Public Safety Committee on March 27th, 2012

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Would something like that get all the way up to your level?

[Don Head]

Yes. I've responded to small eggs, cold ice cream kinds of—

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

But by the time it gets to your level, I would imagine you have a form response for this kind of thing.

[Don Head]

Given the fact that after a final-level grievance decision an offender can make the decision whether they want to pursue this in Federal Court under a judicial review, we go through the same documentation as if it were a life, liberty, security issue.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

How many complaints or grievances would make it to a Federal Court review?

[Don Head]

Over the last five years there have been about 160. In the last three years we've been averaging about 17 a year. Most of those are found in favour of the crown or are dismissed. Very few are upheld by the Federal Court.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Could a so-called trivial complaint make it to Federal Court?

[Don Head]

It's quite possible, yes.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Who would fund that kind of case on behalf of the complainant?

[Don Head]

We do. I have to pay for my justice department lawyers to argue those cases. We have to go through determination as to whether we're going to fight it or mediate, whatever the case may be.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

An internal review of the complaints process was done in 2009. Why was an external review done subsequently?

[Don Head]

Partly in response to issues that the Office of the Correctional Investigator raised about whether our internal review was biased or not, I agreed with no hesitation to ask for an external review of our process. Our internal review looked at a slice. We asked to have the external one look at it more widely, with the intent of identifying whether we could make some major systemic changes to make it more effective.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Were there some suggestions for major systemic changes? Did the 2010 external audit support the 2009 internal audit?

[Don Head]

For the most part, yes. Some procedural pieces came up in the audit review. In terms of the external review that Professor Mullan had done, he identified some things for us to consider, including what we're doing now through the pilot—

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Do you think mediation could work?

[Don Head]

Yes, we are finding in the early stages. We have ten institutions right now that are doing ADR—alternative dispute resolution—and about 34% of the cases since November have been resolved through ADR. So we're happy with that.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

We'll now go back to the opposition. Mr. Garrison, please.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you, Mr. Chair.

Thank you to the witnesses, in particular Mr. Head for appearing here multiple times. We always find your testimony valuable.

I think I'm going to fall into the same trap I discussed about this bill, that it tends to take our attention away from the larger contributions of a complaint system to a well-run correction system. I talked before about how this helps identify problems within institutions. It helps relieve pressure by providing an outlet for those grievances, and it does help settle individual problems. By focusing on this small group, we tend to veer away from those positive contributions. Having said that, I'm going to do that myself.

You said something interesting. You said that you have a profile on the 25, I believe, and I'm presuming also on the 136 that are the most prolific. Have you assessed any patterns to the causes there, and have you explored solutions or programming to address them?

[Don Head]

We looked at each of the cases. We've identified factors that are mostly unique to each individual. I'll just give you an example.

There is a case we had several years ago. An individual who was doing a very long sentence had basically done many of the programs that he could do earlier on in his sentence, now had basically time to do, and decided to start to fill his time by writing two or three grievances a day. There really wasn't much in terms of programs we could do for him. We needed to find other things to occupy his time. When we did that, then he just found things that he didn't like about how his day was being filled, and he started to complain and grieve about those activities.

We know there are some individuals who have made it their raison d'être to flood the system, to keep the system occupied with these kinds of grievances. There's not much we can do. A couple of these individuals were relatively high-functioning individuals, well-educated individuals, and they made a very concerted effort to flood the system. This proposed bill, or something along these lines, will help us to deal with those individuals.

Your earlier comment, from my perspective, is right on: for the vast majority of offenders who have complaints, there's some legitimacy somewhere there. Most of it is being dealt with at the complaint stage, either giving offenders more information or correcting something, or setting them on the right path to resolution. It gives us an indicator if there are certain issues developing in a specific institution. But if our time is being taken up with those very few who are flooding the system with a significant number of frivolous and vexatious grievances, we're not able to serve the vast majority of offenders who may have some kind of legitimate issue.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Of those who are filing a large number of complaints, do you find serious complaints mixed in with the what you call frivolous and vexatious? Or would you find simply 100% of them frivolous and vexatious?

[Don Head]

The odd time there is something in that mix or in that list that has some merit, but nothing I would say that would be of absolute concern from a life, liberty, or security perspective. It's usually something from a procedural perspective that wasn't followed with that individual or his case. But the odd time there is something in there that ends up being upheld, or upheld in part, more than just an issue related to timeframes not being met.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

In using some kind of system like the bill proposes, where there's no volume threshold, do you see any danger that you might cast a kind of pall on the whole complaints system? In other words, people who have legitimate complaints might be reluctant to file some of those complaints for fear of being labelled and designated.

[Don Head]

No. Again, the vast majority of offenders who have filed complaints file fewer than ten a year. I think our average across the country is maybe four to four and a half complaints in a twelve-month period.

When you think about living in an environment where your day is very regimented, is controlled by others, four times a year where you might think you have a grievance about the way somebody managed you doesn't seem out of the norm. I don't think that's going to change anything for the vast majority of the offenders. Really, our read of this bill is targeting those 25 to 136 offenders who are submitting more than two a month.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Once these 25 or 136 are designated, then what happens with these people? Won't they simply turn to other methods of disrupting the system, if that's what you seem to be saying is the main goal?

[Don Head]

That's a good question. Depending on how this bill takes final shape and the processes that are in place, there's still going to potentially be the opportunity for them to bring forward issues. How they get reviewed or the frequency with which they get reviewed is yet to be determined.