Commissioner's directive 084: Inmates' access to legal assistance and the police

AUTHORITIES

2. Subsections 140 (8) and (9) of the Corrections and Conditional Release Act;
   Subsections 31 (2), 97 (1), (2) and (3) of the Corrections and Conditional Release Regulations;
   Sections 7 and 10 of the Canadian Charter of Rights and Freedom.

CROSS REFERENCES

3. • Commissioner's Directive 085 - Correspondence and Telephone Communication;
   • Commissioner's Directive 580 - Discipline of Inmates;
   • Commissioner's Directive 581 - Violations of the Law by Inmates;
   • Commissioner's Directive 720 - Education of Offenders.

RESPONSIBILITIES

4. Institutional Heads shall ensure that inmates are permitted, subject to Commissioner's Directives 085 and 575, confidential visits, written and telephone communication with legal counsel, the courts and their agents.
5. Institutional Heads and District Directors shall ensure that offenders are made aware of the existence of appropriate legal and regulatory documents and are guaranteed reasonable access to them.
6. Commissioner's Directive 720 provides direction on the Service's obligation to include legal and regulatory documents in inmate libraries.

ACCESS TO AND REPRESENTATION BY LEGAL COUNSEL

7. According to section 10 of the Canadian Charter of Rights and Freedoms, everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. Subsections 97(1) and (2) of the Corrections and Conditional Release Regulations specify some of the situations in a penitentiary context in which access to counsel is to be provided. There may be other situations in which section 10 applies.
8. In accordance with subsection 97 (1) of the Regulations, an inmate who is arrested shall be informed of his or her right to legal counsel and shall be provided an opportunity to retain and instruct legal counsel by telephone, without delay.
9. In accordance with subsection 97 (2) of the Regulations, an inmate shall be informed of his or her right to legal counsel and shall be given reasonable opportunity to retain and instruct legal counsel by telephone, without delay:
   1. following placement in a Structured Intervention Unit;
   2. following notification of a proposed involuntary transfer;
   3. following completion of an emergency transfer.
10. In paragraphs 8 and 9, "without delay" means immediately unless there are compelling circumstances preventing immediate action and in those circumstances, the delay cannot be more than 24 hours.
11. In circumstances other than those specified in paragraphs 8 and 9, inmates are required to provide reasonable notice, of no less than 24 hours, of their wish to communicate by telephone with privileged correspondents. However, the Institutional Head or designate may decide, depending on the circumstances, that the reasonable notice is not required.
12. Inmates shall be given a reasonable opportunity to retain counsel prior to a disciplinary hearing on a serious disciplinary offence. Such counsel shall, at the hearing, be permitted to participate in the proceedings in the manner and to the extent provided for in subsection 31 (2) of the Regulations.
13. While there is no automatic right to counsel for minor disciplinary proceedings, the Institutional Head or designated staff member conducting the hearing must consider any request for counsel. Decisions shall be based on the circumstances of the case, including the complexity of the charge and the consequences of conviction for the inmate, e.g., transfer to a higher security level. A record of the reasons for the decision on the request for counsel and the factors considered shall be documented.
14. Inmates may retain counsel to act in the capacity of an assistant at National Parole Board hearings, in accordance with subsections 140 (8) and (9) of the Corrections and Conditional Release Act.

INMATE ACCESS TO THE POLICE

15. The Service shall ensure that inmates have reasonable access to administrative telephones to contact the police in a secure and confidential manner:
    1. Staff should only involve themselves if the inmate specifically requests their assistance.
    2. Staff should encourage the inmate to record information on the incident that may be of relevance to a possible police investigation such as date, time, witnesses, and physical evidence.

SWEARING OF AFFIDAVITS

16. Inmates shall be informed of the names of the members of the Service in each institution who are designated as Commissioners for Oaths or officials empowered to take affidavits.
17. Institutional Heads shall ensure that a member so designated is available to the inmate within a maximum period of two (2) working days following the inmate's request to swear an affidavit.

LEGAL AID

18. Inmates shall be provided with information regarding the availability of legal aid services upon request. Should legal aid be unavailable or should the inmate choose not to make use of this service, legal fees will be paid by the inmate.

PHOTOCOPIES

19. Institutional Heads shall ensure that inmates have reasonable access to services for photocopying of legal materials. This shall be confidential where the photocopying involves privileged correspondence. Inmates shall normally be responsible for payment of the costs of these services. However, Institutional Heads may, at their discretion, authorize the photocopying of a limited quantity of documents without charge to the inmate, where the inmate lacks sufficient funds.

Original signed by
Lucie McClung, Commissioner