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Evidence of meeting #35 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 amendment.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Mike MacPherson  Procedural Clerk

3:30 p.m.

Conservative

The Chair Conservative Kevin Sorenson

This is meeting number 35 of the Standing Committee on Public Safety and National Security, on Thursday, April 26, 2012. Today we're continuing our consideration of Bill C-293, An Act to amend the Corrections and Conditional Release Act (vexatious complainants). Today we are scheduled to go through the bill clause by clause.

In the second hour, we will commence hearing another private member's bill, Bill C-350, An Act to amend the Corrections and Conditional Release Act (accountability of offenders). I think Mr. Lauzon will appear and give us the reasons why he brought forward this private member's bill.

I will now turn to our clerk for direction and we will proceed on the clause-by-clause of Bill C-293.

I have had a chance to speak to counsel in regard to the amendments that have been brought forward. We've just had four or five more amendments brought forward by the Liberal Party. However, I need to disclose that the first amendment will be the government amendment brought forward by Ms. Hoeppner, because it deals with the bill.

Ms. Hoeppner, did you want to speak to your amendment?

3:30 p.m.

Conservative

Candice Bergen Conservative Portage—Lisgar, MB

So I can move it now and speak to it?

3:30 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Yes.

3:30 p.m.

Conservative

Candice Bergen Conservative Portage—Lisgar, MB

Thank you.

I have a bit of a lengthy explanation. Then we can discuss the amendment.

I want to begin by saying that our government—

3:30 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Excuse me. Maybe I should also say that if this amendment passes, it would mean that the other amendments, in consequence, would probably not be admissible. So you would have to....

Is that correct?

3:30 p.m.

Mike MacPherson Procedural Clerk

You just wouldn't be able to proceed with them, but we have two that might and—

3:30 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Okay.

3:30 p.m.

Procedural Clerk

Mike MacPherson

—that came right at the end.

3:30 p.m.

Conservative

The Chair Conservative Kevin Sorenson

So I'll leave that up to him. We just got them. He'll make that decision.

Yes?

3:30 p.m.

NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

Mr. Chair, with respect, I think we would still like the opportunity to move those motions and then have your decision.

3:30 p.m.

Conservative

The Chair Conservative Kevin Sorenson

You can't move them, but you can move an amendment. Yours deals with the one small line, line 200 or whatever it is. Let's see.... You may want to take a look when we come to that part of the amendment and then speak to it. You can draw out that you have brought forward an amendment.

Is that correct?

Okay. If the first amendment is adopted, that text would no longer apply in the bill, so you wouldn't be able to move that amendment. That's why you would have to speak to it—

3:30 p.m.

NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

Okay.

3:30 p.m.

Conservative

The Chair Conservative Kevin Sorenson

—while we're speaking to our amendment.

Proceed.

(On clause 2)

3:30 p.m.

Conservative

Candice Bergen Conservative Portage—Lisgar, MB

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.

Thank you.

3:40 p.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you very much, Ms. Hoeppner.

I know that Mr. Garrison is on the speakers list on this.

Mr. Garrison.

3:40 p.m.

NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

Thank you, Mr. Chair.

As everyone is aware, we have been feeling that this private member's bill is wrongly directed at a minor part of the problem with the overall complaints and grievance system. I don't believe this amendment addresses that question, which has been our main concern. However, the changes that are being made have some...or I guess one good thing: “written reasons”.

The amendment we were going to suggest to the existing system I think will apply, in any case, to your new proposed subsection 91.1(2). I will let Madame Doré Lefebvre talk about that in just a minute, but I believe we can....

The words we were thinking about adding previously were “taking into account the complainant's education and mental health”. So the way that you've rewritten the section, I think that amendment becomes in essence a subamendment to this amendment. I'll leave that to my colleague in a moment. The one good thing is “written reasons”, and we will accept that.

You talk a lot about regulations. However, regulations aren't in front of us now, and we have no guarantee that those who consider the regulations will have had the benefit of our discussion or the benefit of the testimony that we've heard before this committee. So with respect, it is a bit of a hollow promise, I guess I'll call it, to say that things are going to appear in the regulations when there is no guarantee that this would be the case. Obviously those who didn't have the benefit of the hearings in this committee, who originally drafted this bill, didn't reach those conclusions. I worry that those who weren't present might not also see the logic that we've seen here at the committee.

I believe originally the bill talked about applying a higher standard to future complaints from those who've been designated. This now appears to move this to simply closing off the possibility for one year for future complaints. One thing that Mr. Sapers said very clearly is that one of the problems in a complaints and grievance system is delay. So by taking one year to take someone out of the system, it may in fact increase pressures, increase problems, and cause that person to direct their anger or frustrations in other manners.

While I do understand that administratively one year might be better for CSC, I'm not sure it's better for a complaints and grievance process to have a ban placed on someone for an entire year. In that period of time, they might be moved from one institution to another. All kinds of things might happen in the period of a year that would change the circumstances dramatically for that person. So rather than seeing the one year as an improvement, I guess I would see it as making the situation potentially much worse for the person who had been designated.

I think for those reasons we would not support the amendment without taking into account what we wanted to do, which was to say that in making these decisions, if we're going to put this in legislation, we should mandate that the complainant's education levels and mental health be taken into account in making any of those decisions. That was the essence of the amendment we were going to propose separately.

I'll let Madame Doré Lefebvre talk about that, but I think that could apply to the new subsection 91.1(2).

I guess I'm seeking the guidance of the chair on whether we move a subamendment at this point.

3:45 p.m.

Conservative

The Chair Conservative Kevin Sorenson

I can go to our counsel on that, but to my understanding, the only way we'll ever be able to deal with your amendment is by a subamendment being moved. Because this generally takes away the ability to do that, you can move a subamendment.

We can hear Ms. Doré Lefebvre first, before we entertain that.

3:45 p.m.

NDP

Rosane Doré Lefebvre NDP Alfred-Pellan, QC

Yes, Mr. Chair, I have a subamendment to the amendment that the parliamentary secretary just proposed. As my colleague Mr. Garrison was saying, absolutely nothing in this bill addresses the mental health issues of offenders who file multiple grievances in a rather short period of time.

As we heard from Mr. Sapers and Mr. Zinger on Tuesday, the majority of offenders who submit multiple grievances have mental health issues. It would be extremely worthwhile to target that problem in our institutions and to add the following subamendment to the new version of clause 91.1(2):

(2) The Commissioner may, taking into account the complainant's education and mental health and based on the criteria established by Commissioner's Directive, designate an offender as a vexatious complainant when the offender has submitted [...]

Taking the mental health of these individuals into account is crucial.

Thank you.

3:45 p.m.

Conservative

Candice Bergen Conservative Portage—Lisgar, MB

I'm just not sure where this subamendment would fall into the amendment we proposed.

3:45 p.m.

Conservative

The Chair Conservative Kevin Sorenson

I'm going to see it in writing, and then we'll be able to figure that out.

3:45 p.m.

NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

At the end of the new proposed subsection 91.1(2)—

3:45 p.m.

Conservative

Candice Bergen Conservative Portage—Lisgar, MB

“The Commissioner shall review each prohibition...”.

3:45 p.m.

NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

—after the words “lift it”, “...taking into account the complainant's education and mental health”.

3:45 p.m.

Conservative

Candice Bergen Conservative Portage—Lisgar, MB

So that would basically be the amendment: “taking into account the offender's education...”.

3:45 p.m.

NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

Complainant's.