The Case for Prisoner Representation

I have described how the Federal Court of Appeal in the 1985 Howard case held that, under certain circumstances, prisoners had a constitutionally protected right to counsel in prison disciplinary hearings. The CSC attempted to get around this ruling by introducing a new "intermediary" category of offence, which, they argued, did not attract a right to counsel. This evasionary tactic ultimately failed when the Federal Court ruled that the right to counsel could not be discounted by a definitional sleight of hand ( Engen v. Canada (Kingston Penitentiary), [1987] F.C.J. No.641 ). In British Columbia, however, the Howard decision was muted in another way. Since most prisoners in federal penitentiaries do not have the financial ability to retain counsel, their ability to access their right to representation is dependent upon legal aid. B.C.’s Legal Services Society took the position that the Legal Services Society Act (R.S.B.C., 1979, c.227) placed them under no legal obligation to extend legal aid to prisoners facing disciplinary hearings, regardless of the category of offence.

Under this Act, a person qualifies for legal aid if he or she (a) is the defendant in criminal proceedings that could lead to his or her imprisonment, (b) might be imprisoned or confined through civil proceedings, or (c) has a legal problem that threatens his or her livelihood. Following his denial of eligibility by the Legal Services Society, Mr. Landry, a prisoner charged with the serious offence of doing an act with intent to escape, initiated a court challenge that came before the B.C. Supreme Court. That court ruled the proceedings were neither criminal nor civil but "disciplinary." While Howard might give a prisoner the right to counsel, "nothing is said of any reciprocal obligation to provide and pay for counsel" ( Landry v. Legal Services Society, [1986] B.C.J. No. 336 ). That position was affirmed by the B.C. Court of Appeal ((1987) 28 C.C.C. (3d) 138).

A number of consequences flowed from this decision. Prisoners ineligible for legal aid were forced to find lawyers who would represent them based either upon some moral obligation, arising from their having represented the prisoner during a criminal trial, or on the basis of a future promise to pay. Prisoners therefore often sought adjournments in order to locate counsel who would represent them. The result was a sense of frustration shared by everyone involved in the process. Prisoners were frustrated by not being able to realize the right they were said to have, the staff by what they saw as the games prisoners played in seeking adjournments, and the administration by not having the ability to resolve disciplinary problems quickly.

In my 1986 UBC Law Review article, "The Right to Counsel in Prison Disciplinary Hearings", I had this to say about the prevailing situation:

It is very important to understand that these consequences flow not from the Howard ruling that there is a right to counsel, but from the failure to implement the right. For the Howard case to be effective in improving the quality of prison justice, it must be accompanied by the availability of counsel to all prisoners whose right it is to have counsel represent them. This reflects one of the limitations of a reform strategy which relies exclusively upon court intervention. The impetus for reform comes from outside the system, and is itself the outcome of an adversarial process. As such it is resisted by the correctional authorities as an intrusion. The laying of the informational base to ensure that the rationale for reform is understood by correctional staff and the creation of a resource base to ensure that the reform is implemented, are not part of the relief courts are asked to grant. It is more likely that a legislated right to counsel, where the necessary foundation work has been done in advance to ensure that the resources are available to translate the law into the life of the prison, will achieve real reform in the practice of prison justice. Such a legislated right would have to face the fact that, since representation by counsel is an essential part of the disciplinary process, its cost is an integral part of running a prison system. Justice behind federal penitentiary walls must not be dependent upon the vagaries of provincial legal aid legislation just as it cannot depend upon the restrictive interpretation by correctional authorities of judicial decisions. (M. Jackson, The Right to Counsel in Prison Disciplinary Hearings, [1986] 20 U.B.C. Law Review 221 at 282)

In 1992, the CCR Regulations translated the Howard decision into a legislated right by providing that "the Service shall ensure that an inmate who is charged with a serious disciplinary defence is given a reasonable opportunity to retain and instruct legal counsel for the hearing" (s. 31(2)). However, the CSC was not prepared to recognize the argument that, since representation by counsel is an essential part of the disciplinary process, its cost is an integral part of running a prison system. Although the CCR Regulations recognized that prisoners had an unqualified right to be represented by counsel, the CSC took the position that it had no obligation to pay for that representation; the implementation of the right remained dependent upon prisoners either paying for counsel themselves or obtaining provincial legal aid.

In the years following the enactment of the CCRA, the Legal Services Society of B.C. maintained its position that prisoners facing disciplinary hearings were not eligible for legal aid. Prisoners’ Legal Services, which is funded by the Legal Services Society, had a staff of one full-time lawyer and two paralegals for their mandate to respond to issues raised by some two thousand federal prisoners. The enormous responsibilities and limited staffing made it impossible for them to represent prisoners at disciplinary hearings. For over ten years the University of Victoria's Faculty of Law operated a legal clinic which provided services to federal prisoners at the William Head medium-security institution, and the clinic’s staff lawyer, on a very selective basis, provided representation at disciplinary hearings. In June 1997, as a result of funding cuts, the staff lawyer’s position was terminated.

The operating reality during the period of my study from 1993 to 1999 was that for the overwhelming majority of prisoners, the right to counsel affirmed by the Federal Court of Appeal and recognized in the CCRA was a mirage. Based on personal observation and discussions with Independent Chairpersons and Prisoners’ Legal Services, I estimate that in less than 1 per cent of all cases during that time was a prisoner represented by counsel.

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