HISTORY OF THE canadian Prison Law Association

By Stephen Fineberg

The Canadian Prison Law Association made its transformative appearance on the correctional law stage in 1985, but the ‘prep’ work for its arrival extends back decades, and must be recognized.  One plausible point of departure is the impact of the American civil rights movement of the 1960s, which drew activists and lawyers in the U.S. to the defense of prisoners’ rights against the seemingly complete and sometimes arbitrary control of prison administrators, inspiring the ACLU in 1972 to establish its vital National Prison Project.

ANTECEDENTS

In Canada, the Canadian Association of Elizabeth Fry Societies was created in 1962, and in 1963, the Ligue des droits de l’Homme in Montreal began wading into prison issues.  Individual litigators’ efforts were spurred on by the arrival of the Federal Court of Canada in 1971, although Professor Ron Price and others will testify this forum was anything but welcoming in the early years.  

In 1972, Professor Michael Jackson, employing University of British Columbia students and provincial legal aid funding, created a prisoners’ rights clinic at Matsqui federal penitentiary, the country’s first.  The same year, Québec’s Ligue des droits de l’Homme formed a working committee called L’Office des droits des détenu(e)s.

The following year, Queen’s University’s Faculty of Law adopted Professor Price’s proposal for a prison law course and law clinic, first under Professor Price’s direction, then Allan Manson’s, and later, Fergus (Chip) O’Connor’s.  This clinic today is more active than ever. 1973 saw Professor Jackson’s clinic expand to the maximum-security B.C. penitentiary, and in 1974, his clinic received legal aid funding to add a remunerated lawyer and paralegal.

The prison law scene expanded further in 1974, as John Conroy created a dedicated prison clinic attached to the Abbotsford legal aid office with partial funding from the federal Department of Justice.  This later evolved into B.C. Prison Legal Services, still administered today by the West Coast Prison Justice Society. John Conroy went on to pursue a critically important private prison law practice.

Federal money also allowed the creation of a prison law clinic at Sackville, New Brunswick. Unfortunately, the funding dried up in 1978, and with it, the clinic.  Also, in 1974, B.C. Legal Aid took on lawyer Mary McGrath to practice prison law full time at New Westminster.

In 1975, the Federal Court for the first time was seized of extensive evidence from prisoners complaining of arbitrary placement in solitary confinement in the maximum-security B.C. penitentiary and the conditions they endured there. Professor Jackson and his legal team achieved a landmark victory in McCann v. The Queen, and this watershed judgment against the antiquated institution was confirmed on appeal.  Before long, the B.C. penitentiary would close permanently.

That same year marked the arrival in B.C. of Claire Culhane, founder of the Prisoners’ Rights Group, and Canada’s most high-profile prison activist for the next 30 years.  This was also the first year that, on August 10, Prison Justice Day, a national day of remembrance and resistance, was observed in and outside the country’s penitentiaries. Two years later, activists in Quebec City organized La groupe pour la defense des droits des prisonniers, which continues to make efforts on behalf of prisoners to this day.

Meanwhile, in Montreal, a prison law clinic was established at the Laval Legal Aid office in 1975 with a grant from the Solicitor General of Canada’s office. After six months the money was gone, and so was the clinic, but in 1980 McGill Law School created a short-lived prison law workshop, and in 1982-83, a university professor and lawyers with the Montreal legal aid office conducted a feasibility study for the creation of a new prison law clinic.  Nothing concrete came of these plans, however, and the legal defense of prisoners’ rights in Montreal remained in the hands of private practitioners such as Nicole Daignault, Renée Millette, and Lucie Lemonde, largely in collaboration with the Office des droits des détenu(e)s, which focused special attention on issues such as the right to vote, medical care, segregation, and overcrowding.

CANADIAN PRISON LAW ASSOCIATION

On the eve of the CPLA’s founding, the defense of Canada’s prisoners was conducted by a scattershot of legal aid offices and clinics and private practitioners with no real national coordination.  The Clearinghouse Project, operated for the B.C. Legal Services Society first by Elizabeth Arnold, and then by Sasha Pawliuk once she had become Prison Legal Services’ first full-time staff lawyer in 1982, made a valiant attempt in those pre-electronic database days to assemble and provide Canada’s prison law litigators with all the relevant caselaw as it emerged.

In 1985 the materials of the Clearinghouse were passed on to Ken Chasse at the Research Facility of the Ontario Legal Aid Plan, which for a time assumed responsibility for distribution.  Later, in July, 1989, operating out of her PLS office, Sasha Pawliuk revived the now moribund operation and kept it alive until 2002 through payment of minimal fees by recipients to cover the costs.

As Sasha Pawliuk tells the story of the CPLA’s origin, the idea of convening the country’s prison law advocates came to her and Quebec prison lawyer Nicole Daignault in September of 1984 over more than a few glasses of wine, and Sasha’s letter soon went out to Clearinghouse list members announcing “it was time for the disparate and isolated pockets of people working in the area of prison law to get together and discuss strategy.”  The resulting national prison law conference, Canada’s first, took place in Toronto on February 1-2, 1985.

In consultation with various lawyers, Sasha Pawliuk and bar student Steve Fineberg (of the Office des droits des détenu(e)s) worked on preparation of an agenda with Kingston practitioner Fergus (Chip) O’Connor, who served as Conference Moderator.  With encouragement from David Cole, Ken Chasse was persuaded to donate the Research Facility’s Board Room for the working portion of the event, and a catered lunch was arranged by Robert Bigelow. The national character of the event is readily apprehended by glancing at a list of some of the presenters: Sasha Pawliuk and Michael Jackson from B.C.; Professor Lucinda Vandervort from Saskatchewan; Judy Elliott and Arne Peltz from Manitoba; Fergus (Chip) O’Connor, Ron Price, David Cole, Charlene Mandell, Allan Manson, and Michael Mandel from Ontario; Nicole Daignault and Renée Millette from Quebec; and Phil McNeil from Nova Scotia.

The 1985 conference was remarkable for two events, the first and principal one being the decision to found the Canadian Prison Law Association.  Before the end of the conference, the participants voted the adoption of the CPLA Charter, which was largely hammered out on the spot by Chip O’Connor:

The association is made up of lawyers, both practicing and academic, and paralegals, who work on behalf of prisoners in the provision of legal services, the research of prison law issues, and the making of representations to legislative and other government bodies.

The purposes of the association are as follows:

1. To formalize the relationship that has already developed between and among the various members of the association for whom the vast distances across Canada encumbers communication.
2. To enable the various members to share information and to consult with one another in a more systematized manner than has been done to date.
3. To act as a vehicle through which the various members of the association can, on matters of common concern, communicate with government bodies on such issues as achieving consistency and improvement in the provision of legal services across Canada.
4. To act as a vehicle through which the various members can organize further meetings to exchange information and ultimately, through the extension and improvement of the provision of legal services and through the improvement of enlightened discussion on prison law issues both within the association and between the members of the association and other groups including the Correctional authorities both federally and provincially, improve the plight of prisoners throughout Canada.  

The second feature which made the event memorable was the arrival of two government lawyers who had unwittingly been invited and had turned up with the intention to participate.  The conference found itself forced to debate their role at a gathering such as ours, and finally allowed them to attend some discussions but excluded them from the room during presentations addressing more sensitive topics, with the unfortunate but foreseeable result that the Chairman of the National Parole Board wrote within days to the Conference Moderator in the following terms: “The purpose of this letter is to register with you and your colleagues my absolute astonishment to hear of the manner in which my senior counsel and legal officer were treated by the Members of your group.”  Moderator O’Connor refused to be cowed, and replied with a corrected version of the facts, concluding, “In summary, I find the tone and insulting comments in your letter to be inappropriate but I nevertheless regret the inconvenience caused to individuals.”

So went the correctional establishment’s introduction to the newly-organized voice of Canada’s prison bar.  Nor did the CPLA in subsequent years lose sight of the adversarial reality at the heart of that relationship.  One may observe, for example, how the letter of invitation to our 1997 conference hewed to that line: “the majority of participants at previous meetings has expressed the desire to use our short time together to exchange information and develop strategies, and has consistently rejected inviting government bureaucrats or lawyers, members of the media, or people not involved in this area of work.”

For its first two decades, direction of this loosely-structured network of prison specialists emanated from Sasha Pawliuk’s office at Prison Legal Services, which soon brought it under the sponsorship of the West Coast Prison Justice Society. Sasha had formed the WCPJS in 1993, and, with Michael Jackson as President and John Conroy as Counsel, it took over PLS when that operation was dropped by B.C. Legal Aid Services in 2002.

It is fair to say that Sasha’s willingness to make the most of her strategic position allowed the CPLA to survive as a national entity. Working out of the PLS office, she took on the collection and distribution of the correctional caselaw in the name of the CPLA, and assumed responsibility for the organization of the CPLA’s periodic national prison law conferences, preparing the agendas with her collaborator at the Association des avocats et avocates du Québec, Steve Fineberg, in consultation with interested practitioners and academics in the host cities.

These conferences took place on the following dates:

1) Feb 1-2, 1985 Toronto chaired by Fergus (Chip) O’Connor

2) May 3-5, 1991 Kingston

3) July 1-2, 1994 Montreal with Association des avocats et avocates en droit carcéral du Québec (AAADCQ)

4) June 20-22, 1997 Ottawa

5) Oct 17-19, 2003 Vancouver with West Coast Prison Justice Society (WCPJS)

6) May 18, 2005 Kingston with Ontario Prison Lawyers Association (OPLA)

During the first two decades the advocacy role of the CPLA was more visible during some periods, less in others.  Public positions of common concern were taken on occasion: for example, on October 19, 2003, when a CPLA letter demanded that the Correctional Investigator’s Office look into the repeated security lapses endangering prisoners in the Quebec SHU; and on October 20, 2003, when a letter went out to the Federal Minister of Justice and the Solicitor General seeking a review of possible cases where long-term offender status had without justification been passed over in favour of dangerous offender status.

Meanwhile, in Kingston in June, 2004, the Ontario Prison Law Association was created from the vestiges of a local lawyers group affiliated with the Frontenac Law Association.  Founder and President Leslie Morley drafted a constitution for the organization and, with the technical wizardry of John Dillon, established an internet listserve for its membership.  Interest in this innovation, with its potential for easy and frequent communication across a broad geographical areas, grew quickly to extend beyond Ontario.

Eventually, with its supra-provincial internet listserve and energetic membership, the Ontario Prison Lawyers Association came to overlap the roll call and the mandate of the CPLA, as was evident in the OPLA’s active role in co-hosting the Kingston conference in 2005.  On June 23, 2008, in an email to OPLA President Leslie Morley, Steve Fineberg proposed using the OPLA listserve as the CPLA’s own communication tool. Leslie Morley’s reply later that day took matters a critical step further: “Perhaps a merger of the OPLA and the CPLA is in order.”  From that point on the two groups began looking at the benefits of amalgamating their organizations to create a stronger, more active, and more visible national presence, particularly through the vehicle of a truly national internet listserve, a tool the CPLA had yet to adopt.

Central to the idea of merger was the concern for continuity; for the credibility which would attach to an organization which already had played a necessary and constructive role in the life of Canadian corrections for 25 years, and which, in a reconfigured form, would continue on to do so in the future.  To effect that purpose, at the 2008 Annual General Meeting of the West Coast Prison Justice Society, the WCPJS Board mandated B.C. lawyer Ann Pollak and Steve Fineberg to discuss merger with the OPLA.

During the following year Leslie Morley and the CPLA agreed on the way to proceed, while many members of the prison law community–John Conroy being one notable example–voiced their support for a renewed CPLA and a truly national listserve.  Wishing “to foster and invigorate advocacy for human rights and the rule of law within prisons in Canada,” the WCPJS formally resolved on July 13, 2009, that the CPLA and the OPLA should merge, anticipating that the OPLA’s next annual general meeting would adopt a similar and complementary resolution.

On June 19, 2010, in Kingston, Leslie Morley presided over the OPLA’s final Annual General Meeting, and the seventh national conference of the CPLA.  The Kingston leadership and the many Ontario members in attendance were bolstered by the presence of John Conroy from Vancouver, Jacinthe Lanctôt and Steve Fineberg from Montreal, and Mark Knox from Halifax, reflecting the supra-provincial personality the OPLA and its listserve had acquired.  The desired continuity was also in evidence, for John Hill, Fergus (Chip) O’Connor, and other figures from the founding conference twenty-five years earlier were present again in 2010 as the CPLA was re-launched.

As anticipated, that assembly voted unanimously to merge with the CPLA.  Leslie Morley drafted a new constitution and listserve charter, which can be consulted elsewhere on the CPLA’s website.  The newly consolidated group, now operating as the Canadian Prison Law Association, proceeded to adopt the new constitution and to confer honourary lifetime membership on Sasha Pawliuk in recognition of her unique contribution.  

The new CPLA’s first executive committee was elected, being Leslie Morley, President; Michael Mandelcorn, Vice-President; Connie Baran-Gerez, Treasurer; and Steve Fineberg, Secretary; with John Dillon continuing in his long-term role as Listserve Moderator.  Provision was made for the creation of an advisory committee to furnish the Executive with the perspective of the provinces and territories.  After several presentations on various topics, including a comprehensive review by Kim Pate of the current Conservative Government’s repressive legislative agenda, the first Annual General Assembly of the new CPLA drew to a close.

The new CPLA pursued the course earlier established. The Listserve continued to act as a daily forum for news and discussion and mutual assistance, and Leslie Morley continued to forward his Canadian Prison News clippings and post cases for the edification of the group.  The CPLA made its voice heard externally as well, for example, with the submission of arguments to the federal opposition parties encouraging resistance to the government’s expressed intention to introduce the retrospective abolition of Accelerated Parole Release.

At the Annual General Assembly held in October, 2011, in Kingston, a new executive was elected:  Michael Mandelcorn, President; Steve Fineberg, Vice-president; Connie Baron-Gerez, Treasurer; Robert Gregan, Secretary.  As is the CPLA’s custom, the cross-country checkup, a national survey of live issues, was delivered by representatives of all the regions, but this AGM’s salient moment was the adoption of the CPLA’s first bylaw, creating and governing an Advocacy Committee.  The Advocacy Committee serves to examine issues and prepare positions for approval of the Listserve membership and adoption by the Executive. Regional perspectives are guaranteed input as the national composition of its membership is anchored in the bylaw. The meeting closed with our new president’s hommage to our outgoing president  : “that thanks and gratitude be extended to Leslie Morley for his long years of service with both the Ontario Prison Lawyers’ Association and the Canadian Prison Law Association. The viability of the OPLA and the re-establishment of the CPLA as a voice for all members practicing prison law throughout Canada were due largely to the efforts made by Les.”

The following period was busy for the CPLA.  On November 2, 2012, the BCCA rendered judgment in Whaling et al v. Canada, the first time the CPLA (represented by John Conroy) appears in a court record as intervenor.  On February 23, 2013, the AGM was held in Kingston, and the existing executive stood unopposed for election.  The members present heard that the Advocacy Committee had written the Minister of Public Security in November, 2011, objecting to the presentation of key correctional legislation buried deep in omnibus bills; and that the Advocacy Committee had received an invitation to address the Senate Committee examining Bill C-293, intended to amend the grievance and complaint procedure, and had submitted its brief, but was unable to appear as there was in the end no time slot available.

In May, 2012, the Advocacy Committee distributed a much-needed fact sheet to prepare the Opposition parties’ members for hearings on Bill C-38, which went on to erase a prisoner’s right to a post-suspension hearing by the Parole Board.  Later in 2013, the CPLA both submitted a brief and was able to appear before the Senate Committee dealing with Bill C-350, which proposed a registry for collection from federal prisoners of civil debts.  Here again, the Advocacy Committee assisted the Official Opposition with its preparation.