Public Safety Committee on March 27th, 2012

[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.

[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]

Thank you very much, Mr. Commissioner.

We'll move right into the first round.

We will go to Mr. Leef, please, for seven minutes.

[Ryan Leef, Conservative, Yukon, YT]

Thank you.

Thank you, Mr. Commissioner, Mr. Dalton, and Mr. Côté, for attending today.

We heard some testimony in the past when we were looking through this bill. There was concern about what the definition of frivolous or vexatious would be. I have just a quick question then. I've read your explanation of it. Are you comfortable with that standard, that those definitions of frivolous or vexatious achieve the goals you want of identifying and reducing the number of those types of complaints?

[Don Head]

Yes. In terms of the definitions themselves, we're satisfied. We've used those definitions for several years now. They guide our managers at the site level. They guide our analysts in terms of preparing responses. I think for us the issue is not so much the definition—at least from our perspective anyway. We think the definitions are clear. It's the categorization of the actual complaints and grievances, against those definitions.

[Ryan Leef, Conservative, Yukon, YT]

Okay, fair enough.

There was some question in the past meetings, as well, about what would actually constitute a frivolous or a vexatious complaint. We've heard a couple of minor examples. I was just wondering if you have a few examples that you could highlight to really illustrate what we're talking about here in terms of what would be frivolous—maybe an actual complaint, if you have one.

[Don Head]

Sure, I'll give you a few.

I personally have, throughout my career, dealt with complaints and grievances. I've dealt with them as a front-line manager in an institution, at the second level at regional headquarters, and at national headquarters when I was in the role of senior deputy commissioner. Here are some examples of frivolous grievances.

An individual complains about not getting access to the doctor in a timely way. We go back; we analyze that; we determine that, yes, there probably could have been something that could have been done differently; and we schedule that individual for the next time the doctor comes in. So for all intents and purposes the issue is dealt with.

The way the law is currently written, that individual, even though the issue has now been resolved, can still file a grievance and just complain about the fact that it wasn't resolved in a timely way by our own admission and carry it on to the next several levels in the grievance system. That type of grievance serves no purpose at all because the issue brought forward was identified as being a shortcoming by staff and was rectified, but now the offender is using the opportunity within the legislation and the policy to continue to just push a point through the various levels, and each level requires a response.

[Ryan Leef, Conservative, Yukon, YT]

You've identified in your report that there are approximately 25 inmates who account for a great number of the complaints, and questions have been raised in the past that the characterization, or profile—for lack of a better word—of these offenders would be people with mental health issues, and inmates with no education who don't necessarily understand how to read and write and express their thoughts.

Would that be a fair characterization of the 25 inmates who you deem to be frivolous or vexatious complainers? Is it correct to say that they either have mental health issues or that they're undereducated to the point that they don't understand what they're doing?

[Don Head]

No, I don't think it as simple as that, categorizing in that way. Are there some who have some mental health issues? Yes, there are some. There are some well-educated individuals who fall into this category. We actually have a very good profile of the types of individuals who have been filing these grievances.

I'll take a few seconds to add a couple more stats, which I think will be relevant. Although we're talking about 25 offenders who have filed 5,215 of the 28,000 grievances I talked about, or about 18% of complaints and grievances, those are individuals who have filed more than 100 grievances. If I back the scale up a bit, and talk about individuals who have filed more than 25 grievances in a year, it's 136 inmates who file 9,857 grievances, for a total of about 34% of all the grievances filed. And that's 136 inmates out of a total of 6,213 inmates who filed grievances in the fiscal year I'm talking about. So 2.2% of the offenders are filing more than 25 grievances a year, which account for 34% of all the complaints and grievances that we get.

[Ryan Leef, Conservative, Yukon, YT]

Thank you.

In the conditions in the bill—I'm assuming you've read parts of them—there are a few that put obligations on the commissioner, and I'm assuming some of those are delegated to a degree. Proposed section 91.3 says:

The offender who has been designated a vexatious complainant by the Commissioner under subsection 91.1(2) may seek judicial review of this designation.

You'll assess the status of the offender every six months, and there are a couple of other conditions that are placed on the commissioner when this designation is met. Do you think that any of those conditions are too onerous? Do you think you or your delegated staff will have any trouble meeting the obligations that are outlined in this legislation, so that this procedure is still fair?

[Don Head]

Mr. Chair, I'm very dedicated to my job, and I will meet any obligation that Parliament defines in the legislation, one way or another.

In terms of the numbers, does it create an additional workload? Yes, it does. Anything that gets added is an additional workload. But there are opportunities. This committee could even consider an amendment to allow me to delegate that authority, as I can now for third level. That's a possibility. But if there is no change or amendment to that, I can definitely manage the process as defined in the bill.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Leef.

Mr. Chicoine, the floor is yours for five minutes.

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

Thank you, Mr. Chair.

Gentlemen, thank you for coming to share your comments on the bill. I have several questions that will probably not take too long to answer.

Pursuant to paragraph 25 of Commissioner's Directive 081, regarding offenders' complaints and grievances, the decision-maker—who is the prison warden in most cases—can reject a vexatious complaint. That directive also provides for rejecting the entire grievance or portions thereof. That makes it possible to reject only the vexatious part. Is that correct?

[Don Head]

Under our current policies we can do that, but nothing stops the offender from then moving that complaint to a grievance, and moving it up the chain.

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

Under paragraph 29 of that same directive, a grievor can be declared a multiple grievor, and paragraph 34 makes it possible to give priority to urgent complaints submitted by multiple grievors. Is that correct?

[Don Head]

Yes, and that's what our staff do now.

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

That's excellent.

Section 74 of the Corrections and Conditional Release Regulations also makes it possible to reject a vexatious grievance. Is that right?

[Don Head]

That's right, and as I mentioned earlier, we can turn down a complaint, but that does not stop an offender from then filing a grievance.

Although they can be turned down at the complaint stage by a manager, the offender can disagree with that and then immediately move it to the first-level grievance and all the way up to a third-level grievance.

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

Paragraph 33 of directive 081 also stipulates that a designation must be reassessed every six months. The bill sets out the same requirement. Can you confirm that?

[Don Head]

In terms of the current practice? Or are you talking about the amendment to the bill?

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

I am talking about both. I think the bill mentions a six-month period, as does the directive.

[Don Head]

Yes.

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

Finally, the only new aspect of this bill is the fact that the commissioner will designate an offender as a vexatious complainant. Everything else seems to be already included in the legislation and the regulations, as well as in directive 081. Is that indeed the case?

[Don Head]

No. The way I have read the bill is that with the designation, the offender would not be able to move something that would have normally been stopped under our current policy at a vexatious complaint level. Currently, they can move that to a grievance.

Under the current bill, that would not be the case. If an individual is tagged as a vexatious complainant or griever, they would then not have the ability to move it forward unless, the way the bill is proposed, they sought leave to do that or to have it managed in a different way. So there is a significant difference between the current policy and what's proposed in the bill.

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

Absolutely, but they could still be refused for being designated as vexatious complainants. All those complaints can nevertheless be rejected by the warden.