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Evidence of meeting #33 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 complaint.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Jay Pyke  Warden, Kingston Penitentiary, Correctional Service of Canada

April 3rd, 2012 / 3:30 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Good afternoon, everyone. Welcome to the Standing Committee on Public Safety and National Security. This is meeting number 33, Tuesday, April 3, 2012.

Today we are going to continue our study of Bill C-293, an act to amend the Corrections and Conditional Release Act, vexatious complainants.

We have appearing before us today, from Kingston, Ontario, via video conference, Jay Pyke, the warden at Kingston Penitentiary, and Melinda MacCrimmon, the grievance coordinator at Kingston Penitentiary.

Welcome, folks. We're pleased to have you joining us today by video conference.

A little later on, at 4:30, we will go in camera and we will work on our draft report dealing with drugs and alcohol in prison.

I'm not certain if any of you have ever appeared before a committee. We're pleased to have you here today. The committee is looking forward to hearing what you have to say in regard to Bill C-293, and we would open the floor to you. If you would be willing to field a few questions after, we'd be very appreciative. Welcome here.

3:30 p.m.

Jay Pyke Warden, Kingston Penitentiary, Correctional Service of Canada

Thank you very much for the welcome.

Good afternoon, everyone. I'm pleased to be with you today. My name is Jay Pyke. As noted, I'm the warden of Kingston Penitentiary, or KP, as we refer to it most often down here. Joining me today is Ms. Melinda MacCrimmon. She's an experienced grievance coordinator at Kingston Penitentiary.

I'd like to first speak to you briefly regarding KP to give you a sense of institutional life and then address some of the challenges we face pertaining to the offender grievance process.

KP currently houses approximately 390 inmates. It's a maximum security facility that accommodates high-risk, high-needs offenders serving a range of sentences from two years to life. The inmates at KP are serving sentences for a wide range of offences. The majority of them have violent histories, significant mental health and physical health concerns, substance abuse problems, and behavioural issues, or a combination thereof.

At KP, my staff and I are committed to delivering a high level of service to offenders in terms of maintaining their safety and security as well as programs and services aimed to reduce the risk that they may pose to reoffend. Given the profile of KP's offender population, it's clear that a fair, expeditious, and accessible grievance process without negative consequence is vital to us. We recognize that the redress process must reflect the values of our democratic society. For CSC, this process provides the mechanism to test our decisions and to ensure that they're made in a manner that respects the dignity of all individuals, while recognizing that our first priority is to ensure the safety of staff, offenders, and society.

I understand you've already spoken to our commissioner, our director general of rights, redress, and resolution, and a senior analyst in offender redress at NHQ on the matter of Bill C-293.

From my perspective, CSC's complaint and grievance process has four key benefits. First, it provides offenders with a means of redress when they feel they've been treated unfairly or in a manner inconsistent with law or policy. Secondly, it contributes to institutional safety through the early identification and resolution of problems as they arise. Thirdly, it contributes to offender accountability by encouraging offenders to resolve problems through an appropriate means. Finally, the process ensures that CSC's decisions affecting offenders comply with the rule of law.

As you're likely aware, there are four levels of the process. The first two levels take place locally at the institution, consisting of the initial formal complaint, followed by a first-level grievance. The complaint is responded to by the immediate supervisor of the person whose actions or decisions are called into question. The first level is responded to by the warden.

Mr. Chair, the first level will be my area of focus today.

At KP, during the 2011-12 fiscal year, a total of 501 inmate complaints and grievances were submitted locally at the site. Of these 501 complaints, 86, or 17% of the total grievances, were submitted by just three offenders.

The grievances submitted by these three individuals can generally be characterized as lengthy, complex, and involving many subjects or issues. This fact makes the total number of issues grieved actually larger than the 17% would suggest because they require multi-faceted responses.

Of the 86 grievances submitted by these individuals, two have been upheld. Three have been upheld, in part, owing to responses becoming untimely. The remaining 81 grievances were denied on the grounds that they had no merit.

As you can imagine, complaints of this nature place an incredible strain on institutional resources at multiple points of contact. The first point of contact is the inmate grievance coordinator, who's responsible for recording, assigning, monitoring timeframes, logging, and providing a response.

With regard to the three offenders I mentioned above, our grievance coordinators were often faced with the arduous task of checking for duplication of previous submissions and responses. Copies of these similar submissions are then placed into the review package for the benefit of the investigators so they do not reinvestigate an issue already responded to.

The next point of contact are the investigators themselves. Oftentimes at the middle management level it's consisting primarily of a correctional manager or a manager of an assessment and intervention. Each complaint must be investigated. The inmate must be interviewed and a response generated in a written docket to be provided to the inmate.

Remarkably, it only takes one offender to place a considerable strain on the process due to the significant amount of time required to investigate complex grievances. When investigating managers become bogged down by virtue of the volume of complaints, it ultimately leads to an increase in the time required to provide a proper written response to the inmate.

The impact of complaints of this nature, aside from slowing down the response capacity, is that they often create a great deal of frustration for the staff who continue to investigate complaints when they know there are concerns of merit related to them. What this means is that staff are less able to focus their time on investigating and resolving complaints that have actual merit.

This past fiscal year, one of three grievers referenced above submitted 35 complaints, 22 of which alleged harassment by staff. This volume led to the establishment of an external review committee. This three-person review committee was convened on my authority and consisted of an individual from the redress section at national headquarters, one from the redress section at regional headquarters, and a middle manager from a different site in the Ontario region.

Of the 22 complaints related to staff harassment made by this one offender, the committee was responsible for investigating a total of eight. In each circumstance, the committee found that the allegations of harassment were deemed to be without merit and were frivolous or vexatious in nature. This means that numerous steps and resources were invested at the institutional level to respond to an individual who consistently submits complaints and grievances that simply lack merit.

It's also significant to note that in the case of the three primary complaint or grievance submitters at KP, many of the complaints submitted were moved up by these offenders to the first-level grievance where a warden's response is required, despite clear responses being provided by the line managers I referred to earlier.

From my experience, it seems that for certain offenders there's an explicit intent to move the grievance to every level within the organization, regardless of the decision or rationale provided at the lower level. Beyond a strain on resources at all levels of the organization, there are additional impacts at the site level. An example would be that because frivolous and multiple complaints and grievances slow down the complaint or grievance process at the local level, it negatively impacts and affects those inmates who do not abuse the process and who deserve a timely response.

Ideally, the complaints and grievance system is an important check and balance process for institutional heads, wardens. It allows the warden to ensure that the institution and the employees are adhering to the principles of our mission and to relevant law and policy that provides an important redress mechanism for offenders. CSC is committed to providing a redress system that is fair, expeditious, and accessible to all offenders.

With that, I'll thank you, and I would certainly be happy, as would Ms. MacCrimmon, to answer any questions you may have of us.

3:35 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you very much, Warden Pyke.

We'll move into the first round of questions, and we'll go to Mr. Ryan Leef, please.

3:35 p.m.

Conservative

Ryan Leef Conservative Yukon, YT

Thank you, Mr. Chair, and through you to our witnesses, thank you very much for your testimony and your appearance here today.

Have you had an opportunity to read the proposed legislation at all?

3:35 p.m.

Warden, Kingston Penitentiary, Correctional Service of Canada

Jay Pyke

I have.

3:35 p.m.

Conservative

Ryan Leef Conservative Yukon, YT

Can you give me just a general comment on what your opinion is of the legislation, and to what degree do you think it may complement or hinder the current grievance process that you have?

3:35 p.m.

Warden, Kingston Penitentiary, Correctional Service of Canada

Jay Pyke

I think the principles of the proposed bill are excellent in terms of some of the challenges we face that I've just referred to.

I may ask you to repeat the second part of the question, and I'm sorry for that.

3:35 p.m.

Conservative

Ryan Leef Conservative Yukon, YT

I'm asking if you think the legislation will complement or hinder the existing grievance process that you already have.

3:35 p.m.

Warden, Kingston Penitentiary, Correctional Service of Canada

Jay Pyke

I think, quite frankly, it will complement. It's not overreaching. I don't see it having a large impact overall. I think it will significantly help us in terms of becoming more efficient with weighing out the true legitimate complaints that are brought forward.

Frankly, we're speaking of a small group of inmates overall, at a site level over a national level. But I do feel this is a tool we're missing right now that is having a significant impact at certain sites across the country. I can certainly say that I feel it impacts at my site. So in essence I feel it would be a complement.

In terms of hindering...again, from what I've read, I don't see from my perspective or my position how it would be a hindrance to the challenges we currently face.

3:40 p.m.

Conservative

Ryan Leef Conservative Yukon, YT

Under this legislation there are means to break the cycle of complaint. This legislation addresses multiple, frivolous, or vexatious complaints. Will this legislation reduce that behaviour? Do you think this will allow your staff to deal with legitimate complaints and focus on the inmate population in an efficient manner?

3:40 p.m.

Warden, Kingston Penitentiary, Correctional Service of Canada

Jay Pyke

I feel that it would reduce the strain on the process. As for reducing their ability to submit vexatious or frivolous complaints, I think it would be a tool for doing that. How would we operationalize it in the bill? What lies at the root of the problem, other than a need to clog the system? There hasn't been a policy at the operational level developed for that. We have certain elements that we use for segregated inmates who have problems integrating into populations. We have motivational-based intervention strategies in which counsellors work with individuals of this nature. They suggest ways to express problems and fill their time. Sometimes it motivates them to get engaged in some of the available programming. This might be systemic, since criminogenic needs or dynamic factors have yet to be addressed. I believe it would help to reduce the occurrences and would give us an opportunity to work on a one-on-one basis with these individuals to try to stop the pattern.

With regard to the responses at Kingston Pen, most of the time they're held up in part because we have only a certain number of investigators. If I get frivolous or vexatious complaints in a large quantity, it affects the ability of the managers to resolve the problems at the lowest level, which is our goal in the complaint process. I think we could avoid a lot of transmittals to a grievance level if we addressed only the legitimate complaints.

3:40 p.m.

Conservative

Ryan Leef Conservative Yukon, YT

Sometimes legislation changes inmate behaviour simply because they understand that there will now be consequences for behavioural choices, whether it's a rule change or a policy change. Presumably, if this bill were passed, there would some education required to let the inmates know that there are now consequences for vexatious, multiple, frivolous, or bad-faith complaints. Do you think the passing of this legislation within your institution would have a positive impact right at the outset?

3:45 p.m.

Warden, Kingston Penitentiary, Correctional Service of Canada

Jay Pyke

I think it would for the majority of offenders. But we're speaking of a small percentage of offenders. For those individuals whose responses have been subject to time delays, hearing something of this nature would be positively interpreted. They would know that the onus would be on the institution to demonstrate that we are becoming more timely in responding. That's usually how inmates interpret what something means. They figure out what is actually happening. So I think if we were timely at the outset, it would be well received.

I can only speak for my site, but the individuals who are responsible for complaints of a vexatious or frivolous nature are not generally well received in my population. Their issues aren't necessarily in keeping with the complaint-grievance process. Oftentimes they're standoffish with the inmate population.

So, yes, I think the majority would find benefit in it, as opposed to the small minority who are vexatious or frivolous complainers.

3:45 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you very much, Mr. Leef and Mr. Pyke.

Mr. Chicoine, you have seven minutes.

3:45 p.m.

NDP

Sylvain Chicoine NDP Châteauguay—Saint-Constant, QC

Thank you, Mr. Chair.

Thank you for coming to testify before the committee. In your presentation, you identified three people who make the majority of the grievances submitted at your institution.

What type of individuals are they? Do they have mental health issues, or would one of these three people be acting for other offenders, submitting grievances on their behalf?

3:45 p.m.

Warden, Kingston Penitentiary, Correctional Service of Canada

Jay Pyke

Thank you.

No. Quite frankly, two of them are very litigious individuals. They are not lower functioning; they are of average functioning, and I would argue that one is probably mildly above-average functioning. They are not representing anybody else. They really use this as a means to draw attention to or to focus on certain staff members—to call to attention that they may have had issues with them on the range, whether it is putting down a rule or making sure that policies and routines are followed.

I've reviewed the ones at our site and I can certainly say there are no lower-functioning ones there. I more often hear from our lower-functioning offenders through inmate requests, or what we refer to as “kites”—any kind of note on a piece of paper addressed to a manager or the warden. They put down their concerns and we take action on them separately from this process.

But the three at Kingston penitentiary are by all means normal-functioning individuals. They usually operate on their own; they don't operate in concert with other inmates. They don't usually have the support—and I can only speak to KP—of the general population.

3:45 p.m.

NDP

Sylvain Chicoine NDP Châteauguay—Saint-Constant, QC

Thank you.

Bill C-293 indicates that, when the commissioner prepares to designate that person a vexatious complainant, he must first inform the individual that he is about to be given that designation. Then, if the person continues, he must inform him a second time that, from now on, he is a vexatious complainant and he must give reasons for his decision.

The bill also provides that the offender will, in certain conditions, be able to continue to submit grievances or request judicial review. As you said, that type of person is going to use all the recourse available. It seems to me that this creates a lot of paperwork, a lot of information exchanges, and so on. I don't have the impression that this will really unclog the grievance process.

What do you think about that?

3:45 p.m.

Warden, Kingston Penitentiary, Correctional Service of Canada

Jay Pyke

I can't speak exclusively to the process because I don't have an operational process yet. I don't have something from a commissioner's directive to direct me to what the process would look like. I certainly have looked at it from the same proposal as you.

It would allow us the means to separate these inmates from the other inmates who are submitting genuine complaints and try to work with them, at least. I mentioned the MBIS, the motivation-based intervention strategies to try to sit down to root out the problem behind the submission of all these complaints and grievances. At this point I don't have a process to get to the root of what this is really about and what's driving it. They just continue to submit them.

The other significant impact is that this will allow us to prevent them from moving it on to the grievance process in our current system, where they can now take a grievance. They can actually grieve the fact that I've identified them as multiple grievers in our current process. So this policy will assist us in stopping them from moving it beyond the local institutional level to a grievance process.

Any inmate can pursue judicial review if they so choose. But I truly believe there is some merit to the process, in my experience.

I hope that answers your question.

3:50 p.m.

NDP

Sylvain Chicoine NDP Châteauguay—Saint-Constant, QC

The decision maker—you, in this case—can already dismiss a vexatious complaint. Have you already applied that directive? Have you already used this power to dismiss certain complaints?

3:50 p.m.

Warden, Kingston Penitentiary, Correctional Service of Canada

Jay Pyke

I have, on very limited occasions. What I'll say is that there's a lot of work that goes into naming somebody as a vexatious or frivolous complainant. I have to, one, basically answer the complaint or the grievance, and then, two, justify why it is that I am identifying this as a frivolous or vexatious complaint and submit it.

Again, the problem with the current process is that in turn they will turn around and grieve it to the next level, saying that they don't follow what I say as the warden, that they don't agree with what I say, and therefore they're going to go to the regional deputy commissioner and see what they have to say. If they don't like that, it will progress up.

I guess that's a big one for me: it's their ability to do that. Quite frankly, it's a bit of an arduous task to sit down with as many as you have.... Again, 500 is a significant number in a site where you have a lot of other operations going on at the same time. To sit down with these individuals and try to follow the letter of the current policy...I do find it rather time-tasking, and I'm not sure we're rooting out what we're trying to do.

I mean, they want a response. That's what motivates a lot of it. They want a response from the senior individuals and they're getting it. And now they're getting even more because I'm having to put more into explaining.

There's no merit to this, but all they care about, quite frankly, a lot of them—and it's my opinion—is the fact that they have a response from me. They've had to sit down and get a response from me.

3:50 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you, Mr. Chicoine.

We'll now move to Ms. Hoeppner, please, for seven minutes.

3:50 p.m.

Conservative

Candice Bergen Conservative Portage—Lisgar, MB

Thank you very much, Mr. Chair.

I also want to thank the warden, as well as Ms. MacCrimmon, for being here and for providing this information.

For Canadians listening to this, I think it's obvious that at the time this complaints process was set up, it was set up with the best of intentions in mind and in good faith that it would be used for the right means. You've indicated why you appreciate a complaints process and how it helps you do your job and helps offender accountability, and I think all of us recognize that, but as we're listening to some of the things that you're telling us, and we've heard other evidence from other witnesses....

For any common-sense Canadian, I think, making these changes is really a no-brainer. It's really hard to believe that.... I know that it's our job in that we have to look at bills completely and make sure we see the impact and if there are unintended consequences, but I think when we look at the simplicity of this bill and what it does, it really makes sense. I cannot imagine the frustration that you and the correctional officers must feel in having to deal with some of these complaints. When I hear about inmates....

I'm sorry, sir, but there are 390 inmates in the facility where you're the warden?

3:50 p.m.

Warden, Kingston Penitentiary, Correctional Service of Canada

Jay Pyke

That's correct.

3:50 p.m.

Conservative

Candice Bergen Conservative Portage—Lisgar, MB

So there are 390 individuals who are convicted criminals and who obviously don't know how to operate within the confines of Canadian law, and they are generating 501 complaints. The frustration level must be very, very difficult.

We've heard some concern from opposition members that if an inmate is designated as a vexatious complainant there could be a risk of one of your correctional officers taking advantage of that, and then maybe—I'm not sure, I don't know what the hypothetical would be—doing something wrong to this inmate because they would know that they have no way of complaining—

3:55 p.m.

NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

On a point of order, Mr. Chair, no one on this side has said anything remotely like that.