This week, I changed much of the tech behind this site. If you see anything that looks like a bug, please let me know!

Evidence of meeting #32 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 offender.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Don Head  Commissioner, Correctional Service of Canada
Michael Côté  Director General, Rights, Redress and Resolution, Correctional Service of Canada
Shane Dalton  Acting Analyst, Offender Redress , Correctional Service of Canada

4:25 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Make it really quick.

4:25 p.m.

Conservative

Wai Young Conservative Vancouver South, BC

—and that is around the price of all of these complaints.

You had quoted numbers of around $5 million this year. Of course we still need to have a system in place for legitimate complaints. Nobody is talking about getting rid of that. So if you were to take out these vexatious complains, what is the percentage, in terms of the $5 million in total? How much of it do you think it would be in savings that you could use for something else?

4:25 p.m.

Commissioner, Correctional Service of Canada

Don Head

In grosso modo terms, in looking at the 25 individuals filing more than 100 complaints a year, in terms of following the process defined in this bill, I would say it's between $250,000 and half a million dollars a year, just with those 25 individuals.

4:30 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you.

Ms. Boivin, you have five minutes.

March 27th, 2012 / 4:30 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Thank you very much.

I want to thank the witnesses. This is absolutely fascinating. I do not claim to be an expert on this topic, and I am here replacing one of my colleagues, but I have a few questions off the top of my head.

I worked as a lawyer in labour law, especially in the area of collective agreements and grievance adjudication. The major dilemma is always deciding which process works the best and is the most effective and fair for everyone involved. I have always advocated the most direct processes. You have the first, second, third and fourth levels. Eventually, there's no end to the never-ending process, and you often go around in circles.

I know that my colleague Mr. Chicoine asked this already, but I'm not sure I heard your answer properly. Wouldn't it be better to reduce the number of levels in order to become more effective? If there were fewer levels, you would be less bogged down by all the complaints you receive.

4:30 p.m.

Commissioner, Correctional Service of Canada

Don Head

No. Again, to be clear, and I apologize if I wasn't clear before, I think as we go forward there are going to be more opportunities for us to look at how we can be more effective and efficient. That may include looking at whether it's possible to reduce some levels, but that needs to come in concert with a few other pieces, including this.

4:30 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

So one doesn't exclude the other—

4:30 p.m.

Commissioner, Correctional Service of Canada

Don Head

Yes, exactly.

4:30 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

—it could still be done. Because it seems a pretty heavy process, in my opinion, at this point in time, especially considering the type of grievance or complaint that sometimes you're getting. I do hope you don't have four paliers for somebody who has cold ice cream. I would be really pulling my hair out.

That being said, when I read the law—because it's always interesting to read the law—and you look at subsection 91.1(2)

proposed, you see that it says the following:

The Commissioner may designate an offender as a vexatious complainant when, in his or her opinion, the offender has submitted multiple complaints or grievances that are of a vexatious or frivolous nature, or not made in good faith.

I want to begin with my question. How do you think you, in your capacity as commissioner, will go about this? How many complaints constitute multiple complaints? The wording “vexatious or frivolous nature, or not made in good faith” is used.

I want to go back once again to my experience as a lawyer in labour law. In the area of evocation, when we would be talking about behavioural concepts “of a vexatious or frivolous nature, or not made in good faith”.... In life, one of the most difficult things to prove is bad faith because people's good faith is always presumed.

I am trying to see how these new powers will help you and whether you will not instead be bogged down, under proposed clause 91.3, when faced with a mountain of appeals for judicial review of your decisions.

Is the system being modified and weakened through another system? That is sort of what I think about when I read this kind of legislation.

4:30 p.m.

Commissioner, Correctional Service of Canada

Don Head

Those are very good questions. I have a couple of responses.

I'll deal with your latter questions first. In terms of weighing down, given that this is a very significant decision being made in terms of an individual who's under the care of the state, I actually see within my organization—whether it rests with me or if I'm able to delegate it to my senior deputy commissioner—that it's the right level for these kinds of designations.

Again, based on our current numbers, I would see anywhere between 25 and just over 100 a year that could possibly be deemed to meet these criteria, and I think that warrants the most senior review within the organization, given that these people are under the state's care.

In terms of differentiating, I imagine, based on your previous career in terms of labour law, you would know when one side is bargaining in bad faith. It's just so evident to you. I've got over 34 years in corrections now, and a lot of my senior managers have many years as well. It's one of those things you can tell. At the end of the day, we're going to have to justify our decisions, because they could go to judicial review. They're going to have to be well documented, knowing that they could be subjected to judicial review, and we've got a lot of experience in that area in terms of the concept of duty to act fairly, the rule of law. So I feel comfortable that we're able to determine and distinguish frivolous and vexatious from a good grievance, for lack of a better word.

4:35 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you very much.

We'll now go back to the government side. We're going to Mr. Leef.

4:35 p.m.

Conservative

Ryan Leef Conservative Yukon, YT

Thank you, Mr. Chair.

I'm looking at the legislation again. This kind of ties into one of the questions Ms. Young was asking.

Proposed subsection 91.1(3) says, “When the Commissioner commences his or her consideration of a vexatious complainant designation for an offender, he or she shall”, and then it lists a couple of subsections. One of them says, “give the offender an opportunity to rebut the possibility of such designation” and also to “present an alternative plan or means to address the offender's issues". That says to me that if you levy that designation on the offender, you have to give the person an opportunity to at least present an alternative plan or a means to deal with their issues.

In your opinion, would that potentially eliminate the next step of having to ensure that a plan is developed to assist the offender, which is found in proposed subsection 91.1(6), which you talked about? It could create some onerous conditions or some in-depth planning to decide how and where you would go about that. If the offenders were able to come forward with an alternative plan, most likely with the assistance of a case manager or a front-line officer, would you see that as being possible so that you would not have to invoke that subsection?

4:35 p.m.

Commissioner, Correctional Service of Canada

Don Head

That's quite possible, given the way it's prescribed there. It could lead to the possibility that an offender would propose an approach to dealing with the issues that we would deem much more palatable, much more acceptable, than a complaint and grievance process. That would become, again, for lack of a better word, sort of the behavioural contract between the institution or the case management team and the inmate in terms of the issues he or she may have.

4:35 p.m.

Conservative

Ryan Leef Conservative Yukon, YT

Would you see that as sort of a possible first-step recommendation or perhaps a policy item? When you're going through the steps and looking at somebody being deemed vexatious or a frivolous complainant, that might be something you would suggest downward, right at the outset, to case management, as an example. You would say, “I have to give the inmate an opportunity to rebut the designation or present an alternative plan, and I strongly encourage you to work with that person now to engage in that alternative plan, for me, so that we don't need to initiate subsection 91.1(6)”.

4:35 p.m.

Commissioner, Correctional Service of Canada

Don Head

Again, that's one possible approach. One of the things we would do, regardless of how the bill proceeds, and whether or not it is amended, is reinforce at our orientation for all inmates who come into the system the proper use of the complaint and grievance system, what could happen if they file for a list of vexatious grievances, and what they should be doing, if they have issues, in terms of working with the front-line staff and their case management teams to avoid getting into a situation of being deemed a vexatious griever.

4:35 p.m.

Conservative

Ryan Leef Conservative Yukon, YT

I want to go back now to Ms. Hoeppner's line of questioning on the impact on front-line staff.

With respect to vexatious complaints about staff, have you seen complaints that would be not just disingenuous complaints against staff but threatening, vulgar, and in bad faith? They might get to a point that erroneous allegations might even reach into criminal allegations that prove to be frivolous, vexatious, and in bad faith. If so, what impact have you seen that have on your front-line staff?

4:40 p.m.

Commissioner, Correctional Service of Canada

Don Head

We've seen some like that, on a regular basis, from some of our more repetitive submitters and multiple grievers. The language they use, the suggestions they put forth in terms of what people should be doing to themselves, are totally inappropriate and are inconsistent with the kind of attitude and behaviour we're expecting them to change. It's the kind of attitude or behaviour that's led them to be incarcerated. So it is a problem. Again, at the end of the day, an offender can put in such a complaint or grievance. We can investigate it. We can find that it's totally unfounded. We can issue a stern letter.

How does a staff member feel good about that? You've been subjected to a review, knowing that it's unfounded. You've been treated in a very disrespectful way, and at the end of the day, there are no significant consequences. As the system stands right now, the offender can start that process again tomorrow and file another complaint and another grievance.

4:40 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you, Mr. Leef.

Ms. Hoeppner.

4:40 p.m.

Conservative

Candice Bergen Conservative Portage—Lisgar, MB

Thanks very much, Mr. Chair.

Mr. Head, I'm just going to go back to proposed subsection 91.1(6) of the bill. When Ms. James testified, she indicated to us that when she referred to the point that the “institutional head shall ensure that a plan is developed to assist”, etc., she did not intend it to be a large and onerous document. She was actually concerned—and I think there may have been some wardens who expressed some concern—that using the term “a plan” could lead to that kind of assumption, because we talk about correctional plans, etc.

Can you please comment on that and let us know if you do have any concerns with that wording in the bill? Have you heard any concerns from institutional heads?

4:40 p.m.

Commissioner, Correctional Service of Canada

Don Head

Thanks for that question. It actually is a concern for us. It goes to my earlier comment.

Again, I find the intent of the bill absolutely bang on, and it will help us out. The prescriptive nature in terms of the ways it's laid out there I think potentially could create some problems for us. On the language around creating “a plan”, my concern about looking forward in that, whether it's a separate plan, or whether it's part of the correctional plan, is that this will be something where, if the offender has the right, then, to go for judicial review around the designation there, we know the courts will look to the law.

They'll look to the letter of the law. If they see the word “plan”, they're going to look for a plan, so that is a concern for us in terms of a sort of a procedural step that we're now going to have to put in place and that we don't have in place now.

4:40 p.m.

Conservative

Candice Bergen Conservative Portage—Lisgar, MB

Okay. Thank you for that.

You also talked about a grievance analyst.

I'm assuming, Mr. Dalton, that you're a grievance analyst. Is that correct?

4:40 p.m.

Shane Dalton Acting Analyst, Offender Redress , Correctional Service of Canada

Yes, I am.

4:40 p.m.

Conservative

Candice Bergen Conservative Portage—Lisgar, MB

Can you just tell us very briefly—I probably just have maybe three minutes or so—a little about what your day-to-day job is like? What do you do in terms of the grievance process? What's important, what's working, and what do you have to deal with when it comes to frivolous or vexatious complaints?

4:40 p.m.

Acting Analyst, Offender Redress , Correctional Service of Canada

Shane Dalton

By and large, in regard to what any of us analysts do, we'll get a file, and depending on what the issue is, it varies in thickness. Some of them are very small and some of them are very large. The first thing we're going to do is look at everything in the file, see what the issue is, and determine where we fall in terms of policy and what kinds of operational concerns we're looking at.

Over the last little while, I've answered predominantly grievances from grievers who have a tendency to submit multiple grievances. Essentially, the process is always the same. We look at the issue as it stands, as the inmate would present it. We're going to look at where our policies lie in terms of what we're supposed to be doing. Then it's really a question of matching it up. If the inmate himself is grieving something about operational concerns, we'll see what those operational concerns are as laid out in our policies. We'll verify to see that those concerns have been met. Then we'll respond to the grievance accordingly to make sure that it all matches up.

4:40 p.m.

Conservative

Candice Bergen Conservative Portage—Lisgar, MB

Do you actually see every complaint, or only when it...? If a complaint is dealt with at the lowest level, it wouldn't come to you. Is that correct?