Chip O’Connor, criminal lawyer, talks access to justice

by Fergus J. (Chip) O’Connor

This post is part of our Personal perspectives on access to justice series.

My definition of access to justice

Justice is not something you can hold in your hand, or put in the bank. It is neither concrete nor constant. The essence of justice is a proper balance between or among opposing or competing interests.

Access to justice, therefore, means the opportunity to have input and to partake in decision-making processes that determine one’s own place within that ever-shifting balance.

In matters of criminal law, access to justice comes in at a number of entry points in our system. These include arrest or detention, bail proceedings, trial process, sentence options, prison conditions, and parole.

One of the most important features of access to justice is availability of a lawyer. The harsher and more desperate the circumstances, the more difficult it is for anyone to advocate for themselves.

What access to justice means for my clients

For the portion of my client base that is incarcerated, a very important component of access to justice, in addition to access to a lawyer, is, quite simply, access to information; to have knowledge of ones’ rights and responsibilities.

Here is one simple example that I encounter often. When a person is placed in the penitentiary, the correctional or parole personnel notify them promptly of parole and day parole eligibility dates.

Generally, parole is at the one-third mark and day parole is six months before that or six months, whichever is later. This means that If the sentence is as long as three years, day parole eligibility is at six months.

What is not explained to the prisoner is that they will not be considered for day parole unless they apply for it. What’s more, if they do apply, the board is required to consider them only within six months of the day they apply.

The result: a day parole eligibility date is meaningless to anyone who isn’t aware that an application must be made for them to be considered.

I’ll add that legal aid is absolutely essential for access to justice at all entry points to the criminal justice system. Looking generally at the provision of legal services, I think that compensation based on hourly rates instead of block fees is the most fair to lawyers as well as the best means to ensure honest and high-quality service to clients.

What I would like to see happen relevant to “access to justice”

I like the present judicare system. I like the practice of advice and opinion certificates; this gives prompt and simple access to an initial consultation and an opportunity for the formation of a lawyer and client relationship. Through this, the lawyer can gain an understanding of the legal needs, and the client can get a summary assessment of his or her concerns.

Beyond that, access to justice in the current system is a matter of balancing resources and managing them effectively.

Kingston lawyer and 2013 Sidney B. Linden Award recipient Fergus J. (Chip) O’Connor was called to the bar in 1974. He opened his practice in Kingston a year later, and has dedicated his career since then to providing legal services to – and advocating for – prisoners at every level of Canada’s courts, often on a pro bono basis. In addition to managing a daily case load of criminal trials, appeals, prison-related Habeas Corpus matters, judicial reviews and parole hearings, his accomplishments include:

  • Founding member of the Canadian Prison Lawyers Association and the Ontario Prison Lawyers Association
  • Successfully advocated, to the Supreme Court of Canada, every prisoner’s right to vote as well as the sentencing principles affecting Aboriginal prisoners and breech of longterm supervision, pursuant to the Ipeelee case, which confirm that Gladue principles apply to long-term offenders.
  • Author of the seminal criminal law text Halsbury’s Laws of Canadian Penitentiaries, Jails and Prisoners, now in its second edition
  • Former director of the Correctional Law Project at Queen’s Law School, taught criminal law at the Native Law Centre in Saskatchewan, lectured throughout Canada as well as in Nevada and California