Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 25 - Evidence for November 7, 2012
OTTAWA, Wednesday, November 7, 2012
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-293, An Act to amend the Corrections and Conditional Release Act (vexatious complaints), met this day at 4:15 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon. Welcome to the Standing Senate Committee on Legal and Constitutional Affairs. We are meeting today to begin our consideration of Bill C-293, An Act to amend the Corrections and Conditional Release Act dealing with vexatious complaints. This bill was introduced in the House of Commons by Roxanne James, Member of Parliament for Scarborough Centre, on September 28, 2011.
The bill was amended significantly by the House of Commons Standing Committee on Public Safety and National Security. The stated purpose of the bill is now to amend the Corrections and Conditional Release Act to allow the commissioner to prohibit an offender from submitting any further complaint or grievance, except by leave of the commissioner, when the offender has persistently filed complaints or grievances that are vexatious, frivolous or not made in good faith.
Bill C-293 was adopted as amended by the House of Commons on September 26 of this year and subsequently sent to the Senate and referred to this committee on October 25 for further examination.
Our committee hearings are open to the public and also available via webcast at www.parl.gc.ca. You can find more information on the schedule of witnesses on the website under "Senate Committees."
As I said, this is our first meeting on Bill C-293, and today I am pleased to welcome our first witness and the sponsor of the bill, Ms. Roxanne James, the Member of Parliament for Scarborough Centre.
Roxanne James, M.P., Scarborough Centre, sponsor of the bill: Thank you Chair and honourable senators. I am very pleased to be here. As you can imagine, being newly elected on May 2, 2011, it was a surprise to learn that private member's bills are treated as a lottery. Having been drawn number 22 on the list, I can tell you that I thought I had won the lottery. I was very happy about that and about the fact that I have had widespread support for this bill in the lower house, the House of Commons, from both the Conservative and Liberal parties. Again, it is a significant achievement for me and it is an honour to be here today to speak to the Senate committee. I look forward to your questions as well.
Bill C-293 is An Act to amend the Corrections and Conditional Release Act for vexatious complainants. I brought this bill forward in the house for many reasons, one being to ensure that the Correctional Service of Canada actually meets its legal obligation for a fair and expeditious grievance system.
I know that you have received some background, and I would like to thank the two senators for their opening remarks on this bill. I will just reiterate some of the statistical information that brought me to the decision to put this bill forward. In our correctional system there is currently a process that allows inmates to file grievances or complaints, and with 23,000 inmates across the Correctional Service of Canada there are about 29,000 grievances filed every year. Of the 29,000 grievances filed, about 20 inmates file multiple grievances, in excess of 100 per year. In fact, a handful of inmates have filed more than 500 or 600 grievances. One can imagine the kind of burden this has on our hard working front-line correctional officers. To make matters worse, the grievances that are being submitted by this handful of inmates are not legitimate complaints.
Less than 0.1 per cent of the total inmate population are filing 15 per cent of all the complaints that are being made through the grievance process. There are thousands and thousands of grievances filed by a very small portion of the prison population.
The changes that this bill will bring to the Corrections and Conditional Release Act which help ensure that the complaint and grievance process in our federal penitentiaries is fair and, most important, accessible to all offenders with legitimate complaints, not just the select few, the 20 or 25, who choose to clog up the system with frivolous complaints that have no merit.
When I started investigating this issue and learned of the degree of abuse of this system by a handful of inmates, I was shocked that it has gone on for so long. I also knew that a private member's bill targeting a specific area of the act could result in a significant improvement for the Correctional Service of Canada as well as for the prison population that needs to use this system for legitimate complaints. It was clear to me that these changes were long overdue, and that is one reason I decided to pursue this through a private member's bill.
The bill proposes to amend two sections of the Corrections and Conditional Release Act, sections 90 and 91. There are currently only two sentences in sections 90 and 91. These sections ensure that all offenders will have access to a fair and expeditious grievance system. This system is not only the law, it is a legal commitment. CSC is legally obligated to have a fair and expeditious system for inmates, so this is a legal requirement, but it has many long-term benefits as well.
First, it provides offenders with a means of redress, which is primarily the reason for that particular complaint and grievance system in CSC. Second, it contributes to institutional safety through early identification and resolution of problems. Third, it promotes offender accountability by encouraging inmates to resolve problems through appropriate pro-social means. Finally, it ensures that any decision made by the Correctional Service of Canada actually complies with the rule of the law. Again, this is a legal obligation, so my bill will actually help to fulfill that legal obligation.
When used properly, the grievance system ensures that offenders are treated fairly and are given a proper way to deal with their grievances. Unfortunately, there are those offenders who choose to abuse the system, submitting complaint after complaint in order to harass the staff or merely fill their days. In fact, in one of my visits to a penitentiary in Kingston, Ontario, the warden there actually said it is almost like a game to some of these inmates who file these complaints. It is a significant problem. In some cases, it is like a hobby. I am sure that everyone has heard in the media about these things. We have all heard the outrageous complaints about the ice cream that is too cold or the potato that is too small or the omelet that is not the right size. These are the complaints that our front-line, hardworking correctional officers are dealing with when there are legitimate complaints out there from offenders, inmates who really have a grievance that needs to be heard.
My bill seeks to address this small group of inmates. It will ensure that the complaint and grievance process works as it was intended to, and it will also support those inmates that have a grievance that needs to be heard. That is really important. Not only are these grievances an enormous waste of staff time and resources, but they clog up the system and negatively impact those offenders who must wait longer for decisions on legitimate complaints. That is key. Again, I refer back to 20 inmates, a handful of whom submit 500 to 600 complaints a year. These are people who are submitting two or three complaints a week.
I do not know whether this information has come up in the discussions prior to this, but sometimes inmates can submit a complaint, and if they do not have a response in time, they submit the same complaint again. CSC right now, according to the legislation, is legally obligated to review each and every complaint and respond to it. You can see how this is a real hardship. Not only do they have to respond to it, but the inmate actually controls the system. You can imagine someone complaining about the size of their egg or omelet. Someone will have to investigate it. It has to be logged in the computer and investigated. I am not saying this to make light of the situation, but the response may be, "Well, chickens can only lay eggs so big." We have a situation here where an inmate, if they do not like that answer, can actually appeal it and take it to the next level in the grievance process. It is a real hardship for the front-line officers, it is a real burden on the system, and it actually detracts from what the system was originally designed to do.
In effect, my bill, Bill C-293, would expand the language within sections 90 and 91 to provide the Correctional Service of Canada with a more effective grievance and complaint system, a system, honourable chair and senators, that would impose consequences on offenders who submit a high volume of frivolous or vexatious grievances. I believe that these amendments will help ensure that the complaint and grievance process will actually work as it was originally intended to by ending the troubling trend of a small group of inmates who abuse the grievance system. Again, we are targeting a small group of inmates. My bill will also achieve its intended objective in a manner that is consistent with the remainder of the Corrections and Correctional Release Act, and also the Corrections and Conditional Release Regulations.
My bill consists of three clear provisions that lead to this worthy goal. First and foremost, the commissioner will now have the authority to prohibit offenders who submit a high number of vexatious or frivolous complaints from submitting any further complaint or grievance unless the vexatious complainant designation is lifted. I want to make it perfectly clear that although they will be labelled and they are not allowed to file any more vexatious or frivolous complaints, if there is an issue that deals with the life, liberty or safety of that person, that complaint will still be heard. I made that perfectly clear as well in the lower house as well as in the House of Commons committee. I want to point out that this particular provision is in legislation for the very first time. I want to be clear on that.
The other point I want to make clear is, in the lower house, we had some comments that we are putting tape on someone's mouth and not allowing them to complain anymore. That is not the case. The intent of this bill is not to simply label the complainant as a vexatious offender and then close the door forever on any hope of having that designation removed. The second provision in my bill actually deals with the commissioner having the requirement to take an annual review of that particular individual and decide whether the designation of vexatious complainant should remain or should be lifted. It is an ongoing annual review of any particular offender who has been labelled a vexatious complainant. Again, to reiterate, if there is an issue that comes up and it deals with the life, liberty or safety of the person, that particular issue will be heard.
The third provision within my bill allows the Governor-in-Council to make changes to the Corrections and Conditional Release Regulations, as needed, to give further precision to the administration of the vexatious complainants' scheme, and this of course is in keeping with the current Corrections and Conditional Release Regulations.
Honourable senators, chair, I believe that Bill C-293 is an effective piece of legislation that will help to reduce the ongoing abuse of the grievance system by a handful of offenders. Again, I want to reiterate that it is a handful of offenders. This bill, although we are targeting a small group, will actually benefit the entire prison population.
Honourable chair, the intent of the vexatious complainant process is not to punish offenders but rather to hold them accountable for their actions. Bill C-293 provides the Correctional Service of Canada with clear steps that can be taken in the event of activities by vexatious complainants. It also promotes accountability by encouraging offenders to use the complaint and grievance process for the purpose for which it was originally intended.
I would like to take a moment at this point to thank all honourable members for their thoughtful review of my particular piece of legislation, Bill C-293, and also to thank you for inviting me to appear before your committee. Again, this is a small change to the legislation, but it will have a huge impact with real benefits to everyone. At this point, I now welcome any questions.
The Chair: Thank you, Ms. James.
Senator Fraser: Welcome to the Senate, Ms. James, and congratulations. It is a big deal to get a private member's bill any time, but so soon after you arrive on the hill, I think that is quite rare. No wonder you are feeling kind of pleased about it.
Your bill was dramatically changed in committee in the House of Commons. When I was listening to you just now describing your bill, sometimes I thought you were describing stuff that got taken out. You were describing version one of the bill, not the version now before us.
In particular, I do not see in the bill now before us, except in the title of the bill, reference to designation as a vexatious complainant. I do not see anywhere in this bill, as it is now before us, a provision to safeguard cases where the complaint concerns the safety or security of the person making the complaint. What I do see is pretty broad provision for the commissioner or the Governor-in-Council to make regulations to administer this bill as they see fit.
Perhaps you could begin by explaining to me why you are so sure that complaints concerning safety and security would be saved under the bill as it now exists.
Ms. James: Thank you, senator. First, you mentioned the component with regard to vexatious complainants. Are you asking about the definition of vexatious complainants? What were you referring to in the first part of your comments?
Senator Fraser: You had that description at some length in your original form. You have a definition of "complainant," and then you say the commissioner may designate an offender as a vexatious complainant, et cetera, and that phrase just does not appear here. That is not really essential. It just struck me that it does occur in version one of the bill but not in the bill as it passed third reading in the House of Commons.
I am more concerned about the provision that was saving complaints that could affect the safety and security of the complainer.
Ms. James: Within the prison system currently, there are two different types of grievances, the first is considered to be high priority and is heard within a short period of time, and the second is more general complaints.
With regard to your concern, proposed section 91.1 reads, at the end:
. . . prohibit an offender from submitting any further complaint or grievance except by leave of the Commissioner.
The commissioner will have the duty to ensure that the safety and the security of the person is always first and foremost.
Senator Fraser: But you do not say that.
Ms. James: It does not say that in here, but that is the difference between having something contained within the act itself and something appearing in regulations. In the Corrections and Conditional Release Act there are only two sentences in sections 90 and 91. The process and all the information behind the scenes are contained in the regulations.
When I prepared my original bill, I spelled out how the system should function. In committee, Mr. Sapers said that it would make more sense to have much of what was in my bill included in the regulations instead.
I am thankful that the committee listened to those comments, and I agree with the change that was made to my bill to put that into regulations. It makes sense. It is in keeping with how the regulations are laid out now for the Correctional Service of Canada.
Senator Fraser: I think I follow that argument, but I still find myself a little puzzled, because the current law does not provide for this prohibition on submitting complaints, so whether a complaint involves someone's life and safety or the size of their omelet is irrelevant. However, you are proposing a provision that says that inmates can be told that they cannot make any complaints. One of the things I liked in the original version of your bill was that you had this saving provision in the law. That will be gone. If the regulations say it, that will be good, but if the regulations do not get around to saying it, maybe that will not be so good.
Why are you so sure it will all be lovely?
Ms. James: I would not describe it as lovely. We are talking about the prison system and convicted criminals.
Senator Fraser: Please forgive me.
Ms. James: In the Correctional Service of Canada, before issues get into the formal complaint and grievance system there are two other methods that inmates can use to have their issues resolved. One is a very informal process. When I visited the penitentiary in Kingston, they spoke very highly of this method through which they try to resolve issues informally without having to log them into a computer and going through all the steps. Keep in mind that that will always be there. There are also clerks or coordinators who are inmates themselves who try to resolve issues among the prison population.
With regard to your concern about the life, liberty and safety of persons, this bill is intended to target a very small group of inmates. We are talking 20 to 25 inmates across all of CSC, which has a population of 23,000. This will target those who continuously log vexatious complaints without merit and with the intent to harass. As is stated in the first provision of the bill, vexatious complaints could not be filed except by leave of the commissioner. If there was an issue that needed to be addressed with regard to life, liberty or safety of the person, this is where that clause would come into play.
[Translation]
Senator Boisvenu: First, let me congratulate you on your bill. I am very happy to be the sponsor of this bill in the Senate, especially since, in the fall of 2010, I visited the penitentiaries in Quebec and what really jumped out at me was the grievance system. Unanimously, prison guards, social workers, professionals and prison directors told me that the complaint and grievance system in federal prisons was being used at every opportunity, for all sorts of reasons, and, because it was used so much, it became a joke.
They also told me that the system became permissive and it was frustrating offenders who had good reasons to file complaints, but, because some were abusing the system, legitimate complaints were not being processed within an acceptable timeframe.
The fact that complaints are not processed within an acceptable timeframe is like a vicious circle; the problem escalates, new complaints are filed, the issues become more complex and they take an awfully long time to be resolved.
I thought it was absurd that 30 or so commissioners are responsible for processing more than 1,000 complaints a year. That comes out to three or four complaints per day, considering the trips from Ottawa to Vancouver or from Ottawa to Newfoundland and Labrador. That system no longer made any sense both in terms of costs and efficiency.
So the system had to be reviewed and that was actually one of the recommendations I had made to Minister Toews at the time. I recommended that the prison complaint management system be fully reviewed in order to regain some credibility.
Contrary to what the senator said earlier about making sure that authority is not abused either, let me remind you that section 3 of the legislation says that people in prisons have the assurance that the correctional system is "carrying out sentences imposed by courts through the safe and humane custody and supervision. . .". So the concept of a humane complaint management system will always be enshrined in the legislation.
That brings me to my question. In your view, will we be able to restore the credibility of the bill that you sponsored in the House of Commons, and that I am sponsoring here, so that inmates abuse it less?
[English]
Ms. James: I absolutely believe that it will improve the system. In testimony in the House of Commons, the Commissioner of the CSC indicated that the cost to the system of dealing with 20 or 25 inmates is between $250,000 and $500,000. As I have said, less than 0.1 per cent of the prison population creates 15 per cent of all claims. If you remove those vexatious complaints from the grievance system, those resources can be directed to legitimate complaints by offenders who need to have their grievances heard and resolved. I absolutely believe that this is the correct change to this section.
There are other issues that need attention within our prison system, but as a private member I wanted to target something that would make a tangible difference with real benefits across the board. When I heard of this abuse by certain inmates within the system and its cost to taxpayers, I knew that I wanted to target it and I fix it.
Senator Baker: One would think that if someone submitted a complaint such as the ones you outlined, that the potato was too small or too large or the ice cream was too cold or too soft, the person looking at the complaint would simply throw it in the garbage and notify the person making the complaint that it was not going to be processed. Is that not the logical solution to the problem?
Ms. James: To you and me it may seem logical. The problem is that within the Corrections and Conditional Release Act there is a legal obligation to process each and every grievance that is filed through that system. As I mentioned in my opening remarks, part of the problem is that the inmates control the entire system. You and I would think that a complaint about a potato being too small would be frivolous and should be thrown out. The problem is that officials are legally obligated to enter that complaint, process it, investigate it and respond.
If the inmate does not like that answer, they have the right to appeal it to the next level within the grievance system. It is not just one level. It goes up three levels. At that particular point, you can imagine the backlog, the trouble, the burden and everything else.
I agree with your remarks that, logically, that would make sense, but that is not what is permitted by the law. They are legally obligated to process that complaint.
Senator Baker: Suppose the law were worded that if a person makes a complaint in a prison that is vexatious to the point that you have described it, in the first instance the decision maker should not have to deal with that. Upon appeal it becomes a grievance, because you make a complaint and then you grieve the decision that is made on the complaint, as you have outlined. Each successive decision maker in the grievance process should be able to say, "If a portion of your complaint is frivolous, then I can throw out the entire complaint and not deal with it." That seems to me to be the logical way to deal with the problem. If we had laws like that covering not just the first instance, the complaint, but also the grievance, that even if a portion of it were vexatious, then the entire complaint could be discarded. If that were in the law, you would not need your bill.
Ms. James: Actually, I disagree with you.
Senator Baker: Why is that?
Ms. James: They would still be able to submit the 4,000 or 5,000 vexatious grievances.
Senator Baker: But the person would be throwing it in the garbage. What time would that take up?
Ms. James: There would still be a person required to log it and —
Senator Baker: To throw it in the garbage. I can do at least 500 of those a day, in a half an hour. I can throw out potato too small, here it goes, here it goes, here it goes. Are you saying that if we change the law to that extent, that you would still not be happy with it?
Ms. James: The particular point that I am trying to get across with my bill is that it shows a persistent pattern of vexatious complaints. The issue that we have is not just someone logging one complaint, because as you said, one complaint, what is the big deal? Throw it in the garbage. I hear what you are saying. These particular inmates file not 1, not 10, sometimes not 100 but we are talking 500 or 600.
Senator Baker: So throw the 500 in the garbage, the potato is too small.
Ms. James: I disagree with you because I think our hard-working, front-line correctional officers should not be burdened with that particular task, 500, 600, 4,000 times a year.
Senator Baker: If I were to tell you that the very points that I just made are actually in the law, would you be aware of that?
Ms. James: I am not disagreeing with anything you have said. I have stated what my point is. There is a particular section within the act that deals with multiple grievers. This is not a multiple griever. We are labelling them a vexatious complainant so they are not able to submit these types of complaints in the future until the annual review. I have made that pretty clear.
Senator Baker: Well, it seems illogical. In every part of our society, we have a grievance procedure. If it is vexatious, it is thrown in the garbage. You are saying that that is not adequate enough for our prisons, to throw it in the garbage, and that it has to be dealt with and somebody has to be designated a vexatious complainant and not allowed to complain anymore. To me, it just does not follow that you would not accept that a vexatious complaint can be thrown in the garbage.
Ms. James: Someone still has to look at that complaint to determine that it is a vexatious complaint. Therein lies the problem. With our current system, the inmates themselves have the right to appeal. You mentioned in your remarks that they have the right to appeal it, and that becomes the second level and so on. Again, we are not talking about a large portion of the prison population. We are talking about 20 to 25, a handful of them, and 500 to 600 complaints a year. Can you imagine that? We are talking thousand of complaints.
Senator Baker: Throw it in the garbage. It takes ten minutes.
Ms. James: Multiply that by 4,000.
The Chair: Second round, Senator Baker.
Ms. James: Thank you.
Senator Frum: Welcome, Ms. James, and congratulations on the process so far. Just to the last point, the fact that you have said that fewer than 1 per cent of the prison population is generating up to 18 per cent of the grievances indicates that the numbers speak for themselves.
You mentioned in your remarks about this will also help to promote offender accountability. I know in this committee we spend a lot of time often speaking about the relationship between offender accountability and rehabilitation. I am wondering if you see any aspect of this, that if you hold them to greater account, that you will actually be aiding in their rehabilitation.
Ms. James: I absolutely agree. I want to correct something. You said less than 1 per cent. It is actually less than 0.1 per cent, and it is not 18 per cent but 15 per cent of all complaints logged. I just wanted to correct that for the record.
Senator Frum: I am happy to be corrected.
Ms. James: Sorry.
Senator Frum: No, it is important.
Ms. James: I agree with what you have indicated. Someone who has committed a crime and who has been incarcerated is paying their debt to society. The intent of their incarceration is that they also go through rehabilitation and take advantage of some of the programs that are within the Correctional Service of Canada such as CORCAN, basic adult education and so on. Those are the things that someone who is paying their debt to society ought to be focusing their attention on. They should not be making a game out of the complaint and grievance process. They should not be filling their time by intent to harass and so on.
I absolutely believe that this small group of inmates that are causing this problem should be focusing their attention on rehabilitation and that preventing them from doing this to fill their time will help direct them in that direction.
Again, the main focus of this bill is to ensure that legitimate grievances are heard in a timely fashion, and I just want to keep putting that on the table. That is the main direction of this bill.
Senator Jaffer: I have a number of questions, but I will start by congratulating you for your success. In my other life I was a lawyer and I did a lot of work on vexatious proceedings coming from prisoners, and I am aware of what you are saying. The challenge I have with this is the definition of "vexatious." Who decides that? I know you said it would be in the regulations. I do not see it in the bill.
Ms. James: It is the commissioner's directive. It is point 81. It is spelled out in there. The commissioner and people who are within the correctional service circles are very familiar with the terminology. I could read it out to you.
Senator Jaffer: No, no, I know that.
Ms. James: It is in there in black and white.
Senator Jaffer: I know that. I hear about the 1 or 2 per cent that are bringing all these complaints. I was asking you this because the person can still make a complaint. They can still make another grievance and send it to the commissioner. The commissioner has to look at it. It is not stopping them from making the complaint. They can still make the grievance. It goes to the commissioner, because they need the permission of the commissioner as the first step, and then the commissioner can decide whether they give leave or not, and then the commissioner every year has to give a written decision on whether he or she will lift that definition. How does that make any less work? This is threefold the work.
Ms. James: The actual offender would have to provide proof. They would be held to a higher standard of providing proof as to why it is related to life, liberty or the safety of the person.
Senator Jaffer: It does not say that in here.
Ms. James: It was in the original bill. It talks about except by leave of the commissioner. These are the issues that the commissioner would hear. They will not be allowed to submit the frivolous types of complaints, the ones without merit and the ones with the intent to harass. I sat in and listened to all of the testimony from the lower chamber and the House of Commons committee, and this is something that the commissioner of CSC is fully behind. He believes this will be a very useful tool, and, reasonably so. CSC is very concerned about the inmates who have legitimate grievances.
Senator Jaffer: The chair will cut me off, so please work with me. Please look at 91.1. You say that, first of all, the commissioner has to decide that they are vexatious, frivolous, not-in-good-faith complaints. That is the commissioner's first job, for one complaint. Then the complainant can file a grievance. Then the commissioner has to decide whether they will give them leave. Then the commissioner has to, every year, give written decisions why that person still will not be able to make a grievance without the commissioner's permission. That is three more times work that is being created. I do not understand how you will limit this.
Ms. James: For an actual offender to have the designation of "vexatious complainant," it is not just after one complaint or two complaints or three complaints.
Senator Jaffer: I get that.
Ms. James: It is hundreds of complaints, and it is a pattern of the intent to harass, the intent to file complaints that have no merit.
Senator Jaffer: Let us say for argument's sake that this person has made 500 complaints. On the five hundred and first complaint the commissioner will decide whether it is vexatious, frivolous or not made in good faith. The person can then make his or her five hundred and second complaint and the commissioner has to decide whether to give leave for that grievance, and the commissioner then has to state in writing every year whether that person stays in that category. Is that correct?
Ms. James: Keep in mind that much of what was originally included in my bill will now be in regulations and the Governor-in-Council will review those regulations to ensure that they are appropriate.
You are asking about the annual review. My bill originally called for a six-month review. I believe it was the commissioner himself who said that it would be quite cumbersome to review it on a six-month basis, so after the House of Commons committee had heard from multiple witnesses my bill was amended to have a review every 12 months. That partly addresses your concern that it will become a lot of paper work for the commissioner.
Some of your things that you are concerned about were removed from the bill by the committee of the lower house. I agreed with all of those amendments. I was happy with them.
Senator McIntyre: Thank you for your presentation, Ms. James. Proposed section 91.1 (1) of your bill, Bill C-293, states in part:
. . . the Commissioner may. . . . Prohibit an offender from submitting any further complaint or grievance except by leave of the Commissioner.
I note that the commissioner has a discretionary power. Hopefully that will not lead to an abuse of power on his part.
With regard to the words "leave of the commissioner," what will the offender have to do to obtain leave of the commissioner to submit a further complaint?
Ms. James: You may want to ask that question of the commissioner. I believe he is appearing in the next hour. Again, much of that will be spelled out in regulations. My bill amends the act by adding three new provisions to it. The sections dealing with this contained only two sentences, so this more than doubles that. Much of how it will function will be spelled out in the regulations.
Senator McIntyre: If the inmate does not get leave from the commissioner, I take it that he will retain counsel and make an application to the Federal Court for a judicial review.
Ms. James: Inmates have access to judicial review now. They do not necessarily need to just go through the grievance process.
Senator McIntyre: My understanding is that judicial review does not affect Bill C-293.
Ms. James: No, my bill targets sections 91 and 92 of the act. It does not deal with any judicial options or any other issues that fall within the Correctional Service of Canada. This is a very targeted private member's bill to hopefully resolve one specific issue for CSC.
Senator Joyal: Welcome. I have doubts that Bill C-293, as drafted, would meet the test of the Canadian Charter of Rights and Freedoms. In fact, I believe that this is contrary to the Mullan report. On July 13, 2010, David Mullan produced a report entitled The Report of External Review of Correctional Service of Canada Offender Complaints and Grievance Process
At page 30 of the report, entitled "Multiple Grievers," Professor Mullan recommends that the procedure for designating someone as a multiple griever and, as a consequence, restricting their access to the grievance and complaint process should be less onerous procedurally clearer.
The major defect I see in your proposal is that you give the right to the commissioner to suspend, at least for a year, the right of an inmate to submit a grievance without offering that inmate the capacity to plead his or her case before his right is suspended. I believe that that is contrary to what Professor Mullan says in his report, that is, that before you deprive someone of their right, that person has to have the capacity to plead their case for not having their right suspended.
Those pages of the report are very compelling because they address the very specific point that your bill seeks to address, which is to make the system workable and ensure that someone who abuses the system is prevented from doing so. However, the way I understand your bill, if someone abuses the system they are deprived from having access to it.
It seems to me that the principle of the rule of law has to be clearly stated when you give one person the responsibility to deprive another person of a right to grieve according to section 90 of the Corrections and Conditional Release Act.
Ms. James: Thank you for your question. I would first like to address the report and your reference to multiple grievers. I want to explain the difference between multiple griever and "vexatious complainant" which did come up in the House of Commons. A multiple griever could be someone who submits a large number of grievances multiple times, but it does not necessarily mean that those grievances are vexatious in nature. In the House of Commons committee some members of the NDP wanted to stipulate a number so that if someone submitted 50 complaints or 100 complaints they would be labelled vexatious. The argument that I made is that 50 or 100 complaints could be legitimate and need to be heard. The vexatious complaint scheme that I propose is based on a pattern of someone filing these types of complaints.
I have talked about 20 inmates filing 100 or more complaints and a handful of inmates filing 500 or 600 complaints. If you think about that, there has to be a point, be it after the second, the third or the fourth complaint, that the inmate knows that he or she is doing something that is not acceptable within the complaint and grievance process. I find it hard to believe that someone who submitted 100 complaints with the intent to harass, such as complaining that their potato was too small, would not expect to be labelled a vexatious complainant.
I hope that answers your question.
Senator Joyal: It does to a point, but it does not address the fundamental principle that the person who is to be barred from access to the complaint mechanism for a year should have the right to explain why that decision should not be made. That is what Professor Mullan stated clearly in his report.
Proposed section 91.1(1) does not recognize that guarantee. I am not against the ultimate objective that you pursue. I am wondering whether your shortcut would meet the test of the Charter. That is my preoccupation with the bill as drafted.
Ms. James: Just to comment on that, currently in the Correctional and Conditional Release Act itself, it is only two sentences. It basically says there has to be a system to fairly and expeditiously resolve grievances and so forth. None of the functionality of how the system actually works is spelled out in the act; it is more within the regulations and the institutions themselves. The point you make may be valid, but it certainly would not appear within the act itself. If someone has filed a continuous or persistent amount of vexatious complaints and appealed it, I would imagine somewhere along the lines within the prison system when they had responses given to them, that someone said, "This is not a legitimate complaint. It is without merit. If you do not stop, you might be labelled a vexatious complainant." I am sure that is something that would be done. The Commissioner of CSC is your next witness, and that is something that you can ask him. It is not contained within the act. It is not the actual changes I am proposing in my specific bill. It is laid out in regulations and within the institutions themselves for functionality.
[Translation]
Senator Dagenais: Congratulations on being elected, Ms. James. You were luckier than I was. But I am still in the Senate, so I cannot complain.
We must understand that offenders who are in prisons are there to pay their debt to society, and that prisons are not there to deal with paperwork. You mentioned that there were complaints and some of them were frivolous; you gave a few examples.
Could you tell us about the impact of those frivolous complaints on the service? When someone files a complaint, you have no choice; even if the person complains about potatoes, you have to take the complaint into account. Could you explain the implications of this logjam on the system and could you also talk about any related costs?
[English]
Ms. James: I mentioned in one of my other remarks that there are other ways to resolve issues within the inmate population, informal processes that do not hit the complaint and grievance system itself. Also, with the grievance, people within the prison try to deal with some of these complaints, but if it does hit the complaint and greivance process, it actually is logged and dropped into a box, for example, which is picked up and gets looked at and gets filed and logged in a computer. Someone is assigned, whoever is closely related to that particular issue. If it is a potato, maybe it is the cook. I do not know. Basically, it is assigned to someone to look at. They actually have to read the complaint and investigate it. Sometimes it requires interviews to satisfy the inmate that it has been done properly. Then they have to come back with a response.
Again, herein is the problem. The inmate controls whether they like that response. It could be a legitimate, logical response for all of us around this table, but to the inmate, they do not care. They want to cause trouble. They want to bog down the system. They are not concerned about the other inmates that have legitimate complaints. They actually appeal it and it goes up to the next level, which is the regional level. Within the regional level, it could be heard by two different people. Again, at each stage, it can be appealed if the inmate does not like the answer. I would imagine that if they did not like the first level answer, they will not like the second level answer. That is where you get the bottleneck. Again, 15 percent of all complaints lodged, and we are talking about 4,000 to 5,000 complaints lodged by less than 0.1 percent of the prison population. You can imagine the amount of resources. The commissioner of CSC quoted $250,000 to $0.5 million —
The Chair: I will interrupt. I have to ask you to tighten up your responses because we are getting short on time, and we still have several senators who wish to ask questions.
Ms. James: You can imagine the bottleneck with the resources and how much those resources could be used to deal with legitimate complaints. There was a particular case this past summer where someone sued CSC because their complaint had not been heard in an efficient manner. My bill would actually seek to address that particular issue and would have helped resolve that problem. That case may never have come forward.
Senator Cowan: Welcome, Ms. James. I had three points. Senator Joyal covered the Charter point. That is a concern we all have. We do not want to clear up one problem only to substitute another.
My second point deals with the line of questioning of my colleague Senator Jaffer. It seems to me that, in a way, we are simply bumping this up. If I were an inmate who was clogging up the system now with frivolous or vexatious complaints, however those are defined, and now I find that I have been designated and I am prohibited from doing that except with leave of the commissioner, then I will file the same number of complaints and say these are a matter of life and liberty or protection of my life or the fellow inmate or some concern and I want the commissioner to look at this. If the commissioner says, "I will hire a whole bunch of subordinates who will routinely just reject these," then that is an abuse of the process, too. If the commissioner is required to examine each of these complaints that will be characterized by the inmate who is determined to abuse the system, then what else will the commissioner do 24/7 but review complaints and say, "No, this is not, I refuse to grant leave?" It does not make sense to me that this will really improve.
The third point is that we all know you teach your children and we were taught as children to not cry fire when there is not a fire. You know the boy who cried wolf. How do you ensure that the legitimate complaint is going to be dealt with and is not lost because of the frivolous and vexatious complaints that have led to the designation that you have talked about? How do you deal with those two issues?
Ms. James: Thank you. Again, much of the functionality and how this will be laid out will be contained within the regulations.
Senator Cowan: You hope.
Ms. James: It is in keeping with the rest of the Corrections and Conditional Release Act and Regulations. That is actually how the process is laid out now. It is not contained within the act itself. The act itself contains only two short sentences. I want to make that perfectly clear. My original bill spelled it out.
Senator Cowan: We are dealing with the bill that passed.
Ms. James: Correct. I want to explain something. I will try to make an association. I came from a background in IT. I was a systems analyst. I designed business specifications. I outlined things in black and white on paper. People looked at it, and it was approved, and basically that text was put into the actual source code. I could not read it because I am not a programmer. I am just saying that the intent of my bill is here, laid out in the act, and the regulations will include all the individual functionality of that.
With regard to the other question about the boy who cries wolf, with the fact that someone has been labelled as a vexatious complainant, they will be held to a higher standard. If there is a particular issue that has to be heard, they will have to indicate why. It is not that they are going to simply just continue to submit the same vexatious complaints on a regular basis.
Senator Cowan: There are 500 different complaints, but they will all be characterized. They are going to be prefaced with appeal to the commissioner for leave, are they not?
Ms. James: They would have to prove that the particular complaint is of that nature so that the commissioner would actually hear it. That would be the only instance.
Senator White: I have one quick question. We have many other many organizations, federally, provincially and municipally, that have similar complaint processes to what we have gone through here. Do any of those have legislation or regulations that have a similar response to frivolous and vexatious complaints?
Ms. James: I am not particularly sure of that. I cannot answer that question.
The Chair: I have a quick question too about your comfort level, Ms. James, with the commissioner having the ultimate say in this. These people are filing complaints against his or her staff, filing grievances against his or her agency, and ultimately your bill gives that individual the discretion to forbid them from doing so. I am basing this on what we have seen recently with the Ashley Smith inquest where there was a fight to disclosure at every step of the way with respect to the Correctional Service of Canada. There is a perception out there that they are protecting institutional interests, and this bill gives the commissioner the ultimate say on that. Do you see any possible conflict of interest with respect to that?
Ms. James: I do not see a conflict in this particular case. You have to remember that the commissioner is not the first person who receives the complaints. It actually goes through level 1 at the institution level. Someone who has consistently submitted these types of complaints would have had to appeal it to have it get to the actual next level and so on up to the top of the chain. If someone files one particular vexatious complaint and it is at the institution level, the commissioner will not be able to designate that person.
It is clear it will have to have shown a pattern of these types complaints and, again, it would be brought up to the commissioner's level at that point. It is not a matter of closing your eyes and picking and choosing. There is a pattern, a history, and that is how it would be determined.
The Chair: I am glad you have that confidence.
Thank you for appearing.
For our second panel today I would like to welcome to the committee, from the Correctional Service of Canada, Mr. Don Head, Commissioner; and Elizabeth Van Allen, Acting Assistant Commissioner, Policy Sector.
Welcome Ms. Van Allen and Mr. Head.
Don Head, Commissioner, Correctional Service of Canada: Good afternoon Mr. Chair and honourable senators. I am very pleased to have been given the opportunity to appear today to discuss the legislation currently before this committee.
This legislation, which seeks to make amendments to the Corrections and Conditional Release Act, will make important and, as I will explain, welcome changes to the manner in which the Correctional Service of Canada addresses complaints and grievances made by offenders in the correctional system.
In providing input on behalf of CSC on Bill C-293 I am joined by Assistant Commission of Policy, Ms. Elizabeth Van Allen. Ms. Van Allen's sector is responsible for overseeing the grievance process as well as responding to offender grievances at the national level.
Honourable senators, the complaint and grievance process is mandated by law. CSC provides federal offenders with a fair, accessible and expeditious means to raise concerns about their treatment, their conditions, or decisions that affect them. The grievance system is currently composed of a four-level process. Complaints are typically initiated at the site or complaint level, although, depending on the nature of the issue, they can be initiated at a higher level within the process. They are always submitted to the supervisor of the person who made the decision or opposed the action that is being grieved. If the offender is not satisfied with the response at the complaint level, he or she can submit a first level grievance, which is responded to by the institutional head. Should an offender once again be dissatisfied with the response provided at the first or second level, he or she may appeal the grievance to the national or third level. Similar in many cases to the appeal process from the first level to the second level, appeals to the national level represent the final stage of the grievance system within the Correctional Service of Canada. Officials in Ms. Van Allen's sector will conduct a thorough review and analysis of an offender's grievance and prepare it for a decision.
As part of CSC's efforts to identify more effective and efficient measures to operate within its budgetary constraints, the decision has been made to eliminate the second level from the grievance process beginning in 2013-14. It is intended that this measure will result in a more streamlined grievance system with greater consistency in the way that grievances are handled. It is also expected to reduce the amount of time it will take to process an offender's grievance through to the national level.
In addition to CSC's current four-level process, offenders have the ability to seek legal remedy with respect to any decision made by CSC, including those made in response to an offender's grievance. Normally such legal remedies are pursued in Federal Court, although many issues are also pursued with the Canadian Human Rights Commission and tribunal.
Mr. Chair, a grievance made by an offender may relate to any number of issues with which an offender may have concern. Concerns raised by offenders may be diverse, varying from matters such as the circumstances in which an offender is confined to segregation to the temperature of an offender's food.
In providing responses to offenders' grievances an examination of applicable legislation and policy is conducted, and the determination is made with respect to the appropriateness of the particular decision or course of action that an offender is grieving. In essence, the response offers a policy-based explanation to an offender, either providing a justification for a particular decision or course of action when an offender's grievance is denied or providing an appropriate remedy in cases where an offender's grievance is upheld.
Not only is the grievance system a legal mandate of my organization, it also constitutes an important element of an effective correctional system. First, it encourages offenders to deal with issues that they may have in a constructive and pro-social manner, empowering them with the ability to seek recourse through appropriate channels.
Second, it is an important monitoring tool that allows us to identify trends that may be linked to increased tension or discontent among inmates and ultimately address these issues before they may pose a threat to the safety of the public, my staff or other inmates.
Finally, the grievance system represents one of the many checks and balances on CSC's decision-making and operations, ensuring that we carry out our mandate in accordance with the law and that we respect the fundamental rights of offenders.
Of course, Mr. Chair, the benefits of an effective grievance system may be undermined if those offenders who avail themselves of the process do not make submissions in good faith.
The bill before you today will seek to ensure that our system focuses our resources on legitimate complaints and grievances.
Bill C-293 will assist in preventing offenders who seek to abuse the grievance process from over-burdening my staff and disrupting a vital component of the correctional system.
Mr. Chair, CSC receives approximately 29,000 grievances a year. In recent years, a group of approximately 15 to 25 offenders have each submitted more than 100 grievances a year. Some submit 500 to 600 each, and have accounted for approximately 15 to 18 per cent of all grievances filed.
It is these offenders, those who submit grievances that we term frivolous or vexatious, who are the target of this piece of legislation. To clarify, we consider the term "frivolous" to refer to a complaint made with no serious purpose and the term "vexatious" denotes complaints submitted for the purposes of harassment or to disrupt the system. In both instances, such complaints occupy a considerable amount of time and resources at each level of the grievance system.
If Bill C-293 were to come into force, CSC would more easily be able to identify and manage these offenders. The Corrections and Conditional Release Act would be amended to allow us to designate certain offenders as vexatious and limit their ability to abuse the grievance system. Further, regulations would ensure that the designation was applied fairly and with appropriate safeguards and assure that if these offenders had legitimate complaints, that they would have appropriate channels in which to express their concerns.
In effect, this would allow for a better use of our resources and for greater attention being paid to grievances filed in good faith. It is hoped that this bill would contribute to a more expeditious system. Of course, this change would not only allow our grievance analysts to dedicate their attention to more productive ends, it would also afford offenders who file an excessive number of grievances the opportunity to occupy their time more constructively as well. Instead of continuously drafting grievances for submission, such offenders could focus their attention on meeting the objectives of their correctional plan and on more fully preparing themselves for a safe and successful reintegration into society.
Moreover, CSC has dedicated approximately $5 million to the salaries and operating costs of the grievance process this past fiscal year. Despite the considerable investments that have recently been made to the grievance system, CSC is still experiencing backlogs. My staff has estimated that CSC could realize savings of at least $250,000 as a result of Bill C-293. This legislative change would allow resources to be directed to more legitimate grievances and could ultimately contribute to a more timely and well-functioning system.
Mr. Chair, there is no doubt that CSC recognizes the importance of the grievance process to the federal correctional system. It affords benefits to both offenders and my staff, creating a channel to address concerns constructively. A well-functioning grievance system can contribute to an offender's accountability through appropriate problem resolution and development of pro-social skills and ultimately contribute to a safe reintegration. A well-functioning grievance system can also enhance the quality of the services we provide in our institutions, parole offices and community correctional centres, and to the safety and security of offenders and my staff. It can contribute to creating an institutional environment that ensures that the actions and decisions of staff adhere to the expectations of policy and legislation, and that policy and legislation are applied consistently and with due respect for the rule of law.
Unfortunately, a small number of offenders attempt to disrupt this important process and far too often succeed in doing so.
Mr. Chair, by no means does Bill C-293 affect offenders submitting legitimate complaints in good faith. On the contrary, this bill only targets those who seek to undermine the system and, in so doing, diminish the ability of legitimate grievances to receive the timely responses they deserve.
As commissioner, I will ensure that CSC remains committed to maintaining a grievance process that is fair, accessible and expeditious. I believe that Bill C-293 will prove to assist us in meeting these objectives.
Thank you once again for the opportunity to appear today and speak to this legislation. Both Ms. Van Allen and I would be more than happy to respond to any questions that you or the honourable senators may have of us at this time.
The Chair: Thank you, Mr. Head.
Senator Fraser: Welcome to both of you.
This is a short bill with fairly big implications. Mr. Head, this bill will, if it passes, give you a very significant discretion to proscribe systems and regulations and directives and all those good things that you use. However, as it has reached us from the House of Commons, it contains no definitions and very few limitations and criteria. Let me begin by asking you how you propose to define "persistently."
Mr. Head: Thank you, senator, for the question. For us, it is an issue that we would assess on an individual basis. An individual who files one or two or three does not seem to be persistent. Individuals who are filing 100, 200 or 300 do seem to be persistent. In terms of the figures I gave you in my opening comments, that range of 18 to 25 individuals, these are individuals who have filed in excess of 100 grievances in a year. That is our starting point when we are getting up to that many grievances being filed by individuals, and when we assess the content of the grievances that are being filed, that will help us to make an initial determination as to whether the persistent definition is being met.
Senator Fraser: When you get around to proscribing the procedures that this bill would have you proscribe, do you propose to include numeric guidelines?
Mr. Head: I do not think we would specifically set a number because I think that would be self-defeating in that we would have individuals, if we prescribed a number of 100, who would file 99 and then wait for the calendar to roll over. We will look at each individual based on their own merit.
One of the things that we would do, senator, if this bill passes, is to engage the offender population across the country, explain to them exactly what it means, explain specifically to these individuals what this means, and try to motivate them and encourage them to alter or change their behaviour. The last thing that we really want to do at the end of the day is to place that kind of tag on the individual, but this bill will give us the ability, if we deem it appropriate.
I think one of the other key words in that clause, senator, is the word "may," so it is not an automatic designation. "Persistent" is a key word for me, as you have already picked up on, and the word "may" is as well.
Senator Fraser: I know the chair will cut me off, and I have two more quick points that I wanted to address, if I may, and I will put them both together, chair.
Why would there not be an automatic time limit on the prohibition? As I read this bill, you can slap on a prohibition and there is no automatic end to it. All you have to do is write back to the prisoner once a year and say, "No, we still think you are persistently frivolous." There is no safety net there to protect a complainant who will no longer be frivolous.
Second, there is a provision for this person to submit a further complaint or grievance with leave of the commissioner, but how will the person get leave of the commissioner? What will be the procedure there, and how cumbersome will it be?
Mr. Head: I apologize for the long explanation before. I did not mean to cut into your precious time.
Senator Fraser: It is tension. We need the information, and we do not have the time.
Mr. Head: I will try to answer this as clearly and quickly as I can.
With regard to the annual review, if an offender is continually submitting issues that would be deemed frivolous or vexatious for seeking leave in that period of time it would be an opportunity to tell the offender that we will continue the designation after the annual review. As we are looking for behavioural modification, if their behaviour changes in that year it would be an opportunity to lift that designation and monitor their behaviour going forward. Regardless, we would give the reasons that we would be continuing the designation.
We have talked about whether we would wait a full year to do the review or we would do it sooner. The law says that at a minimum we have to do it annually. I could set that at six months or quarterly based on the individual's behaviour. We want to see good improvement in an individual's behaviour, and if they show that we can change it.
In terms of the submission for leave, we would treat that through the normal processes. If an individual has a designation as a frivolous or vexatious griever, that request would be sent on an expedited basis to headquarters for review to determine whether leave would be granted.
[Translation]
Senator Boisvenu: Good afternoon. I have three quick questions. Does the Office of the Correctional Investigator also invest resources in the management of those complaints?
[English]
Mr. Head: Not as it relates to our specific grievance process.
The Office of the Correctional Investigator's mandate is slightly different. The Correctional Investigator can choose not to investigate or pursue any complaint an offender brings forward. I do not have that choice now.
[Translation]
Senator Boisvenu: In terms of costs, do the resources provided by the Office of the Correctional Investigator for the management of some complaints have to be added to the $5 million you mentioned?
[English]
Mr. Head: I could not speak for the Office of the Correctional Investigator.
[Translation]
Senator Boisvenu: So the system costs more than $5 million, correct?
Mr. Head: Yes, for CSC.
Senator Boisvenu: We know that, in federal penitentiaries, the percentage of the population with psychiatric illnesses is quite large; we are talking about approximately 20 per cent. If a psychiatric patient has a complaint about a "normal" offender — I apologize for the term — do you handle those complaints in the same way? Or is there another way to deal with those complaints to ensure that a psychiatric patient, without being neglected, will be treated differently?
[English]
Mr. Head: In general, the process is the same. However, with the recent changes to the Corrections and Conditional Release Act as a result of the passage of Bill C-10, we now have to take into account the state of the mental health of an individual. That recent change in legislation is one factor that we would have to take into account in applying the provisions of Bill C-293.
[Translation]
Senator Boisvenu: The principle of rehabilitation is based on accountability, and, if people make completely unfounded complaints, that goes against the principle, I believe. This bill is very interesting in that respect.
Once you can exclude the filing of complaints from the process, will the decision be binding from the beginning, or will there be a gradual process with notices or warnings? Will this ensure that offenders who are excluded will be excluded because they excluded themselves by not reforming their ways during the process of dealing with the authorities?
[English]
Mr. Head: At the end of the day, this bill will not exclude an offender from bringing forward a legitimate complaint or grievance. If someone receives a designation as a frivolous or vexatious griever and they still have a legitimate complaint or grievance, the provisions for granting leave for that grievance to come forward will come into play.
[Translation]
Senator Boisvenu: My question had to do with how long it will take before offenders are excluded and whether the process will be gradual, the way it is for businesses; first, they give out notices, then a one-day suspension, followed later by dismissal. The company takes gradual actions before it excludes the employee and I would like to know if you will be using the same sort of procedure.
[English]
Mr. Head: That is a very good question. If this bill passes, we would sit down with offenders through inmate committees, particularly offenders who we currently consider to be frivolous and vexatious, and be very clear with them about the ramifications of their behaviour. As you are well aware, we are trying to modify their behaviour to accept responsibility for their actions. If they are deemed to have no mental health issues impairing their judgment and to be purposely submitting frivolous and vexatious grievances, they are costing taxpayers money and jeopardizing the system that is in place for all offenders. We want to make that clear to them.
One tool that we have to deal with that is the correctional plan. We could spell out in each offender's correctional plan the expectations of them so that we can monitor their progress and their behavioural change.
Senator Baker: Mr. Head, I appreciate the very difficult position you are in from time to time. It is very nice that the commissioner can designate work to assistant commissioners, which you were at one time, such as appearing before the courts.
Recently the Federal Court dealt with the question of your backlog. I refer to paragraph 66 of a decision of July 31, 2012, Carswell NAT-2820, the Federal Court. You know the case. At paragraph 66 the assistant commissioner's decision states that over the last couple of years the Correctional Service of Canada has encountered a significant increase in the volume and complexity of complaints and grievances and that, as such, there have effectively been delays in the response time of grievances. Throughout that decision there is nothing about frivolous complaints causing a backlog.
You cannot have it both ways. You cannot have the assistant commissioner coming before a court and saying that this is the reason for the backlog and you coming before another judicial proceeding, which this is under section 118 of the Criminal Code, and saying that the reason for your backlog is something else.
Here is the law regarding vexatious complaints. Article 74(4) of the regulations says:
A supervisor may refuse to review a complaint . . . where, in the opinion of the supervisor, the complaint is frivolous or vexatious or is not made in good faith.
In 2003 you say that if portions of a complaint or grievance are considered frivolous, vexatious, offensive or not made in good faith, the decision maker may reject the entire grievance or portions thereof.
Why are you supporting a bill like this? You already have the tools. Throw it in the garbage. What is wrong with the correctional service? Perhaps we should have a bill to investigate why the service is not following the law in rejecting these complaints rather than stopping the complainant from complaining.
Mr. Head: That is a good framing of the question, senator. I will mention a couple of things.
In relation to the issue of the rejection of a complaint by a supervisor at that very first level, the level of where the offender interacts with the staff member, it does not preclude the offender from pursuing a grievance. What happens is that a complaint may take on one shape. When they move the grievance up to the second level, they may add in another component. When they move it to the second level, they may put a slightly different spin on it.
Every time those move up in the system, every one of them has to be examined to make sure that we are not missing something. If we were to take the initial rejection, which may have been for "X" and the offender adds an additional element into the grievance at the first level, the second level or the third level, it has to be examined to ensure that it is either still part of the initial complaint that was rejected, or there has not been injected a new issue that may have some merit and needs to be properly examined.
That is one of the challenges that we have. One phenomenon we see is as an offender moves an issue forward and puts up an issue regarding "X," and the previous level has been late, even if it is by one day in terms of the time frame to respond, the offender then will include in the grievance that the time frame was not respected. That usually ends up with us not being able to reject the grievance. We have to uphold the grievance in part because there is now a new element that indicates that there is merit to an issue that the offender has brought forward.
Senator Baker: I will have to disagree with you on that, sir. I can quote case law that says you cannot go adding new subjects as you go up the appeal line, but I will leave it alone.
Let me ask you a key question. In Canadian society, we have the procedures of grievances along the way in organizations, associations and, as Senator McIntyre knows, the ultimate appeal is to the Federal Court, and that is 18.1 of the Federal Court Rules. In those rules it defines an order that can be made for a vexatious litigant. In our superior court rules, the same provision applies. Usually, costs are awarded and it is done in a judicial proceeding. The case law says that that proceeding cannot take place ex parte. It cannot take place with one person deciding in an office. It cannot be done.
How do you expect to be able to make a decision of a frivolous complainant within the same parameters of a frivolous litigant in law and in the rules of court all by your lonesome, in secret, examining the record? Do you think that would ever withstand the Charter?
Mr. Head: Again, that is a very good question, senator. I have a couple of points.
In terms of the process, there is jurisprudence that says that this is not a judicial proceeding so the rules in terms of administrative process do differ. That has been very clear in jurisprudence going back many, many years. On those very specific, tight rules you are talking about even in the appeal process I agree with you. In a judicial process, you cannot add new elements to an appeal. However, in a grievance process, through an administrative process, it can be added. We have in the past had the Federal Court say that the other issue had not been addressed.
Having said that, coming to your comment about ex parte, this is not a process that we see where I would be closing the door and flipping a coin and making a decision that the offender will be deemed frivolous or vexatious.
Similar to the processes that we use, which have withstood oversight by the courts around decisions that we have to make in terms of involuntarily transferring an offender from one institution to another, we have to follow the duty to act fairly, which would include indicating to the offender that he is being considered as a frivolous and vexatious griever, giving him to opportunity to provide information as to why he should or should not be considered a frivolous, vexatious griever. If the decision is to proceed based on all the information that has been presented, including the offender's version, then the offender is provided with the decision and the reasons for the decision in writing.
Senator Baker: The chair just cut me off.
The Chair: I have been more than generous because of your excellent questions.
Senator Dagenais?
[Translation]
Senator Dagenais: Thank you, Ms. Van Allen and Mr. Head. I listened to your presentation, and I was certainly a bit taken aback when I saw that there are four levels in the complaint and grievance process; that is a lot. Obviously, we must respect the fundamental rights of offenders. I may be wrong, but I sometimes feel that some complaints come from grumpy children, not adults who have to pay their debt to society.
That being said, is there a typical offender who files grievances repeatedly? Is it someone who is alone or part of a group? Can you come up with a profile? I understand that there are inmates who file grievances repeatedly; but do they do so alone or as part of a gang, just to throw a wrench in the works? You must know what it is all about and how it works.
[English]
Mr. Head: That is a very good question, senator, and thank you for that one.
No, we do not find that gangs gather together in that manner. For the most part they are usually individuals who are acting on their own for their own purposes. It could be an individual who has a lengthy sentence and feels that one of the ways of filling time is to submit grievances. It could be situations where somebody has become frustrated with something, starts off as a legitimate grievance, and then moves into grievances that because he did not get the answer that he was looking for then decides to raise complaints about everything and anything that he can think of, including the way an officer looked at him.
We had a situation not too long ago where an inmate filed a grievance that makes its way all the way to the third level because the inmate stated that the staff members knew it was his birthday and they did not wish him a happy birthday on that day. He was able to file the complaint, file the first level grievance, second level grievance and come all the way up to the third level grievance. For me, that is an absolute misuse of the system and an absolute misuse of taxpayers' dollars.
[Translation]
Senator Dagenais: Maybe, if it is the person's birthday, you could make a little cake. . .
Mr. Head: That is possible, sir.
[English]
Senator Jaffer: I want a bit of a clarification on your presentation. You said on page 6 of your presentation that you get 29,000 grievances a year, and there is a group of between 15 to 25 offenders who have submitted over 100 grievances. Are we talking about 25 offenders?
Mr. Head: Currently, yes.
Senator Jaffer: Are they in one institution?
Mr. Head: No, they are spread across several institutions throughout the country.
Senator Jaffer: You alluded to this when Senator Dagenais asked you about it; what is the profile of these offenders?
Mr. Head: That is a very good question. It ranges. We have some individuals who are serving life sentences, very long sentences and others who have shorter sentence lengths in comparison to the life sentence for six years. Some of the individuals are repeat offenders, so have come in, gone out, committed a crime and come back into the system.
There is no standard profile. That is one of the things that we looked at in the beginning. We looked at whether there is something that would indicate to us what a typical griever of this kind would be so that we could start to work with them differently, even in relation to a simple thing such as their literacy level.
We have individuals who are not extremely literate to individuals who are university educated. The demographic, the profile of the individuals is quite varied.
Senator Jaffer: As we are running out of time, I will put three questions to you and then the chair can decide how long you speak.
You spoke about persistence. If you stop a person from grieving, they can no longer be persistent, so how do you decide when they stop being persistent?
The other question relates to your definition of good faith. One thing really concerns me about this bill. I have heard you say that you are streamlining and saving time. As Senator Baker said, you have challenges in meeting time limits anyway, but you will first have to decide if someone is vexatious. Then, if they want to make a further complaint, they come back to you, or whoever you designate, and that person will decide whether that complaint is legitimate and whether it should proceed; and then every year you make a written decision as to whether they are still vexatious. This is three times more work, is it not?
Mr. Head: In the grand scheme of things it may seem like it is three times more work, but in terms of the number of staff who have to analyze every single grievance that comes up, do the research and background, it is a significant savings in time for us, to deal with your last question first.
Senator Jaffer: Explain to me how it is a significant saving for every complaint you get.
Mr. Head: In this case we would be looking at the issue as to whether it is something that will be deemed falling into the categories of life, safety, security type issues. These are higher level. If someone is consistently complaining about — and just using examples we have had in the past — their ice cream is too cold or their egg is too small, those kinds of complaints are not ones for which we would grant leave. However, if an individual is complaining about the conditions of confinement in segregation, if they are complaining about how the staff may have managed him or her in a use of force situation, those are issues where we would grant leave for that grievance to be heard.
Senator Jaffer: After that would you determine every year as to whether that person still needs your leave?
Mr. Head: Yes. The way the bill is constructed is minimally. Annually we review the situation, but as I mentioned in relation to Senator Fraser's comment, administratively it could be quarterly or every six months. If an individual is no longer filing issues to be considered to receive leave to go forward, we could say we think we have seen the behavioural modification that we are looking for, and we could then lift that designation and the person would have normal access to the grievance process. However, if that behaviour started up and became consistent again, we could re-establish a frivolous or vexatious designation.
Senator Jaffer: Can you answer my other questions?
The Chair: We are moving on. Senator Cowan?
Senator Cowan: Back to the behaviour modification point, in your remarks you talked about the correctional plan and the purpose obviously being to prepare the inmate for safe and successful reintegration into society. You then say that by passing this bill you will clean up the process but you will also "afford offenders who file an excessive number of grievances the opportunity to occupy their time more constructively as well. Instead of continuously drafting grievances for submissions, such offenders could focus their attention on meeting the objectives of their correctional plan."
Do you really believe that would happen?
Mr. Head: I do, senator. I believe it is possible.
Senator Cowan: Do you think that simply by passing this and holding the sword over their heads they will occupy their time more constructively? Can you not do that with a modification of the correctional plan now?
Mr. Head: We can place that in the correctional plan, but as it stands right now, the offender can continually submit complaints and grievances. If we have an individual who then is deemed to be a frivolous and vexatious griever and know they would have to seek leave, our staff would be working with them more diligently letting them know they will not be able to bring forward these frivolous, vexatious grievances any more. They will let them know we have identified in the correctional plan very specifically the types of education, programs, skill development and work skills development opportunities the offender should be following and motivating the offender to do that.
Senator Cowan: You cannot do that now?
Mr. Head: Staff can try, but the offender can continue to file grievances at the same time.
Senator Cowan: The other point you mentioned is that these 15 to 25 people file 15 to 18 per cent of the 29,000 complaints. That, by my rough calculation, means 4,300 to 4,500 of these complaints are from these individuals. If these individuals are doing this for frivolous and vexatious purposes and to frustrate and abuse the system, then they will preface every one of their complaints since they have to apply to you for leave. They will use the words which the sponsor of the bill hopes would appear in the regulations dealing with life, liberty and safety. They will frame the complaint in that way, and it will go to you. You will have to deal with it. Let us assume that three quarters of those people do it. You will have another 3,000 complaints that you personally will have to deal with, and you will need staff to prepare the material for you. How is that saving?
Mr. Head: Again, senator, we are looking to have the behaviour modified. If that behaviour continues and we find in those cases they start to use those words and the grievances continue to be rejected, we will be providing a higher level of scrutiny in terms of the issues that they bring forward.
One thing we are doing, as I mentioned in my opening comments, in order to avoid some level of duplication that occurs right now and to try to expedite the process, is eliminating the second level grievance system because at times we see the same amount of time and energy is spent to research.
Senator Cowan: Just one last question, if I may, chair. Getting back to Senator Baker's question, do you not think you would be better advised to focus your efforts and expectations on dealing with the backlog you have, that Senator Baker referred to in the report, rather than dealing with this very small number of people? It seems to me that you are focusing on the wrong end of the problem.
Mr. Head: We are actually focusing on both ends of the problem, senator, and this is a piece that will help us with the backlog. Part of the backlog is as a result of having to deal with the frivolous and vexatious grievances we receive.
The Chair: I am sorry; we will have to move on.
Senator McIntyre: Thank you for your presentation, Mr. Head. I take it we are dealing with people found criminally responsible as opposed to people who are not found criminally responsible under the code, right?
Mr. Head: That is right, senator.
Senator McIntyre: In speaking of persons found criminally responsible, my understanding is that Mr. Howard Sapers, Canada's corrections watchdog, pointed out in the correspondence I have read that some of those who file multiple grievances suffer from significant mental health issues. Would you agree with Mr. Sapers on that issue?
Mr. Head: There are individuals with mental health problems who file grievances. The 25 I am talking about do not fall into that category.
Senator McIntyre: The 25 you are talking about were found criminally responsible, right?
Mr. Head: That is right, senator.
The Chair: I know, Commissioner Head, you were here when I asked the previous witness about the perception of conflict with you making these decisions because these are complaints within your system. Is this bill premature given the Ashley Smith inquest?
It strikes me that this process will be under scrutiny at that inquest. The Correctional Investigator reported that Ashley Smith made eight separate complaints about her treatment, seven of which were dismissed and one, which had a high priority designation, being opened two months after her death. That will obviously be a consideration of the inquest with respect to how the system deals with the complaint process. I wonder about the timing of this legislation.
I would also like to ask you about the issue of conflict. We have two former police officers here who can correct me on this, but if you have a complaint against a police officer you can go to the local constabulary, but if you are not satisfied you go to a civilian commission.
Do you think it would be more appropriate to have someone outside of the system who could make the decision with respect to designating someone as a problem complainer rather than leaving it in your hands?
Part of my concern, rightly or wrongly, arises out of the Smith inquest and the fact that the Correctional Service of Canada made every effort to keep the videos showing how your organization dealt with Ms. Smith away from the inquest and away from public viewing. That raises some concerns about the objectivity with which you deal with these kinds of issues going forward.
I will give you the opportunity to respond to that.
Mr. Head: Thank you, Mr. Chair. As you can appreciate, I will not comment on the inquest and the specific situation that you cited.
Under Bill C-293, an individual who had filed seven or eight grievances would not be someone we would be looking to designate as a frivolous or vexatious griever, so I do not see that this bill is premature from that perspective in the way that you framed it. I see it as an important bill for consideration given the challenges that we have now. Even when some of those individuals are released, because they have determinant sentences, others come in and become frivolous and vexatious grievers and clog up the system.
On the issue of impartiality, we make many decisions in relation to offenders now, even in the current grievance system, and we do uphold grievances that offenders have brought forward when, for example, staff have acted improperly in relation to policy or the law. The system is not immune to rendering a decision in favour of an offender when the facts support that.
In terms of an outside individual rendering that decision, I am here responding to the bill in the way it is crafted. I believe that we can put in place the appropriate administrative procedures to provide the safeguards. We make serious decisions with regard to the placement of offenders in segregation and involuntary transfers. When we have properly followed the procedures that are set out and our decisions have been challenged in Federal Court, the court has upheld our authority to make those decisions as long as we have followed the rules that are clearly understood by everyone.
Senator White: You would have to review 15 to 20 people per year. Following up on the chair's comments, how would it work for you if the Correctional Investigator were to review your decisions about frivolous or vexatious complainers as a second reviewing authority? That is not in the legislation.
Mr. Head: I understand that. It seems a little at odds because the Correctional Investigator now deals with some frivolous and vexatious grievers but can refuse to takes their calls or to investigate, so it does not make sense to me that they would be able to do that and then review this type of decision.
Senator White: I am looking at it more from a perception perspective. I personally have no concern about you making the decision.
Mr. Head: The option that would still be available to offenders if they did not agree with a decision is to take it to Federal Court. Although there is the suggestion that offenders have no other opportunity to pursue their grievances, they can take them to the Federal Court.
The Chair: Thank you, witnesses. We appreciate your attendance here today and your contribution to our deliberations.
(The committee adjourned.)