Respecting inmates’ right to counsel

Incarcerated persons in Canada have rights, including the right to counsel. But as the Criminal Justice Section of the CBA and its Committee on Imprisonment and Release explain in a letter to Correctional Service Canada (CSC) and the Parole Board of Canada (PBC), there are too many significant barriers to that right in the country’s federal prisons.

The right to counsel for people in federal custody is enshrined in the Corrections and Conditional Release Regulations as well as the Charter of Rights and Freedoms, the letter points out. Prisoners have no choice but to rely on CSC to facilitate that right. And CSC, the CBA Section says, is making that more difficult than it should be while the PBC perpetuates those difficulties.

In particular, CSC treats lawyers as “third parties,” not as legal representatives acting on behalf of clients. And it insists the responsibility to share information and disclosure with lawyers rests with their clients. When it comes to sharing information about the time and date of a hearing, or the deadline for submissions, “disclosure is generally only made to the client, who then must request that the institution send the documents to their lawyer by fax or mail (people in prison have no access to email or the internet),” the letter reads. “The delays and challenges caused by this approach are significant.”

Not communicating directly with lawyers is in contravention of the right to counsel and it makes it difficult for lawyers to represent their incarcerated clients properly. “Untold hours are spent struggling with basic procedural matters. Often information comes too late or not at all, leaving clients unrepresented or subject to a procedurally unfair hearing,” the Section explains.

Incarcerated persons already face increased difficulties when they attempt to contact their lawyers. Access to communications is limited and some people may only be allowed out of their cells during non-business hours. As well, lawyers cannot call their clients directly. They must put in a “call-back request” through the institution, and those can sometimes take days to happen. And after the request is received, the incarcerated person often needs to ask for the ability to place a confidential phone call, which can take another day or more to be facilitated.

Other difficulties include relying on prison staff to access photocopiers, fax machines and other office equipment. These issues would be challenging at the best of times. In prison many people suffer from trauma which can translate into significant symptoms that get in the way of their ability to gather documents or arranging phone calls to counsel. “CBA Section members sometimes receive calls from clients asking for assistance, who then do not follow up for weeks or months, reporting later that they gave up on fighting a disciplinary charge or other proceeding because procedures for arranging legal calls and sending documents were too stressful or frustrating.”

As the CBA letter says, it is not acceptable to require prisoners to share documents and information about proceedings with their lawyers. “The right to counsel implies a duty on administrative tribunals to treat the lawyer as acting in the place of the client, and to facilitate the right to counsel by communicating and sharing disclosure and information with lawyers.”

The letter recommends that CSC, PBC and other federal correctional bodies create and enforce clear policy for staff to communicate directly with conseil when an incarcerated person is represented and to provide documents directly to lawyers reasonably in advance of hearing or submission deadlines.