Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 26 - Evidence for November 22, 2012


OTTAWA, Thursday, November 22, 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 10:34 a.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good morning and welcome, colleagues, invited guests and members of the general public who are following today's proceedings 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).

The stated purpose the bill is 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 consistently filed complaints or grievances that are deemed vexatious, frivolous or not made in good faith.

This is our third meeting on Bill C-293, and these committee hearings are open to the public and available via webcast on www.parl.gc.ca. You can find more information on the schedule of witnesses on the website under ``Senate Committees.''

I am pleased to welcome to the committee our first witness, from the Canadian Association of Elizabeth Fry Societies, Kim Pate, Executive Director.

Ms. Pate, I understand that you have an opening statement.

Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you for inviting me and our organization to appear. I apologize for running in from another appointment, but I am very pleased to be here.

I think most members are familiar with the organization I represent. The Canadian Association of Elizabeth Fry Societies is an organization of 26 members, across the country, who work in their communities and are responsive to the needs of communities, working with marginalized, victimized, criminalized and institutionalized women and girls primarily. In some cases, they also work with young men. In many cases, they work on a variety of social issues that pertain to the marginalization and victimization of women and girls as well.

In terms of this bill, I would like to speak to the need not to have this bill. Current policies already allow for those who are involved in vexatious and excessive grievances to be addressed. I point to the existing regulations that outline grievance procedure. I am speaking now particularly about regulation 74(4) that a supervisor — not just the commissioner but also a supervisor — ``may refuse to review a complaint submitted. . .where, in the opinion of the supervisors, the complaint is frivolous or vexatious or not made in good faith.''

We already have the jurisdiction within the existing law and within existing corrections policy that allows for such grievances to be addressed. Some have argued — from within corrections, in fact — that this bill will increase the work of the Commissioner of Corrections by requiring that it be the commissioner who has to rule on these matters. At times we do not agree with the rulings that are made, particularly when they have been made, for instance, in Ashley Smith's case, when another woman was trying to file grievances on her behalf and was told that it was a frivolous or vexatious complaint. We disagreed with the notion that she should be disciplined for making a complaint on behalf of another prisoner. We might have issues with current policy, but, nevertheless, we would argue that this legislation is superfluous at best and might place a greater burden on the Commissioner of Corrections than already exists.

As some of the recent issues that you may be familiar with and that have come to light through the media indicate, women are, in fact, loath to use the grievance process. Far fewer women than men prisoners actually use the grievance process. This has been well documented in a variety of contexts, not only by ourselves but also by the Canadian Human Rights Commission, when they did their review from 2001-03. They commented on how few women use the grievance and complaint process. It speaks to the challenges people face in having confidence in them.

I know you heard from Mr. Mullan, so I will not repeat some of the recommendations that he made yesterday. We would agree that the recommendations that he made, as well as some of the recommendations made as long ago as when the Correctional Law Review did its work, would be a preferable approach to take.

As some of you might know, because of the concern about how few of the women were using the grievance process and documenting issues, we have actually participated with a number of other organizations and some of the law students who were part of my prison law course in the past in training in the prisons on human rights. We have also been training staff in the institutions about the value of using the grievance process and the value of knowing your human rights and exercising them.

Rather than use more taxpayers' money on developing and implementing a law that is not needed, we would encourage putting in place more process to ensure that we have the protection of human rights within our prisons.

Senator Fraser: There are three things I would like to ask. We will try to keep the questions and answers tight.

The original version of this bill, the one that was completely rewritten in the House of Commons committee, contained two things. These are two of my questions. I would like to ask you if you think the present bill would be improved if they were reinserted. One is an explicit provision for judicial review.

Ms. Pate: Yes, I think it would be improved to have an explicit provision for judicial review. We have long held that the recommendations that Louise Arbour made after the Arbour Commission in 1996 still hold that we need greater external accountability for corrections generally.

Senator Fraser: A second provision they took out, but that strikes me as being interesting, said:

A decision-maker 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 this bill — this bill that you do not like — be improved if that were reinserted?

Ms. Pate: Yes, it would, in my opinion.

Senator Fraser: Do you think it is necessary or do you think that the system would work adequately without that kind of provision?

Ms. Pate: Even with that provision one of the challenges is that half the time people who are in prison, men or women, do not know those provisions exist even though they are supposed to have access to the policies. Second, their ability to access justice when their rights are violated is increasingly remote — cuts to legal aid and the inability to get access to their own documents sometimes. The challenges we have had getting access to documents when we have the express releases of prisoners demonstrates that.

In Ashley Smith's case we had to go back to Federal Court twice to get not even all of her documents. With precious few resources that is difficult for us to do. Trained as a lawyer, having pro bono lawyers assisting us, is not a situation most prisoners find themselves in.

Senator Fraser: You do not like the bill, but would it be improved if, instead of having a simple binary system — you may submit grievances or you may not — the provision about what the commissioner may do said, in addition to being able to prohibit complaints, that the commissioner could also limit the number of complaints as an interim step before a complete ban? This would be closer to what Professor Mullan had recommended. Would that be a workable thing, do you think?

Ms. Pate: I think it would be administratively challenging because who would determine the appropriate number? Anything would have to be workable. Corrections would say they have to implement whatever is put in place, whether or not that would actually happen, of course.

The current provisions say that they are supposed to take the grievances seriously, and oftentimes we do not know how frequently the grievance boxes and complaint forms are even processed. Prisoners are supposed to have copies of those complaints. They are often given just a photocopied sheet to use and not given a copy back. Many complaints and grievances go missing.

There are already many administrative challenges, let alone the beginning position of reluctance to file them and fear of repercussions, even though it contravenes the law. Everyone knows they still often experience repercussions.

The Chair: Ms. Pate, you say you prefer the current system to what is embodied in this legislation. If you had your druthers would you perhaps prefer to see another body or organization dealing with these kinds of issues, certainly at the level of declaring a multiple griever? The act gives broad authority to the commissioner. It strikes me, anyway, that there could be an inherent conflict of interest in being asked to adjudicate a complaint against yourself, essentially.

We know that the Correctional Investigator already deals with complaints but I wonder, certainly at the level of declaring someone a multiple griever, if that were taken out of the hands of folks who, in the view of some, have a conflict of interest. Do you have any views on that?

Ms. Pate: Certainly we made recommendations for some other approaches, and even to have the law as it currently exists implemented would be a step in the right direction.

For instance, I do not know of any federal prisons for women in this country where they have the kind of grievance committee spelled out in the current policies and regulations. There may be some prisons for men that do, where they involve outside individuals as well as prisoners themselves who are part of that grievance committee. That would be a step forward. My fear is that this will load more administrative responsibility, but not necessarily make the process more effective.

Some of the external accountability measures that the commission of inquiry recommended involve where there are serious issues of liberty, for instance segregation, transfers, excessive charging practices, uses of force, some of those areas should be reviewed judicially and not necessarily by corrections itself.

Certainly one of the practices right now — it is not policy — is that many of the complaints and grievances filed go back to the very person who is alleged to have done the inappropriate thing or engaged in the inappropriate behaviour.

The Chair: One of your organization's concerns, I think, relates to Ashley Smith and the ability with respect to dealing with concerns from offenders with mental disabilities. Do you think this will have a serious impact on restricting the rights, if you will, of those kinds of individuals, especially female inmates?

Ms. Pate: Thank you for raising that. What I was alluding to in terms of Ashley Smith's situation is the very last grievance she did. I had to write it out because she was not even permitted access to a crayon. She was not permitted access to actually look at the paper. I had to hold it up to the window of her cell door and read it to her. Then I had to make an affidavit form on that grievance and had the correctional officer who was there, the supervisor, sign it, attesting to the fact that the only reason she had not signed it was because she was not permitted anything to write with.

If she was not permitted anything to write with and the only time she was able to do grievances was when someone else did them for her, I doubt that any of the correctional officers filed them for her. However, there have been, on occasion, officers who have done that for individuals, have written them out where they are not provided with access to writing materials.

In her case she did not know most of the things happening to her were unlawful, even if she had not had the mental health issues. Some of the things we found out happened to her after she died. For instance, when I was asking her about whether she had been involuntarily treated, she did not think she had been.

The Chair: You are saying this legislation will not ease that?

Ms. Pate: It will not remedy that.

Senator McIntyre: Ms. Pate, I note you have already appeared before the House of Commons committee regarding this matter, and today you are appearing before this committee, the Standing Senate Committee on Legal and Constitutional Affairs. Congratulations; it shows your interest in this matter.

I gather from your evidence today that all the documentation on this issue, vexatious complainants, points in the same direction. Federal female inmates in the correctional system tend not to grieve because they are often coerced, pushed or discouraged from doing so. Why is this happening? Who is behind this? Are they being coerced, pushed or discouraged by other female inmates or by staff members?

Ms. Pate: It varies. Oftentimes staff will discourage inmates from putting in grievances. That is part of the reason we have done training across the country. I commend some of the wardens of the women's prisons who have taken proactive measures. We have presented to them. The argument we put forth to them is if you are receiving grievances it is a good sign that you are using the safety valve that exists for prisoners to be able to express their concerns in a way that is legitimate, not encouraging them to self-injure or other things they may do to try and express their frustration with what is happening in a prison.

To their credit, some of the wardens have taken up that challenge and asked me to come and provide training sessions with their managers to talk about the value of that and have tried to promote staff seeing it as a positive move. For the most part, as would most human beings if someone is complaining about what you are doing people, people do not necessarily want to hear it, and often they will be discouraged from putting in the complaint, sometimes subtly and sometimes overtly. One example that one of the women gave was, ``I thought you liked it here. If you don't like it here and if you're going to continue to be problematic, uncooperative or manipulative and have these kinds of entitlement issues, then maybe you should go somewhere else.'' The implicit threat to that woman was that she would be transferred or, at the very least, not supported for her conditional release plan.

It ranges. There are some very good staff who support women putting in complaints and grievances and there are some who will contact us and say, ``You need to come and assist this woman or a group of women with putting in group grievances.'' It varies, but usually if someone is being discouraged from putting in a complaint or encouraged to withdraw it, it is usually by staff.

Senator McIntyre: When they do complain, are the complaints related more to physical ailments or mental health issues?

Ms. Pate: It varies. I know that the correctional investigator reports that most of their complaints are about health issues. I do not necessary get all of the complaints from prisoners, but certainly in speaking with the ones who bring forth their issues to us, they tend to be more serious issues involving everything from charges to uses of force to segregation to transfers, occasionally involuntary treatment issues. It varies. I suspect most of them, if they are putting them in, are about situations they are facing. It is sometimes paperwork. We have recently had a number about people not having their paperwork, which sounds innocuous, but that is the reports and assessments that are required for them to actually start the process to be released to the community on parole.

Senator Baker: I want to congratulate the witness for the excellent job she has done on behalf of the association she represents and, in the name of justice, as far as the inmates are concerned.

The person who will be making the determination here as to who is a frivolous complainant or a vexatious complainant is, of course, the commissioner. The commissioner was asked to give an example of a frivolous complaint when he appeared before the House of Commons committee examining this. I am reading from page 2 of the transcript of proceedings. Here is what the commissioner gave as his one example of a frivolous, vexatious complaint that he would then grade that person as being a frivolous complainant.

The question was by Mr. Leef.

I was just wondering if you have a few examples that you could highlight to really illustrate what we're talking about here in terms of what would be frivolous—maybe an actual complaint, if you have one.

Mr. Head replied:

Sure . . . I personally have, throughout my career, dealt with complaints and grievances.

He goes on to give his history, and then he says as the example:

An individual complains about not getting access to the doctor in a timely way. We go back; we analyze that; we determine that, yes, there probably could have been something that could have been done differently; and we schedule that individual for the next time the doctor comes in. So for all intents and purposes the issue is dealt with.

The way the law is currently written, that individual, even though the issue has now been resolved, can still file a grievance and just complain about the fact that it wasn't resolved in a timely way by our own admission and carry it on to the next several levels in the grievance system. That type of grievance serves no purpose at all . . .

That was the example he gave. Now we can see what is on the commissioner's mind, not potatoes and ice cream but actual grievances. Would you agree that this business of ice cream and potatoes has been vastly overblown and that actually we could be giving the commissioner an authority to do something that actually reflects what he regarded as being a frivolous complaint?

Ms. Pate: He and his staff already have the power to do that in the regulations that exist. I have seen complaints that have been minor in nature, in my almost 30 years of doing this. There is no doubt that there are some. My experience is that most of the time those will be dealt with and resolved and will not end up going up the line. Certainly I have never seen a complaint about ice cream or potatoes going to the third level.

Senator Baker: It is in the regulations and it is in his directives to take care of it. Even if something is partially frivolous, the whole thing can be thrown out.

In a court judgment on April 29, 2010, the Federal Court dealt with an affidavit of yours, and the Federal Court ruled in your favour to release information to you. What shocked me about this case in reading the judgment was that Ashley Smith had, on several occasions, asked for information. I am reading from the Canadian Association of Elizabeth Fry Societies v. Canada, 2010 Carswell NAT 1071 and paragraph 8. On May 31, 2007, Ms. Smith requested under the Privacy Act access to her personal records, et cetera. She was alleging, in paragraph 4, improper treatment, assaults and so on, alleged lack of psychiatric care or assessment. It goes on to say that the institution asked for a 30- day extension, because the law said you must give it in 30 days. She made a second request.

In paragraph 13, Ms. Smith committed suicide on October 19, 2007, 123 days after the first request for records was received, 62 days after the last day of the 30-day extension, and then it took you three years in court to actually get those records.

This leads to my question. Was it the Attorney General or Corrections Canada that put up the roadblocks? You had to go to court, where you could have had costs judged against you, to finally get a judge to say, ``Look, these records must be released.'' Was it the Attorney General or was it Corrections Canada who put up these roadblocks to releasing information that an inmate might need or you may need?

Ms. Pate: In that situation, it was a series of roadblocks. First, the Privacy Commission ruled in our favour but then determined that they were functus to force the release of the records, and then the Correctional Service of Canada deemed they could not verify that the consent still existed. They ruled in our favour, that we were entitled to receive them, but corrections still decided that they did not agree with that, and then it was the Justice lawyers who work on behalf of corrections. It was a combination of Solicitor General and Attorney General functions.

Senator Baker: What is the problem? We have the Martin report and all these reports say that Department of Justice lawyers should behave as ministers of justice, not taking sides, following justice and fairness. Do we need a course for Attorney General lawyers and Department of Justice to teach them the way they should be behaving? Is that what we need?

Ms. Pate: I do not think I will comment on that. One of the challenges we face and the challenge we have raised certainly with both the minister at the ministerial level and with lawyers in Justice, is that, as a department, it would seem that the responsibility is to uphold the laws of the land and to ensure that the Charter is followed, as opposed to what usually happens is that when a challenge comes, as in the one you are speaking about that we were involved with or others like the inquests that we were also dealing with, instead of ensuring that the Charter and the laws are protected and upheld, they are generally intervening to strike down efforts to have the law upheld.

[Translation]

Senator Dagenais: In response to Senator Baker's question, you mentioned that there have been, on occasion, complaints that you described as minor in nature. Could you give me an example of a complaint that you would describe as minor?

[English]

Ms. Pate: When I was working with men, I remember one where an individual said that they were late getting a phone call. That may not be seen as frivolous on the one hand, but, on the other hand, it turned out that he was late getting a phone call because someone else had an urgent phone call that he knew about. In that context, I would not see the person being struck down. What we did in that case was to say, ``Look, you are living in a collective here. If you complain that you did not get your scheduled time slot, next time what if you are the one with the crisis?'' That is one case.

I think that there was one about food at one point. People wanted more fruit or a vegetarian diet and did not have a doctor's note, so that was deemed frivolous. The only ones that I can think of would be things that could have been resolved by people discussing it.

When you are in an environment like a prison the grievance system is important in those situations. If those things happened 10, 15, 20, 100 times you might want to have someone take action, but someone being able to document it so that they do not do something else like go and punch the person who had the phone call is preferable to not having those mechanisms exist. Those are the kinds of things that I can think of. As I say, no disrespect to the men involved. For them, they might have been very important at the time, but, relatively speaking, they seemed less important than some of the ones that we tend to see.

[Translation]

Senator Dagenais: We of course know that following these complaints or grievances, some time is spent checking their accuracy and investigating the matter. What would you suggest, in view of the fact that too much time is spent on investigating complaints; some solution would have to be found to prevent. . .

[English]

Ms. Pate: Thank you very much for that. One of the recommendations that came from the women, when we were doing the human rights training, was to have a series of women have jobs. There is a shortage of employment opportunities for prisoners, certainly within the women's prisons and probably within the men's, too. I can only speak with direct knowledge of the women's institutions.

One of the things that we suggested — which was accepted by one institution two years ago but has not yet been implemented — was to hire some of the individuals who were there to act as a buffer, if you will, to help both formulate and process the grievances and then set up a grievance committee, according to the policy that currently exists.

That has been done a bit informally, and it has assisted the process in that institution, but we do not yet have the positions in place. I would be happy to share that with the committee if you want. It was developed in conjunction with the staff at one of the prisons for women, the Edmonton institution. It is called a grievance advocate clerk sort of position, and that was one that had merit. There is another institution that has implemented, again, a bit of an informal process where often the prisoners' committee is involved in looking at complaints or assisting people, particularly going back to the issue of people with mental health issues. One thing that we have encouraged is that those individuals, if they were in those positions, could meet with people in segregation and assist them with those sorts of efforts. I would be happy to share that if that is helpful to the committee. That is the job description that was developed, and I can certainly distribute the human rights booklet if you are interested. We have it in both languages, and I do apologize that I am not sufficiently proficient to be able to answer you in French.

[Translation]

Senator Dagenais: Thank you very much, Ms. Pate.

[English]

Senator Joyal: Welcome, Ms. Pate. Of course you aware of the report that Professor Mullan, of Queen's University, released in July of 2010. Were you consulted or interviewed by Professor Mullan in his investigation or his reflection before he came forward with recommendations?

Ms. Pate: I was interviewed. We provided him with the recommendations that we made to the Canadian Human Rights Commission as well.

Senator Joyal: In the context of his recommendations versus the bill that we have for consideration now, Professor Mullan was here yesterday to testify. He reasserted his recommendations as being more helpful to resolving the issue of vexatious and frivolous complaints than the approach that the bill enshrines. If we have to act on the basis of making a decision to address this issue, would you support the recommendation of Professor Mullan to restrict the number of complaints per inmate instead of barring them, for a year, from filing complaints? What would your preferred option be if you had to choose between the two?

Ms. Pate: If those were my only options, I would choose Professor Mullan's recommendation, but, again, because we are dealing with a group of prisoners who very rarely put in complaints, I do not think that there is any need for that process either. We would prefer to see the sorts of methods that we have been talking about where we actually will assist individuals to have their issues addressed in as meaningful a way as possible.

Senator Joyal: The bill that we have before us gives the commissioner, in my opinion, an exceptional power to bar an inmate from filing a complaint, except in specific circumstances. Would you be concerned that that power that is entrusted to him or her, if the case evolves, is exceptional in the context of depriving someone of a right once a person is in custody? In my opinion, if you are depriving someone of his or her right to complain, that person is entitled to due process, that is, to be the object of a decision from someone who is independent from the system, someone who has the capacity to hear both sides of the issue and someone who will give an opportunity to the person to state his or her case or to get the assistance to state his or her case.

The bill, as it is provided to us, does not give us any assurance that those essential elements of due process are protected. How would you react if this bill comes into force and you were faced with such a situation? What would be your legal standpoint faced with such a situation?

Ms. Pate: My guess is that, if this bill comes into law, it would be challenged, probably not by a woman prisoner but likely by some of the male prisoners. My guess is that it would be struck down as not providing due process. It used to be that the Federal Court would not hear any cases of prisoners until they had exhausted all of the complaint and grievance processes. They will now hear them because they recognize that there has been enough documentation of the ineffectiveness and the unfairness, at times, of that process. They have heard and do hear cases now.

At the end of 30 days, we always receive a notice, if we filed an Access to Information and Privacy request on behalf of a woman in prison. Within 30 days, or usually faster than that, we will get a letter saying that they are seeking to have a 30-day extension. We routinely do not put in any complaints to the Privacy Commissioner until at least one — usually two or three — of those extensions have gone by. That is what happened in Ashley's case as well.

The reality is we already know that there is a significant problem with the process. Anything that adds more administrative layers to it will not only interfere with the process and create the sorts of issues you have mentioned, but also lengthen an already very lengthy process. I have not received videotapes through that process for years.

Senator Joyal: You cannot really assess if, in your opinion, the process satisfies what would normally be the obligations that are covered under due process in the way that the Canadian courts have traditionally interpreted the legal system?

Ms. Pate: In some ways it is more similar to what we dealt with 20 years ago in trying to get access to documentation than it was even 5 years ago.

Senator Frum: Welcome, Ms. Pate. As you know, the purpose of this legislation is to deal with the approximately 25 prisoners a year who are dealing with the system in bad faith. We have heard that 0.1 per cent of the prison population is issuing as many as 15 to 18 per cent of the grievances. These grievances number in the hundreds. I appreciate it is not really the people you represent, it is not the women prisoners who are doing this, maybe none of the 25 are women, so it is really not your area. However, it might seem to someone listening that there are no prisoners who use the system in bad faith. I would argue to Senator Baker that I can imagine even a grievance that is made about seeing the doctor in a timely fashion, if that grievance is made after the fact and repeatedly through the process, it can be done in bad faith.

I appreciate you do not like this legislation, but how do you think the system should deal with those individuals? I think it is a reality. Professor Mullan used the expression that there are those who are addicted to the grievance process for the reasons you said, they are under occupied, bored and angry, and they use the grievance process as a manipulative tool within the system. What is your recommendation for how to proceed with those individuals?

Ms. Pate: The process that I mentioned, where you involve the prisoners themselves in it, I think could deal with many of those issues. Certainly other people who are serving time with individuals who are doing that would not want to presumably see that process continue either. I think those kinds of mechanisms would work far more effectively.

Currently, the jurisdiction already exists to deal with those prisoners. I am not sure what has happened, but my guess would be that those men probably have received those kinds of restrictions up until now. I am not certain where the genesis for this came from, aside from perhaps some individuals complaining at a local level, but certainly this jurisdiction has existed for as long as the CCRA has been around, since 1992. Before that the grievance process was negligible at best.

If we had a process where the committees were put in place and others were engaged in the process of looking at those complaints and assisting, both in vetting them, helping them to proceed and to resolution, I think that would be a preferable process.

Senator Frum: Again, some of the testimony we have heard is that over $5 million is spent on the grievance process and that if you could eliminate the vexatious complaints you could save upwards of $250,000 a year in the system. I think that is part of the motivation here. Can you comment on that?

Ms. Pate: I think fighting the complaints probably costs a lot more than that. I do not know what it costs the government to fight us on the various things. I do not mean those of you here, I mean in terms of when we are going to court and have justice lawyers. There is no doubt it is costing a lot more than $250,000 to keep under wraps some of the information that might be useful to have exposed to be remedied so we do not see some of those situations continue.

Senator Fraser: I want to come back to the case Senator Baker cited from Mr. Head in the Commons committee. I am not asking you to comment on that specific case, because we do not know. Let us treat it as a hypothetical. A prisoner files a grievance because he did not get a timely appointment with the doctor, gets to see a doctor the next time the doctor comes around, the correctional service believes that should be the end of the matter. The prisoner does not. The prisoner takes it up the line. Why would a prisoner take it up the line? Is that because the prisoner is not satisfied that there was proper disciplinary action against the person who refused the doctor's appointment? What grounds could there be other than frivolity and resentment?

Ms. Pate: I do not know, in that case.

Senator Fraser: Hypothetically speaking.

Ms. Pate: Not just hypothetically, I can give you an example of a woman we did assist who did not get access to a doctor's appointment. She put in the grievance before she got access and then got access. It is not clear whether that was the impetus for her to get access. We also encouraged her to contact the Correctional Investigator, and we contacted the Correctional Investigator on her behalf as well.

In her case, sadly, she was concerned that she had a lump. By the time she got to the doctor it was a significant period of delay and she had breast cancer. She eventually did get to the doctor. The grievance did proceed and was upheld in part because the ``in part'' was that she eventually got to see the doctor. We argued she should proceed with the grievance process not just as a matter of principle but because it was only upheld in part, which meant there was not a guarantee that it would not happen to someone else.

The perception was that she had been given access to the doctor, and therefore to proceed with the grievance would be unnecessary. Our view was not just because of the repercussions for her but for other women as well, that they need to have access to timely medical assistance.

Senator Joyal: The bill provides that in some circumstances the commissioner may allow a complaint, as I read it, ``except by leave of the commissioner.'' In other words, when an inmate is barred from filing complaints there is still a possibility for the commissioner to allow one. Of course, one immediately thinks of a complaint that would involve the life, liberty and security of the person.

In practical terms, how would that happen? If the person is barred from filing a complaint, how would that person express him or herself that the complaint relates directly to his life, security or liberty? In other words, if the person is barred from filing a complaint, the person is barred. How would the person fight for his or her life in the context, for instance, of a health problem or something that deals with the physical integrity of the person?

Ms. Pate: They would have great difficulty unless there was someone else going into the institution or another process to even get word out that they wanted to file that kind of complaint. If they were barred already they would have difficulty if they were in segregation, if they were being denied writing implements or paper or those sorts of things. I think it would be incredibly difficult, if not impossible.

The Chair: I have to wrap it up there. Thank you, Ms. Pate, for your contribution to the committee's deliberations.

Our second witness today is Mr. Jay Pyke, warden of the Kingston Penitentiary. Mr. Pyke, welcome to the committee. Do you have opening remarks?

Jay Pyke, Warden, Kingston Penitentiary, Correctional Service of Canada: I do. I wish everyone good morning. I am pleased to be with you today. I am the Warden of Kingston Penitentiary, often referred to as KP, which is how I will usually refer to it.

I would like to speak with you briefly regarding KP to give you a sense of the institutional life and then address some of the challenges we face pertaining to the offender redress process.

Kingston Penitentiary is a maximum security facility that accommodates high-risk, high-needs offenders serving a range of sentences between two years to life. KP has traditionally housed, on average, approximately 390 inmates.

The Chair: Could you slow down a little bit for interpretation purposes?

Mr. Pyke: Sure.

The Chair: Thank you.

Mr. Pyke: The number has been reduced over the past several months in preparation for the site closure, and today our population rests at approximately 294 inmates.

Inmates at KP are serving sentences for a wide range of offences. The majority of them have violent histories, significant mental and physical health concerns, substance abuse problems, behavioural issues or a combination of the above.

At KP, we are committed to delivering a high level of service to offenders in terms of maintaining their safety and security, as well as offering programs and services that aim to reduce their risk to reoffend.

Given the profile of KP's offender population, it is clear that a fair, expeditious and accessible grievance process that is free of negative consequence is vital.

I understand you have already spoken to our commissioner and assistant commissioner of policy on the matter of Bill C-293 and recognize that the redress process must reflect the values of our democratic society. For CSC, this process provides the mechanism to test our decisions to ensure that they are made in a manner that respects the dignity of all individuals while recognizing that our first priority is to ensure the safety of staff, offenders and society.

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

As you are likely aware, there are four levels in the process. The first two levels take place locally at the institution, consisting of the initial formal complaint followed by a first level grievance. The complaint is responded to by the immediate supervisor of the person whose actions or decisions are called into question. The first level grievance is responded to by the warden and therefore, Mr. Chair, the first level will be my area of focus today.

During the 2011-12 fiscal year, a total of 501 inmate complaints and/or grievances were submitted locally at KP. Of these 501 complaints, 86, or 17 per cent of the total, grievances were submitted by three offenders. In the current fiscal year, 2012-13, to date, a total of 573 grievances have been submitted locally. Of these, one inmate has accounted for 92, or 16 per cent, of the total grievances that have been submitted at the site.

The 86 grievances submitted by the three individuals in the 2011-12 fiscal year and the 92 submitted by the one individual this fiscal year can generally be characterized as lengthy, complex and touching many subjects or issues. This fact makes the total number of issues grieved actually larger than the 17 and 16 per cent would suggest, as they require multi-faceted responses.

Of the 86 grievances submitted by the three individuals last fiscal year, only two were upheld completely. Three were partially upheld owing to the responses becoming untimely, and the remaining 81 grievances were denied on the grounds that they had no merit.

Of the 92 complaints and grievances submitted by the one individual this year to date, one has been upheld, seven have been upheld in part, with the majority of the rulings speaking to timeliness issues. The remaining grievances were denied on the grounds that they had no merit.

Despite the initial responses to these complaints, 30 were moved on to the first level for response. Of those 30, 24 were subsequently moved on the second or regional level.

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

With regard to the four offenders I mentioned, our grievance coordinators are often faced with the arduous task of checking for duplication of previous submissions and responses. Copies of these similar submissions are then placed in the review package for the benefit of the investigators so they do not reinvestigate an issue that has already received a response.

The next point of contact is the investigator, often at the middle management level, consisting primarily of a correctional manager or manager of assessment and intervention. Each complaint must be investigated, the inmate interviewed and a response generated in a written docket to be provided to the inmate.

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

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

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

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

It is also significant to note that in the case of the three primary complaint grievance submitters at Kingston Penitentiary, that despite clear responses being provided by the line managers, the offenders chose to move many of their complaints to the first level grievance where a warden's response was required. In my experience, it seems that for certain offenders there is an explicit intent to move the grievance to every level within the organization regardless of the decision or rationale provided at the lower level. Beyond the strain on the organization's resources at all levels, there are additional impacts at the site level. For example, because frivolous and multiple complaints and grievances slow down the complaints grievance process locally, it negatively affects those inmates who do not abuse the process and who deserve an expected timely response.

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

CSC is committed to providing a redress system that is fair, expeditious and accessible to all offenders.

I thank you, and I would be happy to answer any questions you may have.

The Chair: We will begin with the deputy chair, Senator Fraser.

Senator Fraser: Thank you for this information, which is very helpful to us. There is nothing quite like hearing from people who are actually involved in a process.

I would like to come back to the review committee that you established. It seems like a good step to take, when someone is complaining about harassment by staff, to set up an external review committee. However, I was struck by the composition of the committee, which consisted entirely of people from the correctional service. I was wondering why you would not have included at least one person from outside the correctional service.

Mr. Pyke: I guess, quite frankly, it made sense to me at the time to go outside at the national level and regional level and then bringing in a manager from an outside site, so it would not be localized to Kingston Penitentiary, for example, in terms of wanting to uphold. The national headquarters level are individuals from that redress, from my experience, who do not feel obligated by virtue of a first or even second level response, for that matter, to necessarily hold pattern with the previous two responses. In my opinion, it was as transparent as I could get at the time, given the number of grievances that were quickly piling up owing to harassment allegations.

Senator Fraser: It is the Caesar's wife thing — not only be, but be seen to be external and independent. We all appreciate that you operate under many constraints, including budget.

Mr. Pyke: Yes.

Senator Fraser: I will ask a different question, if I may, not necessarily about this bill. Do we know yet what is happening to the people in Kingston who are psychiatric patients as the institution closes down?

Mr. Pyke: Yes, the closure plan relates to new builds and relocation of the maximum security inmates at Kingston Penitentiary. There has been extensive consultation at the regional level related to where these inmates will go. We do have a mental health unit at Kingston Penitentiary.

Senator Fraser: It is those prisoners that I am asking about.

Mr. Pyke: The intermediate mental health unit will move to the new site.

Senator Fraser: As a unit?

Mr. Pyke: As a unit, yes.

Senator Fraser: To the new site, and where will that be? What do we know about that?

Mr. Pyke: At this point, at my level is all that I can speak to, but I can tell you that there is a high probability it will move to Millhaven Institution, the other maximum security institution in the Greater Kingston Area.

Senator Fraser: Will you be able to preserve the staff, and will prisoners in that unit be able to continue with the same persons who are responsible for treatment, which I would assume would be fairly important for continuity?

Mr. Pyke: Absolutely, yes.

The Chair: How large would that unit be?

Mr. Pyke: Currently, it is 32 beds, and it is always full. The equivalent would arrive at the new location. I say the ``new location'' because I cannot say concretely that it will be Millhaven, but I can tell you at this point in time that is certainly the plan.

[Translation]

Senator Dagenais: Mr. Pyke, obviously I have been listening to you carefully. I congratulate you for your patience, and you have my deepest sympathy for having to settle so many grievances. In my opinion, there have been a great many grievances. I also understand that three inmates, in particular, submitted the largest percentage of those grievances. Of course, that slows down the settlement of other complaints, and those inmates are the ones who are negatively affected.

Have you thought of a mechanism, not necessarily to place these three inmates' grievances at the bottom of the pile, but to give them a lower priority? We know precisely who these three offenders are, and in fact, it is no longer a matter of grievances, but of considerable strain on the system: they are putting a spoke in the process, so to speak. Unless I am mistaken, this is hurting the other inmates. For these three individuals that you have clearly identified, have you thought of some other way to process their files, because for the time being, they are hurting everyone, and at great cost to the administration?

[English]

Mr. Pyke: Thank you; that is a good question. I do not have a process or mechanism in place right now whereby I can put them at the bottom of the pile, and I am sorry if I go off, but it is important to explain the process involved as they come in.

The goal is to resolve at the lowest level possible. We find in most resolutions, if you can get the actual person involved in the process to which they are complaining about to reach a resolution, the hope is that that will stop.

We have a couple of mechanisms that have been discussed before, but I will go into them quickly, if I can. We have the ability to recognize an individual as a multiple griever currently, but it is a little arduous in terms of the amount of work required to do that. It becomes quantitative in the sense that we can say that we will identify you as a multiple griever, which means that we will not respond to more than two grievances in a month. It does not mean we will not respond to all grievances, but we will limit you to two a month. With the process, I then have to provide an explanation in terms of why I am identifying them as multiple griever, before we start into that. Yes, there is a quantitative element that I can use to limit the number they can put in per month, but eventually all must be responded to in time.

The other thing they will do is, in the case of these very select few, purposely put them as a life, liberty or security issue, knowing that that will expedite the review, and that it goes to the top of the pile as soon as they say ``harassment'' or as soon as they say it is something on life or liberty. By the time you have got to the investigation and are looking at the dynamics around that that is when you finally make the determination that this is frivolous in nature or there is a vexatious intent related to this.

I do not know if that concretely answers your question. I would say we can limit them but we cannot put them at the bottom of the pile.

Senator Baker: I really appreciate the warden's testimony here today. He has a very difficult job to do in the position he is in, but I am sure he fulfills it greatly.

As Senator Dagenais mentioned, three persons with 86 complaints in a fiscal year averages out to about two a month, and the two-a-month point is where you could regard them as being frivolous complainants. I wanted to verify this with you. In a case about four months ago the Federal Court pointed out in Spidel v. Canada, 2012, Carswell, NAT 2820, at paragraph 9 that sections 97 and 98 of the regulations allow the commissioner of the CSC to make rules or directives for the purposes of carrying out the objects of the act and regulations. These Commissioner's Directives have been held to constitute regulations within the meaning of subsection 2(1) of the Interpretation Act.

There is then a reference, Mercier v. Canada, Federal Court of Appeal, 2010. We are dealing here with Commissioner's Directive 081. The commissioner has the power to be able to do what was referenced earlier, and that is to designate someone as being a frivolous objector, and it has the authority of the regulations under the Interpretation Act. That is what you are referring to; the Commissioner's Directives are what you are following?

Mr. Pyke: Correct. The Commissioner's Directives basically operationalize measures for us; they take the laws and put them into an operational standard that we will use. We make the assumption, and I would like to believe it is a safe assumption, that our Commissioner's Directives are based on law and it is how we turn the regulations and interpret them into a commissioner's direction at the local site level in terms of how we would continue on with 081.

Senator Baker: That is what the Federal Court of Appeal held to be the case in the Supreme Court of Canada in a previous judgment. This is the law; he makes the regulations. What we are talking about today is within the authority of the commissioner to accomplish through his directives.

I want to compliment you on your submission for another reason. You noted that the complexity of these complaints and then the grievances give you a serious problem.

Mr. Pyke: Yes.

Senator Baker: It is the complexity. That is what the deputy commissioner said to the Federal Court. It is not whether the eggs are soft-boiled or hard-boiled or the potato is too big or too small, it is the complexity of some of those complaints. Congratulations on your submission.

That is all, Mr. Chair.

Mr. Pyke: I hope they are all like that. Thank you.

Senator McIntyre: Mr. Pyke, thank you for your presentation. As you have already pointed out, we have a four- level grievance process: institutional, regional and national. On this issue, the Senate committee has already heard the oral testimony of two important witnesses, namely Professor David Mullan and Don Head, CSC Commissioner. Both are recommending the elimination of level 2. As a matter of fact, Commissioner Head informed this committee that CSC has decided to eliminate the second level from the grievance process, the regional level, beginning in 2013-14.

As a warden and as someone directly involved with grievance process number 1, are you in favour of this elimination, in other words, the elimination of level number 2?

Mr. Pyke: I understand the impact it has across the organization. I think for a simple answer, yes. Again, for me it really changes very little in terms of my response at the institutional level. My belief is that by the time I respond at the first level, we have investigated to the best of our abilities to provide the response. The next level is frankly our check and balance related to our response locally to ensure that we are keeping with our application of law as we interpreted that at the local level.

It is important that we have a further level beyond level 1 for that check and balance, but I am fine whether it is the second or third level; it is the fact that the balance and check is there. I hope that answers your question.

Senator McIntyre: My understanding is that sentences at Kingston Penitentiary range from two years to life. I further understand that what we are dealing with here is a small number, around 25, of inmates who are continuously filing a large number of complaints. Of the small number, around 25, who have been continuously filing those complaints, are they serving a sentence less than two years or more than two years?

Mr. Pyke: Two of them are serving life sentences. I am speaking exclusively of the four I have referenced. The other two are term sentences. I cannot say specifically, but I believe the other two are in the seven- to nine-year range.

Senator Joyal: How long have you been the warden of Kingston Penitentiary?

Mr. Pyke: Approximately three years now.

Senator Joyal: That is a very short period of time.

Mr. Pyke: It is relative.

Senator Joyal: When you are in, it is a relative concept.

Mr. Pyke: I started my career at Kingston Penitentiary as a correctional officer. About 13 years of my experience has been within the walls of Kingston Penitentiary.

Senator Joyal: Are you aware of any complaints that have found their way to the court system of Canada from Kingston Penitentiary in the last years? I stretch the years because your term has been short.

Mr. Pyke: In terms of judicial review, I think one in my term has made judicial review since I have been the warden.

Senator Joyal: Do you remember the particulars of the case and could you inform us about it?

Mr. Pyke: I regret that I cannot speak specifically to the case. I simply have statistics in front of me identifying that I have one. I cannot speak specifically to it.

Senator Joyal: Is it a final decision or is it still in the court system?

Mr. Pyke: Again, I am not absolutely certain at this point. I can provide that information immediately following.

Senator Joyal: The objective of my question is to try to understand how the system works in Kingston Penitentiary and what are the elements that might cause problems or raise issues with the system as it is applied presently. That is essentially the objective of my question; it is not to embarrass you.

Mr. Pyke: It is okay. I can try to answer to the best of my ability, as you phrase that question. It is really the dynamic involved. A complaint comes in that may have seven different issues at task. It is trying to respond and separate those seven issues. How many complaints are we looking at? Do they need to be responded to as seven different complaints or will we address the one-off issues all in one final response?

The problem when we try to respond to one complaint with seven different issues in one response is that inevitably it is transmitted to the next level on account of the fact that the impression from the inmate is you have not answered all of the dynamics of my complaint through one generic response, as interpreted by them. That then lends to it moving to the next level and possibly another complaint, owing to the nature of that response.

Senator Joyal: An inmate who is in prison for the rest of his life or for a long term, say 15 years, is certainly not in the same psychological environment as one who is there for two and half years who can see the light at the end of tunnel. That person might have more cause to try to rehabilitate and so on. A person who is in prison for the rest of his life is in a totally different psychological context. That person has to either come to terms with the fact that this will be his environment for the rest of his life or try to amend in order to reintegrate, at some point in time, into the course of normal life in society. How is psychological service available to people in that context?

Mr. Pyke: I will comment on the assumption. In my experience, the assumption that the person doing two or three years is more vested at times in reintegration is a little overreaching. Our inmate profile has changed considerably over the last decade. We are seeing, quite frankly, a little bit shorter sentences at times coming in, but the mentality of the inmate in terms of ownership or desire to integrate, they have high risk and high need, dynamic factors come into play.

Markedly, the individual with 15 years or more has a much more vested interest and concern related to the institutional environment than that of the individual doing two to three years.

I would say there are two answers. First, in terms of motivation for reintegration, it does not necessarily equate to length of sentence. We see that very often now with our current profile. In terms of psychological services available, at Kingston Penitentiary over 50 per cent of the population routinely use the psychological services we have on site. We have registered psychologists on site and a registered psychiatrist on site. We also have behavioural science technologists who conduct triage.

If an inmate puts forward a request to see someone from psychological services, a behavioural science technician is sent down and triages with the inmate and assists with the determination. We will follow up with psychology or psychiatry or the like.

The other thing is, and frankly a key piece to those types of referrals, are the front-line staff, the correctional or parole officers. An inmate will not necessarily always volunteer to come forward and say ``Hey, I have a concern.'' It is perceived at times as weakness in a maximum security facility or that population environment. A lot of times referrals may come from line staff, saying, ``He is just not right today,'' or if he is not behaving how he normally would, usually they will say, ``Hey, how are you?'' Today it was nothing, no comment or he seemed off. We have a team of resources available. This is further to the mental health unit, which we referred to earlier. That is an entirely different range with support to that. Generally, overall, for the population in segregation we have this group of mental health personnel on staff.

Senator Demers: I commend you on your job. One of my former players spent time in Kingston, and it is very tough in there with something negative happening every day and every minute.

To come back to the individual who had 92 grievances, that is close to eight a month. Every three and half days there was a complaint. Could it be that he has mental problems? That just seems to be impossible. Had the mental status of this one inmate been checked?

Mr. Pyke: Absolutely. I can tell you, he is very litigious, this fellow with the 92 complaints. Believe it or not, this individual was transferred out of Kingston Penitentiary to an institution out West and continues to grieve from the institution out West on issues at Kingston Penitentiary. A significant number of his grievances, almost 50 per cent, submitted this year have come when he is no longer on site. He continues to grieve issues that were at the site level. In this particular case he was a segregated inmate, long-term segregation on a voluntary nature, who refuses to integrate into the general population, so he certainly has a lot of time on his hands.

During the intake process we screen for psychological assessments related to the mental health of the individual as they come in and then, depending on the reintegration and correctional plan, we will look to do further assessments.

This fellow was not suffering from mental health issues. He was a very litigious fellow and very anti-establishment. Of course, that is what feeds into this idea that he has time to write, so he gets to writing.

The Chair: Is that your general experience in terms of multiple grievers? They are not people suffering from some degree of mental illness?

Mr. Pyke: I can only speak to the ones at Kingston Penitentiary, but none of the four we are referencing here are individuals suffering from mental health issues in terms of a diagnosis. I will leave it at that.

The Chair: You talked about the maximum security unit that will be constructed at Millhaven, 32 beds. Then you referenced intermediate. Is that medium security you are talking about?

Mr. Pyke: No, what we were looking for in CSC was there was a gap between an acute level mental health facility, like a regional treatment centre, in Ontario, and a step down where there needed to be an acute centre, but it was evident that functioning in a regular population environment was not the best. They needed more support. A few years ago we created this intermediate mental health unit. It is in a maximum facility, but it is a step down from the acute. It is to help them integrate back into the open population environment once they have their medication regimen under control and daily living skills and the like. For some of them it is just hygienic. A failure to keep up with proper hygiene in the population will lend to the individual having to go to segregation. They will run him off the range. They will tell him that is not good.

The Chair: What size is that unit?

Mr. Pyke: Do you mean the intermediate mental health unit?

The Chair: Yes.

Mr. Pyke: That is the 32-bed unit I was referring to.

The Chair: I am told that currently at the treatment centre you have 143 beds.

Mr. Pyke: Approximately, yes.

The Chair: You are talking about 32. What happens to the remainder?

Mr. Pyke: Sorry, this is not the regional treatment centre move. This is a unit that has been within the walls of Kingston Penitentiary for years now. When Kingston Penitentiary moves, this unit within the walls will also move with all the resources related to addressing mental health concerns.

The Chair: Will that be within the walls of Millhaven?

Mr. Pyke: Correct.

The Chair: What about the regional treatment centre?

Mr. Pyke: The regional treatment centre is being relocated as well, in its entirety, with the staff, between two sites. It will be relocated between Bath Institution, which is a medium-level institution, and the maximum security acute unit, which the existing treatment centre has, that will be located at Millhaven Institution.

The Chair: Are they currently separated?

Mr. Pyke: They are, by physical infrastructure. The first floor is the acute, maximum security unit at the existing treatment centre. In fact, Bath and Millhaven are literally across the street from each other. It is the same complex; they are two separate institutions with a road that divides them.

The first floor at the regional treatment centre will become the crew and staff at Millhaven in that acute unit for maximum security inmates. The remainder of those individuals will be housed at Bath Institution, medium security.

The Chair: You say the 32 beds are filled all the time. What happens if you have inmates coming in who are suffering severe mental illness and the beds are full? What do you do with those individuals?

Mr. Pyke: I can only speak to the resources I have. We have the one unit currently. We will address whether they need acute care or whether they need intermediate care. If the unit is full all we can do is make reference in terms of wait list for attendance to either the IMHU or the original treatment centre and then attend to them with the existing psychology staff we have.

The Chair: Do you segregate them from the rest of the population?

Mr. Pyke: Not necessarily. We do have one living unit at Kingston Penitentiary that houses, almost exclusively, lower-functioning individuals so they are not preyed upon on the living unit itself. They can be out amongst themselves, they are not being — sorry to use jail terms — ``muscled'' or pushed into giving up personal effects and the like or being manipulated into holding institutional alcohol, brew or the like. Kingston Penitentiary has five different sub-populations under one roof to help manage the fact that we do not have that. We do not have an excessive number of individuals in segregation on account of the fact that there is quite a different population base.

The Chair: Thank you, Mr. Pyke. We strayed a bit beyond Bill C-293. I did as well. It was very interesting and we appreciate your appearance to assist the committee.

That concludes the meeting for today.

(The committee adjourned.)