Bill C-293 (Historical)

An Act to amend the Corrections and Conditional Release Act (vexatious complainants)

This enactment amends the Corrections and Conditional Release Act to allow the Commissioner to prohibit an offender from submitting any further complaint or grievance, except by leave of the Commissioner, when the offender has persistently filed complaints or grievances that are vexatious, frivolous or not made in good faith.

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Thank you very much, Chair.

I would like to thank Mr. Sapers and Mr. Zinger for having testified before us today. Your comments are greatly appreciated.

I have several questions for you. I am new to this file since I started only yesterday. I read the Mullan report and heard your presentation. I am curious about several things.

Mr. Zinger, in your presentation, you mentioned that multiple grievers are often people who suffer from mental health problems. In your opinion, how could we best help these complainants, given that Bill C-293 is intended for multiple grievers? Do you have any solutions to suggest?

[Howard Sapers]

Thank you, Dr. Zinger.

I've long been concerned about CSC's ability to provide a fair, accessible, and expeditious grievance system, as required by the Corrections and Conditional Release Act. In fact, my office was established in 1973 and has commented on the dysfunction of the internal grievance process every year since.

It bears reminding that my office was created in the aftermath of a bloody and deadly riot at Kingston Penitentiary in 1971. The commission of inquiry into that disturbance in 1971 concluded that the lack of a credible system to resolve inmate complaints was one of the major factors that led to that deadly confrontation.

My 2007-08 annual report provided a detailed review of the office's long-standing concerns regarding the Correctional Service of Canada's internal grievance system. Let me briefly summarize these concerns with respect to the legislative requirements for the Correctional Service to provide an accessible, fair, and expeditious inmate complaint process.

Over the years, my office has reviewed and investigated several complaints regarding inmate access to the internal complaints and grievance system. There is variation and inconsistency in the procedure for collecting complaints and grievances from locked boxes and in responding to high-priority grievances, such as segregation placements.

One of the most tragic cases involved the late Ashley Smith. Although all seven of her previous complaints regarding her conditions of confinement were rejected by the Correctional Service of Canada, Ashley made a final attempt, one month before her death, to improve her situation by placing one more complaint in a sealed envelope into the designated receptacle at Grand Valley Institution. Inexplicably, this high-priority designated complaint was only opened by the Correctional Service two months after Ashley died.

My office has raised persistent concern about the ability of the Correctional Service's grievance system to consistently render fair decisions. Extreme delays in providing responses to offenders can result in unfair decisions, even if the substance of the decision was correct. For example, taking six months or more to arrive at the conclusion that a segregation placement was unwarranted provides little relief to an offender that had to endure those conditions of confinement for that length of time.

As raised earlier, Ashley Smith initially filed seven complaints while in custody at Nova Institution. My final investigative report, entitled A Preventable Death, showed that all seven complaints were inappropriately designated as routine rather than high priority.

I concluded my investigation into Ashley's preventable death by stating:

The presence of a more timely, effective, fair and responsive internal complaints and grievance system within the Correctional Service could have significantly improved Ms. Smith's overly restrictive and dehumanizing conditions of confinement.

In my opinion, her complaints were inappropriately dismissed.

About 30% of inmate complaints are upheld—which effectively reverses the local or institutional decision that the complaint had no merit—at the second or regional level, or at the third or national level. This percentage is surprisingly high, and may account for the refusal of some wardens to uphold offender complaints at the institutional level. Wardens may find it more convenient to have their decisions reversed by regional or national authorities rather than to render decisions that may be unpopular with their own staff.

Over the course of several years, the Correctional Service of Canada has extended its timeframes for responding to inmate complaints significantly, virtually ensuring that the system is rendered unresponsive and ineffective. The current inmate grievance process is rooted in the 1977 Report to Parliament by the Sub-Committee on the Penitentiary System in Canada.

The timeline for the Correctional Service to respond to inmate grievances was initially set at ten working days for each of the four levels: 40 days from the initial filing to a written decision. In the late 1990s, CSC extended the timeframe from five to 15 days for priority grievances and from 15 to 25 days for other cases. More recently, CSC has attempted to address significant backlogs at the third or national level, to avoid being in constant non-compliance with its own policy, by once more extending the timeframes now from 25 to 80 days for routine grievances and from 15 to 60 days for high-priority grievances.

This means that today, a routine grievance can legitimately take, without any formal extensions, over 150 working days, or seven months, from initial filing to resolution at the third level. More importantly, in the instance of high-priority grievances, the number of days now exceeds 100, or almost five months. What is even more troubling is that if a formal extension is granted by the service, its policy states that the extra days for the extension are not to be counted. In effect, this means that a routine complaint can take one year, from start to finish, to wind its way through CSC's convoluted review levels and expanded timeframes. This is not safe or proper corrections.

As a result of the Ashley Smith investigation, I recommended that the Correctional Service immediately commission an external review of its operations and policies in the area of inmate grievances. The CSC eventually agreed, and commissioned Professor David Mullan from Queen's University to conduct an independent and expert review.

In his comprehensive 2010 report, Professor Mullan made 65 recommendations to fix CSC's grievance system. Despite being an excellent report, only a handful of his recommendations have been implemented to date, including a pilot project for mediators, some minor policy housekeeping, and some training.

Importantly, Professor Mullan also reviewed the issue of multiple grievers. All his recommendations in this area were limited to internal policy or operational changes. There was nothing identified—nothing identified—as requiring legislative reform. In fact, Professor Mullan only identified one issue requiring Parliament's involvement: the elimination of the second or regional level to shorten the overall processing of inmate grievances.

Concerns with CSC's management of its grievance system go well beyond how it deals with multiple grievers. In fact, I believe this bill detracts from the very real issues facing CSC. Bill C-293 sends a wrong message, as it trivializes inmate complaints and it reduces CSC's accountability.

Inmate concerns are a unique means to judge the professionalism and the humanity of our Correctional Service. Importantly, what can be viewed as frivolous can be rather significant upon review. What to most people would be very insignificant becomes, because of the nature of prison life, a matter of serious concern to inmates.

We should not be contemplating anything that would reduce CSC's accountability for operating a fair and expeditious grievance process.

Members here need to be reminded that there are already internal policy mechanisms in place to deal with frivolous and vexatious complaints. It appears rather heavy-handed, in my view, to use legislation where policy levers already exist.

I anticipate that Bill C-293 will not extinguish the concerns it seeks to address and will only add to, not subtract from, the Correctional Service's administrative burden. Expanding the law will not deter vexatious complaints. Good practice, good management, and implementation of CSC's existing policy would be more effective and less costly in the long run.

Grievances and policy compliance are the bread and butter of my office. In the last five years, we have received over 25,000 inmate complaints and have conducted more than 10,000 investigations. We deal with serial complainers, just as CSC does. We manage them within the existing legal and policy framework.

I encourage the committee to put this legislation on hold and expand its review to look at the entire CSC grievance system. My previous recommendations, and those of Professor Mullan, could inform legislative reform on the real issues confronting the Correctional Service. To that end, this committee could look at legislative reforms in the following areas: reasonable timeframes; the requirement for mediators; monthly mandatory face-to-face meetings with CSC parole officers; and eliminating the second, or regional, grievance level.

These proposals are far more likely to streamline the existing grievance process and enhance accountability than attempting to limit the access of a few multiple grievers. In an environment where use of force, inmate assaults, inmate injuries, self-harming behaviour, double-bunking, segregation placements, and lockdowns are all on the rise, it is important to remind Parliament that it may seem easy to dismiss inmate concerns, but history tells us that it can be dangerous and ill-advised.

Thank you again for your invitation. Thank you for your attention. I look forward to your questions.

[Howard Sapers, Correctional Investigator, Office of the Correctional Investigator]

Thank you very much, Mr. Chair.

As always, it's a pleasure to appear before you and your colleagues on the committee. I want to thank you all for the opportunity to discuss Bill C-293.

My executive director and general counsel, Dr. Zinger, is here as well. Dr. Zinger will speak briefly to the role of my office and how it is that we deal with offenders who file multiple complaints.

I'm then going to spend some time talking about the importance of having a fair, accessible, and expeditious internal grievance process. Finally, I'll offer some reflections on the Correctional Service of Canada's current internal grievance system and perhaps make some points for reform in the future.

With that, I'll turn it over to Dr. Zinger.

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, colleagues, and welcome to the Standing Committee on Public Safety and National Security. This is Tuesday, April 24, 2012.

We are picking up after a two-week break. We welcome each one of you back. It's good that in spite of the change in agenda and the change in voting times, you came out.

Today we are continuing our consideration of Bill C-293, An Act to amend the Corrections and Conditional Release Act (vexatious complainants).

At our meeting today we will hear from the Office of the Correctional Investigator. We have Mr. Ivan Zinger, executive director and general counsel, and Howard Sapers, the Correctional Investigator.

We look forward to your comments in regard to this bill. Even though we're starting a little bit late, hopefully we'll be able to go past 4:30. Because of the change in the agenda and the time, we'll probably just adjourn at that time, if that's all right.

All right, thank you.

Mr. Sapers, if you have an opening comment, we would love to hear from you.

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Thank you.

Bill C-293 indicates that, when the commissioner prepares to designate that person a vexatious complainant, he must first inform the individual that he is about to be given that designation. Then, if the person continues, he must inform him a second time that, from now on, he is a vexatious complainant and he must give reasons for his decision.

The bill also provides that the offender will, in certain conditions, be able to continue to submit grievances or request judicial review. As you said, that type of person is going to use all the recourse available. It seems to me that this creates a lot of paperwork, a lot of information exchanges, and so on. I don't have the impression that this will really unclog the grievance process.

What do you think about that?

[Jay Pyke, Warden, Kingston Penitentiary, Correctional Service of Canada]

Thank you very much for the welcome.

Good afternoon, everyone. I'm pleased to be with you today. My name is Jay Pyke. As noted, I'm the warden of Kingston Penitentiary, or KP, as we refer to it most often down here. Joining me today is Ms. Melinda MacCrimmon. She's an experienced grievance coordinator at Kingston Penitentiary.

I'd like to first speak to you briefly regarding KP to give you a sense of institutional life and then address some of the challenges we face pertaining to the offender grievance process.

KP currently houses approximately 390 inmates. It's a maximum security facility that accommodates high-risk, high-needs offenders serving a range of sentences from two years to life. The inmates at KP are serving sentences for a wide range of offences. The majority of them have violent histories, significant mental health and physical health concerns, substance abuse problems, and behavioural issues, or a combination thereof.

At KP, my staff and I are committed to delivering a high level of service to offenders in terms of maintaining their safety and security as well as programs and services aimed to reduce the risk that they may pose to reoffend. Given the profile of KP's offender population, it's clear that a fair, expeditious, and accessible grievance process without negative consequence is vital to us. We recognize that the redress process must reflect the values of our democratic society. For CSC, this process provides the mechanism to test our decisions and to ensure that they're made in a manner that respects the dignity of all individuals, while recognizing that our first priority is to ensure the safety of staff, offenders, and society.

I understand you've already spoken to our commissioner, our director general of rights, redress, and resolution, and a senior analyst in offender redress at NHQ on the matter of Bill C-293.

From my perspective, CSC's complaint and grievance process has four key benefits. First, it provides offenders with a means of redress when they feel they've been treated unfairly or in a manner inconsistent with law or policy. Secondly, it contributes to institutional safety through the early identification and resolution of problems as they arise. Thirdly, it contributes to offender accountability by encouraging offenders to resolve problems through an appropriate means. Finally, the process ensures that CSC's decisions affecting offenders comply with the rule of law.

As you're likely aware, there are four levels of the process. The first two levels take place locally at the institution, consisting of the initial formal complaint, followed by a first-level grievance. The complaint is responded to by the immediate supervisor of the person whose actions or decisions are called into question. The first level is responded to by the warden.

Mr. Chair, the first level will be my area of focus today.

At KP, during the 2011-12 fiscal year, a total of 501 inmate complaints and grievances were submitted locally at the site. Of these 501 complaints, 86, or 17% of the total grievances, were submitted by just three offenders.

The grievances submitted by these three individuals can generally be characterized as lengthy, complex, and involving many subjects or issues. This fact makes the total number of issues grieved actually larger than the 17% would suggest because they require multi-faceted responses.

Of the 86 grievances submitted by these individuals, two have been upheld. Three have been upheld, in part, owing to responses becoming untimely. The remaining 81 grievances were denied on the grounds that they had no merit.

As you can imagine, complaints of this nature place an incredible strain on institutional resources at multiple points of contact. The first point of contact is the inmate grievance coordinator, who's responsible for recording, assigning, monitoring timeframes, logging, and providing a response.

With regard to the three offenders I mentioned above, our grievance coordinators were often faced with the arduous task of checking for duplication of previous submissions and responses. Copies of these similar submissions are then placed into the review package for the benefit of the investigators so they do not reinvestigate an issue already responded to.

The next point of contact are the investigators themselves. Oftentimes at the middle management level it's consisting primarily of a correctional manager or a manager of an assessment and intervention. Each complaint must be investigated. The inmate must be interviewed and a response generated in a written docket to be provided to the inmate.

Remarkably, it only takes one offender to place a considerable strain on the process due to the significant amount of time required to investigate complex grievances. When investigating managers become bogged down by virtue of the volume of complaints, it ultimately leads to an increase in the time required to provide a proper written response to the inmate.

The impact of complaints of this nature, aside from slowing down the response capacity, is that they often create a great deal of frustration for the staff who continue to investigate complaints when they know there are concerns of merit related to them. What this means is that staff are less able to focus their time on investigating and resolving complaints that have actual merit.

This past fiscal year, one of three grievers referenced above submitted 35 complaints, 22 of which alleged harassment by staff. This volume led to the establishment of an external review committee. This three-person review committee was convened on my authority and consisted of an individual from the redress section at national headquarters, one from the redress section at regional headquarters, and a middle manager from a different site in the Ontario region.

Of the 22 complaints related to staff harassment made by this one offender, the committee was responsible for investigating a total of eight. In each circumstance, the committee found that the allegations of harassment were deemed to be without merit and were frivolous or vexatious in nature. This means that numerous steps and resources were invested at the institutional level to respond to an individual who consistently submits complaints and grievances that simply lack merit.

It's also significant to note that in the case of the three primary complaint or grievance submitters at KP, many of the complaints submitted were moved up by these offenders to the first-level grievance where a warden's response is required, despite clear responses being provided by the line managers I referred to earlier.

From my experience, it seems that for certain offenders there's an explicit intent to move the grievance to every level within the organization, regardless of the decision or rationale provided at the lower level. Beyond a strain on resources at all levels of the organization, there are additional impacts at the site level. An example would be that because frivolous and multiple complaints and grievances slow down the complaint or grievance process at the local level, it negatively impacts and affects those inmates who do not abuse the process and who deserve a timely response.

Ideally, the complaints and grievance system is an important check and balance process for institutional heads, wardens. It allows the warden to ensure that the institution and the employees are adhering to the principles of our mission and to relevant law and policy that provides an important redress mechanism for offenders. CSC is committed to providing a redress system that is fair, expeditious, and accessible to all offenders.

With that, I'll thank you, and I would certainly be happy, as would Ms. MacCrimmon, to answer any questions you may have of us.

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone. Welcome to the Standing Committee on Public Safety and National Security. This is meeting number 33, Tuesday, April 3, 2012.

Today we are going to continue our study of Bill C-293, an act to amend the Corrections and Conditional Release Act, vexatious complainants.

We have appearing before us today, from Kingston, Ontario, via video conference, Jay Pyke, the warden at Kingston Penitentiary, and Melinda MacCrimmon, the grievance coordinator at Kingston Penitentiary.

Welcome, folks. We're pleased to have you joining us today by video conference.

A little later on, at 4:30, we will go in camera and we will work on our draft report dealing with drugs and alcohol in prison.

I'm not certain if any of you have ever appeared before a committee. We're pleased to have you here today. The committee is looking forward to hearing what you have to say in regard to Bill C-293, and we would open the floor to you. If you would be willing to field a few questions after, we'd be very appreciative. Welcome here.

[Jay Aspin, Conservative, Nipissing—Timiskaming, ON]

Thank you.

Mr. Head, in your deputation you mentioned that $3.8 million was dedicated to salaries for grievance analysts, and this year it was something in excess of $5 million. You go on to say that should Bill C-293 come into force, you believe it would be much easier for CSC to identify and manage these offenders. Could you estimate what kinds of savings would be involved?

[Don Head, Commissioner, Correctional Service of Canada]

Thank you, Mr. Chair. Given the time of year, I've been debating as to whether I'll declare you dependants on my income tax, I've been here so often.

Anyway, good afternoon, Mr. Chair and members of the committee. I'm pleased to have the opportunity to appear before you today to discuss Bill C-293, which would make amendments to the Corrections and Conditional Release Act to identify and manage offenders who could be considered vexatious complainants.

I'm joined this afternoon by Mr. Michael Côté, the Correctional Service of Canada's director general for rights, redress, and resolution; and Mr. Shane Dalton, acting analyst, offender redress.

I would like to begin by outlining the current offender complaints and grievance process and providing you with some facts and figures. I will then briefly discuss the impact on CSC should Bill C-293 come into force.

The complaint and grievance process provides offenders with a means of redress when they are dissatisfied with an action or decision by a staff member. Providing offenders with a fair, impartial, and expeditious complaint and grievance process is mandated by law. It also has many benefits. Among these, it encourages offenders to deal with issues in a pro-social manner. It empowers them and provides another forum whereby their concerns can be heard and dealt with appropriately. The process can also be used as a monitoring tool to identify trends that are linked to increased tension or discontent among the inmate population.

This is a four-level process. Offenders must first submit a complaint to a correctional manager or their case management team, who will seek to resolve the issue at the lowest level possible. If this is not possible, the offender can submit a first-level grievance, which is responded to by the institutional head. Any grievances unresolved at the institutional level then proceed to regional headquarters, where the regional deputy commissioner is the decision-making authority. Finally, if the grievance cannot be resolved at the regional level, it's elevated to national headquarters, where a comprehensive review and analysis of the grievance is completed within the policy and research sector, and submitted to the senior deputy commissioner, to whom I have normally delegated my decision-making authority.

It should be noted that if an offender is not satisfied with the decision at any level, he or she can seek a legal remedy, normally through the Federal Court.

In fiscal year 2010-11, CSC received 28,858 complaints and grievances. This fiscal year we have received about 26,717 up to February 26, 2012. Last year 25 inmates submitted over 100 grievances each. They are the frivolous or vexatious grievers who are the focus of this bill. Within this group of 25 there are a small number who submit many hundreds, as in more than one per day.

By way of explanation, we consider “frivolous” to mean that the complaint was submitted with no serious purpose; “vexatious” encompasses grievances submitted for the purposes of harassment for their own personal means, or to disrupt the system. Both are equally disruptive and consume hours of analysis and review by my staff.

On the financial costs of the process, last year over $3.8 million was dedicated to the salaries of the grievance analysts and operating costs. This year the figure is over $5 million. This increased cost is because CSC has made significant investments in the offender grievance process in order to increase the potential efficiency and effectiveness of this program, as well as to provide adequate and appropriate resources.

Specifically, CSC recently launched a pilot program based on an alternative dispute resolution process, with approximately $1 million of dedicated funds. An additional $1 million was allocated to address the anticipated increase in offender grievances and the backlog of grievance responses at the second and third levels.

Should Bill C-293 come into force we believe it will be much easier for CSC to identify and manage these offenders. The Corrections and Conditional Release Act would be amended to allow us to create a specific policy that would provide a process required to identify an offender as a vexatious complainant. This internal policy would lay out the steps required to assess and identify an offender as vexatious, including how the offender would be notified of the decision.

Staff inside institutions, at regional headquarters, and at national headquarters will have more time to focus on offenders who do not misuse the system and ensure that high-priority grievances are addressed in a timely manner. It will limit the ability of vexatious complainants to monopolize the grievance process and attempt to use this very legitimate system for illegitimate means.

As the honourable member who sponsored this bill pointed out, these changes would also be of ultimate benefit to the vexatious complainants themselves. A single-minded focus on lodging complaints is counterproductive to the correctional process. Offenders' time would be better spent on following their correctional plan in order to better prepare them for release and ensure safer Canadian communities.

Mr. Chair, as I indicated previously, the complaints and grievance process is an important part of the federal correctional system. It provides vital checks and balances to ensure the Correctional Service of Canada carries out its mission and mandate while respecting the fundamental rights of offenders. We must take seriously any allegations that CSC has failed in this regard. Unfortunately, the efforts of a small number of offenders who abuse this process take precious time and resources away from offenders who avail themselves of the system with legitimate intentions.

This bill will hold to account those who disrupt a well-functioning redress mechanism. It would alleviate pressures in terms of time and resources and it would reaffirm the commitment of the Correctional Service of Canada to a fair, impartial, and expeditious complaint and grievance process as mandated by law.

Thank you once again for the opportunity to appear before you today. At this time I would be happy to answer any questions you may have of me or my staff.

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone.

This is meeting number 32 of the Standing Committee on Public Safety and National Security, on Tuesday, March 27, 2012.

Today we're continuing our consideration of Bill C-293, an act to amend the Corrections and Conditional Release Act, vexatious complainants.

Towards the end of today's meeting we have reserved approximately ten minutes in order to deal with some committee business. We'll go in camera for that.

In our first hour and 40 minutes we're very pleased to have, and to welcome back to our committee, Mr. Don Head, Commissioner of the Correctional Service of Canada. On the same panel, we have Michael Côté, director general, rights, redress, and resolution at Correctional Service of Canada; and Shane Dalton, acting analyst, offender redress.

I invite you, Mr. Commissioner, to give an opening statement explaining the department's position on Bill C-293 before we proceed to questions from members of this committee.

Again, we want to welcome you and thank you for appearing before our committee as often as you do. It's good to have you here.

[Catherine Latimer]

I would like to reiterate that the John Howard Society of Canada, on whose behalf I'm pleased to be here today, echoes many of the concerns that Kim has raised about the need to have an effective, timely grievance process.

We also give quite a bit of credit to Correctional Services of Canada for their efforts to try to improve the grievance process, which is to some extent reflected in their contracting or commissioning David Mullan, who is one of Canada's leading authorities on administrative law, to take a look at the review process and how it could be improved. I agree with Kim's assessment that the overall recommendations should be taken into account and implemented, but he does also look specifically at the problem that seems to be being addressed by Bill C-293, which is the problem with multiple grievances.

The recommendations he has made vary with the provisions in Bill C-293 in some fundamental ways. I think if you take a look at the variance there, I hope you would be persuaded that the approach of Professor Mullan is better in a number of ways. I bring to your attention two of those concerns.

One concern is that Professor Mullan focuses on multiple rather than vexatious grievers. He has a clear, quantifiable definition of what's multiple so he doesn't leave it to the discretion of a correctional official--who does have an active stake in this grievance process as well--to determine what's vexatious. Also from a review process, you're going to have much more difficulty finding that something is vexatious because it requires you to look at the motivation of the person who's putting forward the grievance, and that's a much more difficult case to make than simply looking at the quantum.

Also, the clear distinction between his recommendations and those that are in the bill relate to the remedy he's proposing, which is he is suggesting that multiple grievers be limited to a certain number of grievances per year, and that they have a stake in assessing which are the ones they want to proceed with and what priority to give those. That is, which 25 of the 180 that you have put forward do you give most credit to and most reflect your concerns? So the remedy goes to limiting the number and doesn't go to the evidentiary base, which is what you find in this particular bill, which is the griever suddenly has to reach a higher evidentiary standard to make the grievance, which is questionable in terms of duty of fairness that all administrative procedures must follow.

I draw those particular elements to your attention. We would urge you to consider making some significant amendments and proceeding with the overall recommendations in Mullan's paper.

[Kim Pate, Executive Director, Elizabeth Fry Society of Canada]

Great. Thank you very much.

Thank you for inviting us to appear. I'm sorry that we don't have a brief to present, just because of the timeliness, but we appreciate, even with a short timeframe, being called.

I bring comments on behalf of our organization, on behalf of our 26 members across the country who work with marginalized, victimized, criminalized, and institutionalized women and girls.

I want to start by saying that one of the concerns we have with Bill C-293 is that there are already provisions within the current legislation and policy that take into account the very concerns raised by the proponents of this bill. Under section 91, and in particular under subsection 74(4) of the regulations, there are already provisions that allow institutional heads to limit the abilities of prisoners who are seen as making vexatious or excessive grievances and to in fact stop that process. It also requires a review process. So it's not something that can be done for an indefinite period of time.

We would suggest that we continue that process. In fact, the presumption that those prisoners who want to have their situations reviewed could apply to the Federal Court for judicial review is in fact not borne out at all in practice. We know that in fact with cuts to legal aid, the court challenges program, and the like, it's very difficult for prisoners to get access to legal aid, period, and certainly for any kind of purpose such as this, which is to challenge the process.

We know also that this concern has long been on the radar of the Correctional Service of Canada. In fact, in the women's prisons the majority of wardens actually encourage prisoners to put in grievances, because women are notoriously under-grievers, not over-grievers. Anything that would in any way suggest that there should be a limitation on that practice we would certainly not support. And we would caution against providing any excuse to limit those processes.

I point, of course, to the very fact of why we have a grievance process. Some of the recommendations were made following the deadly riots in Kingston Penitentiary. They followed up on the Swackhamer report, which actually resulted in the creation of the Office of the Correctional Investigator because of that very issue that there were so few opportunities for prisoners to seek any kind of redress. It was deemed that there was no legitimate access or avenue for redress, so the Office of the Correctional Investigator was established.

Also reinforced in 1992, with the introduction of the Corrections and Conditional Release Act, was the need for an adequate grievance process. Since then, we've had repeated reviews of this, both by the Correctional Service of Canada itself and by the Office of the Correctional Investigator. Most recently, in their 2007-08 annual report, they did a thorough review of this process and in fact encouraged a review to be done by corrections, which corrections did do. I'm sure you have a copy of the external review of the Correctional Service of Canada complaints and grievance process conducted by Dr. Mullan, of Queen's University, which was sought, paid for, and contracted by the Correctional Service of Canada. In it he recommends an overhaul and external oversight of the corrections grievance process, more support for the development of offender grievance committees, and assurances that staff know what the procedures are.

Certainly it has been my personal experience when going into the prisons on visits to have staff sometimes indicate that they don't know what the grievance process is. In fact, we have participated in doing some of that training from time to time.

In 1996 Louise Arbour, after reviewing the situation at the Prison for Women in Kingston, made a number of recommendations that have since been reinforced by both the Canadian Human Rights Commission and the Office of the Correctional Investigator. And they are supported by many within the Correctional Service of Canada. In her report she said:

It was striking that virtually all of the issues that have arisen in the course of this inquiry were raised in the first instance by inmates in complaints, grievances, and in some cases in letters addressed to senior Correctional Service officials.

They were largely ignored.

She indicated further that

...an inmate's version of events was treated as inherently unreliable, and that to grant a grievance was seen as admitting defeat on the part of the Correctional Service.

She went on to make a number of recommendations for external oversight as a result of those findings.

Similarly, in the work that Michael Jackson has done, both with and on behalf of the Correctional Service of Canada when he was asked to join their segregation review panel following the Arbour commission, he has made a number of recommendations about the need for an adequate and effective grievance process. I commend to you the section of his book, Justice Behind the Walls, from page 581 through to page 603, which talks about the need for overhaul. If you're not consulting with Dr. Jackson yourselves, I encourage you to at least refer to those recommendations.

The Canadian Human Rights Commission similarly found this process.... They are in fact in the process of reviewing access of prisoners to that complaint process by virtue of some complaints that have been referred to the tribunal currently.

Just to summarize some of the concerns we've seen in preparation, not for this process, interestingly enough, but for some other initiatives with which we're involved.... Notably, over the past ten years we have been involved—at the request of prisoners and supported by the Correctional Service of Canada—in a training process of developing resources for prisoners so that they know what their rights are. We have also participated in the training of staff in human rights issues.

We are about to do some upgrading of that training in some of the institutions. In preparation for that, we asked women prisoners to talk about why they're not filing grievances, because unless they're encouraged to by the institution, many of them don't. I'll quote for you some of the reasons that were provided to us, and then I'm going to end with some of the findings we've had around this process.

One of the things is that many women feel that even when senior staff are encouraging grievances.... What I'm told by many wardens is that they want to see grievances, because they see it as the mechanism by which they can test the temperature of an institution. Many senior front-line staff—and when I say “senior”, I mean experienced front-line staff—will often say, similarly, that they would rather see a grievance than see any other kind of attempt, whether it's self-mutilation or suicide attempts, or, in men's prisons, more outward attempts like riots or other kinds of uprisings.

If there is a legitimate complaint and grievance process that can be used, then in fact it's more likely that prisoners will bring their issues forward. If in fact they're listened to and there are adequate responses, you in fact will see the temperature of an institution decrease. At these times when we're seeing overcrowding, particularly in the women's prisons—and we're likely to see more overcrowding in the men's prisons as well—I think this is an ongoing concern. It certainly is a concern for our organization. For those I speak to within the Correctional Service of Canada and within the Union of Canadian Correctional Officers, it's also a concern.

One of the concerns raised is that in fact their timeframes aren't often adhered to. What you may not be aware of is that those timelines have historically gone from five days to ten days, from 15 to 25 days, and from 60 to 80 days in the past several years in terms of the levels: the first level, the second level...so the local institutional level, the regional level, and the national level. Some grievances can take more than six months to achieve a final decision. When you have a serious situation, whether it's in segregation or with regard to serious issues around prison conditions, that is far too long.

So we know those are concerns. Staff are indicating that their concern is that their inability to meet those timeframes is not because of vexatious or excessive grievances, but because often there is not a culture of protection of human rights that will in fact keep them and the prisoners safe.

As well, the Correctional Investigator has found that most of the multiple grievers who do exist—most of whom are not actually in the women's prisons but in the men's—are actually individuals with significant mental health issues. So any change in legislation is not likely to appreciably change this issue of multiple grievers, because if they have mental health issues, then there are other issues around what probably needs to happen.

Similarly, as the Correctional Investigator has pointed out, things that are sometimes viewed as frivolous, whether it's food or clothing, are sometimes not seen as frivolous by individuals. Again, they can create huge concerns, particularly for those with mental health issues, whether those concerns are about dirty underwear, inadequate food, not getting access to hot food, or the like. Again, these are issues that need to be taken seriously, and the effects can be minimized.

In short, we recommend that rather than continue on this and expend important and valuable taxpayer dollars on this kind of enterprise, Correctional Service of Canada be supported to provide meaningful ways to implement things such as the recommendations made by Dr. Mullan in the 2010 report they requested and contracted for.

I'll leave with a final example. When Ashley Smith put in a grievance at the Grand Valley Institution, when she put in a number of grievances, none of them were responded to. The Correctional Investigator has documented that well in their report. Sadly, we'll likely also see a full chronicling when we go through the inquest. When her grievances were responded to, they were not responded to adequately or in a timely manner. Her final grievance about the conditions of confinement within which she was placed, filed three weeks before she died, in fact was never looked at until we urged it. Finally the Correctional Investigator demanded that it be retrieved. Three months after she died it was retrieved from the box in which it was placed, never having been opened.

So our concern is about the timeliness of grievances, and the fact that people may put in multiple grievances when they haven't heard, in a context where they may not be getting responses because either their grievances aren't taken seriously, or they're discouraged from filing them, or, as women have advised, they're told to withdraw the grievances. Or as in Ashley's case, when other women started filing grievances on her behalf they were told that they would be sanctioned if they continued to do that. Even though she was not receiving responses and they were trying to assist her in addressing her concerns, they were not able to.

When we sought to use the judicial review process, it was at significant cost to our organization. It took us almost three years to gain some of the very documents and information she was trying to seek through that complaint and grievance process and the information process generally.

So I caution this committee, very sincerely and seriously, to look at whether we need to be going down this road, or whether we should be providing mechanisms—particularly at a time when we're likely to see increased tensions within our prisons—for individuals to be able to bring forward their legitimate complaints in a timely and efficient manner, have them taken seriously, and have the assistance of those individuals inside who have the opportunity to lay these.

During the Canadian Human Rights Commission review they found documents indicating that when someone raised a very serious concern, such as in Ashley's case several years later…. At the time we had memoranda and electronic messages indicating that individuals who put in grievances, using the legitimate complaint mechanisms, might be considered to be not following their correctional treatment plan.

Clearly, that's not legal. It's not appropriate, and we would not want to see that kind of situation continue. In a context where we already have staff asking us to assist them with this training process, when we have Dr. Mullan urging a training process for correctional staff.... Our concern is that if this kind of discretion is placed in the hands of individuals who aren't trained, it may result in increased tensions within the prison, instead of complaints being resolved and the grievance system’s being the safety valve it's intended to be.

Thank you very much.

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone.

This is meeting number 31 of the Standing Committee on Public Safety and National Security, Thursday, March 15, 2012.

In our second hour today we will have time for some committee business. We have a budget and a number of other things to look at.

In our first hour today we're continuing our consideration of Bill C-293, An Act to amend the Corrections and Conditional Release Act (vexatious complainants).

We welcome back to our committee the John Howard Society of Canada. Catherine Latimer is here, as she is the executive director. We also appreciate having the Elizabeth Fry Society of Canada appear. Kim Pate is the executive director.

I welcome your opening comments, Ms. Pate. I'm not certain whether Ms. Latimer has any, but you certainly have been at this committee before. You understand that there will be some questions after. We appreciate your willingness to take them and to take the time to be here.

Ms. Pate, please begin.

[Roxanne James, Conservative, Scarborough Centre, ON]

Yes, I agree with you. You took the words right out of my mouth.

There is not much more I can add to that statement. I think it's important to reiterate one more time that complaints can be in the process for up to 150 days. When you think about a complaint that your potato is too small, your milk or ice cream is too cold, or whatever, these are the complaints that Bill C-293 seeks to address, for obvious reasons.

When we take a look at the actual act, the original intent was to process legitimate complaints in an effective and efficient manner. This bill seeks to make sure that happens.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you for that question.

I just want to go back to the definition of “vexatious”. I'm actually going to read you the definition of vexatious, so maybe that will help to clarify the parameters in regard to someone who makes a complaint. These are basically complaints that are not made in good faith. They could be done “to harass; to pursue purposes other than a remedy for an alleged wrong; or to disrupt or denigrate the complaint and grievance process”. Those are the parameters for a vexatious complainant.

I also want to point you to proposed section 91.1 of the bill itself and to some of the changes with regard to this particular bill that I'm proposing, Bill C-293. I'm going to read this for you, because I want to reiterate that the commissioner is not going to be able to just designate someone. Things have to be written down. This has to be communicated back to the offender.

The steps include ensuring that, one, the offender receives written notice of the consideration; two, the offender is provided with all of the information reviewed by the commissioner of CSC; and three, the offender is given the opportunity to rebut the designation or present an alternative plan to address his or her needs.

I want to make it clear once again that this bill is only going to target a small number of offenders who are abusing the system. It is not intended to be and will not be used by the commissioner in any other fashion. I hope that has answered your question.

I know that you also actually mentioned someone filing complaints on behalf of others. As well, this should not impact that, because even though someone may be filing the complaint, the complaint should be logged under the original complainant or the offender who has raised that issue.