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

Appendix C: Legal Aid Plan Coverage by Province (cont'd)

Table 1: Legal Aid Plan coverage (cont'd)
  British Columbia Alberta Saskatchewan Manitoba
Policies and procedures regarding federal prison inmates Cover disciplinary hearings, parole hearings, involuntary transfers or solitary confinement placements, sentence calculations, involuntary treatment issues, assaults on prisoners, parole or statutory release conditions, institutional interference with family visits and correspondence.

Financial eligibility required.

If legal representation required, either represented by Prisoners' Legal Services staff or referred to lawyers under regular tariffs.

Judicial Reviews under section 745.6 of CCC: Protocol for handling inter-provincial reviews - Plan in jurisdiction where hearing will take place where crime and conviction occurred; appoints and pays lead counsel who will manage the case. Lead counsel calls on Plans in other jurisdictions to provide and pay for work that must be done in that jurisdiction.

Tariff for judicial review is $700 per half day of hearing (minus 10% holdback). Payments for complex cases requiring significant preparation time will be negotiated between counsel and the Director of Tariff. Disbursements costly since expert reports are usually required Case costs vary widely ($14,000 through $34,000).

LSS must provide aid when the individual may be imprisoned or confined through civil proceedings or has a legal problem which threatens his/her family's physical or mental safety or health, ability to feed, clothe and provide shelter for family, livelihood.

Landry vs LSS, 1986. BC Court of Appeal held that prison disciplinary proceedings do not fall within the mandate of the LSS Act since they are not criminal or civil proceedings.

Winters vs LSS. BC Court of Appeal dismissed the case but it was appealed to Supreme Court of Canada. In September 1999, S.C. ruled that LSS Act requires LSS to provide legal service coverage for disciplinary proceedings in prisons where the consequences of proceedings can be solitary confinement and/or loss of remission and that LSS can provide legal services by non-lawyers; LSS has the discretion to determine when mandatory services require legal representation. The decision applies to both federal and provincial institutions.

 Coverage:

Criminal: All indictable offences; summary conviction if conviction will likely increase term of imprisonment; parole hearings where a legal opinion indicates merit as well as revocation of parole (gating).

Civil: Treated much the same as applications from the general public; case must have merit and meet financial requirements.

Immigration: May be granted on a discretionary basis depending on merit.

Institutional charges: Normally do not cover these charges. Take an application, obtain a legal opinion in all but most minor cases and, if opinion indicates some coverage warranted, coverage may be granted (e.g., case where lengthy term of solitary confinement may be imposed).

 Services provided in all matters only if case has merit.

Criminal: All indictable charges; summary only if likelihood of imprisonment or loss of livelihood; coverage for all Crown-initiated appeals; coverage other appeals if merit.

Civil: Family matters - divorce, custody, access, child protection, maintenance, restraining orders, adoption. Appeals on family law matters are covered if the applicant remains financially eligible and there is professional merit to the appeal.

 No formal policies for service provision because this is not one of their areas of responsibility.

The exception is with the drop-in clinics in the institutions
Process for decision-making regarding service eligibility Financial eligibility assessed.

Merit: If application for Judicial Review received, senior in-house counsel assess the application to determine whether it has merit. Only applications with merit are given coverage (in effect since July 1996).

 Application received; financial eligibility determined; if financially eligible, legal opinion re strength and merit of case is obtained; decision made based on legal opinion (usually follows legal opinion).

If lawyer is ambiguous, usually refused. If case has little merit but is serious, often grant coverage

Appeals: Two levels of appeal - first to regional committee then to appeals committee of the Board of Directors.

   Financial and case eligibility is assessed by the Area Director. If the case is accepted, a certificate is provided to the lawyer. If the case is not accepted, the applicant can appeal to the Executive Director. The Executive Director examines the case and reasons for appeal. If rejected, the applicant can appeal to the Board of Directors.