Criminal Law and Procedure LLM prisons elective sheds light on the ‘back end’ of the justice system

To casual and expert observers alike, the trial verdict is the defining moment in any criminal case.

But as Osgoode’s Professional LLM in Criminal Law and Procedure instructor Lisa Kerr explains, the determination of guilt or innocence is actually just the culmination of events in the “front end” of the criminal justice system.

In her brand-new elective course, Prisons and Prisoners, Kerr will lead Criminal Law and Procedure LLM students on an exploration of the more hidden side of criminal law: the imposition and delivery of punishment.

“Even for legal actors who are working in the criminal law field, there may be limited knowledge about what goes on in prisons. In fact, it’s possible to get by as a lawyer or even a judge without knowing much about the prisons and jails,” Kerr says. “This is a significant expansion of the Criminal Law and Procedure LLM that allows students to think about the back end of the criminal justice system.”

“It takes the program beyond questions of guilt and innocence that other courses focus on and allows students to think about the post-conviction realities for prisoners,” she adds.

Criminal Law and Procedure LLM Program Director Benjamin Berger said the Prisons and Prisoners course is a timely addition to the curriculum, pointing to the recent Supreme Court of Canada decision in John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), in which the nation’s top court struck down a provincial law because of the low standard of proof it set for cases concerning inmates who are charged with disciplinary offences.

“We’re always looking at ways in which to make the program even richer and more consequential for our Criminal Law and Procedure LLM students and it’s clear that the issues around the regulation, administration and legal oversight of prisons are a highly important and developing area,” Berger says. “This course is reflective of a burgeoning scholarship that pays attention to the prison.”

Kerr, whose research was cited in the John Howard Society case, traces her interest in prison law back to her own LLM studies at New York University, during a course on the American death penalty.     

After coming back to Canada, she took up a position as a staff lawyer at Prisoners’ Legal Services in B.C., one of the country’s only legal aid offices devoted to serving inmates at correctional facilities.

“I worked there on issues around healthcare, religious freedom, disciplinary hearings and basically any possible legal issue people can face in prison,” Kerr says.  

Kerr then returned to NYU to earn a doctorate, focusing her research on prison law approaches on both sides of the border.

Now a professor at Queen’s University in Kingston, Ont., Kerr is well acquainted with Osgoode’s Criminal Law and Procedure LLM, as a frequent guest lecturer on the program and as an academic collaborator of Program Director Berger. She says she always relishes the opportunity to engage with OsgoodePD LLM students, who include prosecutors, criminal defence counsel and other lawyers in private practice, as well as senior professionals without a legal background, who are often managing their studies alongside their regular work.

“It’s such a fantastic group of students,” Kerr says, adding that she thinks there is untapped demand among many lawyers for a deeper dive into the legal architecture of prisons and the experiences of prisoners.

“Many criminal lawyers want to know more about prison, because that’s where some of their clients will be headed and those clients will have significant concerns about what it’s going to be like, how to prepare, and how to best navigate the experience,” she says.

In Kerr’s new elective course, LLM students will study the law that governs the administration and experience of imprisonment, touching on topics such as access to education and programming, security classification, the grievance system, transfer powers, and the history of efforts to regulate the use of isolation.

“It’s an interesting and challenging mix of constitutional, human rights and administrative law,” Kerr says.

According to Berger, LLM candidates who take the elective course could not hope for a better instructor.

“It’s a unique opportunity for people in the practice of criminal law to get an education directly from one of the country’s leading experts in prison law,” he says. “She is renowned internationally for thinking deeply, carefully and contextually about the place of the prison in the way we imagine not just criminal justice, but our entire legal system.”