Thank you, Mr. Chair.
I wanted to begin by saying that the government fully supports the intent of Bill C-293. Ms. James brought forward this bill in order to give the commissioner the ability to stop an offender from making vexatious complaints or complaints that were not in good faith.
I did indicate during second reading that the government would propose amendments here at the committee stage to strengthen the bill, which is what this amendment would do. There are several things that it would do, so I'm just going to outline them so everyone knows what we're wanting to do.
We want to ensure that Bill C-293 is consistent with the existing act and regulations. This motion would amend Bill C-293 to ensure that the bill achieves its intended objective, which is to limit the number of grievances filed by vexatious and frivolous grievers and address the operational challenges, and that it's drafted in a manner that is consistent with the remainder of the Corrections and Conditional Release Act.
Right now for the CCRA, a very small piece of what it does is in legislation. The majority of what it does is in regulation, and I think we remember that Mr. Sapers referred to this as well. The majority of what this act does is not in legislation; rather, it's in regulation. When Ms. James introduced this bill, obviously she introduced it as legislation, as that is her only vehicle. What the government wants to be able to do is to continue and to see the results of this bill accomplished, but we want to see it being consistent with the way the act is written.
Under the existing legislation, the grievance process is outlined in the Corrections and Conditional Release Regulations—the CCRR, not the CCRA. This amendment allows for the process of dealing with frivolous and vexatious complaints to occur in the regulations that also govern the grievance process. The amendments ensure that Bill C-293 is consistent with the style of the existing grievance procedure as set out in the CCRA.
Currently, as I've said, the grievance process is laid out in regulation. We've heard references to that by some of the witnesses. The government believes that it should continue to be in regulation rather than in legislation.
Mr. Sapers, as I said, also seems to be of the same opinion. I recognize that in his testimony he didn't necessarily agree with what the bill is accomplishing, but he did reference that this being in a regulation as opposed to being in legislation makes more sense. He acknowledged in his appearance that an added “legislative burden” would make the administration of the grievance process more difficult and more expensive.
Our government recognizes this. That's why this amendment places the administration of the grievance process in regulation, not legislation. That's the first thing it does.
Secondly, the legislative amendment will give the commissioner the authority to prohibit an offender from submitting any further complaints or grievances, except by leave of the commissioner, if the offender has persistently submitted complaints or grievances that are frivolous, vexatious, or not made in good faith.
Without this amendment, the commissioner unfortunately would not have the authority to prohibit frivolous and vexatious grievers from filing an overwhelming number of complaints. That's why we want this to be enshrined in legislation but guided by the regulations. I'm going to go into the regulations so that we can all be assured that regulations will guide this process.
As well, the amendment would extend the timeframe for review of the vexatious complainant prohibition from six months to a year. We did hear testimony during the committee hearings that a six-month window would likely be operationally cumbersome for CSC, so the government believes that one year is probably more realistic than six months. It's a bit more workable provision.
Fourthly, the motion also provides that the commissioner would give written reasons to the vexatious complainant on the decision to either lift or maintain the prohibition. Again, this would be in legislation that would have to be written.
Corresponding amendments could be made to the Corrections and Conditional Release Regulations to give further precision to the administration of the vexatious complainant scheme in keeping with Ms. James' PMB, so again, regulation would be able to guide this process as it currently guides the grievance process. Again, as Mr. Sapers stated during his appearance, many of the changes contemplated would be more appropriately achieved through regulations.
I just want to give you an outline of what the regulations would entail so we can be assured that all of the things that would be in the legislated bill would now be in regulation.
The regulations would outline the duty of fairness and the obligation of the commissioner or the designate to inform the offender of the proposed prohibition and allow a reasonable opportunity to make representations in writing.
Regulations would also articulate the process for granting leave to file a grievance; for example, when it can be demonstrated that the grievance is not an abuse of process and that consideration be given to life, liberty, and the security of the person. That would be enshrined in the regulations.
In other words, even when an offender has been designated as a vexatious complainant, the scheme would still recognize that he or she may, in the future, have a legitimate grievance that should be dealt with. We wanted to make sure that this is in.
Regulations would also make clear that the decision of the institutional head to refuse leave is final and is not subject to the grievance procedure. Otherwise, it would unfortunately be an unending process. There has to be some finality, we believe, to the institutional head.
I also want to make sure that everyone is aware that all of the regulations are referred to the Standing Joint Committee on the Scrutiny of Regulations for review to ensure consistency. As well, they're made public. I think a committee would have an opportunity to look at those regulations if they so chose to.
In addition, this amendment would remove certain sections of the bill that don't make sense and would be unworkable and operationally challenging.
The items that are removed include proposed subsection 91.1(6), as it would add to CSC's burden and it's vague. Again, we think this should be addressed in the offender's correctional plan rather than creating a second separate plan. We heard testimony about that.
Also, proposed subsection 91.2(1) would likely result in an unintended consequence of even more burden on CSC. Given the cohort of offenders the bill is trying to address, the chances are that they would flood the system with additional material, creating an untenable paper trail for CSC. So again, the government does not believe that this is workable.
As well, proposed subsection 91.2(3) states that the “decision-maker may not refuse to hear a complaint or grievance...”. In our opinion, this would create and provide a loophole in the whole scheme, as offenders could argue that any unresolved grievance imposes adverse consequences. So we would like to have the process again laid out, whereby if there are legitimate grievances they would be heard, but the vexatious complainer would not be able to use this loophole to continue to make unending complaints.
Also, proposed section 91.3 is not necessary, as it already is implicit that anyone is entitled to apply for judicial review. We already know that. That's the right of every individual.
In closing, Mr. Chair, thank you for the opportunity to explain this. I'm sure we'll have some discussion.
As I said, during second reading debate, the sponsor of Bill C-293 stated:
What are the exact changes proposed in my Bill...? In simple terms, the bill would allow the commissioner of Correctional Service of Canada, or his assigned representative, to designate an offender as a vexatious complainant. Once this has occurred, the offender would be held to a higher standard of proof for future claims.
With this amendment, we're being consistent with the sponsor's desires for what this bill would accomplish. Again, the primary thing we are doing is that we believe it should be in regulation, in terms of guiding it, and certain pieces should be legislated.