The Right to Counsel (Legal Assistance)

Do I have a right to a lawyer while I am in prison?
You have a right to legal assistance - also known as right to counsel. In given situations, you have the right to be informed of this right.102 - You also have the right to be provided with information about legal aid services, if you request it.

When would I use my right to legal assistance?
There are numerous circumstances in which it is in your best interest to exercise your right to counsel. For instance, when:

  1. You are placed in administrative segregation.103 - You should be informed of your right to counsel and given ‘reasonable opportunity’ to retain and instruct counsel without delay, that is, immediately, and within no more than 24 hours.
  2. You are about to be transferred involuntarily.104 - You - should be advised, in writing, of your right to counsel “without delay”. This means immediately and within no more than 24 hours following the notice of transfer.
  3. After an emergency transfer.105 - The rules say you must be allowed a call to a lawyer “immediately,” and within no more than 24 hours following the transfer.
  4. You are charged with a serious disciplinary offence. - The rules say you have to be given ‘reasonable opportunity’ to retain and instruct counsel. Unfortunately, you are not guaranteed a lawyer and if you can’t afford one, Legal Aid does not have to pay for a lawyer. There is no automatic right to counsel for minor disciplinary proceedings, but whoever is conducting the hearing must consider any request for counsel.
  5. You have a parole hearing. - Prisoners are entitled to a lawyer or assistant106 but in some provinces Legal Aid does not have to pay for it. This varies from province to province.

Can prisoners be denied the right to counsel?
Nobody, including the Correctional Supervisor, can interfere with your right to legal assistance. Some situations in which it is especially important that you exercise this right are when you are involuntarily segregated, or when you are about to be transferred on an involuntary (regular or emergency) basis.

 

Return to note 102. Charter, s. 10(b).

Return to note 103. CCRR, s. 97(2).

Return to note 104. CCRR, s. 97(2).

Return to note 105. CCRR, s. 97(2).

Return to note 106. CCRA, s. 140 (8)(9).