Queen’s Prison Law Clinic takes on more prisoners’ rights test-case litigation

Queen’s Prison Law Clinic takes on more prisoners’ rights test-case litigation
QPLC staff lawyer Paul Quick, who joined the clinic in October 2016, says the role is an opportunity to focus his efforts ‘on the narrower area of prison law and gain real expertise’ in that area. Photo credit: Nicole Clark.

As the Queen’s Prison Law Clinic ramps up its mandate to take on more prisoners’ rights test-case litigation, the group already has a significant win under its belt.

Staff lawyer Paul Quick says the litigation mandate is relatively new for the clinic — it’s been in the works over the last few years but “really just taken off in practical terms in the last year.” A high turnover at the clinic held it back, but “now we’ve got the people in place that we need to start making the vision happen.”

In the QPLC’s most successful case to date, Dorsey v. Canada (Attorney General), the clinic took on the Parole Board of Canada over the lawfulness of its national policy to stop conducting parole reviews for dangerous offenders every two years, as required by the Criminal Code. The Corrections and Conditional Release Act had been amended to allow for a five year review period, which was what the PBC was following instead of the Criminal Code’s guideline — and which “basically any theory of statutory interpretation” would conclude was not justifiable, Quick notes.

The clinic tried to get the parole board to change its policy simply by reaching out to them, but Quick says they were ignored until they brought the case in Federal Court to compel the PBC to apply the Criminal Code provision. Initially, a motion was brought to allow an unrepresented inmate’s case on the same issue to proceed first but Quick says they opposed that on the grounds that it “wouldn’t be fair to have the issue considered solely with an unsophisticated, unrepresented party.” The court agreed and rejected the motion to stay, and the clinic’s motion moved forward.

At the point that the government’s responding submissions were due, the Department of Justice contacted the clinic to concede the point, which meant there was no formal court ruling on the issue. But the department agreed in writing to abide by the Criminal Code and review every two years, and also provided a letter about the revised policy that could be distributed to the prisons. The Dorsey file began in the fall of 2016 and was resolved on consent in June 2017.

“For dangerous offenders, this is particularly important because it’s really their only way out of jail and they have a much lower rate of receiving parole than people who have life sentences,” Quick says.

He adds it also helps for these inmates to appear before the board regularly not only to make sure they’re released when appropriate, but also because Correctional Services of Canada is “more careful about managing people’s files” — such as by ensuring they are getting the rehabilitative programming they require — if there is a parole board hearing coming up where their management of the file might be an issue.

“The Supreme Court has said the parole board has a special obligation to dangerous offenders to ensure treatment needs are being met and they’re not just warehoused,” Quick says.

Quick, who joined the clinic in October 2016, says he saw the staff lawyer position as “an opportunity to look at the big picture of issues facing federal prisoners in Ontario and think and act strategically.”

 “I was excited about the opportunity to focus my efforts on the narrower area of prison law and gain real expertise in that,” he says. “Even more than that, I was excited about having the privilege to look at an area of law and make strategic decisions about bringing test cases.”

Prior to his role at the QPLC, Quick spent four years as a criminal lawyer in private practice in Kingston where he practiced a lot of correctional law — mostly parole. Before that, he worked at a social justice civil litigation firm in Toronto for three years.

Quick, who graduated from Queen’s Law in 2009, notes that in private practice, you “get the cases that walk through the door and you can do a great job on them — but the ones you get are the ones that come in.” The clinic, which has upwards of 200 case files at any given time, provides the opportunity to “look at the state of law and correctional practices in a much broader and more systemic way.”

Usually only government has the privilege of picking through a wide range of files, finding the appropriate test-case litigation and creating the record to bring the issue in front of a court, Quick explains. Now he too has the ability to identify issues of concern and think strategically about which case to bring forward at what time. He notes the litigation mandate was “absolutely” a large part of his reason for returning to his alma mater to work with the clinic.

The clinic’s approach seems to be working well — it has handled eight other judicial review cases involving Institutional Disciplinary Courts since October 2016. Five were allowed by the Federal Court on consent, with costs. Of the three others that went to a hearing, two resulted in Federal Court decisions in favour of the QPLC’s clients and the remaining decision is currently under appeal.

This success is due in no small part to the students who take the course, whose “eyes are opened to a whole different world,” Quick says, adding they meet with federal prisoners, learn their back stories, see the conditions they’re living in and then get to advocate on behalf of these people that are usually feared — or even despised — by other members of society.

The students realize the prisoners “are real human beings deserving of respect and dignity,” a process Quick says is a joy to see happen with each new group of law students.

“I’m constantly amazed by their energy and enthusiasm and their compassion for the prisoners,” he says. “I’ve been very impressed by the quality of students that participate, and their dedication. The students have been enthusiastic about the litigation mandate of the clinic and we are in the process of building that aspect of the institution so that we make the most effective use of students and give them the best opportunities for participating in that process.”

The QPLC is unique in Canada as the only student legal clinic, with Prisoners’ Legal Services operating out of the West Coast Prison Justice Society in Burnaby, British Columbia, serving as the country’s only other prisoner clinic. The Queen’s clinic offers law students a “tip-to-tail experience of administrative law” and seems to be a popular option, Quick says.

“I’ve talked to some of my students and know there are at least some who choose Queen’s because of prison law,” he adds.

There have also been discussions at the director level with interested parties from across Canada, Quick notes. People in Nova Scotia that have reached out to the clinic, “investigating to see if it’s possible to do a similar thing” out there, and Queen’s has also heard from Alberta over the past month where experienced prison lawyers were inquiring about the model.

Quick is focused on moving the clinic and its mandate forward, saying he “definitely wants to keep an eye out for national policies and issues of broad systemic import to take on.”

He says one of the things the clinic wants to do is get itself into a position to apply to intervene in appellate and Supreme Court level cases involving prisoner rights.

“We also want to look at broader constitutional and human rights issues that may involve more complex evidentiary records than the cases we’ve taken on so far,” he adds. “The goal is to gradually build and expand the clinic’s capacity to take on hard-hitting prison law test cases, so we’re doing that in a careful and gradual and deliberate way.”

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