Public Safety Committee on March 15th, 2012

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

So you know that certainly in Alberta—

[The Chair, Conservative, Kevin Sorenson]

Quickly, please.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

—the civil courts have the ability to establish a litigant as a frivolous and vexatious litigant, and they need leave of the court to file a statement of claim.

Do you know if there is a comparable system in Ontario?

[Catherine Latimer]

I'm not that familiar with civil law, but I would assume there are measures against it, once having defended a set of—

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

As a final comment in my few seconds, it appears to me that if a civilian can be labelled a frivolous and vexatious litigant, a prisoner should enjoy the same equality.

Thank you, Mr. Chair.

[The Chair, Conservative, Kevin Sorenson]

We're going to have to leave it at that. We're ten seconds over.

We'll now move to Mr. Chicoine, please, for seven minutes.

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

Thank you, Mr. Chair.

My thanks to the people who have come to testify today.

Ms. James, the sponsor of the bill, told us about what motivated her to introduce it. If I am not mistaken, she told us that, in the Canadian correctional system, 15% of the grievances were filed by about 20 people, either to pass the time, or for amusement, or to bring the prison administration into disrepute. If that is the case, perhaps there is room for measures to address it.

However, the Correctional Investigator, whom we have spoken with about this problem, told us that it was actually either to do with people suffering from mental illness, or people wrongly believing that the timeframe for getting an answer is 10 days, thereby filing complaints repeatedly. That is like the Ashley Smith case, who filed her grievance over and over again because she had not received a reply.

Is it possible that most of those 20 or so people are filing grievances upon grievances because they do not get a reply within an amount of time that they consider reasonable, and not because they actually intend to file frivolous complaints?

[Catherine Latimer]

I think it's likely to be a variety of people. One of the things the Correctional Investigator has pointed out is that offenders who are better able to write, more literate, better educated, tend to file more grievances on behalf of some of the other inmates who have difficulty doing it for themselves. So there's a cadre of multiple grievers who are doing it because there are problems and they're capable of doing it and taking it on for other inmates. That's certain. The fact that they produce a number of them doesn't mean that they're illegitimate by any stretch of the imagination.

It's hard to determine why certain people are grieving more than others. It could also be that some have certain needs. I've been dealing with one gentleman who has multiple health needs. The correction system has difficulty catering to individual variances in needs. He's not getting his medication on time. It doesn't matter how many times he grieves and says he needs his medication at such-and-such an hour and he's not getting it--the system can't accommodate it. So he needs to keep grieving, because it's the only way that some attention will actually be attracted to that particular problem.

It's a chronic problem that the system has difficulty fixing.

[Kim Pate]

I would add that the report that was done for the Correctional Service of Canada indicated that it was between 10 and 15 prisoners, and they were all male, as far as I'm aware.

In the women's prisons, the woman I was mentioning during the human rights review—we had the documentation of it—was, as Catherine has indicated, a woman who was filing complaints on behalf of other women as well. She was particularly well-read, was educated, and knew the law and the policy, and would quote it back. She was actually told that she would stay at a maximum security level longer if she continued to file grievances.

Those kinds of situations are not, obviously, what was ever contemplated—nor would I suggest that anybody was supporting them—in this proposed legislation, but we certainly have those kinds of concerns about cases in which there are individuals who are raising situations.

In the women's prisons, the opposite is true. Anything that squelches.... Repeatedly we see, whether in our documentation or the Correctional Investigator's, the Human Rights Commission's, Louise Arbour's, Michael Jackson's, David Mullan's, that in fact the issue is that women tend not to grieve because they tend to be often coerced or pushed or discouraged from doing so. Even though the law is clear that you can't discourage it—there's a penalty under the CCRA for actually penalizing someone—the reality is that those sorts of things happen.

I'd say that the most tragic situation was the one we had with Ashley Smith.

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

I mentioned the fact that some better-educated inmates have taken it upon themselves to file grievances for other inmates. Ms. James told me that, under her bill, it was not possible for better-educated inmates to be designated as vexatious complainants, given that their names would not appear.

Do you share that view?

[Kim Pate]

Certainly the experience we've had is that women have been seen that way. It's not all the time. It's not really common, but certainly it has occurred. It raises our concern with this legislation that in the case of those who are trying to stop the process or who may see it as being in their interest to stop the process.... That would certainly be a concern for us.

Again, there are a couple of women who have mental health issues who I know routinely will put in grievances. They are not illegitimate, but they are not necessarily things that can be solved by the grievance process. It may be things such as that she wants to have a visit. They are things that are heartbreaking to read. Most of the corrections people I know would never consider those people as ones they should be referring to as vexatious or frivolous grievers, even though there is nothing they can do through that process.

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

In your presentation, you briefly mentioned that there are no specific criteria that could help the commissioner to designate an inmate as a vexatious complainant.

Does that really concern you? Do you feel that is an omission that could cause mistakes to happen?

[Kim Pate]

I think there could be. If the commissioner had the capacity to review all of those issues, then I think, going back to Mr. Rathgeber's comments, it would be preferable that someone in national headquarters review all of them. That isn't our experience. Usually, the threat of being labelled a frivolous or vexatious griever happens at the institutional level. That's the authority the institution has right now. Whether it's the supervisor, the warden, or.... Usually it's deemed to be the warden's designate who makes that recommendation. Women whom I've worked with, and in the past men whom I've worked with, will be told that if they continued to file complaints, they are at risk of being labelled in that manner.

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

Professor Mullan's report indicates that attempts were being made to solve the problem with an ad hoc grievances committee, and he gave the Donnacona Institution as an example.

Do you know any more about the informal way in which that institution goes about handling grievances?

[Kim Pate]

I do not know how they are doing it in the Donnacona Institution. I know that in some of the women's prisons there has been a push by a number of the women and the administrations within the prison to develop offender grievance committees, of which, in all of the time I've worked with women and in the time I worked with men in the institutions, there were very few, if any. Certainly, there has never been an offender grievance committee in the women's prisons; there have been in some of the men's. It may be that this is what is happening in the Donnacona Institution, though I'm not familiar with it.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

We will go to Mr. Leef, please.

[Ryan Leef, Conservative, Yukon, YT]

Thank you, Mr. Chair.

Thank you to both witnesses for appearing here today.

Notwithstanding the importance of dealing with grievances and some of the issues you've raised, I think there's a bit of a temptation for us to get sidetracked away from the bill when we talk about timeliness of response to grievances, whether one, ten, fifteen, or forty of them. I think we all recognize here the value of the grievance process, the value of dealing with the grievances in a timely manner, and the importance this plays in the institution among the inmates and the correctional staff who work there.

I would like to focus on this bill. This goes back slightly to some of the things Mr. Rathgeber talked about, but I want to ask Ms. Latimer a question. You accurately stated that the fact that multiple grievances come in doesn't mean they are frivolous or vexatious, necessarily. Would you agree that if I were an inmate and I had 250 legitimate complaints that were upheld all the time, I should be able to submit those grievances and have them heard in a timely manner, and that I shouldn't be subject to a cutoff point for grievances, if I'm accurate in the grievances I'm making?

[Catherine Latimer]

Let me give you an example. Let's say that you were an insulin-dependent diabetic and you did not get your insulin in time every day, and you grieved once and they said “Fine, we'll try to make it better”, but the next day it wasn't any better, and you still didn't get your insulin in time to avoid a reaction.

[Ryan Leef, Conservative, Yukon, YT]

I wouldn't say so much that, because notwithstanding, there is obviously some time needed for administration to deal with certain things.

Let's say that I have 75 different issues and I launch 75 grievances, and all of them are upheld. Should I be limited after that point, if I have been successful in 75 grievances?

[Catherine Latimer]

No.

[Ryan Leef, Conservative, Yukon, YT]

Part of what I'm driving at here is that you prefer the approach of Professor Mullan, but of course defining a fixed number of multiple complaints I think would be problematic, because that does limit legitimate complainants, if we did that.

What I find interesting about this bill--and very positive, actually--is the initial section that talks about what constitutes vexatious complaints. And I will preface that by saying not all vexatious complaints or the stipulations to prevent that from people actually are vexatious. It says “multiple complaints or grievances that are of...”. So they have to be multiple, for one, and either vexatious, frivolous in nature, or not made in good faith. So we need multiple in the first instance, and then they need to meet the condition of vexatious, frivolous in nature, or not made in good faith. I think that's positive.

When we look at the regulations, as has been pointed out, that's already somewhat permitted. This goes back to what's in the act and the regulations, but now we go back to what Mr. Rathgeber was saying: that now this bill seeks to take that out of the hands of front-line and supervisory staff in the correctional centre; has greater oversight; moves it up to the commissioner level; provides judiciary review; provides a mandatory assessment of the status of that designation, where it doesn't currently; provides an exemption where a decision-maker cannot refuse to hear something that might cause irreparable, significant, or adverse consequences. I think that doesn't exist in regulation right now.

Would you not agree that those three steps are very positive steps to protect the inmates in this grievance process that don't currently exist in the act and regulations?

[Catherine Latimer]

I'm still perplexed by how it will actually be carried out.

[Ryan Leef, Conservative, Yukon, YT]

Maybe you could just answer that as to whether it's positive or not, versus how it's going to be carried out. I'll give you an opportunity to—

[Catherine Latimer]

It depends how you're defining vexatious—

[Ryan Leef, Conservative, Yukon, YT]

Well, let's—