Test cases

LAO's prison law test case strategy


LAO’s commitment to access to justice includes test case litigation. Test case litigation is an important tool for law reform. A public interest matter is one that demonstrably, based on specific factors established by LAO:

  • advances important public interests, in alignment with LAO’s access to justice mandate and strategic goals
  • transcends individual interests
  • addresses a serious issue that fundamentally affects low-income Ontarians or disadvantaged communities whose perspective would be unlikely to come before the courts but for the involvement of LAO
  • is a an effective and efficient use of resources – a practical and realistic means of bringing an issue before the court

Guiding principles of the test case strategy

Effective test case litigation requires groundwork at the client intake, tribunal and initial court hearing levels, both by compiling an appropriate evidentiary record and, in some circumstances, raising the test case issues for adjudication. As a result, Legal Aid Ontario has already implemented the following process changes:

  • Increased education, outreach and coordination with Legal Aid Ontario intake staff to inform them of the goals of the test case program and encourage referral of client applications to the test case program for consideration

  • Greater coordination between the test case program and the Area Committee Chairs to ensure identification of potential test cases

In addition to the above, Legal Aid Ontario will pursue strengthening partnerships with the following other agencies which work with inmates to promote the identification and triage of potential test cases:

  • John Howard Society
  • Elizabeth Fry Society
  • Queen’s Prison Law Clinic
  • Canadian Prison Lawyers’ Association

Priority areas for prison law test case work (2015-2019)

It would be unwise to attempt a definitive list of potential test cases, given both the ever-evolving legislative and policy context and the impossibility of predicting whether and when a client with the appropriate factual background will be identified. It is possible, however, to identify some priority areas for prison law test case work for LAO in the next five years, recognizing that additional areas will certainly arise.

The priority areas listed below will include, where possible, individuals in both federal and provincial institutions, including those who are in remand:

  1. Access to medical and mental health treatments, including addiction treatment services.

  2. Issues relating to segregation:

    1. Illegal use of short-term segregation
    2. Eliminating the use of long-term segregation
    3. Eliminating the use of segregation against individuals with mental health issues
    4. Eliminating the discriminatory use of segregation e.g. over representation of Aboriginal people
    5. Overuse of segregation for female prisoners
  3. The availability of rehabilitative programming:

    1. Timely access
    2. Range of programing
    3. Appropriate and equal access for all inmates including women, Aboriginal people, people with disabilities and those in segregation
  4. Constitutional challenges to the Corrections and Conditional Release Act:

    1. Decrease in frequency of parole hearings from every two to every five years for Dangerous Offenders and persons serving life sentences
    2. Testing whether the statutory criteria for release propose an illusory remedy for dangerous offenders and lifers
  5. Constitutional challenges to arbitrary or discriminatory practices, policies and laws which prevent the reintegration and release of prisoners into society.