Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 26 - Evidence for November 21, 2012
OTTAWA, Wednesday, November 21, 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 complainants), met this day at 4:15 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Honourable senators, I will call the meeting to order. Good afternoon, and welcome colleagues, invited guests and members of the general public who are following today's proceeding of the Standing Senate Committee on Legal and Constitutional Affairs.
We are meeting today to continue our consideration of Bill C-293, An Act to amend the Corrections and Conditional Release Act (vexatious complainants). This bill was first introduced in the House of Commons by Roxanne James, MP 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, 2012, and subsequently sent to the Senate and then referred to this committee on October 25, 2012, for further examination. This is our second meeting on Bill C-293, and these committee hearings are open to the public and also available via webcast on the parl.gc.ca website. One can find more information on the schedule of witnesses on the website under ``Senate committees.''
We had expected to have three witnesses with us today, but we found out not long ago that Mr. Rob Sampson was trapped by fog at the airport in Sudbury. Mr. Sampson is the past chair of the Correctional Service of Canada review panel. That panel produced a report in 2007 called A Roadmap to Strengthening Public Safety. Mr. Sampson was to be accompanied by Ms. Sharon Rosenfeldt, who is familiar to many members of this committee. Ms. Rosenfeldt is the president of the Victims of Violence Canadian Centre for Missing Children and was a member of the review panel with Mr. Sampson. We are hoping to reschedule them for a later date.
Our third witness is here, and I am pleased to welcome David Mullan, Emeritus Professor at Queen's University. In July 2010 Professor Mullan conducted an audit of the complaints and grievance process for the Correctional Service of Canada.
Mr. Mullan, if you have an opening statement, the floor is yours.
David Mullan, Emeritus Professor, Queen's University, as an individual: As the chair has just mentioned, I was hired by the Correctional Service of Canada in January 2010 to review the offender redress process. In part, that was motivated by a sense, on the part of the CSC, that the offender redress process was not working as it should be, and they felt the need for an external evaluation.
One of the things I was called upon to consider, particularly in the course of that external evaluation, was whether or not any changes should be made to the provisions of the Commissioner's Directive 081 respecting the designation of offenders as ``multiple grievers.''
In brief, my conclusions were that that particular part of the process was not working effectively and was an impediment to the appropriate delivery of a grievance process in the interests of both the system and offenders. It also seemed to me that the current designation process was not working properly and changes were in order.
In preparation for today's meeting, because this is a matter that I have not paid much attention to since July of 2010, I went over the bill as passed by the House of Commons and also went over the original bill that Ms. James introduced as a private member's bill in the house.
In addition, insofar as time permitted, I have gone over the transcripts of the various committee meetings, both in the commons and the one meeting you have had here as the Senate committee, with a view to familiarizing myself with the issues that have been of concern during the legislative process for Bill C-293. It is against that background that I appear here today to answer whatever questions you have of me and that I hope I will able to assist you with.
Before I submit myself to your questioning, let me make what seem to be four important points, though I am not sure whether they are points on your agenda.
The first is that it was readily apparent to me from reading the proceedings of the Commons committee, and also the proceedings of this committee, that the situation has not changed dramatically as far as multiple grievers are concerned in the federal penitentiary system. The numbers are still high. The problem seems to remain in terms of how to deal with that particular phenomenon.
The second point is that it seemed to me there was wisdom in the path that the Commons committee took initially — and in the path that the Commons itself took in passing the bill — in changing the format of that bill. It changed from the one that was originally introduced by Ms. James into a much more bare-bones bill that simply empowered or authorized the Commissioner of the Correctional Service of Canada to issue a prohibition subject to leave being granted on grievances by people, or complaints and grievances by offenders who were designated by the commissioner.
It is a very tricky process trying to formulate a regime that effectively handles multiple grievers. As an aside, it was interesting to me to note in a report that was featured in The Globe and Mail a couple of weeks ago that the Federal Court of Canada has recently gone through a revision or an exercise leading to a revision of its rules. One of the issues undertaken by the committee looking at this particular matter was how to deal with the increasing phenomenon of the vexatious litigants in the Federal Court of Canada, something that evidently has grown statistically significantly in the last few years.
It is interesting that, in what is otherwise a fulsome and detailed report recommending final action, the one item left over for further consultation with you was the whole issue of vexatious litigants, frequent litigants in the Federal Court who were tying up the process.
I draw your attention to this to illustrate that it is a difficult problem in judicative systems around the country as to how to deal with vexatious litigants, or multiple grievers. As a consequence of that, it struck me that it was far better in terms of the way this legislation has progressed for the matter to be left to be dealt with and spelled out in regulations and commissioner's directives, rather than spelled out in detail in the legislation itself.
You are much more aware than I am of the great difficulty involved in securing amendments to primary legislation. In an area where flexibility and the ability to adapt and change in recognition of changing conditions may be important, it is better that the procedures be spelled out in this particular context in regulations and in commissioner's directives, rather than attempted to be spelled out in full in the primary legislation.
Having said that, I now move to my third point, and this is a matter of some concern to me. It is a matter that is being discussed and debated in the House of Commons committee and also, to a limited extent, in the one hearing that this committee has had already. It is the way in which this bare-bones piece of legislation amending the act has been formulated. As you are all aware, the decision to designate, to grant leave, and whether or not to actually lift the designation on an annual review, is a decision that is left in the hands of the Commissioner of the Correctional Service of Canada. I do not doubt the capacity of the commissioner to deal with the particular problem. In testimony before this committee and the Commons committee, the commissioner has welcomed the new legislation and professed the capacity of his office to deal with it.
However, it seems to me there is a potential problem here. One of the problems with multiple grievers in penitentiary situation is that they explore every avenue possible or feasible for launching a grievance and continuing it in whatever form possible. As I see it, under the system that is in Bill C-293 as it is now, while the commissioner can issue a bar or prohibition on the launching of grievances, the commissioner is also forced into the situation of dealing with any application for leave, despite the prohibition, to actually go ahead with the grievance. What I see potentially happening under the legislation is that all of those multiple grievers will transfer the scene of their action, as far as the launching of their grievances is concerned, to the leave process. This creates a massive amount of documentation that must be dealt with personally by the commissioner — which I doubt — or by persons of senior capacity within the Correctional Service.
While there is no appeal for the decision to give leave, there is still the possibility of a massive amount of work now being created within the leave process.
If we look at the figures presented to the Commons committee by Commissioner Head and the two people accompanying him there, what are we looking at? In terms of inmates or offenders who launch over 100 grievances a year, the figure is 5,215 in the last reporting period.
If we move to offenders who launch 25 or more grievances a year, the number is 9,857. I suspect we are potentially looking at a great number of those grievances, when there is a designation taking place, taking the form of an application for leave to launch a grievance despite of the designation. It may well be that this process, as it is at the moment, is not going to meet all the objectives of significant savings in terms of resources in the whole process of dealing with multiple grievers.
In my report that I delivered to the Correctional Service, I recommended a rather different way of doing it. I want to draw your attention to that. I am not saying it is necessarily the correct way, and many of the recommendations of detail I made back in 2010 are up for grabs.
It seemed to me that one way of resolving this matter more expeditiously was to create a situation whereby, after a certain number of grievances were launched, the warden of the particular institution where the offender was located could presumptively designate that person as a vexatious or multiple griever. They should not be disentitled from bringing grievances but from continuing to bring a succession of grievances rather than limiting those offenders to a certain number of grievances per month or per year. In other words, instead of having a process where was you are barred and then you have to apply for leave to have your grievance considered, this would say that until a designation is removed you are entitled to a limited number of grievances. Which ones you choose to take is your responsibility, and beyond that you will not go, save in the case of high-priority grievances involving issues that raise matters that involve liberty and security of the person under the Charter.
Having looked at the documentation and committee testimony to this point, I remain of the view that a more effective and efficient way of dealing with this problem is the way that I recommended. In a sense, it is that you are designated, but the designation carries a finite limit on the number of grievances you can make over a particular period of time; after that you are out of luck.
The final comment I would make is that in Ms. James' original private member's bill, one provision specifically spelled out that the designation of someone as a vexatious griever or a multiple griever by the commissioner was a designation that should be able to be challenged by way of judicial review.
As a matter of law, I do not think it was necessary for the bill to say that. Judicial review is available anyway. Given the importance of this particular matter, my sense is that it would be appropriate to restore that provision and make it clear, given the significance of the designation process, particularly if it remains with the commissioner, that in those circumstances there be a legislative recognition of the existence of a right to judicious review.
Those are my four preliminary points. I am sorry if I succeeded my five minutes. I am open to questions. Thank you once again for listening to me.
The Chair: Thank you, professor. We have a list building here of members who wish to ask you questions. We will begin with the deputy chair of the committee, Senator Fraser.
Senator Fraser: These have been terrific comments, prompting much thought and a long list of questions, so you can put me down right now for a second round, chair.
Let me start by asking you what you think would be an appropriate finite number for people to be allowed to submit once they have been designated whatever it is they are designated as.
Mr. Mullan: In my report, the number I came up with was 100, which, on the statistical basis that I was operating on, would seem to have weeded out those people who had been identified through the functioning of the system as the most egregious examples of multiple grievers. Having read the statistics as they were presented to the House of Commons committee, I am beginning to modify my thought and thinking that 100 is probably too high. I am not sure I would go as low as 25, which was the statistic that was provided by Commissioner Head to the House of Commons committee, but my inclination now would be to move in the direction of 50 a year, one a week at maximum.
Senator Fraser: One a week. That would leave lots of room for complaints to be laid. I am intrigued by the notion of continuing to allow a finite number.
You talked about people clogging up the system with applications for leave. Do you think that some of them might also clog up the system of complaints to the Correctional Investigator?
Mr. Mullan: It is hard to predict, in my mind, whether this would amount to a significant transfer of additional caseload to the Correctional Investigator. The one thing that is significant, and an important part of the Correctional Investigator's role, is that the Correctional Investigator cannot directly provide redress to offenders who approach his or her office. It is a recommendation to the Correctional Service if the grievance is found to be warranted. Given that situation, I find it hard to predict whether there would be a massive increase in the number of cases going to the Correctional Investigator.
Senator Fraser: Since the target of the felt grievance as distinct from the process would be the correctional system itself rather than the investigator, that is where they would want to be gumming up the works.
The original bill also contained a provision that is no longer in the present bill. A decision maker at any level may not refuse to hear a complaint or grievance that would result in irreparable, significant or adverse consequences to the offender if not resolved. Would you think it would be advisable to restore such a provision?
Mr. Mullan: Given the way that I conceive of this happening, and given the way in which it will happen if Bill C-293 is passed in its current form, it will be in the development of the regulations under the legislation that criteria such as that will be included as a factor that must be considered before the commissioner either designates someone as a banned or prohibited person or, more likely, as a basis upon which leave will or will not be granted.
I agree it should be there, and it should be there specifically. Given the current structure, I see that as being part of the regulations. Of course, the regulations themselves will come back to the joint committee of the Senate and the house.
Senator Fraser: There is another piece of legislation coming at us. Thank you. Second round, please.
[Translation]
Senator Boisvenu: Thank you very much for your presentation. In the fall of 2010, I visited every federal penitentiary in Quebec to have a better understanding of what goes on in Quebec and Canadian institutions. Most of the guards as well as management were saying that there were problems with the grievance and complaint process. Did you find this as well?
[English]
Mr. Mullan: Yes, I did. I too visited a number of the institutions in Quebec, and the wardens that I interviewed during my time in the Quebec penitentiaries identified the problems that they were experiencing with the grievance process. In particular, one of the penitentiaries housed the offender who grieved most frequently in Canada. Indeed, the warden and those responsible for the operation of the grievance system indicated that this one particular individual had simply tied up the grievance process completely almost to the exclusion of other, legitimate complaints.
[Translation]
Senator Boisvenu: In one institution, I noted how grievances were collected. Metal boxes were placed in hallways, and offenders could submit their grievances anonymously. To me, this system seemed quite open, sort of a no buffer zone between the griever and the metal box in which the grievance is dropped. In my view, this system seemed to facilitate the submission of all kinds of grievances. Did you witness this?
[English]
Mr. Mullan: One of the things I was doing was to ensure that that particular mechanism was working effectively in the various penitentiaries that I visited. For the most part, it seemed to me that the mechanism of placing complaints in a box that was cleared regularly was, at least at that time, working effectively. I did not see any particular problem with that as a mechanism, provided that there was access to the box and that the box was being cleared regularly.
Let me make it clear: It is not a vehicle for anonymous complaints. It is a vehicle that enables complaints to be placed by someone without, on occasion, being seen. However, the complaint would not be dealt if indeed it was an anonymous complaint.
[Translation]
Senator Boisvenu: So, if I understand you correctly, what you are suggesting would be to delegate the commissioner's responsibility to the warden, rather than have the decision go back up to the commissioner. In other words, the warden would be responsible for deciding if an offender was a multiple griever or not. You suggest that this responsibility be delegated as much as possible to the institution?
[English]
Mr. Mullan: That is my initial preference, that the matter be dealt with initially at the local institution by the warden who would have daily or regular experience with the offender about to be designated.
It also seems to me that within that kind of regime there is a greater possibility that a multiple griever, on the basis of discussion and working with the correctional officers, will come to terms with the problem. That problem, in many instances, is indeed an addiction to the grievance process.
[Translation]
Senator Boisvenu: I saw something else that seems a link between cause and effect. A great number of incarcerated criminals in federal penitentiaries, three thirds of them, have nothing to do, be it work or training. One could think that people who have absolutely nothing to do in these institutions have only one thing on their mind, to complain. If they were busier, working or taking a course, perhaps they would spend less time writing up grievances.
Bill C-10 provides for stricter correctional and rehabilitation plans. Will keeping inmates busier by means of stricter rehabilitation measures help reduce the number of grievances?
[English]
Mr. Mullan: I do not doubt that the availability of work opportunities and training and educational courses within a penitentiary would distract at least some of the multiple grievers from their course of action. In other words, I suspect some are doing it because there is nothing else for them to do and it fills in the day. There are others, I suspect, who have other motives for becoming multiple grievers.
I certainly agree with you that there are other ways in which one can deal with the issue of multiple grievers or reducing the phenomenon of multiple grievers other than the formal process that we are talking about here.
Senator Baker: I would like to congratulate the witness on the great job he has done over the years in making law in Canada with many writings that are referenced in our Supreme Court of Canada in decisions. They reference you favourably and continually.
Professor Mullan, you started off by saying that the Federal Court rules were being revised as they relate to frivolous complaints. Of course, at the Federal Court level, the way you deal with frivolous complaints anywhere in a judicial proceeding is the awarding of costs. You put forward a frivolous complaint, you pay. You pay for the other lawyer. Unless you are Conrad Black, you have a problem. That is the normal process.
Under our Federal Court rules, a frivolous complainant, a frivolous litigant, is dealt with in a proceeding that is inter parte, not ex parte, as this bill proposes, that an ex parte decision be made by the commissioner.
The distinction being made by the Nova Scotia Court of Appeal recently is that it cannot be made ex parte. You cannot declare a proceeding frivolous without giving the other side an opportunity. That is my first question to you. Do you not regard this as, if not unlawful, certainly not addressing the reasonableness or fairness standard of the Charter?
My main question to you is this: You suggest that this be dealt with in the regulations and in our directions given by the commissioner, commissioner's directives, which have been judged by the Federal Court of Appeal as being regulations, the power of regulation.
Right now, at this very minute, what I do not understand about this entire thing is where the problem is. This bill is, to me, frivolous in that frivolous and vexatious matters are dealt with in the regulations. In other words, the regulation says at 74(4):
A supervisor may refuse to review a complaint submitted pursuant to subsection (1) where, in the opinion of the supervisor, the complaint is frivolous or vexatious . . .
All of the complaints that have been put to this committee are ``the potato is too small,'' ``the ice cream is too hot,'' or whatever. I do not think you found any such vexatious complaints in your investigations.
When you go to the commissioner's directives you see the same thing. Commissioner's Directive 081 says at 47 that the person in the institution dealing with the complaint ``may reject the entire grievance and return it to the offender'' even if a part of it is found to be vexatious or frivolous.
Where is the problem? I do not understand it. If the ice cream is too cold, according to the rules and regulations, you throw it in the garbage. You send it back. Where is the problem?
Mr. Mullan: There are a couple of questions there, and I will deal with the last one first.
The problem, as I understand it, is that while these powers exist in both the regulations and the commissioner's directive to actually reject a complaint on the basis that it is frivolous and vexatious, and it is a power that is exercised, under the current regime that very decision to reject a grievance as frivolous or vexatious is itself subject to an appeal to the second level of the process and, ultimately, to the third level of the process.
In many senses the phenomenon of multiple grievers is exacerbated by the availability for all multiple grievers to have access to what are currently two further rights of appeal in the system. What would happen, as I understand the current version of the bill, but which could also happen, quite frankly, with amendments to the regulations and to the commissioner's directives, is that now, assuming the passage of Bill C-293 in its current form, if the commissioner actually designates someone as a prohibited griever, unless leave is being sought, at that point there would be no further right of appeal except to the courts or perhaps to the Correctional Investigator.
At that point the appeal process is simply cut off for those grievances unless, of course, the commissioner, in his or her wisdom, decides to give leave in a particular manner.
In part, the problem at the moment is the use by multiple grievers of not just the first instance grievance process, complaint, internal grievance, but also the appeals to the second and third levels. It was, I understand, the commissioner's testimony, I think before this committee, that the second level will probably be removed in the next little while.
Senator Baker: The commissioner also said new matters are brought in. I have read the case law. You cannot do that. You are referred right back to level 1. The commissioner said you can deal with level 2, 3 or 4 with new matters, and that is not what the case law says.
Mr. Mullan: I will respond to the contention that this legislation itself is frivolous because the matter could be dealt with.
Senator Baker: If the rules are applied.
Mr. Mullan: Or dealt with by changes to the regulations or the commissioner's directives.
From a legal perspective there is one potential problem if you simply deal with the matter by saying that the commissioner can ban someone, subject to the leave provision, from bringing a grievance.
If you do that by way of changes to the regulations or to the commissioner's directives, you run the risk, legally, of having someone say if you look at the terms of existing sections 90 and 91 of the legislation, they guarantee access to the grievance process. If you take that away by regulation or by changes to the commissioner's directives there is a possibility — and I will not rank it higher — that it will be declared ultra vires by a court down the line because it contradicts what seems to be an open access system under sections 90 and 91 of the act. Out of an abundance of caution if nothing else, if you plan to go into the direction of giving the commissioner the power to ban someone from launching grievances subject to leave, you may want to change the act to enable that.
Senator Baker: Do you agree with the bill?
Mr. Mullan: I do not agree with it in that form, no.
Senator McIntyre: I have with me a copy of your report dated July 13, 2010. Attached to your report is Appendix A, which lists institutions visited such as Atlantic, Dorchester, Nova Scotia, Nova Institution for Women, and Shepody Healing Lodge. I take it that Atlantic is the Renous penitentiary and Dorchester is obviously the Dorchester Penitentiary. Would Shepody Healing Lodge be Shepody Healing Centre?
Mr. Mullan: I am sorry I do not recollect whether that is in there or not.
Senator McIntyre: In New Brunswick, we have the Atlantic Institution, which is known as the Renous penitentiary, and then we have Dorchester Penitentiary, and part of that institution is the Shepody Healing Centre.
Mr. Mullan: That is what I mean.
Senator McIntyre: Dorchester Penitentiary — Shepody Healing Centre — houses persons found not criminally responsible on account of a mental disorder or persons found unfit to stand trial. I take it that your report touches only persons found criminally responsible as opposed to persons found not criminally responsible on account of mental disorder?
Mr. Mullan: Yes, it does.
Senator McIntyre: Fine. According to Howard Sapers, Canada's corrections watchdog, some of the offenders who file multiple grievances suffer from significant mental health issues, including paranoia or obsessive-compulsive behaviours. On the other hand, the Commissioner of the Correctional Service of Canada appears to have a different view. When he appeared in front of this committee recently, he stated that these offenders do not suffer from mental illness.
My question to you is this: Do the multiple grievers suffer from mental health issues, and if so, should a separate process be established when dealing with complainants suffering from a mental health illness?
Mr. Mullan: Senator, I did not conduct any kind of inquiry into the status of the mental health of those 15 offenders who, at that stage, were the most frequent users of the system. I cannot comment on the mental status of those 15, which is now seemingly numbering 25 if one takes the commissioner's testimony before the Commons committee at face value.
I also read Dr. Zinger's testimony before the Commons committee. He characterized the mental health issues that were being exhibited by multiple grievers in the nature of personality disorders rather than schizophrenia or some of the other more serious mental health conditions. Intuitively, it would seem that has to be a description of the state of mind in relation to some grievers, but I am not an expert and I just respond in that way to it.
One of the problems I had with the assertion of the Correctional Investigator and Dr. Zinger that if you deprive people from access to the grievance process they will turn their attention to something else is that while that may well be true, I do not see that as a reason for not dealing with the problems created for all of the other inmates or offenders in the system who are trying to access this program. The mental health issue is broader than the issue of offender grievances under the current rules and should be dealt with on its own terms.
It may well be that dealing with it on its own terms might in fact mean the recognition of something else. In my experience from visiting and interviewing at 28 separate penitentiaries, that something else is that one of the biggest problems is the inability of those with genuine mental health problems to access the process at all because of the lack of cognitive skills and inability to deal with the process as a matter of bringing forward their complaints. From my perspective, the mental health issue is a real one, but the real aspect of the mental health issue is providing a system whereby those with cognitive dissonance can effectively access the process. To that extent I agree with the proposition that some special accommodations may have to be made for those who have documented serious mental health issues.
Senator Joyal: Welcome, Professor Mullan. I am honoured that you appeared in front of us as a witness because I quoted your report in a previous meeting of this committee. I thought it was a most reliable source to understand the phenomenon. My first reaction was that I was surprised that a private member's bill was introduced to solve a problem that is much more complex than the bill introduced. Should we take the bill before us as the government's answer to the recommendation and to the consideration that you have put in your report? Should we expect that there will be more to come to give weight to your recommendation?
Mr. Mullan: I was surprised to see the recommendations in my report being dealt with by way of a private member's bill. I had assumed that if the Commissioner of the Correctional Service of Canada was going to take these recommendations and run with them, it would have been done by way of amendment to the regulations and the commissioner's directives. I have no knowledge whatsoever of the process, political or otherwise, by virtue of which this actually came before the house as a private member's bill.
However, let me say that, assuming Bill C-293 is passed in its current form, there is still a tremendous amount of work that needs to be done to put flesh on the new system whereby the Commissioner of the Correctional Service of Canada will be the designating authority. I assume that flesh will come in the form of the regulations that will ultimately be produced to deal with the issues that concern you and that Senator Fraser, by way of her questions to me, has some concerns about. In other words, the passage of the bill would be only, to my way of thinking, the first step in the development of what will inevitably be a relatively complex set of procedures to deal with this problem.
Senator Joyal: My perception in comparing the gist of your recommendation, which was to determine an objective number of complaints available to an inmate versus a system through which the commissioner becomes the adjudicator, is that your proposal seems to me to be further away from legal contestation than the one we have in this bill. I raised that issue at a previous meeting of this committee. It seems to me that the system in the bill is much more open to challenge under the Charter than if we had followed the recommendations that you put in your report and that you are repeating in your brief today, through a fixed number that allows somebody to continue to make complaints, whereas in this system we chuck the right to make a complaint unless there are exceptional circumstances. Your proposal is that you maintain the right to make complaints, but you limit the number. That seems to me to be much better in terms of a conceptual system than the other one, which, in my opinion, could lead to more challenges in court. Do you think I am making a proper evaluation of your approach to this?
Mr. Mullan: By and large, that would be my position as well and one of the reasons why I continue, despite the form of Bill C-293, to be in favour of a designation followed by a set or limited number of grievances during a particular period.
I do not purport to be giving a legal opinion here, but it strikes me that there is a potential danger of a challenge under the Canadian Charter of Rights and Freedoms to a system under which you are dependent upon the leave of the Commissioner of the Correctional Service of Canada, once you have been designated, to bring a grievance involving a matter that implicates the life, liberty and security of the person. There is a potential legal avenue there, at least in my tentative view.
Senator Joyal: The other point you raised in your brief is a reference to the system in England and Wales. I understand that the two systems in force over there are based on the same approach that you recommended in your report and that you repeated in your brief.
Mr. Mullan: Yes. I visited Her Majesty's Prison Service in London and also went to Pentonville Prison and was told in great detail about the current system in the English and Welsh penitentiaries or prisons. Their method of controlling vexatious grievers was based on regulation rather than prohibition, the regulation being that once you are designated, you have a limited number of grievances that you can make, and you choose which ones you make.
Senator Joyal: It is more or less on the same basis that you recommend.
Mr. Mullan: Frankly, it was upon that visit that that part of my report was ultimately based.
Senator Joyal: If I understand what you are saying, this system would just bar somebody from making complaints if the person is declared by the commissioner as a vexatious complainer, while in the British and Welsh system, and in the proposal that you made, if that person is declared a vexatious complainer, then that person has limited access to complaint.
Mr. Mullan: Limited access, yes.
Senator Joyal: That is the difference between the two.
Mr. Mullan: Yes.
The Chair: As a quick follow-up, is the tabling of this legislation the first feedback that you have had with respect to your report from CSC? Did you get any immediate response? Has any action been taken, for example, with your recommendation on mediators? Has anything been done in the interim?
Mr. Mullan: I have been in communication with staff at CSC, and I am aware of the fact that pilot projects are in place across the country for the purposes of determining whether or not my recommendation that there be a mediator in every maximum- or medium-security penitentiary in the country is something that is worth following up. I have heard reports to the effect that, to this point anyway, the involvement of mediators at the pilot project at penitentiaries has in fact led to a significant decline in the number of formal complaints and grievances and to the effect of settling of things that would otherwise have gone through the process. That has been relatively informal feedback, but I am aware of that. I am also aware of the fact that some of my recommendations with respect to the need for correctional officers to be educated better in the operations of the grievance process have also been put in place. To that extent, yes, there has been some action on my report.
The Chair: Do you have any concerns, and I raised this when Mr. Head was presenting before us, with respect to the greater authority that he has been given to stop complaints being made about the performance or non-performance of his own organization? We talk about the importance of independent oversight. I am wondering whether you have any concerns about that component of this legislation.
Mr. Mullan: There will always be a problem of optics, at the very least, with a situation in which the Commissioner of the Correctional Service of Canada is the designating authority as far as someone's status as a prohibited griever is concerned. Not surprisingly, there will be perceptions that it is in the administrative interest of the Correctional Service to actually achieve as many of these designations as possible. That is not to cast any aspersions at all on Commissioner Head, for whom I have the greatest respect, but there is a perception out there. If I had my druthers, I would move beyond both the current regulations and commissioner's directive and also this bill and either have external adjudication or external designation of someone as a persistent and prohibited griever, or, failing that, at the very least, judicial approval of a designation, particularly if it is going to be a designation that prohibits you subject to leave.
Senator Fraser: I was interested in the area that Senator McIntyre raised. I take note of your careful statement that mental illness is not your field of expertise. Nonetheless, putting together his line of questioning and your response to Senator Runciman just now, and in light of the fact that our prisons are becoming, each of them, more densely populated, and we know that nearly 40 per cent of those admitted have some kind of mental problem and that significant numbers of them are obsessive compulsive paranoid, whatever, to what extent do you think it likely that the availability of a grievance procedure offers, if you will, an escape valve, a steam valve, a vent for some prisoners to let go some of the stress with which they live? Simply being in prison, I assume, is for many people a stressful situation, but I am talking now about people who live already with a significant degree of stress inside themselves. Do you have any sense, on the basis of the work that you did, which is, goodness knows, very thorough, that however irksome it may be for the prison authorities to deal with this vast volume of grievances, that cutting off access to those grievances could lead to other forms of perhaps even less desirable behaviour on the part of those cut off? Do you have any sense of that?
Mr. Mullan: The sense I have is that the availability of an effectively working, accessible grievance process can, in fact, be a valuable valve for offenders who have serious mental problems, provided that they are able to access that —
Senator Fraser: I remember your caveat on that point.
Mr. Mullan: — appropriately and are treated with dignity and respect within the system.
However, my sense of this is that there is a rather significant difference between providing an escape valve for offenders with serious mental problems, on the one hand, and continuing to be tolerant of a situation where a multiple griever is tying up the system in a way that affects the ability of others, including mentally challenged and mentally ill offenders, to access the process. In my mind, I want to draw a fairly clear demarcation between one category and the other.
To the extent that a multiple griever is someone who might, if denied access, then begin to act out in other ways, I think that, as part of the management process of a multiple griever designation system, there must be measures put in place to deal with the possibility of that phenomenon. I do not think the fact that the phenomenon may exist in relation to some of the 25 or one or two of the 25 is a reason not to deal with the problem of multiple grievances.
Senator Fraser: Based on nothing except gut feeling, I have the sense that as more people are double-bunked and all that, there will be more multiple grievances rather than fewer.
Mr. Mullan: The increase in the number from 15 in 2010, to 25 in 2011-12, seems to indicate there is a growing problem of multiple grievers.
Senator Fraser: This bill is very black and white: You are allowed to submit grievances or you are not allowed to submit grievances. There is no interim step in there. I assume the commissioner could, maybe by directives, solve that problem. Do you think it would be useful for the bill to actually state that the commissioner may limit the number of grievances a complainant may file in a given period or prohibit? That is, make it plain that there can be different stages, different levels of control exercised here?
Mr. Mullan: In my view that would be an advance on what is there at present. As indicated earlier, I would go further than that.
Senator Fraser: I am trying to look at the realm of the possible here.
Mr. Mullan: Yes, sure.
Senator Fraser: Thank you, chair.
[Translation]
Senator Boisvenu: During my discussions with wardens, I noted that they were concerned with keeping the peace within prison walls. When wardens have to handle a complaint, they often prefer to do so through a third party from outside the institution, even if the grievance is in their favour. They off-load this responsibility. Did you witness this?
[English]
Mr. Mullan: I cannot say that I did. One of the indicators to me that there was, at least on the part of some wardens, a reluctance to engage in the use of outside members of the public in their processes was the fact that, virtually in every instance, the provisions in the regulations for the operation of an effective citizens' committee within penitentiaries was something that was not going on. Part of the reason for that was that staffing citizens' committees was becoming more and more difficult. It also seemed to me, at least on the part of some wardens, that there was a sense that the process should be kept internal. By ``internal'' I mean internal to the Correctional Service of Canada.
In the case of harassment complaints, under the current process an external review board is a required part of the complaint process. To that extent, people from outside the penitentiary will be coming in to deal with harassment complaints under the current procedure.
In total, I guess, I would not want to go one way or the other on the question that you have asked.
[Translation]
Senator Boisvenu: I had noted this. In your report, you stated that second level grievances should be abolished, did you not? On page 40. When Don Head appeared on this bill, in his recommendation, he stated that, in 2013-2014, he would abolish the second level to really make the process more efficient.
On an administrative level, there is one solution that could be applied, because if we have legislation that regulates multiple grievances and the procedures are not properly applied, the problem remains. Would it not be possible to give wardens a performance objective with regard to the number of grievances that are settled, for example, each warden would have to settle 80 per cent of grievances in the institution to make sure that no more than X number of grievances is forwarded to head office? Could that not be an administrative solution, that the department ask the commissioner to require this from prison wardens?
[English]
Mr. Mullan: One of the submissions made to me during the course of my investigation was that it should be much more an explicit component of the performance evaluation of a warden every year as to how that warden was administering the system of grievances within the institution. The sense that I had from that submission was that at one stage it may well have been a significant component but it ceased to be.
Frankly, it seemed to me to be a valuable recommendation, but that, given the time constraints, was an issue that I did not pursue. I do not know, but to the extent that it is not part of the regular evaluation of a warden's performance, that is not acceptable. It should be.
That is not to say that some of the failure of performance on the part of particular institutions should automatically be laid at the door of the warden because, in many instances, the problem is the multiple griever within the institution making the meeting of timelines for other offenders just impossible. They are that bogged down with the multiple griever that they simply do not have the resources or the capacity to be able to deal effectively with those who probably most need to be able to use the system effectively.
Senator Baker: If you have a vexatious complaint that the potato was too small, what time would that take up? It would take me two seconds to throw it in the garbage and tell the inmate that it is vexatious. If you follow the rules, as laid down, there would be no such problem.
I will ask you two questions. You do not have to answer them.
The first question is this: There is another bill coming after this bill that I hope you are called as a witness to, and that is to remove the rewards to an inmate of any civil action for damages that he or she may be awarded while in an institution because of the action or inaction of a member of the Correctional Service.
Coupled with this bill, it takes away someone's right to complain in certain instances. The obvious question on my mind is this: Do you think that that would have a serious effect on the behaviour of inmates in federal institutions?
My second question is perhaps more serious, and it is this: The Federal Court, less than four months ago, heard all the evidence and brought a decision in the case of Spidel v. Canada. Have you read the case? Four months ago the Federal Court examined whether or not there is a systemic problem with complaints and grievances and what the holdup was.
There is nothing mentioned in the judgment or evidence about frivolous or vexatious complainants, number one. However, the Correctional Service said it was because of the complexity with the complaints and the problem with money, resources that they did not have allocated to them. That is the final determination of the judgment. I want to read you one sentence and ask you what you think of it.
It references the case of Ashley Smith. That is in this determination by the Federal Court on what the holdup is in the complaint and grievance procedure. The judge runs through all the royal commissions and the Arbour Report that deals with this very thing that we are dealing with this bill. Then it says:
After reviewing the Reports of the Correctional Investigator and Justice Arbour discussed above, the authors of A Flawed Compass examined the tragic death of a young woman by the name of Ashley Smith while she was in the custody of the CSC. They describe Ms. Smith's experience with the CSC grievance process, noting that a grievance filed by Ms. Smith was not even opened by the CSC until some two months after her death.
I ask you if you have any comment on that because the Correctional Service claimed in this judgment, repeated by the judge in her determination, that the backlog had been corrected by about 50 per cent in the Pacific region and throughout Canada through recent actions taken since 2010. The commissioner did not outline that when he appeared before this committee. He gave the figures from pre-2010.
Do you have any comment on anything I have just said?
Mr. Mullan: Starting with the cold potatoes, you are right, of course. In a simple cold potato case, of which I think there are some, the time it takes to make the decision once the documentation is in front of you is five seconds, maybe a bit longer than that because you have to write it up.
However, the problem is greater than that, to the extent that under the current regime, before it gets to you, the decision maker, there must be a decision on whether it should be coded, which way it should be coded. All sorts of data entry must take place and then it reaches you. Then you dismiss the cold potato appeal and — it goes back to the response to an earlier question — the next step in the drama is the case is appealed to the next level. What is a simple decision becomes quite a time-consuming overall exercise, so that is a problem.
If the cold potato grievers are multiple grievers, that example is multiplied over a hundred times a year and in some cases 300 times a year, so that is an issue.
The second point you raised is whether the taking away or strict regulation of the right to bring a grievance is likely to create backlash among the offender population when coupled with the other bill that you described. I guess the reality we must focus on is that as important and significant as that decision is — to take away or even closely regulate the grievance activities of certain persons — the numbers that we are talking about in an overall prison or penitentiary population are relatively few. There are 25 who grieve over 100 times a year and even for those who grieve over 25 times a year, the number is 136. In terms of the overall penitentiary population in Canada, we are not talking about a significant number of people.
In terms of a backlash I do not see it as necessarily happening unless of course there is a sense in which some of these frequent grievers or multiple grievers are leaders within the penitentiary context in which they exist. My sense is that they tend not to be.
As far as the third question is concerned, Justice Mactavish's judgment in Spidel, there is no doubt on my reading of Spidel that this situation that Justice Mactavish was speaking to in that particular context was a pre-2010 setting. Undoubtedly, that problem that gave rise to the litigation in Spidel was one reason among others why I was asked to undertake the task that I did on behalf of the Correctional Service of Canada.
I do not know, because I have not kept up with the statistics in general, whether or not the system has improved since I reported in July 2010. I do not know whether the backlog has grown, remained constant or diminished, so I cannot comment on that.
Fourth, let me finally say something about the situation of Ashley Smith. Once again, in terms of the briefing that I was given as a prelude to starting out on my inquiry, the Ashley Smith case was up front and centre in terms of the Correctional Service of Canada's thinking on why there needed to be a review. In my response to Senator Boisvenu a few moments ago, I referred to the attention that I paid when I visited a penitentiary to whether or not the box system for the placing of complaints was working as it should have been.
The major prompt for my concern about that particular aspect of the process was the Ashley Smith case and the horrendous story that emerged of the grievances never being removed from the box or otherwise not dealt with appropriately. There is no doubt in the work that I was conscripted to do, the Ashley Smith case — and obviously, the misuse of the process or the failure to apply the process properly in that case — was part of the motivation behind my appointment and why I paid so much attention to that part of the process.
Senator McIntyre: Mr. Mullan, in reviewing Bill C-293, I note that the commissioner appears to have a lot of discretionary authority. For example, amongst other things, the commissioner has the discretionary authority to designate an offender as a vexatious complainant, to prohibit an offender from submitting a complaint or grievance except by leave of the commissioner. There is no question that the commissioner has his hands in different pots. He is heavily involved in the grievance process. His involvement at one point or another could lead to an apprehension of bias on the part of the offender as well as on the part of the public. Bearing this in mind, and you may have answered this a while ago, do you feel that the commissioner could be replaced by an independent panel to review these multiple grievances?
Mr. Mullan: For the reasons that you have just identified, Senator McIntyre, it seems to me that there is certainly a case to be made for independent review or even independent decision making on issues such as this.
Senator McIntyre: My experience with accused persons in a criminal trial has been that sometimes some of these people like to receive advice from an independent source as opposed to the persons they mingle with or meet on a daily, weekly or monthly basis.
Mr. Mullan: I think that is right.
Here I am probably showing my age. The institution still exists in England and Wales, and that is the valuable role that used to be played in penitentiary settings, and also in universities, for that matter, by the visiting justices or the board of visitors to the university or to the penitentiary, and the regular scrutiny from outside of the way in which various processes within an institution, including disciplinary and grievances processes, were actually functioning, and also with a capacity to take on individual complaints.
We have moved beyond that these days for some understandable reasons as far as both universities and penitentiaries are concerned, but we may have lost something in the translation, and that is the availability of a genuinely independent external review of certain aspects of those processes. If there is a candidate for it, it may well be that the designation of someone who cannot grieve without leave is maybe the strongest I have seen yet.
Senator Joyal: You have come to the point I raised earlier, which is to ensure that if you decide you are going to bar someone from their right to complain, the person who makes that decision has to appear independent. When we reviewed the principle of the military justice system, one of the key recommendations at that time made by Justice Dickson was that the person who makes that decision has to exercise his or her judgment on the basis of independence. As much as there is a confusion of interests between the management and the rights of the person, in my opinion, that could be open to challenge.
Do you have the text of the bill before you?
Mr. Mullan: Yes.
Senator Joyal: Would you look at proposed section 91.2? It says:
The Governor in Council may make regulations respecting the complaints and grievances regime with respect to offenders who are subject to a prohibition under subsection 91.1(1).
When I read the bill quickly the first time, I was under the impression that the Governor-in-Council would make those regulations in relation to the overall process of the decision taken by the commissioner, but that is not at all the case. The regulations that the Governor-in-Council makes will be with respect to offenders who are subject to a prohibition. They are already under the prohibition. It is not before; it is after. It would deal, in other words, more with the annual review of the process than with the first step of the first decision being made that that person is barred for a year from making complaints.
In my opinion, it is more important that the regulations made by the Governor-in-Council would apply to the first step of the procedure. In other words, they are published and submitted to public scrutiny and are open to our joint committee of the house and the Senate for regulations and so on. In fact, in my opinion, that paragraph should be rephrased so that it would be respecting the complaints and grievance regime referred to under subsection 91.1 to encompass everything, not just the second step of the decision. It seems to me that if we want to maintain the rule of law from the beginning to the end of the procedure, we should make sure that those regulations apply as much on the constitutive authority of the commissioner as on the decision and the process of the first decision and then an appeal, because the second step is an appeal. Would you care to comment on that?
Mr. Mullan: I agree with you. If your interpretation of that provision is accurate, and given the literal reading of the provision, it seems as though you are right, I would certainly urge the replacement of this provision with a general regulation-making power with respect to the whole of the process and not just to what happens after the event. I do not know whether this is just bad legislative drafting or deliberate, but I think it is something that should be tidied up. It is important.
Senator Joyal: It is indeed.
The Chair: Thank you, Professor Mullan. It is safe to say you have made a real contribution to the committee's deliberations and more than made up for the unavoidable absence of our other two witnesses. We thank you for your appearance here today.
Mr. Mullan: Thank you, and thank you for your questions. I have appreciated being before the committee.
The Chair: That concludes today's meeting. We will stand adjourned.
(The committee adjourned.)