Evidence of meeting #31 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 grievances.
A recording is available from Parliament.
Executive Director, John Howard Society of Canada
No, it really does. I can't answer it unless you're telling me how you're defining vexatious.
Conservative
Ryan Leef Conservative Yukon, YT
Well, we could look at the dictionary and see what vexatious is. When we're talking about the commissioner of the Correctional Service of Canada, I think we could probably give him some latitude to use the professionalism and experience he has to utilize common standards for vexatious. I don't think we're going to create our own definition of vexatious, are we?
Let me ask this question again for you. Do you think providing regulation that currently does not exist to protect grievances from “irreparable, significant or adverse consequences to the offender if not resolved” is positive? Do you think a judicial review, if labelled as such, is positive? Do you think an assessment every six months, which currently doesn't exist, is positive?
Executive Director, John Howard Society of Canada
I think all those are positive.
Conservative
Ryan Leef Conservative Yukon, YT
Thank you.
We know there are complaints in the correctional environment, and I say this from experience as a deputy superintendent of operations in charge of a multi-level facility and a male and female facility. We do have a lot of complaints made that aren't legitimately in good faith—like my ice cream is too cold, those kinds of things.
Well, we've heard here.... And I don't have these; maybe it's a better question asked of Correctional Service of Canada staff. But you've had experience in the correctional environment, so you would know or maybe you would have access to it. If these are 20 people making 500-plus complaints, do you know the stats now, because this is a small pocket of people we're dealing with? Do all 20 of them have mental health issues?
Executive Director, John Howard Society of Canada
I don't know the 20, and I would assume not. I would assume, as I mentioned before, that some of them are acting on behalf of inmates who are less capable of filling out grievances and raising them. I would think some of them are suffering from paranoia.
Conservative
Ryan Leef Conservative Yukon, YT
If those grievances that they were doing on behalf of other people were legitimate, good-standing grievances, that would be fair to allow them to do that, wouldn't it?
Conservative
Ryan Leef Conservative Yukon, YT
I would agree with you on that, but if they're frivolous, vexatious, and in bad faith, is that still reasonable to allow them to do that on behalf of others?
Executive Director, John Howard Society of Canada
Again, I'm caught up with the definition and who makes the determination.
Conservative
Ryan Leef Conservative Yukon, YT
Again, I talked about that. If Mr. Norlock says to me, “Mr. Leef, you're good at writing. My ice cream is too cold. Can you file a complaint on my behalf and please spell out that my ice cream is too cold?”, do you think that's a reasonable thing for me to take on as an inmate who has effective writing skills on his behalf, and do that over and over, multiple times?
Executive Director, John Howard Society of Canada
But what if his ice cream was always coming in a melted form? What if his desserts were always...? First of all, they don't get desserts any more.
Conservative
Ryan Leef Conservative Yukon, YT
But you're moving away from.... Now you're saying what if it's legitimate. If it's legitimate, I give you that; then grieve away. But what I'm saying is we're talking about frivolous, vexatious, bad-faith complaints. I'm not talking about legitimate complaints; that's good news, and I would allow that.
Conservative
The Chair Conservative Kevin Sorenson
Our time is up, but I will read to you....
We have had the benefit of hearing some of what were vexatious complaints, in the opinion of Ms. James, who moved this bill. The definition that she gave, and which the commissioner is directed by in his directive, is as follows:
Vexatious or not made in good faith: where the decision maker concludes on the balance of probabilities that the overriding purpose of the complaint or grievance is: (a) to harass; (b) to pursue purposes other than a remedy for an alleged wrong; or (c) to disrupt or denigrate the complaint and grievance process.
There still is a certain latitude that they have. There is a decision they're going to have to make. But it is confined to the question whether it is harassment--is this a harassing--
Executive Director, John Howard Society of Canada
I'm more comfortable with a complaint being seen as vexatious than with the person who's making the complaint being designated as vexatious.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
You mentioned something about external reviews. What did you mean by that?
Executive Director, Elizabeth Fry Society of Canada
Several recommendations have been made at different times. Louise Arbour made recommendations for external oversight where there are serious concerns such as what occurred at the Prison for Women, extensive use of segregation, the things that have since been repeated and most notably recently been documented and made public through the death of Ashley Smith. She recommended that where there is correctional interference with the legitimate carrying out of a sentence, there be mechanisms for those cases to be reviewed for judicial review.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
I'm sorry, I'm not a lawyer, but how does this relate to vexatious complaints? Are you suggesting or is someone suggesting that rather than having the supervisor or even the commissioner make the decision, some kind of external review body would either make the decision or review the decision? I agree with you, it's not practical to go to the court. There aren't the resources for the inmate to do that, and so on.
Can you envisage some kind of system where even before it would get to the commissioner a committee would look at it, with a chance of reversing the supervisor's decision?
I suppose there's a problem there, because if a supervisor is overridden too many times, his or her authority is diminished within the institution. And no doubt these are institutions that have a component, necessarily, based on authority and so on.
I'm concerned about two things. One, there's no real appeal mechanism other than going to Federal Court. In that regard it's like Bill C-31, which is an immigration bill, which I won't get into. There's always that way: you can go to court. But it's not practical necessarily.
The second question I have is let's say someone is vexatious, truly vexatious, is complaining non-stop about something or other and is labelled a vexatious complainant. All of a sudden maybe the guard now knows that this person is vulnerable because he or she can't really complain as easily any more. So they get into some kind of rivalry, where now the person who was labelled a vexatious complainant for good reason is actually the subject of some kind of recrimination or has a legitimate complaint.
Under the bill, as I understand it, the person can still make a complaint, but the evidentiary standard is higher. What does this mean, that the evidentiary standard is higher? If somebody says the guard is not letting him or her out on time to go to the prison yard, how do you prove that? What does it mean? What kind of additional proof would be required? This is all undefined.
I don't know if you would like to comment on that.
Executive Director, Elizabeth Fry Society of Canada
I share those concerns in terms of how you would define it. Right now, as Louise Arbour said, as the Human Rights Commission said, as virtually everybody who has reviewed this has said, that's an ongoing concern. It's usually the prisoner's word against the staff.
I'll just take Ashley Smith's case again, because all this is about to come out publicly. When it was documented that she was out of control, and then you view videotapes that showed just the opposite, it's hard to imagine how.... She might very well have been deemed a vexatious griever had she had the opportunity, or had her grievances been taken seriously. In the end, she hardly filed. She didn't file that many. And the ones she did file were pretty serious grievances. But they weren't taken seriously anyway.
Your concern about how you get a mechanism for review is very legitimate. Our concern is that the law already provides for all of the kinds of reviews that.... Mr. Leef talked about the fact that you can review someone who has been labelled a vexatious griever. There's nothing precluding that right now from happening. Anything that would increase the standard for the ability of prisoners to actually argue this.... I don't know how they could legitimately ever be able to do that.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
I think there's a six-month review of the person's designation as a vexatious complainant. I'm not quite sure who would do that review. I'll have to look at the bill again. If someone on the other side knows, maybe they could inform me.
Executive Director, Elizabeth Fry Society of Canada
It says “The institutional head shall ensure a plan is developed to assist...”.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
Do you get a sense that vexatious complaints are gumming up that system?
Executive Director, Elizabeth Fry Society of Canada
I don't get that sense. I think that in situations where there have been individuals who have laid excessive complaints—and only a couple have been brought to my attention previously—they have been dealt with.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
I guess if you're always complaining that your ice cream is too cold, it's a form complaint, and I would think that you'd get some kind of a form response every time.
Executive Director, Elizabeth Fry Society of Canada
The types of complaints I'm more familiar with are about being strip-searched when the law doesn't provide that someone should be; being denied access to programs someone needs access to in order to complete their correctional treatment plan; being placed in segregation without receiving the requisite paperwork; being held in segregation for extended periods and not being provided with access to their cell effects or the entitlements they have; being denied access to the yard when they should have it; being denied access to ceremonies if they're indigenous prisoners; or, in Ashley's case, being denied access to even knowledge of what the correctional treatment plan was for or of how she would get out and being denied assistance to actually have her conditions of confinement reviewed.