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

2.  Findings (cont'd)

2.3 Legislative requirements for provision of legal aid

In Canada, there is a statutory guarantee of the right to legal counsel. What is subject to discretion is the question of 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,[21] with varying rules for the nature and scope of legal matters covered. The CCRA states that, during their incarceration, inmates retain the same rights and privileges as members of the general population, "except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence"[22]. Therefore, prisoners will be eligible for the same legal aid services as other members of society in any given jurisdiction. That is, financially eligible prisoners are entitled to legal services for all criminal and family matters that are available to the public. However, there is little legislation that deals with the provision to inmates of legal services in the area of prison law. Most jurisdictions, therefore, do not routinely provide services that address the particular legal issues that arise from imprisonment.

As illustrated in Appendix C, legal aid coverage of legal services for inmates is limited in most jurisdictions. Legal aid services for prison inmates are not a requirement of Legal Aid Plans across Canada at present, although as indicated, some jurisdictions routinely provide legal aid services. While financially eligible prisoners are entitled to legal services for all criminal and family matters that are available to the public, most jurisdictions do not provide services that address the legal issues that arise from their imprisonment. Some jurisdictions, like Nova Scotia, provide 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. There are some notable exceptions to the general lack of legislation regarding provision of legal aid to prisoners, which are described in more detail below.

2.3.1 The Howard decision

The Howard decision[23] in 1984 resulted in recognition of a prisoner's right to representation at a disciplinary hearing when the implications for the prisoner's liberty were significant (e.g., the prisoner would be placed in segregation). However, the decision did not address the issue of payment for legal counsel through a Legal Aid Plan. Hence, a prisoner who wanted counsel at a disciplinary hearing had a right to counsel but did not have a right to have the counsel provided through a Legal Aid Plan.

2.3.2 The Winters decision

The Winters case was based on a situation arising in British Columbia in which an inmate was charged with assaulting another person while serving a life sentence. After spending 38 days in solitary confinement, he tried to obtain a lawyer from the British Columbia Legal Services Society to represent him at a disciplinary hearing. He was advised that disciplinary hearings were not covered[24]. He then petitioned the British Columbia Supreme Court and was again rejected. Eventually, his case was heard by the Supreme Court of Canada, which stated that prisoners in federal institutions are entitled to legal aid services for Disciplinary Court when charges could lead to solitary confinement or other serious consequences. It was, however, up to the Legal Aid Society to determine what type of service should be provided (e.g., counsel, duty counsel, paralegal service).

However, the Winters case dealt directly with British Columbia statutes regarding legal aid services rather than Charter arguments. Had it been argued using the Charter, the finding would have applied to all jurisdictions, leading some to believe that it is only a matter of time before a Charter argument is raised.

Despite the fact that the Winters decision does not apply outside British Columbia, it might act as a warning to other provinces. Legal Aid Alberta, for example, will take applications for disciplinary hearings , and obtain legal opinions in many cases to determine if coverage will be provided. However, many of the smaller jurisdictions have not yet begun to provide coverage of issues related to disciplinary hearings or to broader issues in prison law.

2.4 Legal aid policies and approaches

As noted earlier, legal aid policies and approaches vary widely across the country, especially with respect to prisoners. A complete description of the various approaches to legal aid across Canada is included in Appendix C. The following is a brief summary of legal aid approaches and policies in the jurisdictions examined in this study:

British Columbia
This jurisdiction employs a mixed staff and judicare model. Applications for coverage are made to Prisoners' Legal Services by toll-free telephone line[25].
Key informants reported that that the delivery method is "mostly judicare," but that there is a mixed duty counsel and clinic model in some areas for some federal institutions. In institutions that are visited by legal aid staff, inmates are able to book appointments with legal aid staff to submit applications. We were told that the exception is the Edmonton institution, from which applications are taken by telephone.
This province operates on a staff-based model. Staff lawyers are available through local offices, and Brydges services through a contract with a private lawyer. Lawyers from the Prince Albert office attend at the Provincial Court that sits monthly at the Prince Albert Penitentiary to deal with criminal charges arising within the institution and other criminal charges that inmates may want to dispose of before their sentence. Applications for legal aid that are within the range of legal aid services in Saskatchewan are completed either by telephone or in person by legal aid staff. No specialized services for prison law are provided to prisoners in federal institutions.
This province employs a mix of legal aid staff lawyers, duty counsel, drop-in clinics, and judicare certificates. Applications for coverage are made by contacting a private lawyer who must attend the institution to complete an application, or by seeing a lawyer at a clinic (in institutions where clinics are available).
Coverage is provided mainly under a judicare model; however, duty counsel provided by Legal Aid Ontario are available in institutions to take applications and to provide legal advice and representation. Lawyers and students at the Kingston Correctional Law Project also provide advice and representation. Two-hour certificates for initial consultations with a private bar lawyer are issued on a discretionary basis. Lawyers provide an opinion to Legal Aid Ontario on the merits of the case with respect to whether or not it qualifies for legal aid.
Coverage is provided under a mixed model of legal aid staff lawyers and judicare. Inmates may make an application for legal aid coverage by telephone; a legal aid representative visits the institution to evaluate the case and decide whether to issue a certificate.
New Brunswick
A judicare model is used to supply legal services. Key informants reported that certificate applications are available from !FLAGCorrections staff and that they can be faxed to the legal aid office from prisons. Security considerations determine whether an inmate is allowed to fax the application or whether he/she must rely on a Corrections staff member.
Nova Scotia
Legal aid staff lawyers provide most of the services; however, certificates are used if there is a conflict of interest. Requests for application forms can be made to the local legal aid office by telephone. Forms are sent to the inmate to be completed and returned to the legal aid office. A key informant also noted that, at the Springhill institution, a staff lawyer collects applications weekly.