Evidence of meeting #34 for Public Safety and National Security in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was complaint.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Howard Sapers  Correctional Investigator, Office of the Correctional Investigator
  • Ivan Zinger  Executive Director and General Counsel, Office of the Correctional Investigator

3:35 p.m.

Conservative

The Chair 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.

3:35 p.m.

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.

3:35 p.m.

Dr. Ivan Zinger Executive Director and General Counsel, Office of the Correctional Investigator

Thank you.

On an annual basis, our office receives approximately 6,000 offender complaints. In 2010-2011, the office's 18 investigators spent in excess a 370 days in federal penitentiaries and interviewed more than 2,100 offenders. Last fiscal year, the office received 20,000 contacts on its toll-free number, and conducted over 1,200 uses of force reviews.

The OCI can investigate complaints from federal offenders, independently of whether they have filed similar complaints using the internal complaints and grievance system of the Correctional Service of Canada (CSC). When appropriate, the office has the discretion to request that offenders exhaust the internal grievance procedure before we examine their complaints. If the subject of the complaint raises important or priority issues, such as involuntary transfer or segregation placement, we will generally investigate even if the offender has an outstanding grievance filed with the CSC on the same subject matter. If the complaint has merit, the office will make the recommendations to the CSC to resolve it in a fair and expeditious manner.

The office deals with the same clientele as the CSC. We also receive a large number of complaints from the same few multiple grievers that this bill would refer to as vexatious. Although the office has more latitude than the CSC to deal with multiple grievers, it is our policy to respond to all complaints regardless of source. This is based on our experience that even multiple grievers file complaints that legitimately require attention. It is also our experience that complaints made in a trivial, frivolous or vexatious manner or in bad faith are relatively easy to determine. Accordingly, these complaints require little in the way of substantive follow-up.

Our experience with multiple grievers suggests many often display symptoms associated with mental health disorders, including paranoia, narcissism or obsessive compulsive behaviours. In fact, their mental health issue may have been responsible in part for their offending pattern. Multiple grievers can be very erratic, difficult to deal with, obsessive or compulsive about details or paranoid vis-à-vis those in authority.

Labelling them vexatious complainants and attempting to stop them from complaining is not likely to work, as it does not address the underlying source of mental health or personality dysfunction. If prevented from using the internal grievance system, these offenders may simply shift their efforts to challenge their vexatious designation by way of judicial review or file their complaints to independent quasi-judicial bodies, such as our office.

3:40 p.m.

Correctional Investigator, Office of the Correctional Investigator

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.

3:50 p.m.

Conservative

The Chair Kevin Sorenson

Thank you very much, Mr. Sapers.

We'll move to the first round of questioning.

We have Ms. Hoeppner, please, for seven minutes.

3:50 p.m.

Conservative

Candice Bergen Portage—Lisgar, MB

Thank you very much, Mr. Sapers and Mr. Zinger. Thank you for being here.

I just have a few short questions.

Mr. Sapers, are you familiar with how many complaints are filed with CSC each year? Are you familiar with that number?

3:50 p.m.

Correctional Investigator, Office of the Correctional Investigator

Howard Sapers

Yes. Last year we had about 27,000 or 28,000 complaints.

3:50 p.m.

Conservative

Candice Bergen Portage—Lisgar, MB

Okay, how many are filed in your office?

3:50 p.m.

Correctional Investigator, Office of the Correctional Investigator

Howard Sapers

We received, as I said, 20,000 contacts through our 1-800 number. We did hundreds of days worth of interviews. We conducted probably about 1,300 full investigations last year, and another 900 on the use of force.

3:55 p.m.

Conservative

Candice Bergen Portage—Lisgar, MB

I'm sure you're very familiar with the process at CSC to go through a complaint. Would you be able to describe for the committee how the process differs from your office with regard to dealing with a complaint?

Could you just start with CSC?

3:55 p.m.

Correctional Investigator, Office of the Correctional Investigator

Howard Sapers

It doesn't take us a year. That's one way it differs.

3:55 p.m.

Conservative

Candice Bergen Portage—Lisgar, MB

Are there different requirements?

3:55 p.m.

Correctional Investigator, Office of the Correctional Investigator

Howard Sapers

The legislation that establishes my office, the CCRA, the same legislation that establishes the Correctional Service of Canada, gives me full discretion in how I deal with complaints. So I do have more flexibility, as we mentioned in our comments.

The Correctional Service of Canada has established, in fact, a four-level system. The Correctional Service of Canada, though, has never fully implemented all the options it has for dealing with inmate complaints.

Let me give you a couple of examples. If an inmate makes a complaint to a correctional manager on the floor of an institution, that can be dealt with rather informally. The warden has the ability to refer it to an outside panel. The warden also has the ability to ensure that an inmate committee is established within the institution. The correctional manager also has some discretion in terms of trying to informally manage that, and of course, we know from Professor Mullan's review, that there can also be expanded use of mediation as an informal conflict resolution process.

Instead, what we see are many complaints not being dealt with until they are well beyond the timeframe. They then generate a second complaint, the complaint being about the lack of response, which is then dealt with at the next level. Typically, that will not be dealt with at the next level in an expeditious way, generating less satisfaction and more complaints, which then create backlogs at the third level.

It is this continuous pattern of not dealing with matters at their lowest level, immediately, that in fact makes the problem so much worse.

3:55 p.m.

Conservative

Candice Bergen Portage—Lisgar, MB

I don't want to put words into your mouth, but it sounds as if you're telling this committee that the reason CSC is having to deal directly with the issue of frivolous, vexatious complaints that go to the level they are at is basically.... You're blaming CSC and the way that it deals with complaints.

3:55 p.m.

Correctional Investigator, Office of the Correctional Investigator

Howard Sapers

Well, if you take a look at any of the reports from my office, from 1973 forward, you'll see that we've passed comment on the ability or the inability of CSC to meet its legal requirement to have a fair and expeditious grievance process. That system is dysfunctional, and it's dysfunctional for many reasons.

Even multiple grievers may have multiple legitimate grievances. Grievances that may be frivolous and vexatious can be dealt with within the existing policy framework. We get them, too.