Canada: bringing law into prisons

A tool for defending prisoners

The law struggles to enter Canadian custodial settings. Associations are typically not authorised to enter prisons. Very few lawyers are familiar with prison law. Prisoners are not adequately informed of their rights. The book Droit carcéral et gestion des peines (”Prison Law and Sentence Management”) combines law and clinical criminology in an attempt to increase knowledge of prisoners’ rights and the duties of prison facilities.

Philippe Bensimon, Doctor of Criminology, and Mélanie Martel, a lawyer practicing prison law, participated in writing this work. They reflect on how the book came to be and the issues concerning the respect of prisoners’ rights in Canada today. Prison Insider asked them three questions.

Prisoners are often poorly informed of their rights, as no one is there to help or guide them.

Prison Insider. What inspired you to write this book?

Philippe Bensimon. Canadian custodial settings are divided into two categories: provincial/territorial correctional facilities (for sentences less than two years) and federal correctional facilities (for sentences of two years or greater). All prisoners, whether in provincial/territorial prisons or federal ones, can be assisted by a lawyer specialised in prison law to help them through certain procedures, in particular for parole, or to represent them during disciplinary hearings.

Mélanie Martel. The lawyer’s role is central in that very few other people – or associations – are authorised to enter the facilities. As a result, prisoners are often poorly informed of their rights, as no one is there to help or guide them. Only lawyers can inform prisoners of their rights, prepare them for parole requests, explain how to appeal a decision, etc., but no publication on prison law existed in French, and universities provide little instruction in the field. This made it very challenging for lawyers to educate themselves.

A lack of training among lawyers leads directly to a lack of information among prisoners. We hope that this book improves lawyers’ training, helping them better advise their clients.

PB. The concept of this tool is unique in that it combines law and criminology. Generally speaking, lawyers are unfamiliar with the operation of (actuarial tools)¹, which are used by criminologists to assess the criminal profiles of convicted persons. This assessment determines, among other things, the type of facility the person will be sent to: maximum security, medium security, or minimum security. Depending on how they change while in detention, prisoners may later be transferred to a lower (or higher) security level. In this sense, sentence management is essentially carried out by criminologists, since it depends on their expertise.

MM. The challenge with correctional law is that it is social law with a criminological element. As lawyers, we are not involved in criminology processes like assessments, but it is critical to understand them in order to help prisoners. Otherwise, how can these assessments be contested? How can we know if the actuarial scales are well-constructed?

Actuarial tools include risk assessment methods based on predictive factors – or risk factors – that are confirmed with empirical evidence. ↩

The work needs to be reasonably readable, as our goal is for it to circulate in the libraries of provincial/territorial correctional facilities and prisons.

PI. What were the major challenges you faced while writing the book?

MM. The lack of transparency was the biggest problem. Accessing information is very difficult. For example, we wanted to see the actuarial scale of a provincial assessment used to categorise prisoners by estimated degree of danger – low, medium, or high. We requested that the criteria used in this assessment be sent to us, but we were refused. How can prisoners prepare themselves for the assessment without knowing the basis of it? Why did one person have such a high result? How are the results explained and justified? We challenged it in court, but the decision to refuse access to the document was upheld. We encountered similar obstacles throughout the entire writing process. Our contacts in detention helped us fill in the gaps to create a comprehensive work.

PB. We wanted this book to be accessible to all relevant audiences. The work needs to be reasonably readable, as our goal is for it to circulate in the libraries of provincial/territorial correctional facilities and prisons. The idea is that it will become a reference tool for prisoners. It must be able to help them understand the different pitfalls in the management and analysis of their files and their right to recourse regarding disciplinary regimes and parole.

This book is published in print and will not be made available digitally. Telephones and computers cannot be brought into detention. Lawyers are allowed to bring only paper and a pencil. That makes this book a very practical work tool because it can be used inside the prison.

Solitary confinement was officially abolished by the federal authorities in November 2019. However, many people have spoken up against the continued use of the “hole”.

Read the article (in French)

PI. What are the current concerns regarding the respect of fundamental rights in custodial settings in Canada?

MM. The use of solitary confinement is one of the major concerns in Canada. It was recently abolished at the federal level, but not at the provincial/territorial level. We are still fighting for the definitive end of this practice. We file appeals but the courts won’t take them up. They don’t want to interfere in prison management. Custodial settings are a closed system. Accessing information is difficult.

At the federal level, we’re not considered lawyers but “assistants” instead. During hearings before the parole board, for example, we are at the same level as the father or mother of the prisoner. We have no more right to access the file than they do.

I have been practicing for nine years and very little has changed in this area. One of the objectives of the Association des avocats carcéralistes progressistes (“Progressive Prison Lawyer Association”), which I co-founded, is to increase pressure tactics to gain more rights. Nothing has worked so far; we’re taking baby steps.

PB. Prisoners in provincial/territorial institutions have only had the right to a lawyer for disciplinary offences since 2017. Prior to that, they appeared alone, without a lawyer, during disciplinary reviews. Even today, the correctional system of Quebec is attempting to circumvent the presence of lawyers by restricting this right. Officials no longer deliver disciplinary reviews considered serious or moderate: all are low. This way, prisoners are punished with fines and cannot be assisted by lawyers.

MM. Saying nothing is the norm. Prison staff members call me anonymously, for example, to attest to acts of violence that were committed against prisoners. But if the officer does not wish to testify, I have no way of using this information to defend my client. More people need to be granted access to detention, but when we request authorisation to complete observation missions within facilities, we are told that that’s the role of the Ombudsman¹. The Ombudsman rarely goes to prisons and is not very accessible to prisoners. Prisoners who want to file a complaint have to call the Ombudsman from a telephone located in the corridor, in front of everyone, including officers. There is no privacy, and the only advice they get from the other end of the line is to file a written complaint. The Ombudsman can only issue recommendations; nothing changes.

The role of Ombudsman has existed in Quebec since 1969. The Ombudsman is independent and impartial and reports to the National Assembly. ↩

Interviewed by Clémence Bouchart and Kathy Pfeilstucker, translated by Maura Schmitt and proofread by William Avery Hudson

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