Statement:

The Correctional Service of Canada (CSC), as part of the criminal justice system and respecting the rule of law, contributes to the protection of society by actively encouraging and assisting offenders to become law-abiding citizens, while exercising reasonable, safe, secure and humane control[6] .

Accompanying the Mission Statement are five Core Values,[7] which are intended to guide the implementation of the Mission Statement in practice. They include:

Core Value 1
We respect the dignity of individuals, the rights of all members of society, and the potential for human growth and development.
Core Value 2
We recognize that the offender has the potential to live as a law-abiding citizen.
Core Value 3
We believe that our strength and our major resource in achieving our objectives is our staff and that human relationships are the cornerstone of our endeavour.
Core Value 4
We believe that the sharing of ideas, knowledge, values, and experience, nationally and internationally, is essential to the achievement of our mission.
Core Value 5
We believe in managing the Service with openness and integrity, and we are accountable to the Solicitor General.

The Mission Statement and Core Values guide operations on a daily basis, and, therefore, life in federal penitentiaries involves continuous challenges arising from the interaction of the components of the Mission Statement (i.e., protection of society, assisting offenders to become law-abiding, and maintaining control). Approaches to maintaining control may not assist offenders to become law-abiding. Approaches to assisting offenders may work against maintenance of control. Approaches to maintaining control and assisting offenders may not result in protection of society, both during an offender's confinement and following that confinement. While these challenges may occur in institutions of any level of security, maximum-security facilities present the most challenges. The greater the level of control thought to be required, the more difficult it is to ensure that offenders are assisted in becoming law-abiding citizens, since maintenance of control takes a high priority. Ideally, however, the components work in conjunction with each other, and all goals are achieved: control is maintained; offenders are assisted; and society is protected.

Federal penitentiaries are closed institutions. As such, it is difficult for the public to know how the CSC's Mission Statement, Core Values, and CCRA provisions are implemented on a day-to-day basis. The atmosphere/environment of closed institutions has the potential to wield great power over all who become part of them. The daily undertakings within the walls of the institution, like any other organization, are influenced by the attitudes and perceptions of everyone involved, from inmates and staff to the general public.

While there is no single attitude toward prisons and prisoners, the prevailing attitude historically has been one in which prisoners are viewed as being outside society, without any rights and responsibilities associated with membership[8] . There is also an attitude that prison is for punishment of offenders-being sent to prison and losing one's liberty is not the punishment itself; rather, punishment occurs in prison. Rules and regulations regarding maintenance of control/order exist, but may not be followed in all situations. Further, when followed, the approach to implementing them may not be consistent with the intent of the rules.

Prison operations are affected by the multitude of complex needs that prisoners have, including legal, social, and psychological needs. While prison systems and staff are able to address many prisoner needs, they are not necessarily equipped to handle every one, and conflict may arise. For example, it is difficult for even the least vulnerable of prisoners to negotiate their way through prison procedures and practices, including disciplinary hearings, classification systems, involuntary transfers, administrative and other forms of segregation, and access to health services and programs. Prisoners who are more vulnerable, those with special needs for example, will have an even more difficult time navigating the prison system and dealing with social, psychological, and legal issues that may arise.

On occasion, the state of prisons and prisoners becomes apparent to the public. While there are undoubtedly many in the correctional system who work well with prisoners, situations arise where this is not the case. !FLAGMany inquiries have been made into the correctional system. Generally, all have found similar things: prisoners are treated inhumanely; there is little respect for the Rule of Law among correctional service staff in their dealings with prisoners; there is little recognition of prisoners' needs and legal rights; there is inadequate response to prisoners' needs; there is a generally punitive attitude toward prisoners; and prisoners with special needs face greater difficulty in living within the prison and getting their needs met[9] .

The most recent Commission, the Commission of Inquiry into Certain Events at the Prison for Women in Kingston, was completed in 1996. The Commission was conducted by Madame Justice Louise Arbour and found similar issues to those listed above. The Commission was implemented to address events that led to the strip searches of six female inmates at the Prison for Women in Kingston, Ontario by male prison guards of the Institutional Emergency Response Team; subsequent body cavity searches; and the women's long-term segregation, from April 22, 1994 to January 19, 1995, following this incident. In the opinion of the Commissioner, the findings were indicative of situations that are commonplace in the correctional system. Generally, it was found that the Rule of Law does not exist within prisons and that there was nothing to suggest that the CSC was willing or able to reform without judicial guidance and control. As indicated by a Parliamentary Subcommittee during the 1970s, "the Rule of Law must prevail inside Canadian penitentiaries and justice for inmates is a personal right and also an essential condition of their socialization and personal reformation"[10] . Madame Justice Arbour found that the conditions of segregation were emotionally and psychologically damaging and in violation of law, including correctional law[11] .

While some changes did result from the recommendations of the Arbour Commission, an examination of the Correctional Investigator's annual reports indicates that many systemic issues addressed in Madame Justice Arbour's report continue to exist. The Correctional Investigator's reports raise systemic issues such as excessive delays in responding to grievance; inaccessibility of programs and timely conditional releases for all prisoners, but especially for Aboriginal prisoners; excessive time spent in segregation before transfer; overuse of force in contravention of the law[12] ; use of force in support of mental health interventions; use of restraint equipment; lack of adequate investigation of inmates' injuries; lack of adequate response to self-injury and suicidal inmates lacking access to competent psychologists; lack of compliance with policies governing timely and fair investigation of prisoners' complaints of staff misconduct; involuntary transfer of inmates to mental health facilities under the guise of "risk assessment," and subjecting prisoners to psychiatric treatment without their consent; lack of critical incident stress intervention for inmates; sexual harassment of women prisoners by male staff; housing female prisoners in male penitentiaries in segregation units for excessive lengths of time; policy of placing all life-sentenced prisoners in maximum security facilities during their first two years of their sentence[13] ; and discrimination of Aboriginal offenders with respect to segregation, transfers, discipline, temporary absence, work release, adjournments and postponements of parole reviews, detention referrals, suspensions and revocations of conditional releases[14] .

In her report to the DOJ, Lisa Addario indicates that there are problems for women with security classification systems, given that the risk assessment tools used for security classification are designed for use with males and often result in over-classification of women. Further, she notes that people with mental health problems are often moved into increasingly more secure facilities and treated more harshly in an effort to control behaviour. In the meantime, however, their mental health issues are not addressed. Difficulties experienced by women prisoners generally are more pronounced for Aboriginal female inmates, given their unique cultural background and needs[15] .

Based on the above discussion, it is apparent that there are many areas in which prisoners have need for legal services to assist them in dealing with issues arising as a result of their imprisonment. Further, it is apparent that those who have special needs are more vulnerable to the inability of the prison system to understand and deal with those needs and the issues that may arise from the interaction between the prison and other systems. They may also be more vulnerable than other inmates to the impacts of prison system practices.

2.1.2 Legal aid in Canada

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. !FLAGFunding for the Plans comes from both the provincial and federal governments. A detailed description of the Legal Aid Plan coverage in each of the jurisdictions is included in Appendix C.

To receive legal aid services, applicants are expected to demonstrate financial eligibility. While the levels of income that constitute "low income" differ from one jurisdiction to the next, given differences in cost of living, a minimum level is set in each jurisdiction. Depending on their income levels, applicants may be eligible for legal aid without having to make a financial contribution, or eligible only if they make some contribution in the way of payment. When their income is too high to qualify for full coverage, they can be provided with services under a service repayment agreement in which they agree to repay all or part of the costs of the legal aid services. Arrangements of this type can be developed in all jurisdictions.

In addition to financial eligibility, the applicant must meet criteria for coverage of legal issues. While there are some basic requirements that Legal Aid Plans ensure coverage for some criminal and family law issues, the coverage provided by Legal Aid Plans across Canada differs substantially between jurisdictions[16] . Some key areas of criminal and family law are consistent across jurisdictions. For example, all jurisdictions cover criminal law issues in which there is a statutory minimum imprisonment term if the person is found guilty (e.g., charges of murder). Additionally, situations in which the applicant is likely to be imprisoned if found guilty are eligible for legal aid coverage. However, there is a large degree of discretion involved in determining whether or not imprisonment is the likely outcome if found guilty. Hence, where the coverage may be consistent across jurisdictions in policy, in practice there may be variations in the coverage of charges. In family law, child welfare issues, financially eligible parents are generally covered in each jurisdiction if the child was apprehended by the child welfare authorities or if the parent is at risk of losing custody of the child. Divorce and custody proceedings are also generally covered in each jurisdiction. In other areas of family law, coverage is less consistent across jurisdictions.

During the 1990s, many issues arose in the legal aid system in Canada. Many Legal Aid Plans had to cap the level of coverage in response to high demand for legal aid services. Plans also made other adjustments to coverage. For example, in jurisdictions that use(d) a judicare model for service delivery, the tariff levels for certificates were reduced. In addition, Plans eliminated some issues in each area of law that were formerly included for coverage. Changes in Plan coverage have therefore resulted in reduction of the level of coverage available to the public in each area of law.

In addition to reductions in access to justice through the changes made to Legal Aid Plans, the legal profession's response to the changes has resulted in further reductions in the accessibility of justice services in those areas that use a judicare model of service delivery. When reductions in the type, level, and payment schedules of legal services were announced, many members of the legal profession determined that they would no longer accept legal aid clients. When clients did obtain a certificate for legal aid services, they were often unable to find a lawyer who would take a certificate case. Those lawyers who continued to take legal aid certificates became overburdened and, therefore, were often unavailable to accept certificates. In recent years, lawyers have protested publicly the lack of coverage under the Legal Aid Plans[17] .

In response to the crisis in legal aid, many jurisdictions have completed extensive reviews of their legal aid systems. This has resulted in the development of new approaches to governance of Plans[18] and more experimentation with innovative approaches to the delivery of legal aid services.

The DOJ, in co-operation with the provincial and territorial Legal Aid Plans, is currently undertaking extensive research. The results will assist in developing a new access to justice framework that will potentially address some of the issues that have arisen since the early 1990s in the provision of legal aid services in Canada.

2.2 Legal needs of federal inmates

The literature review revealed the multitude of complex needs that prisoners have, including legal, social, and psychological needs. While prison systems and staff are able to address many prisoner needs, they are not necessarily equipped to handle every one, and conflict may arise. For example, it is difficult for even the least vulnerable of prisoners to negotiate their way through prison procedures and practices, including disciplinary hearings, classification systems, involuntary transfers, administrative and other forms of segregation, and access to health services and programming. Prisoners who are more vulnerable, those with special needs for example, will have an even more difficult time navigating the prison system and dealing with the various social, psychological, and legal issues that may arise.

The legal needs of federal prison inmates span a range of areas and issues but may be broadly 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."

2.2.1 General legal needs

The legal and legal aid needs of federal prison inmates are broad in scope and encompass all the areas of law for which the general population has need. !FLAGAreas of law in which inmates' needs lie include: criminal, family, child welfare, wills and estates, civil law, small claims, mental health, human rights, and immigration. Key informants pointed out that prisoners are not considered any differently than members of the general public with respect to these legal needs, and, therefore, they are not extensively addressed in this research. It is important to note, however, that the prisoner status may still result in significant difficulties in gaining access to the services for which they are theoretically eligible.

2.2.2 Prison law needs

In addition to the legal services and legal aid needs that the general population potentially has, prisoners have particular needs that are directly related to their incarceration. The literature and document review found that prisoners need legal representation to address a number of areas identified by reviews of the correctional system, including the reports of the Arbour Commission and the Correctional Investigator of Canada. The need for representation, legal advice, and/or legal education is most often associated with:

Data from key informants reinforced data obtained from the literature and document review. While lawyers reported providing a wide range of legal services to federal inmates and persons on conditional release, the most common responses involved "prison-specific" services such as:

In addition to these prison law needs associated with general inmate status, key informants also identified particular issues and needs faced by subgroups of the prison population. Aboriginal-specific issues included language and cultural issues, dealing with the effects of residential schools, and the need for specialized programming for Aboriginal offenders in federal institutions. Key informants also identified needs specific to women in federal prisons, including access to programming equal to that for male inmates, as well as issues related to the care and/or custody of inmates' children during their incarceration.