Since Paul Quick, Law’09, began working as a staff lawyer with the Queen’s Prison Law Clinic last October, he’s been helping students gain more complex litigation experience. Those efforts in representing inmates are now paying off. The QPLC has a near perfect success rate in getting the Federal Court of Canada to quash decisions made by correctional decision-makers and adjudicators. 

“To achieve and maintain this track record, the clinic must be strategic in choosing the cases it pursues,” says Quick, who has submitted applications and appeared in court to present arguments along with previous QPLC director Sean Ellacott, Law’01.

Quick, Ellacott and new QPLC Director Kathy Ferreira, Law’01, have initially chosen to focus on applications for judicial review to Federal Court, where a record of evidence is already fully established and cases can be heard by the court within a few months. In pursuit of the clinic’s goal to advance prisoners’ rights test-case litigation, Quick says the judicial review process was a natural starting point for building its capacity and expertise.  

The QPLC’s litigation to date has focused on judicial reviews of Parole Board of Canada (PBC) national policy and Institutional Disciplinary Court decision-making – both core to front-line services the clinic has always provided.   

Of the eight applications for reviews of Institutional Disciplinary Court decisions initiated by the QPLC, five matters were resolved successfully in the prisoner’s favour (with costs ordered to the clinic) without a hearing. The other three matters were heard by the Federal Court; two of these resulted in successful judgments and the third is now under appeal. 

However, the QPLC’s most significant litigation achievement over the past few months has been against the PBC in Dorsey v. Attorney General of Canada, a case challenging the lawfulness of the PBC’s national policy to stop conducting biennial parole reviews for persons serving indeterminate sentences. After receiving the clinic’s written arguments to the court, the PBC advised it did not intend to defend its policy in court, had changed its policy as sought by the clinic, and would start conducting such reviews in accordance with the law. 

“Our win in this case is significant, not only because parole is the only opportunity these prisoners have to regain their liberty,” notes Quick, “but also because the approach of a parole hearing is often the sole impetus for the Correctional Service to take steps to provide such prisoners with recommended programs and interventions.”

In the process leading up to the judicial review, QPLC students gain valuable experience conducting the initial hearing before the tribunal. This means students take part in setting the record eventually considered by the court and can see how their early strategic decisions, questions to witnesses, and arguments can end up playing an important role in the court’s assessment of the decision on review. During the judicial review process itself, students not only contribute by providing research support but also have the opportunity to observe the hearing in person (two of these Federal Court hearings have taken place at the law school).

“This opportunity to observe and participate in the full tip-to-tail experience of administrative law practice gives students a deeper and more impactful understanding of advocacy strategies and administrative law principles,” says Quick.

They’re going to be getting even more experience as the QPLC’s litigation practice continues to gain momentum. Next year the clinic plans to take on a wider variety of prisoners’ rights issues and to place a greater emphasis on human rights and constitutional issues and remedies. Additionally, the clinic aims to increase its collaboration with Queen’s faculty members who have expertise in prison law and public/administrative law matters.

“It is our goal this year to be in a position to apply to intervene as a friend of the court in appellate-level and Supreme Court-level prisoners’ rights cases on relatively short notice,” says Quick.

Clinic students will be helping to lay the groundwork for these projects through research into key substantive and procedural issues and development of precedent materials. To get started, all current QPLC students have been assigned “initiative files” related to potential litigation to be pursued throughout the winter term under the supervision of Ferreira and Quick.
 
“We recognize that successful litigation for prisoners’ rights in the long-term requires a front-loading of effort to strategically develop strong evidentiary records at the earliest stage,” Quick says. “Such carefully structured evidentiary records are required to create real opportunities for bringing precedent-setting judicial review and Charter applications to address systemic injustices in the prison system.

“Many injustices in Canada’s prison system are seen as intractable, and few prisoners have the resources to effectively hold correctional authorities accountable,” Quick adds. “In expanding the front-line work of the Prison Law Clinic into strategic test-case litigation, we plan to address such systemic problems head-on, and to give students the opportunity to make real change while upholding the rights of some of our society’s most vulnerable members.”

By Aschille Clarke-Mendes