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location: publications / books / Justice Behind the Walls / Sector 3 / Chapter 4 Bringing Justice to the Disciplinary Process / The Case for Prisoner Representation

The situation in British Columbia is replicated in other provinces housing federal institutions with the exception of Quebec and, to a lesser extent, Ontario. Only in Quebec does the provincial legal aid plan provide for routine representation of prisoners at disciplinary hearings. This relative advantage is offset by the standard tariff of $200 per case (including preparation time), which means very few lawyers are prepared to undertake the work. (In September 1996, as part of a general cut in legal aid for representation before administrative tribunals, even this limited tariff was abolished; however, in response to a general protest by the Quebec Bar, including a threatened strike, the coverage was restored.) Legal aid certificates for representation on disciplinary hearings are available in Ontario, although the process for receiving one is so cumbersome and bureaucratic that for all practical purposes they are nonexistent. The legal aid scheme does provide for a system of duty counsel at some federal institutions in the Kingston area, which, together with some representation by law students at the Queenís Law School Correctional Law Project of the Faculty of Law at Queen's University, results in a greater degree of prisoner representation than exists anywhere in the country outside of Quebec. This patchwork arrangement has the invidious consequence that a federal prisoner, who can be imprisoned in any federal institution, can find himself facing a charge in Ontario or Quebec for which he can obtain legal representation, and then find himself the following month in an institution in Atlantic Canada, British Columbia, or Saskatchewan where, faced with exactly the same charge and facing the same possible punishment, he would effectively be deprived of that right. This serendipitous quality of prison justice, administered across the board under the same federal statute by the same federal department, certainly does not go unrecognized in the judgements prisoners make regarding the inconsistent application of the Rule of Law within Canadian prisons.

During the course of my study, the issue of the Legal Services Society of British Columbiaís lawful obligations to fund counsel in serious disciplinary cases was relitigated. The case involved a prisoner at Matsqui, Art Winters, who in November 1993 was charged with assaulting another prisoner. He was placed in segregation and an involuntary transfer package to Kent Institution was prepared, based primarily upon the allegation of assault. When Mr. Winters first appeared in disciplinary court, he sought and was granted an adjournment to retain counsel. He had a lot at stake. There was not only the threat of transfer to higher security and the punishment of segregation if he were convicted of the offence. Mr. Winters was serving a sentence for first-degree murder; under the provisions of s. 745 of the Criminal Code, having served fifteen years, he would be eligible in 1998 for a judicial review at which a jury would determine whether his parole eligibility should be reduced from 25 years. One of the considerations juries are required to take into account in making this determination is the conduct of the prisoner during his incarceration. A conviction for an assault on a prisoner would be a serious blot on Mr. Winters' record. He consulted with counsel and was advised that, in light of the implications of conviction, it was important that he be represented by counsel at the hearing. However, the fee for such representation was beyond Mr. Wintersí means. He approached Prisonersí Legal Services, who advised him that since legal aid did not cover disciplinary hearings they were unable to represent him. He then approached John Conroy, the lawyer who had argued the Landry case. Mr. Conroy determined that Mr. Wintersí case was an appropriate test case to re-argue Landry. Mr. Winters was transferred from Matsqui to Kent, and in the process exchanged one segregation cell for another. When the Winters case came before Mr. Justice Fraser, he ruled that he was bound by the decision of the Court of Appeal in Landry ( Winters v. Legal Services Society, [1995] B.C.J. No.1001 (QL)). The B.C. Court of Appeal dismissed Mr. Wintersí appeal, seeing no reason to depart from its interpretation in Landry that prison disciplinary hearings were not covered by s. 3 of the Legal Services Society Act ([1997] B.C.J. No. 1280 (QL)).

The Winters case was then appealed to the Supreme Court of Canada. In December 1998, John Conroy and I presented the oral argument before the Court as co-counsel. We argued that an interpretation of the Legal Services Society Act which enables and facilitates the legal representation of prisoners in disciplinary proceedings that could result in solitary confinement would contribute to the establishment of a correctional culture that encourages respect for the Rule of Law behind prison walls. We also sought to impress upon the Court the very real penal consequences that could flow from a disciplinary conviction. We urged the Court to adopt a remedial interpretation of the Legal Services Society Act that cast the protective umbrella of legal representation over those who faced a proceeding which can result in the most intrusive form of custody -- solitary confinement -- and which, in the words of the House of Commons Subcommittee on te Penitentiary System in Canada, is the "most individually destructive, psychologically crippling and socially alienating that could conceivably exist within the borders of the country" ( Report to Parliament, 1977 at 156).

The appeal was successful. The Supreme Court, in a judgement handed down on September 15, 1999, overturned the decision by the B.C. Court of Appeal and held that a prison disciplinary hearing that could result in the imposition of a term in solitary confinement was a "civil proceeding" within the definition of the Legal Services Society Act. Mr. Justice Cory cited a passage from my book Prisoners of Isolation -- "Dostoevsky is a surer guide than Glanville Williams in understanding what is it that we do, in the name of the criminal law, when we send men to the solitary confinement cells" -- and concluded that:

It is clear that solitary confinement is not simply a different yet similar form of incarceration than that experienced by the general prison population. Its effects can be serious, debilitating and possibly permanent. They serve to both emphasize and support the conclusion that solitary confinement constitutes an additional and a severe restriction on a prisonerís liberty. ( Winters v. Legal Services Society and the Attorney General of British Columbia, [1999] 3 S.C.R. 160 , at para.67)

While the courtís judgement was unanimous that a prison disciplinary hearing which could result in the imposition of a term in solitary confinement was a civil proceeding within the meaning of the Legal Services Society Act, there was a division of opinion on whether that entitled a prisoner to representation by counsel in every case. Mr. Justice Cory held that it did; Mr. Justice Binnie, writing for the majority of the court, held that the obligation of the Legal Services Society Act was to ensure that "legal services are available"; that "legal services" was not synonymous with "legal representation;" and that the Society had the discretion to determine when legal services ought to rise to the level of legal representation by a lawyer. In making that decision, he wrote,

The Society must consider all of the relevant circumstances of the application, including the nature of the charge, the procedure for its determination, the severity of the punishment of the applicant if convicted, and other potential indirect consequences such as . . . prejudice to a potential transfer to a lesser institution. ( Winters, at para. 15)

The majority of the court provided some guidance in determining what legal services might mean in the context of prison disciplinary hearings:

[They] would include a preliminary investigation of the facts giving rise to the disciplinary charges, and advice about the range of potential outcomes, and the chances of success. This is a function that could be performed by the Legal Services Society staff counsel, or even a non-lawyer staff person who is well versed in prison matters, provided that any advice given by that person is "under the supervision of a lawyer" (s.9). It might be expected that in many cases the best advice would be to have a lawyer at the hearing. The prospect of solitary confinement, if a plausible risk in the circumstances, would argue for such an outcome.

In some circumstances, however, the best advice might be that there is no useful role for a lawyer. The facts may not be in dispute. It may be apparent that solitary confinement, while theoretically available, is not a realistic possibility and that legal counsel at the hearing is unnecessary. The Society should not be required to provide more than a reasonable person of average means would provide for himself or herself. ( Winters, at paras. 30 - 631)

As a direct consequence of the Supreme Courtís judgement in Winters, the Legal Services Society allocated additional resources to Prisonersí Legal Services to enable them to hire an additional legal intake officer and a paralegal worker dedicated to providing advice and representation for prisoners at disciplinary hearings. A paralegal now provides the equivalent of duty counsel service for Kent and Matsqui Institutions and other institutions with heavy disciplinary dockets. Depending on the nature of the charge and the complexity of the case, representation is also provided in many cases by the paralegal, leaving a residual number of cases in which legal aid certificates are issued to members of the Bar. For institutions outside the geographical reach of Prisonersí Legal Services, for example, William Head Institution on Vancouver Island, representation is provided exclusively by members of the Bar.

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In 2002 the B.C. Government, as part of cost cutting measure to social services, amended the Legal Services Society Act and repealed the sections that created an entitlement to legal services, including those under review in the Winters case, thereby making the provision of legal services discretionary. As a result of a 40% cut to the legal aid budget many community legal aid offices were forced to close. Prisoners Legal Services managed to survive, albeit on a much reduced budget.