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

2.  Findings (cont'd)

2.5 Coverage

Again, the amount and scope of legal aid coverage for prison law matters vary quite widely among the jurisdictions. Appendix C contains a detailed description of the areas of law covered and the eligibility criteria for each jurisdiction; these areas are briefly discussed below. This is followed by the findings addressing the issues of the use of discretion in granting legal aid to prisoners in federal penitentiaries, as well as issues surrounding the denial of legal aid service.

2.5.1 Eligibility criteria

In general, qualifying for legal aid coverage depends on the client meeting two tests. One involves financial eligibility requirements; the other depends on the area of law involved. Criteria in these two categories vary considerably by province and are discussed fully in Appendix C. The following is a brief summary of eligibility criteria for each province:

British Columbia
This province uses the same financial means test for federal inmates as for the general public. However, key informants also reported that detailed financial information is rarely pursued for inmates, since nearly all meet requirements and the few exceptions that might be caught would not justify the expense of checking. Coverage is only provided for liberty[26] issues that have a good chance of success and that are deemed to be reasonable. Exceptions can be made, key informants reported, where there is the probability of a financial settlement that would allow legal costs to be recouped.
Coverage is based assessments of financial means and of merit, based on the legal opinion requested from a lawyer. Consideration is given to whether the request is reasonable, whether having a lawyer will make a difference in the outcome, and whether the inmate is capable of making an argument without the assistance of counsel. Saskatchewan. Coverage is based on a financial means test and on the merit of the case. All indictable charges are covered; however, summary offences are only covered if there is a likelihood of imprisonment or loss of livelihood. All Crown-initiated appeals are eligible; coverage can be provided for other appeals if the case has merit. Family matters including divorce, custody, access, child protection, maintenance, restraining orders, and adoption are eligible. Appeals on family law matters are covered if the applicant remains financially eligible and there is professional merit to the appeal. We were told that there is no legal aid coverage for prison law matters.
Key informants reported that coverage in this province depends on a financial means test and a consideration of the specific legal issue involved. We were told that a lawyer will only be appointed for criminal or quasi-criminal issues where the inmate's liberty is at stake, and for family issues if there is a "reasonable expectation of benefit."
Coverage is based partly on a financial means test, which, key informants told us, is not difficult for most prisoners to meet. They can be asked to contribute if they have money in their prison account; some key informants indicated that this can be a hardship. There is also an assessment of merit, based on an opinion letters that is submitted by the prospective lawyer. We were told that Legal Aid Ontario usually accepts the advice provided by the lawyer in the opinion letter. Loss-of-liberty issues are considered to be the most important; for parole hearings, one respondent stated that coverage is "almost automatic." The service involves assistance in preparing for the hearing, and some attendance by counsel at parole hearings.
Key informants reported that eligibility for federal inmates is the same as for the general public. We were told that legal aid is always granted to financially eligible inmates for family, youth protection, young offenders, indictable offences, applications involving automobile insurance, worker's compensation, unemployment insurance, and income security matters. Other matters, such as civil and summary conviction, can be covered at the discretion of legal aid. The factors considered in these cases include likelihood of imprisonment, loss of livelihood, and whether it is "in the interests of justice" to provide coverage.
New Brunswick
Key informants reported that legal aid will cover criminal matters if a loss of liberty is likely and that "almost nothing else" is eligible.
Nova Scotia
Coverage depends on a financial means test and the area of law involved. Key informants reported that loss-of-liberty and criminal matters are the priority; other issues may be considered if resources are available.

Key informant interviews provided some additional illustrations of eligibility issues. With respect to civil law matters, the only legal aid staff lawyers who reported regularly providing family and general civil legal services were in Manitoba. One private bar lawyer in Ontario reported taking civil cases. Specific civil issues covered include:

We were told that Legal Aid in British Columbia will provide coverage for civil issues only for the occasional case that has a good chance of resulting in a financial settlement. Two private bar lawyers in Ontario reported specializing in Criminal Code section 690 (application for mercy of the Crown) and "faint hope"[27] applications.

2.5.2 Discretion

The information presented in Section 2.5.1 above suggests that while there are a number of clearly defined guidelines regarding eligibility for legal aid, there is also a substantial degree of latitude inherent in the decision-making process. Most of the key informants described the use of discretion in a number of eligibility issues and at several points in the process of determining eligibility for legal aid coverage. Some illustrations of the main areas where discretion is used are presented below.

Financial means
Legal Aid Plans generally use a set formula to calculate whether a client falls within the financial threshold for full, partial, or repayable legal aid coverage. Beyond that, however, we were told that, in some cases, actual practice can depart from the formula if necessary. One example is found in cases where inmates have enough funds in their prison account to warrant a request for a contribution. Discretion may be exercised where it is believed that demanding payment could cause undue hardship to an incarcerated person. In another example, some inmates with sufficient resources to retain their own counsel "slip through" because it is assumed that the vast majority of prison inmates will easily meet the financial means test.
Liberty issues
As noted in the Eligibility section above, the concept of liberty is a key factor in determining eligibility in most jurisdictions. The chance that an inmate's freedom might (further) be affected by lack of counsel was reported by several key informants to be an important consideration. It is also apparent that discretion becomes an issue in the definition of what does or does not constitute a "liberty issue." According to some key informants, discretion is often used to decide when the possibility of segregation or involuntary transfer constitutes a true liberty issue that is therefore deserving of legal aid.
Most key informants indicated that, to qualify for legal aid coverage, the case must pass a "reasonable person test." As one lawyer summed it up, "would the average reasonable person, in a similar situation, hire a lawyer for this?" The answer to this question is normally subject to the discretion of legal aid personnel or private bar lawyers who offer letters of opinion for potential clients.
Likelihood of success
Similar to the issue of reasonableness, we were told by key informants that a case must have "a good chance of success" to be considered for legal aid coverage. Again, this determination will depend mostly on the discretion of legal aid personnel and/or lawyers offering letters of opinion.

2.5.3 Denial of services

Most key informants reported that denials of legal aid coverage are common and that reasons for denial correspond to the eligibility criteria discussed in Section 2.5.1 above. We found that little quantitative data is available regarding the rate of denials of prison inmates for legal aid coverage. Prisoners' Legal Services in British Columbia reported that more than half (56 percent) of intake interviews result in a file being opened. It is important to note that this figure includes inmates of both provincial and federal institutions, so the denial rate for federal prisoners is unknown. One key informant from this organization estimated that perhaps one in three federal inmate requests for legal aid is passed to the next stage of the process, which is a merit assessment by a paralegal.

In general, nearly all respondents indicated that appeals of denial of coverage decisions are rare. Most indicated that appeals are time-consuming and unlikely to succeed; therefore, very few prisoners bother to pursue them. The exception is in Alberta, where, we were told, many inmates appeal decisions. One private bar lawyer in Ontario told us that he instructs all clients denied legal aid coverage to appeal the decision. This key informant reported that if a lawyer writes or calls on behalf of the client, the appeal is usually successful.