Once a week, I wipe tears from my cellphone

A day in the life of LAO institutional duty counsel

About 8,000 women are in custody in Ontario prisons and correctional facilities.

Across the country, 16 percent of provincial and territorial correctional services inmates are women.

They are “a minority in a system designed for men” with “higher needs compared to male offenders,” says the Council of Elizabeth Fry Societies of Ontario.

To serve the particular legal needs of women in custody, some Legal Aid Ontario lawyers work in six correctional institutions across the province.

They are sometimes referred to as onsite or institutional duty counsel.

David Kiesman is one such LAO lawyer. He works at Vanier Prison for Women in Milton.

LAO:
What is a typical day like for you?
David:
I meet unrepresented inmates—usually to plan a bail hearing—in an interview room or, if the jail is locked down, through their cell hatch.

Often, they are so confused. They don’t know they need to hire a lawyer or what to say in court, which can mean weeks of delay.

I make sure clients apply for legal aid and retain counsel. I also contact sureties and answer general legal questions and do my best to make sure they are not lost in the system.

LAO:
How do clients/inmates find you?
David:
About 60 percent ask to speak to me themselves.

The rest are referred by guards, mental health and social workers or duty counsel offices across southern Ontario.

LAO:
What is the importance of having onsite duty counsel available at a facility like Vanier?
David:
I ensure there is meaningful progress between clients’ court dates by explaining how bail works, making referrals to bail programs, contacting sureties to explain the bail process, and more.

This way, clients show up to court understanding what is going to happen.

Finally, I let clients talk directly to their sureties—who I often find in their cell contacts or social media after charging the phones. (Lots of people, particularly millennials, don’t remember phone numbers.)

Sometimes, the best advocate for a client is themselves. Sureties want to hear from them before agreeing to bail them out, even if they are friends or family.

Once a week, I wipe tears from my cellphone after witnessing deeply emotional conversations clients have with their family.

These are not conversations that can be facilitated in court.

LAO:
For women in particular, is there any importance having access to institutional duty counsel?
David:
Inmates at Vanier can also be mothers.

Why is this important? Newborns of clients born in jail, for example, are immediately removed from the mother’s custody. Clients also lose access to their children when arrested.

I see to it that they can apply for legal aid so they can hire a family lawyer who can assist them with custody-related proceedings while they also face any criminal charges.

Also important is that any inmate who identifies as a woman may be held at Vanier. This means I see transgender clients who are afraid to go to court—because they are often harassed by other female inmates while being transported to court, and again by men in cells while waiting to appear before a judge.

Transgender clients are often segregated in maximum security. They require different medication and grooming tools. They can also have mental health issues that compound their experience.

LAO:
How does your work or your clients differ from what you would experience in a more traditional environment?
David:
The big difference is that all my communication with other duty counsel is electronic.

Duty counsel based in courthouses do much of this in person.

I rely on email, texts, phone and electronic files, to work with duty counsel staff in courthouses across the province—my laptop internet is tethered to my cellphone. If the battery dies, I’m in big trouble!

Also, clients are sometimes more at ease talking to duty counsel in jail than in court, where they can be anxious, hungry, tired or intoxicated.

In courthouses, lawyers routinely have to get quick, but important answers to specific questions while separated from our clients by a giant piece of glass in a cramped interview cell. Sometimes, we even have to yell over other lawyers and their clients having similar conversations!

Paradoxically, in jail, it can be easier to build a trusting client-solicitor relationship.

I meet clients face-to-face after they have had a night’s rest and eaten a meal. I’m not crunched for time, so I can interview them in-depth and listen closely to their concerns.

I’m the only lawyer the inmate will see that day, so we don’t need to keep introducing ourselves. And because I’m seeing the same people again over the course of a few days, I’m able to update them on their bail plan.

LAO:
What else do you think could be done to expand access to justice to this particular population?
David:
Inmates need to be able to call friends and family on their cellphones. Now they are only allowed to call them on a landline—who has those anymore?

A large part of my day is spent calling sureties’ cellphones from my mobile. If inmates could call their sureties’ directly, they would get out of jail sooner.

I also think it would be helpful if LAO assisted inmates with non-criminal legal matters. Incarcerated clients have needs beyond their criminal charges—family matters and help applying for ODSP, to name just a few.

Text by: Jonathan Pulik

Sources:

Key facts:

Besides Vanier Prison for Women in Milton, LAO institutional duty counsel also work at Ottawa-Carleton, Hamilton-Wentworth and Elgin-Middlesex (London) Detention Centres, and Penetanguishene’s Central North Correctional Centre.

Canada’s incarceration rate is lower than the majority of G20 countries—the United States’ is highest, India’s lowest.

Aboriginal and Black women are overrepresented in prisons compared to their White counterparts—this is more pronounced for Aboriginal women who account for 38 percent of female admissions to provincial and territorial custody. This figure is 26 percent for Aboriginal males.