THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

EVIDENCE


OTTAWA, Wednesday, December 12, 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: Good afternoon, 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). This is our fourth meeting on Bill C-293. These committee hearings are open to the public and also available via webcast at parl.gc.ca. You can find more information on the schedule of witnesses on the website under “Senate Committees.”

For our first panel, I am pleased to welcome before the committee Mr. Howard Sapers, Correctional Investigator of Canada; and Mr. Ivan Zinger, Executive Director and General Counsel from the Office of the Correctional Investigator of Canada.

Mr. Sapers, please proceed.

Howard Sapers, Correctional Investigator, Office of the Correctional Investigator: Thank you, Mr. Chair and senators, for the invitation to appear again before your committee; it is always a privilege.

We are here to discuss Bill C-293. I will make some brief remarks, the script for which I believe has been distributed. I am joined today by the Executive Director of the Office of the Correctional Investigator, Mr. Ivan Zinger. He will make some very brief comments about the role of the office and how it is that we deal with multiple grievers. After Mr. Zinger's remarks, I will conclude with some remarks on the importance of an accessible, fair and expeditious internal grievance process in resolving offender complaints and the consequence of ignoring them or too quickly dismissing them as frivolous or vexatious.

[Translation]

Mr. Ivan Zinger, Executive Director and General Counsel, Office of the Correctional Investigator: In 2011-12, the Office of the Correctional Investigator received more than 5,700 offender complaints. The office’s team of 18 investigators spent 370 days visiting federal penitentiaries and conducted more than 1,600 offender interviews. The office recorded more than 18,000 contacts on its toll-free number, reviewed over 800 uses of force incidents and conducted 144 reviews of assaults, in-custody deaths and other serious incidents.

In the last fiscal year, the top three areas of offender concern in order of priority were health care, conditions of confinement and administrative segregation. The office can investigate complaints from federal offenders independent of whether they have filed similar complaints using the internal complaints and grievance system of the Correctional Service of Canada.

When appropriate, the office may request that offenders exhaust the internal grievance procedure before we examine their complaints. If the subject of the complaint raises important or priority issues, such as involuntary transfer or segregation placement, the office will generally investigate even if the offender has an outstanding grievance filed with the Correctional Service of Canada on the same subject matter. If the complaint has merit, the office will make recommendations to resolve it in a fair and expeditious manner.

The office manages its workload within the existing legal, administrative and policy frameworks. Complaints made in a frivolous or vexatious manner or in bad faith are relatively easy to determine and require little in the way of substantive follow-up. But all complaints must be reviewed carefully.

The scheme proposed in Bill C-293 would not remove the obligation of the service to conduct such a review, but it may actually compound the administrative burden with a leave process decided by the Commissioner. There is no typical profile for a multiple griever. However, our experience suggests that some exhibit symptoms associated with mental health dysfunction, including paranoia, narcissism or obsessive-compulsive behaviours. In fact, their mental health issue may have been responsible in part for their offending pattern. Labeling them vexatious complainants and prohibiting them from accessing the grievance system is not likely to work as it does not address the underlying source of mental health or personality disorder. These offenders may simply shift their focus to challenge their designation as a vexatious complainant by way of judicial review, or file their complaints to independent bodies, such as our office or the Canadian Human Rights Commission.

[English]

Mr. Sapers: As I proceed, I think it is important to make a few clarifications and distinctions in the language that we use when we talk about grievances, particularly with regard to the focus and intent of this bill.

The terms “vexatious,” “frivolous,” “multiple griever” and “multiple complaints made in bad faith” are not necessarily interchangeable, nor are they meant to be. In policy, the Correctional Service of Canada already has the ability to designate and manage an offender as a multiple griever. Commissioner's Directive 81, Offender Complaints and Grievances directive, defines a multiple griever as:

. . . one who submits so many complaints and/or grievances that the volume impacts on the capacity of the Service to respond to complaints and/or grievances by other grievers or hinders other grievers' access to the process at that site.

CD81, which is part of the policy suite for the Correctional Service of Canada, also provides the direction to deem a complaint frivolous when it is submitted with no serious purpose or:

Vexatious or not made in good faith: where the decision maker concludes on the balance of probabilities that the overriding purpose of the complaint or grievance is:

a. to harass;

b. to pursue purposes other than a remedy for an alleged wrong; or

c. to disrupt or denigrate the complaint and grievance process.

These are important considerations because the practical intent behind Bill C-293 is to prohibit or restrict access of a designated vexatious complainant to the offender grievance system. In other words, it is the complainant and not the complaint itself that will be designated vexatious under the bill. Such a label carries significant implications in a penitentiary environment.

I remind committee members that my office was created in the aftermath of a bloody and deadly riot at Kingston penitentiary in 1971. The commission of inquiry into that disturbance concluded that the lack of a credible system to resolve inmate complaints was one of the major contributing factors that led to the deadly confrontation. Historically in Canada and elsewhere major disturbances such as the Kingston riot are often preceded by a high volume of unaddressed or inappropriately addressed inmate complaints.

In April, before the House Standing Committee on Public Safety and National Security, I pointed out that concerns with CSC's management of its grievance system go beyond the issue of multiple grievers. Indeed, I suggested that this bill detracts from a number of issues facing CSC's grievance process.

After listening to the parliamentary debates and reviewing testimony to date, I remain convinced that Bill C-293 in fact trivializes inmate complaints and reduces CSC's accountability to meet its legal obligation to operate, and I quote the legislation, “a fair, expeditious and timely grievance system.” This is required by law.

Today what CSC considers a routine grievance can take, without any formal extensions being granted, over 150 working days, or seven months, from the initial filing to resolution at the third level. In the instance of a high priority grievance, the number of days now exceeds 100, or almost five months. A non-priority complaint can routinely take one year to wind its way through a series of convoluted review levels and inflated time frames.

This state of affairs cannot be considered efficient or accessible. It is neither effective nor accountable correctional practice.

In the final weeks of her life, young Ashley Smith grieved that CSC denied her access to personal hygiene items, including things such as toilet paper and sanitary napkins. She grieved that she had to sleep on the floor with no blanket and no mattress and that her only form of clothing was a suicide smock. Inexplicably, one designated high-priority complaint was only opened by the Correctional Service of Canada for review two months after Ashley's death.

In my investigation into Ashley Smith's death, I found that all of her complaints were inappropriately dismissed or denied by the Correctional Service of Canada. I concluded my investigation by stating:

The presence of a more timely, effective, fair and responsive internal complaints and grievance system within the Correctional Service could have significantly improved Ms. Smith's overly restrictive and dehumanizing conditions of confinement.

I recommended that the Correctional Service immediately commission an external review of its operations and policies in the area of inmate grievances. They did so. The CSC eventually agreed and commissioned Professor David Mullan from Queen's University to conduct an independent expert review.

You have already heard from Professor Mullan, so I will not repeat his findings except to say that only one of his 65 recommendations required a legislative intervention, that being his recommendation for the elimination of the second regional grievance level, which would shorten the overall processing of inmate grievances. My office supports this measure. Until then, however, the second regional level of review remains in force and effect.

Arising from the Mullan review, an alternative dispute resolution pilot project has been implemented at 10 medium and maximum security institutions. The pilot is showing some promising early results, including a high resolution rate, reduction in the number of complaints, and more timely resolution of priority grievances. The pilot affirms that offender complaints are best resolved at their source at the lowest possible level and as informally as possible. These are best practices.

In my previous remarks before the House of Commons committee, I encouraged Parliament to put this legislation on hold and expand its scope of review to examine the entire CSC inmate complaints and grievance system. I continue to hold this position. There are already internal policy mechanisms in place to deal with frivolous, multiple and vexatious complainants. It appears unnecessary to use legislation where policy levers exist. Frivolous complaints require a management, not a legislative, response.

Bill C-293 will not extinguish the concerns it seeks to address and may serve to add to, not subtract from, the Correctional Service of Canada's administrative burden and costs. Expanding the law will not deter vexatious complainants.

In my view, the areas requiring substantive reform and immediate attention are: meeting reasonable time frames; introducing mediators and other alternative dispute resolution mechanisms; making it mandatory for institutional parole offers to meet face to face with the offenders on their case list, on a monthly basis; and eliminating the second, or regional, grievance review level. These proposals will be far more effective measures than attempting to prohibit access to the process by a few multiple or so-called vexatious complainants.

It might be administratively convenient to dismiss or to label inmate concerns as vexatious or frivolous or made in bad faith, but history tells us that it can be ill advised and even dangerous to do so.

Thank you again for your invitation to appear today, and I look forward to your questions.

The Chair: Thank you very much. We will begin the questioning with Senator Boisvenu.

[Translation]

Senator Boisvenu: I have a number of questions for you. Clearly, we do not share the same vision about the management of complaints in penitentiaries.

You said at the beginning that you received 18,700 calls on the toll-free line. What percentage of those calls came from people in custody and people not in custody? According to the statistics we have, your office dealt with 29,000 complaints last year. Does that percentage reflect just the complaints from people in prison or do some complaints come from outside, from people who are on probation or who have been released on parole?

[English]

Mr. Sapers: First, I will address the 29,000. The 29,000 is the number of complaints reported by the Correctional Service of Canada. Those are complaints that they received from sentenced offenders.

The 18,000-plus contacts on our toll-free line are substantially from offenders or their family members. The vast majority are from men and women serving a sentence. We have not analyzed it by those that might be —

[Translation]

Senator Boisvenu: Some of those 29,000 complaints are handled by your office, but a lot of them are handled by the Correctional Service directly?

Mr. Zinger: There are two parallel systems, one of which is the Correctional Service’s internal grievance system.

Senator Boisvenu: Which does not go through your office?

Mr. Zinger: It has nothing to do with the Office of the Correctional Investigator. We are independent. The Correctional Service receives about 29,000 complaints and grievances. Those complainants can call on the services in our office. We receive about 5,700 complaints per year.

Senator Boisvenu: So, in principle, some inmates could be recognized by the prison system as being abusers of the system without having dealt with you?

Mr. Zinger: It is possible, but I do not think that it is the case. Those who file appeals repeatedly in the service’s complaint and grievance system typically also file them with our office.

Senator Boisvenu: Are you saying that you handled 5,000 of the 29,000 complaints?

Mr. Zinger: No, not at all. We are completely separate.

Senator Boisvenu: Explain that to me. Are you saying that incarcerated criminals are going directly to your office without going through the prison’s system?

[English]

Mr. Sapers: Senator, you are correct; the legislation provides.

[Translation]

Senator Boisvenu: So, in that case, we have 4,000 complaints?

[English]

Mr. Sapers: No. The legislation provides for unfettered access to redress, both internally and to my office. The legislation also provides that I determine what we investigate and how, just like the legislation determines that the commissioner can establish policy to already label people as frivolous or vexatious. They are parallel systems. A federally sentenced offender could access the Office of the Commissioner of Official Languages or the Canadian Human Rights Commission with a suitable complaint. These are not necessarily offices of last resort. A complainant can make a complaint to multiple bodies. That is why in my annual report you will see that we will often refer people back to the internal process. We will say, “We think that you can resolve this internally.”

Unfortunately, many of the complaints come back to us because the internal process has been so dysfunctional. The time frames have not been respected, and there is not a resolution.

[Translation]

Senator Boisvenu: I am trying to understand, because the system seems very vague to me. Managers at the Correctional Service Canada log 29,000 complaints and you log 5000. How do the two figures relate? Are the 5,000 additional, or are the 5,000 complaints included in the 29,000?

[English]

Mr. Sapers: No, they are separate.

[Translation]

Senator Boisvenu: Let me repeat the question. Do we add them up or do we include them?

Mr. Zinger: Let me give you an example that will either make things clearer or more complicated.

Senator Boisvenu: If the example makes things more complicated, it will benefit the criminals.

Mr. Zinger: An offender who files a complaint with the Correctional Service and who is not satisfied may go to the warden of the institution. If he is still unsatisfied, he will then go to the regional level and then to the Commissioner, the central administration. If he is still not satisfied, he can come to our office. We will see whether the service made a fair and equitable decision that is in compliance with the service’s policies and we will render a decision.

That complaint will have been counted by the Correctional Service as one complaint and by ourselves as one complaint as well. But it is the same complaint.

Senator Boisvenu: And that is my question.

[English]

Senator Baker: There are two things that really bother me about this legislation and I would like you to tell me whether I am correct or whether I am wrong.

There is a judicial inquiry going on right now into the Ashley Smith suicide. One of the things under consideration by the judge is this matter that we have before us, the complaints system and the fact that her final complaints were not even opened until two months after her death. During your testimony you have talked about her death and the complaints that she had made.

I am wondering how a Senate committee can be dealing with a bill that dramatically changes the complaints process while a judicial inquiry is ongoing, a portion of which will probably deal with this very subject matter.

Mr. Sapers: The only response I can provide, senator, is that the current inquiry, which is in recess at the moment and scheduled to reconvene early in the new year, is a coroner's inquest. The coroner's inquest is established under provincial legislation here in the province of Ontario. It might or might not either receive direct evidence or make recommendations related to evidence about the grievance process.

Senator Baker: The grievance process was referenced in the media, the fact, and you referenced it in your address. You said her complaints were not even looked at, which is contrary to the law, is it not? Does that not break the law? Are you suggesting that the coroner's inquest will likely not even touch on this?

Mr. Sapers: I cannot really speculate fairly what the coroner may or may not review.

Senator Baker: However, you do agree that in terms of the Ashley Smith matter that you referenced in your address concerning this bill, an important part of that question regarding her suicide involves the very matters we are discussing under this bill?

Mr. Sapers: Senator, I included reference to the death of Ashley Smith quite on purpose. It is a glaring example of the dysfunction of the grievance process as it exists. Frankly, targeting the issue of frivolous or vexatious complaints, in the face of a system that is so overwhelmingly broken, is really like rearranging the deck chairs on the Titanic. It is not the area of focus that we need to see progress on resolving the problems with the grievance process.

Senator Baker: Would you not advise us not to pass this bill until the results of the coroner's inquest are determined? There is a Federal Court case. I imagine you are aware of the recent decision regarding this very matter of the complaints process. The judge has ordered the Correctional Service of Canada to go back and address this very question of the complaints process. You are aware of that court case. That is a recent judgment of the Federal Court, yet here we are passing a bill regarding the very matter under consideration by the Federal Court.

I want to ask my key question because the chair might cut me off before I get to it.

Mr. Sapers and Mr. Zinger, you mentioned Commissioner’s Directive 81. These are directives given by the commissioner. They have the status in law of regulations. It is an automatic way of passing a regulation. I read the quote from the Federal Court on this matter. It is well established in law.

If a vexatious or frivolous complaint comes up, it need not be dealt with at all under the regulations at the first level; it is just sent back. At the other levels, when it goes beyond the first level, you referenced CD81, but you forgot to mention one thing. Not only do they not need to deal with the complaint, but if a portion of the complaint is frivolous or vexatious, the entire complaint can be sent back to the complainant. Am I correct or not? If that is true, what are we doing dealing with a bill when these complaints, if they are frivolous or vexatious at any level, can simply be discarded and sent back to the complainant?

Mr. Sapers: Senator, I think that in my remarks I made direct reference to the opinion of my office that there are existing policy mechanisms in place to address frivolous and vexatious complaints and that a legislative response is not required.

[Translation]

Senator Dagenais: My question goes to Mr. Sapers. In your document, you say that there is no typical profile of a multiple griever. You seem to be saying that mental health issues are often responsible for the offender’s behaviour and that designating them as vexatious complainants will not stop them complaining, will not solve the problem. I would like to hear what you have to say about that because it is not quite clear. Someone who files a complaint must be somewhat aware that he is doing so; he is not complaining for no reason.

[English]

Mr. Sapers: Two things, senator. First, I have reviewed the testimony that this committee has also received from the Correctional Service of Canada on the question about whether or not these multiple complainants may have mental health issues. I can tell you that there is no comprehensive analysis done by the Correctional Service of Canada to answer that question absolutely. I can tell you that in their last departmental performance report recently tabled in Parliament, the Correctional Service of Canada reported that 48 per cent of offenders received mental health services; that three quarters of female offenders received mental health services; and nearly 50 per cent of Aboriginal offenders received mental health services. We know there are tremendous mental health needs in the sentenced offender population.

Someone who, because of a disorder, files multiple complaints will not be addressed because Parliament changes the law about multiple complaints. In fact what will happen, I predict, is that that person will simply put in multiple requests for leave to the commissioner directly if in fact they have been designated as a multiple complainant and therefore banned from accessing the process in a more ordinary way.

I would also predict that that complainant will find access to other organizations, such as my office, the Canadian Human Rights Commission, et cetera. It will not prevent the issue.

What will limit multiple complainants is managing the problem. It is having your institutional parole officers meet face to face, at least on a monthly basis, with their case load. It is having training for staff on alternative dispute resolution. It is expanding the pilot process on ADR that has been so successful in the 10 institutions since the Mullan report. There are many ways to intervene to deal with the problem, but simply changing the law is sugar-coating the problem; it is not changing it.

Senator Joyal: Mr. Sapers and Mr. Zinger, I was struck by your comment that Bill C-293 will “judiciarize” the system. Could you explain in greater detail the elements that in your opinion will create an additional level to the one that presently exists and make the system heavier to manage?

[Translation]

Mr. Zinger: All the decisions made by the Correctional Service are subject to judicial review.

If an offender is designated as vexatious, the decision can be brought to federal court for a decision as to whether the designation is appropriate and in accordance with the new legislation.

We also anticipate that the administrative burden that the service is trying to get a handle on may well continue because the bill mentions asking for leave and leave has to be sought from the commissioner. Any new complaint will require a review to see whether or not leave should be given for that new complaint.

 We are trying to show that good practices and good policies can manage the problem of frequent users of the complaints and grievance system. We do it in our office because we have the same clients, if you will, and it is part of any complaints system, for judicial proceedings too; offenders have been designated as vexatious by the Federal Court. Part of any complaints system is handling the few people who generate a lot of work. But, for us, identifying that kind of complaint is easy and we try to identify those with more substance, those that are more significant and that have a higher priority.

[English]

Senator Frum: I heard in your last answer that you do not feel this will improve the efficiency of the complaints system. Part of the motivation behind this proposed legislation is the rehabilitation process for the prisoner. I am interested in your comment, Mr. Sapers, that you have difficulty with the idea that the complainant will be the one designated as opposed to the complaint.

I understand it makes sense that the complaint will be designated because this is trying to address a behavioural problem. The behaviour of the individual is being targeted here. Can you comment on why you see that being such a problem?

Mr. Sapers: Let me say three things, senator. I will try to be brief.

First, and I do not mean this in any kind of facetious way, but control is not really an issue in terms of corrections. It is a highly controlled environment, and offenders do not have any of that control. In terms of reinforcing positive behaviour and disciplining negative behaviour, we could have a much broader discussion. There are ways to deal with inappropriate behaviour, and multiple complaining is inappropriate behaviour. There are good ways to manage it.

Second, the rule of law applies behind prison walls. The law requires access to an efficient, effective, expeditious and fair complaint process. However, the process is not defined that way and does not work that way. Therefore, the rule of law is not being upheld in that respect. It is the right thing to do. It is also the safe thing to do.

Third is the issue of time frames. Every time Correctional Service Canada has been challenged on the issue of having an expeditious grievance process, they have moved in policy to expand their time frames. Instead of figuring out why the system is broken, they have simply moved the yardstick to give themselves more time. There is a saying in law about justice delayed being justice denied; and this generates more complaints. A tremendous volume of the complaints are about the fact that the time frames are not respected. The reason many offenders come to our office instead of using the internal grievance process is that they have lost all faith in that process. If you truly want to manage someone's behaviour and reinforce pro-social and positive behaviour, you have to model it yourself. That is the set of issues we are trying to get at.

Senator Jaffer: I apologize for not being here at the beginning of the meeting, but I looked at your notes earlier. Do you know how many people we are talking about? If I am not mistaken, and my colleagues can correct me, the sponsor of this bill mentioned approximately 25 people.

Mr. Sapers: Senator, in any given year the number might be one dozen or three dozen. Currently about two dozen people are disproportionately writing grievances and making complaints. It amounts to only a handful of offenders.

Senator Jaffer: This bill is about 25 people.

Mr. Sapers: It is about 25 people out of an in-custody population of over 15,000.

Senator Andreychuk: My question was along the same line as Senator Jaffer's question. This bill, as I have understood — and I have not been part of this process, I am just sitting in today — is to signal to the commissioner that he can deal with the frivolous cases and, therefore, he should be dealing with the rest on a substantive basis. Therefore, that is all the bill attempts to do. The rest is policy and accountability that should be in place with the government, the minister and on down to the commissioner, et cetera. I am sure that one of the tools will be the regulations embedded in this to allow for a better administration and flow.

Mr. Sapers: Senator, I do not doubt that the sponsor of the bill has a true belief that this bill will be an administrative enhancement to the operation of Correctional Service Canada. My experience tells me that it will not turn out that way and that this bill will make Correctional Service Canada less accountable in meeting its legal responsibility to have a fair and expeditious grievance process. It will diminish the faith of those in the system via the complaints process. It will unnecessarily burden the Commissioner of CSC directly with having to deal with a high volume of complaints directly in the form of requests for leave to access the system.

Senator Andreychuk: How many of these people are repeat offenders who come through the system over and over again? Maybe I am out of date, but for years some time ago I sat in and around the courts and offenders. It is not only about what that person is doing but also about what they are telling everyone else in the institution they can do. People were appealing because someone else in the system told them, and we had to start dealing with that issue.

I thought that was another reason here. Both sides go necessarily to a process rather than, as you said, to sit down. The signal that they have to deal with the issues should go both ways, not only to the administration but also to the offenders.

Mr. Sapers: I agree that the responsibility should be on the offenders as well. It is curious that policy allows for inmate grievance committees and outside review boards. Both of these mechanisms are seriously underutilized by Correctional Service Canada. Both of those mechanisms would enhance offender accountability and responsibility as well; and you do not need legislation to see that happen.

The Chair: Do you see any need for independent oversight? I raise the Smith inquest and the preparations from it as well. It was clear that Correctional Service Canada fought disclosure every step of the way. There was a widespread perception that they were protecting institutional interests. This bill proposes to give the commissioner the ultimate say. I wonder whether you see that as appropriate or whether independent oversight would be a more appropriate way to approach this.

Mr. Sapers: I reviewed that testimony, which was fascinating to me. I was intrigued by the notion of having some extension of the remit of my office to provide oversight on these decisions about who may or may not be banned and given access to the system.

I would say, though, that my preference would be that that not happen for two reasons. If Bill C-293 becomes law, an offender would still be able to come to my office. Someone who was banned could come to my office and I would then be faced with a decision about whether to launch an independent investigation of that decision in any case. For me, that is a cleaner way of achieving the same purpose because it keeps my authority intact without giving a special status to one kind of complaint or complainant.

[Translation]

Senator Boisvenu: My question goes to Mr. Sapers or Mr. Zinger. You mentioned a statistic that caught my attention. You said that clients dealing with psychiatric problems can reach 50 per cent of the total. Is that the percentage of complainants or of the prison population?

Mr. Zinger: For the prison population, the statistics on the service’s performance, as reported in their corporate document, show that 48 per cent of offenders have received mental health services for the entire prison population. They talk about 15,000 individuals, and 75 per cent of female offenders and about 47 per cent of Aboriginal offenders.

Senator Boisvenu: The latest Health Canada report that dealt with mental health in Canada and mental health in prisons mentioned 19 per cent for men and about 22 or 24 per cent for women.

Mr. Zinger: That deals with those who have received services. The calculations come from Correctional Service Canada. The best statistics that the service has about the scope is at the admissions stage, where 36 per cent of people entering federal penitentiaries have been identified as requiring psychological or psychiatric services. It is a very grave, very serious situation. Statistics show that the percentage has doubled in the last decade.

[English]

Senator Baker: A very experienced lawyer, Senator Jaffer, and a very experienced former judge, Senator Andreychuk, asked you the same question and your answer puzzles me. They both asked you how many people this will cover. I looked at the bill and could not see any numbers. I do not see any numbers — 20 people or 30 people — yet that is the testimony you gave. Is there anything in law that I am missing that would justify your count of 20? The commissioner gave an example of what a vexatious complainant is in reading his testimony before the house. He said a man who could not get a doctor; they determined later he needed a doctor. What are you talking about when you say this bill is only going to cover 20 or 30 people?

Mr. Sapers: Senator, let me correct myself. The current testimony before this committee and the house committee provided by the Correctional Service of Canada has suggested the number of around two dozen offenders who they considered to be frivolous or vexatious or multiple grievers.

A larger concern is not just that the number is absent but that the definition and thresholds are absent in law and will be subject, I believe, to the same proclivities as the ever expanding time frames in terms of responding to second and third level grievances as it is.

[Translation]

Senator Dagenais: We know that legislation is never perfect. But, in your view, Mr. Zinger, would it be possible to simplify things and arrange for complaints to be solved at the source instead of bouncing them from level to level as we are seeing?

Mr. Zinger: I think so. Professor Mullen wrote quite a detailed report with more than 60 recommendations. It is a very good report and all but one recommendation asked for a change to the regulations. Not even to the act, just to the regulations. To give you an idea of some pilot project statistics, after the report, the Correctional Service developed a pilot project that placed mediators and grievance coordinators in 10 penitentiaries. It was an extraordinary success. They thought they might get a 25 per cent reduction in complaints. After a year, they were able to look at a reduction of 35 per cent nationally.

The mediators can handle the complaints and try to resolve them, and they have proved it. In certain regions, in Quebec, they are talking about a reduction of 60 per cent in some institutions. There are other ways to reduce the number of complaints, with better practices and better policies.

[English]

The Chair: Thank you both very much. We appreciate your assistance with today's deliberations.

Honourable senators, on our next panel we are pleased to welcome before the committee, appearing by video conference from Red Deer, Rob Sampson, Past Chair, Correctional Service of Canada Review Panel. This panel produced a report in October 2007 called A Roadmap to Strengthening Public Safety.

We also have with us Sharon Rosenfeldt, whom many of us know, President of the Victims of Violence Canadian Centre for Missing Children. Ms. Rosenfeldt was a member of the review panel along with Mr. Sampson.

I believe Mr. Sampson has an opening statement.

Rob Sampson, Past Chair, Correctional Service of Canada Review Panel, as an individual: Thank you very much, Mr. Chair. I first want to apologize for missing my earlier appearance. You properly noted in the record that I was fogged in in Sudbury. I suspect there are people who think I have been fogged in for some time, and not just in Sudbury. I apologize for not making the appearance a week or so ago.

I want to also thank the MP from Scarborough Centre for putting forward this bill, which seems to be in reply to our report — in particular, to Recommendation No. 106 in our report. The minister who instructed us to proceed with the report asked us to look at the issue of frivolous and vexatious grievances by offenders in addition to a number of other items. We took the time to do that as a committee and came forward with our recommendation 106, which I believe this bill is picking up on, so I am pleased to see the member has done that. It is a challenge to have a private member's bill reach this status. As you know, Mr. Chair, very few private members’ bills go through the legislature the way this one has, so the member should be congratulated for that.

I have been reading, to the extent I could, and keeping up to speed with some of the comments that have been made by other individuals appearing before the committee. I must say that I was shocked to hear two things, the first being a panellist who spoke about the number of complaints lodged per year and the number of individuals who lodge a number of complaints per year. I think the number was somewhere in the neighbourhood of 6,000 individuals lodging over 100 complaints a year. I cannot recall what that number was when the panel reviewed this issue, but I was a bit blown away when I heard that figure.

In listening as I was waiting to appear before you today, the Correctional Investigator reported a slightly different number, which I think is low. I do not recall that being the number we heard when we were before the committee or the committee was in charge of the subject.

My general comment is that given the time and effort involved in Corrections Canada and the inmate population in these frivolous and vexatious grievances, the time of both parties would be better spent dealing with the particular challenges that the inmate faced and his or her correctional needs, as opposed to dealing with the administrative and bureaucratic issues around frivolous and vexatious grievances. That is a comment that I would apply to both parties.

If you read the panel's report, the thrust of it is simple: Both parties need to be fully engaged in the job and the tasks of rehabilitation, and to the extent that things like frivolous and vexatious grievances distract either party from that challenge, it is not a very effective use of manpower and probably will not deliver the results that we as a society expect, which is that the corrections system and the inmate be fully engaged in trying to turn these individuals' lives around.

I do not have any formal comments other than those. I will wait for questions from the committee.

The Chair: Ms. Rosenfeldt, did you also wish to make an opening statement?

Sharon Rosenfeldt, President, Victims of Violence Canadian Centre for Missing Children: I found it quite a little bit different because I was a panel member five years ago, so I am a past panel member, yet our organization, Victims of Violence, has some views on this matter as well.

I do have formal comments, and I thank the committee for inviting me to appear.

In 2007, I was a member of an independent panel to review the operations of Correctional Service Canada as part of the government's commitment to protecting Canadian families and communities. One of the 13 items listed in the panel's mandate was to provide advice to the Minister of Public Safety on CSC's ability to deal with parole violations, and with frivolous and vexatious grievances by offenders.

The past chair of the review panel is also appearing today. I am appearing today as President of Victims of Violence in support of this bill. To avoid duplication with Mr. Sampson in regard to the recommendation the panel made five years ago, and because of time constraints, my opening statement only reflects the views and opinions of our organization as they pertain to today's bill before the Senate. However, I am open to questions that the committee may ask me as a past member of the review panel.

First and foremost, we must remember that Corrections is, after all, a human enterprise. The interests of offenders, correctional staff and management and members of the public must all be taken into account. Bill C-293 proposes to give the Commissioner of Correctional Service of Canada the authority to designate an offender as a vexatious complainant with the rules for that designation written into the regulations. As mentioned, Victims of Violence is in support of this bill.

It appears to us that the CSC grievance process has become an additional weapon in the arsenal of the vexatious and repeat complainants who, having exhausted the complaints process, use the levels of the grievance process as an alternative route of communications into the authority.

Currently, there is a lack of fairness. There is a lack of efficiency because the system and the grievance process are extremely complex. In our view, it is designed to give every offender who makes a complaint a Rolls-Royce system with all the protections that are not found in the public domain. There are cases where there should be protections, but the very protections designed to ensure fairness actually work against the larger portion of inmates.

As a non-government public organization, it is our view that this long-standing issue has a public interest element in relation to public spending that some may consider inappropriate. The commissioner testified that Corrections Canada has dedicated approximately $5 million to the salaries and operating costs of the grievance process this past fiscal year. Over and above CSC costs for inmate grievances, there is the Office of the Correctional Investigator, who also is mandated to deal with inmate grievances, and it has a yearly budget of somewhere around $1.5 million.

In relation to public perception of how public tax dollars are being spent on inmate grievances, we would like to bring attention to a point that does not make sense to us. Dr. Zinger, Executive Director and General Counsel, testified in the House of Commons that the Correctional Investigator can investigate complaints from federal offenders, independent of whether they have filed similar complainants using the internal complaints and grievance system of Correctional Service Canada.

He said the office deals with the same clientele as CSC and they also receive a large number of complaints from the same few multiple grievers that this bill would refer to as vexatious. The point that does not make sense is that it seems to us there is a duplication of services between CSC and the Office of the Correctional Investigator as it relates to costs and taxpayer dollars.

Further, inmates can make grievances to the Office of the Official Languages Commissioner, the Canadian Human Rights Commissioner, the College of Physicians and Surgeons, and so on. Each one has a complaint resolution process. Is there a cost to CSC in this endeavour? If the inmate grievance goes to court, CSC has to pay. Moreover, the public is interested in knowing that the resources it contributes are being well spent and are achieving the desired results. The public also reasonably expects that its tax monies will be spent in the most effective way possible.

We are of the view that there are elements of the grievance process that need modernizing, and clarification is the key. The first clarification is to give the Commissioner of Corrections Canada the same discretion as the Correctional Investigator has in dealing with vexatious complainants. The Correctional Investigator has the power to not respond if the complaint is frivolous or vexatious, but the Commissioner of Corrections Canada does not have that power. The Office of the Correctional Investigator has more latitude than the Correctional Service of Canada to deal with multiple vexatious grievers, and CSC should have that same ability.

Mr. Howard Sapers told the House of Commons committee that the legislation that establishes the Office of the Correctional Investigator, the CCRA, is the same legislation that establishes Correctional Service of Canada and gives the Correctional Investigator full discretion in how he deals with complaints, so he has more flexibility.

Dr. Zinger, legal counsel for the Correctional Investigator, testified:

It's true that we do have more latitude. We do have more discretionary authority. We have the authority to simply not even entertain a complaint. We can dismiss it right away, but we don't. We provide a response to every complaint.

We do receive a fair amount of these types of grievances from a few multiple grievers, but for us they are very easily dealt with. It's not that difficult to entertain. If it's frivolous and vexatious and it's made in bad faith, we provide the answers right away. The only difference the service has is that under the regulation if the offender is not happy with whatever response they get, they can then raise it to the next level, and then raise it all the way up to the commissioner's level.

In closing, I must say we feel a certain uneasiness about the idea that something can go through a complaint or formal process and be separately investigated through a second, third and fourth grievance process. Although we know that is not quite double jeopardy, something must be done. It is our opinion that the enactment legislation will help the Correctional Service of Canada meet its legal obligation to resolve inmate grievances. We ask the committee to give due consideration to the passage of this bill.

Thank you for allowing me to express our opinion and views in support of Bill C-293.

The Chair: We will begin the questions.

 [Translation]

Senator Boisvenu: Thank you very much, Ms. Rosenfeld and Mr. Sampson. My first question goes to Mr. Sampson.

Just now, I was listening to the testimony from the two representatives from the Office of the Correctional Investigator. I was surprised at the statistics they gave us: 50 per cent of their clients apparently suffer from psychiatric problems. Then they made the distinction between psychological and psychiatric. Confusing the two takes away a lot of credibility from the testimony, in my opinion. The problems are completely different in nature. When you did your analysis in 2007, did you make any particular recommendations in terms of the clients with psychiatric problems? Clearly, someone with psychiatric problems will show behaviours that are more irregular, more erratic. Their complaints cannot be treated in the same way as those from someone in full possession of his faculties. Did you make a distinction in dealing with those two kinds of complaints?

[English]

Mr. Sampson: Thank you very much, senator. We did deal in the report with inmates who had a mental health issue identified on admission. I think the Correctional Investigator, when you questioned him, was speaking to figures that were basically on admission — some mental health challenge being identified. I think he also talked about those who are taking mental health-type programs.

However, we did not have a separate report that dealt with mental health challenges. We did not differentiate on the mental health side as it relates to the vexatious grievances issues. We did not go into that and say, “Well, a certain percentage is being generated by those who were admitted with a mental health challenge.”

The issue of mental health is very challenging within corrections. Although I am trying to recall something we wrote two or three years ago or more, the thrust of our report was that we felt the Correctional Service of Canada needed to have a specific program to deal with those individuals who had a mental health challenge, and more specifically around drug addiction, which is a huge component of that population.

I am not too sure whether I have answered your question. However, as it relates to the vexatious queries, we did not differentiate between where that was coming from and what particular group was generating those.

[Translation]

Senator Boisvenu: The particular case that comes to my mind is that professor who killed some of his colleagues at work and is now in prison. Over the years, a full-time employee was required at the Correctional Service just to handle his complaints.

In cases like that, do we just let people like that loose in the system, or is there a little more focused procedure so that they do not abuse the system and its resources?

[English]

Mr. Sampson: Yes, there should be a procedure that focuses the Correctional Service of Canada on helping this individual with his or her mental challenge, as opposed to dealing with the procedures and bureaucratic paperwork passing around ways of dealing with the complaint. That was the thrust of my comment in my opening statement.

Surely we can find a way administratively to deal with these vexatious questions and then focus the attention immediately on the fundamental problem that these individuals have. Let us focus corrections and the inmate on correcting. In the absence of that, time will expire on the clock, these people will come out and they could potentially be a problem in society again. That is sort of the core thrust of our recommendations.

As it relates to the vexatious grievances issue, I think society would be far better off if the time, effort and money focused on dealing with this issue were spent on dealing with the fundamental mental health challenge or other correctional needs of the individual.

[Translation]

Senator Boisvenu: Ms. Rosenfeldt, you said that the present complaints process is another weapon in the hands of people in jail. Do you want to specify your thoughts on that point?

[English]

Ms. Rosenfeldt: As Mr. Sampson and others have described, it seems in the correctional system that there are a number of offenders who do not take any type of rehabilitation, and they have the right to refuse. Part of the problem that we have seen and that we identified in our report was the changing offender profile, meaning that there were a lot more repeat offenders; they were coming back into the system all the time. This is getting off-topic and I want to be brief, but because of the lack of time that they were incarcerated for, a large number of them would decide to not take their rehabilitation because — what the heck — they knew they were going out in two or three years, anyway. These types of offenders were coming back all the time.

I would agree with Mr. Sampson. In our report we made recommendations to that effect; namely, that there has to be more accountability on the offender. How that process will work, I do not know, but it certainly needs to be looked at.

Senator Fraser: I have an abiding sense that when you put everything into law, you are likely to end up complicating rather than simplifying and streamlining. One who says “law” says “lawsuit” and says “judges’ rulings.” I am not denying the reality that there are some vexatious complainants in the system, but do you really think that putting this specific provision into the law will be the most efficient way to cope with it, or could we not have done it administratively? I think Mr. Sampson hinted at that.

Mr. Sampson, I quoted you, so you can tell me if I am right or wrong.

Mr. Sampson: Senator, you cannot legislate common sense. I am not the first person to say that. What you really want here to deal with these issues is common sense. The common sense part of it is that there comes a time when you have to say, “Enough is enough; can we not just focus on your challenges so that you will not come back again once we return you to society?”

Having said that, though, the Correctional Service of Canada needs the tools to be able to do this. I do not think this bill, senator, ties the CSC as it relates to some legislative mandate. In other words, they would have the flexibility to apply administrative common sense to someone who is using the law to basically cause problems as opposed to focusing on their challenges. I do not think this bill creates that handcuff.

However, I would agree with you that you cannot legislate common sense, and we need a little common sense to this somehow.

Ms. Rosenfeldt: I would agree with Mr. Sampson's assessment.

Senator Fraser: This bill does not define “persistent.” It refers to an offender who has persistently submitted complaints that are frivolous, vexatious, et cetera. There seems to be a wide range of opinion on what “persistent” might mean. Do you have any advice to give the commissioner on what “persistent” should mean?

Ms. Rosenfeldt: In his testimony, the commissioner made reference to what he believed the word “persistent” meant. I would have no dispute with that. “Persistent” means someone grieving over and over and over again, multiple grievers. To me, it is common sense. The commissioner was very clear in his testimony that he felt the word “persistent” must be in there, and it will be in the regulations, as I understand it.

Senator Fraser: That was very discrete of you. Thank you.

 [Translation]

Senator Dagenais: My question goes to Mr. Sampson, but perhaps it is more of a comment.

I imagine that you are aware that we give the right to grievance to those guilty of crimes whereas, in hospitals, sick or elderly people do not have such a sophisticated complaints system. I would like to hear your views about that.


 

[English]

Mr. Sampson: I am not an expert on the grievance system that applies to someone who has gone to the hospital system, so I think I will duck your question a bit. However, I will make this comment: It is appropriate that inmates have an ability to grieve an issue that does impact them, and I would hope that they would grieve an issue that impacted them and their access to programs and services that allowed them to change their lives around. I would stand up and wave the flag around that one all day long.

I think it is not appropriate that inmates are allowed to use this system just to cause problems. To the extent that a system does exist and allows them to complain when Corrections is not doing their job to provide the programs that will help them deal with their life issues, we should make sure that that program is there and runs as smoothly as humanly possible.

However, as I said earlier, we can no longer afford the time, effort and money to focus on issues that do not need to be focused on. We cannot afford that fiscally as a country, and I would argue as a society we cannot afford that because when these people come out and their issues have not been properly dealt with in the corrections system, we will have more victims.

Senator Jaffer: Just on the numbers, the figure of 25 people came from the sponsor of this bill. One of us had asked the sponsor the question, Mr. Sampson, and the sponsor said there were 25 people who were grieving.

I am saying this as respectfully as I can. Ms. Rosenfeldt, you have not said it directly, but Mr. Sampson has, that we cannot afford the grievance process. I hope I am not misquoting you. It was something like that. Can we ever not afford it? Can we ever not have that process in our democracy?

Mr. Sampson: Senator, I would rather the money be spent in helping these people deal with their challenges. If we had our choice on where to spend our scarce resources, I would rather they be spent making sure that they do not reoffend when they come out. I think that is the best place to spend our money, senator.

As I said earlier, if there is a procedure available to inmates so they can wave the flag loud, strong and long if they do not have access to those types of programs, we should make sure that system exists. We should be spending our money on rehabilitation. It is a correctional system and it should be doing correcting, and the inmates should be focusing on correcting as well.

Senator Jaffer: Mr. Sampson, if someone has a grievance, what would you suggest they do?

Mr. Sampson: They follow a grievance procedure that would be established by the Correctional Service of Canada. This bill does not prohibit it.

Senator Joyal: Ms. Rosenfeldt, I understand from the brief that you were in a working group that produced a report in 2007.

Ms. Rosenfeldt: No, I was a member of the Correctional Service panel, the same panel that Mr. Sampson chaired.

Senator Joyal: Were you interviewed by Professor Mullan when he was charged with the responsibility to report on the Correctional Service and the offender complaints and grievance process?

Ms. Rosenfeldt: Personally, no, I was not. I would assume that would probably go to the chair. I do not know if the chair was interviewed or not. I was not.

Senator Joyal: Mr. Sampson, did you meet with Professor Mullan when he conducted his inquiry and produced his report, on the basis of your past experience?

Mr. Sampson: He may well have appeared before the panel. I do not have my files with me to say he did or did not appear before the panel. He may have provided a written submission to the panel. However, since the panel's report was issued, I have not been interviewed by him.

Senator Joyal: Did you read his report? My question is directed to each of you individually.

Ms. Rosenfeldt: Yes, I have.

Senator Joyal: Have you, Mr. Sampson?

Mr. Sampson: I have read summaries of his report. I have not read the report in detail.

Senator Joyal: The Mullan report was done in 2010. Ms. Rosenfeldt, you were a member in 2007. Professor Mullan does not include any recommendation asking for legislative change directly, at least in the way that this bill is framed. I am trying to understand what kind of connection or evaluation Professor Mullan may have made of your recommendation. I think it is Recommendation 106, Mr. Sampson, that you referred to in your opening remarks.

Mr. Sampson: That is correct.

Senator Joyal: I am trying to understand the basis for Professor Mullan coming forward with his recommendation that would not have discussed or taken into consideration the recommendation that you would have made, which, as I understand it, would be to change the legislation in the context that Bill C-293 purports to do.

Mr. Sampson: Our Recommendation 106 suggests that Corrections Canada attempt to deal with these issues at the first stage. This bill, I believe, would provide Corrections with the tools to do that. As to why the professor did not contact us in his review, I have no idea. You would have to ask him.

Senator Joyal: I understand that that recommendation is in the body of the recommendation of Professor Mullan, because he wanted to recommend the elimination of the second level of grievance in order to simplify the procedure, which seems to me to be one of the directions that you yourself outline. It is not the main substance of Bill C-293, as I understand it. Bill C-293 would not touch at all the second and third levels of grievance that presently exist and that seem to make the consensus of all of those who study the system that it should be eliminated — unless there is something in the bill that I do not understand.

Ms. Rosenfeldt: My understanding from the commissioner's testimony is that he is going to take the recommendation of Professor Mullan, and next year, 2013-14, they will do away with the levels.

You are quite right; in our report we spoke specifically about the first level. In this issue, as you know from the testimony of everyone, there are conflicting thoughts. I read the actual regulations. They are quite overwhelming. From Professor Mullan's testimony, too, he stated to the committee that his main objective in the actual investigation was one of the recommendations from the Office of the Correctional Investigator. That was one of the recommendations.

I believe the commissioner took that and then decided to have another full review. As I understand Mr. Mullan's testimony, he was specifically looking at how to change the Commissioner's Directive 081. That was my understanding of it. I may be wrong. I do not want to put words in his mouth. I just read his testimony.

Senator Joyal: You are the representative for the Victims of Violence Canadian Centre for Missing Children. Frankly, I was expecting in your brief that you would refer to the impact of this bill on the condition of victims, but you have spoken generally more or less as a taxpayer, saying we have to make sure we have the best policies that are the most efficient, with the best returns.

Is there a direct impact between your role as President of the Victims of Violence Canadian Centre for Missing Children and this bill, or is it just an appraisal of the system as a whole as someone who has paid attention to the system?

Ms. Rosenfeldt: The latter. Definitely, it is an appraisal of this bill and because I was part of the committee; that is, if I was not part of the committee, I may not even have been invited to appear today.

I spoke about this bill because we deal with a lot of issues in relation to the justice system. Our office looks at all bills that come up. We had meetings on it, and they knew that the review panel had previously dealt with it. This was our idea from the organization in support of this bill. We feel that the commissioner should be granted the discretionary powers that he is seeking, along with taking some of the recommendations made by Professor Mullan, which he has already done by creating mediation services in, I believe, 10 of the prisons. I believe it started as a pilot project and, according to Mr. Sapers, it is working, overwhelmingly. However, we are not saying that giving the commissioner the discretion is the only thing that should be done.

The Chair: You answered the question in the first 10 seconds but we appreciate the elaboration.

I have a quick question which I also asked Mr. Sapers. I direct it to Ms. Rosenfeldt because I know she is interested in the whole question of transparency and accountability. I talked about having independent oversight in this role rather than the commissioner.

I know you were the Chair of the Ontario Officer Victims of Crime a number of years ago. I think your organization exposed the 50/50 quota scandal in corrections when they were releasing offenders, to meet a secret quota, which they initially denied existed and then tried to cover up. I referenced with the previous witness about Corrections' attitude with respect to the Smith inquest and being less than helpful in terms of disclosure.

Do you have confidence in this sweeping power, if you will, that the legislation hands to the commissioner, or would you prefer to see some form of independent oversight?

Ms. Rosenfeldt: Being on the review panel, we spent six months in very close proximity with the commissioner, who was the deputy commissioner at the time. I have no problem with the commissioner. What you spoke about in relation to the 50/50 occurred under a different commissioner.

This commissioner was the deputy commissioner for five years and he has been the commissioner now for the past three years. I believe that people learn from their mistakes. The Ashley Smith case definitely was tragic.

The Chair: The bottom line is that you see nothing wrong with this legislation.

Ms. Rosenfeldt: No. I see nothing wrong.

The Chair: Thank you both; better late than never. We appreciate your appearance here tonight to help us with our deliberations. Mr. Sampson and Ms. Rosenfeldt, it was good seeing you. Merry Christmas.

On our next panel we have Mr. John Martin, a criminologist from the University of the Fraser Valley; and Mr. John Conroy is with us through video conference from Vancouver. Welcome to you both.

John Martin, Criminologist, University of the Fraser Valley, as an individual: I wish to thank the committee for their invitation. I always enjoy opportunities like this. I can say, after all the times I have done something of this nature, it is very humbling coming here. Thank you so much.

I wholeheartedly support this legislation. Obviously there will be work around the definitions and such within the regulations.

From reading the transcripts of the testimony, I do not know what more can be added to the issues around jurisprudence or the actual impact on resources that the present situation has presented. However, I would like to speak to something that Senator Frum raised. The commissioner did speak to it; however, I did not read much discussion around the impact of this legislation and the subject matter on rehabilitation.

To the greatest extent possible, the correctional system strives to create a normal atmosphere. As someone puts in more and more of their time, and they cascade to lower security levels, the environment normalizes even further. Eventually, we do not even speak about “custody”; we talk about “accommodation.” Toward the end of a sentence at the minimum security level, the accommodation is more reminiscent of a university dormitory than what one might normally think of as being a prison.

The concept around rehabilitation and attempting to return individuals to the community as quickly and safely as possible is paramount. That is really the mandate of the system. I do not think we have anything to gain by reinforcing and validating a particular type of behaviour that is at odds with the way the real world works. We can talk about grievances around, as we heard so often in the testimony, small potatoes and runny eggs. That is life. I just flew in from Vancouver on Air Canada; you are preaching to the choir here.

Realistically, when we want individuals to return as law-abiding citizens, we want to enhance their life skills to endorse and allow them to engage in a behaviour that is so at odds with what we might classify as normal socialization. I think it is wholly destructive and counterproductive to all the other work that goes on in the correctional environment.

Let us be honest: This is not an issue that is isolated to the Correctional Service of Canada. I am sure we all know of a particular lawyer who scans the Internet looking for something that might someday, somewhere be offensive to someone and then launches a human rights complaint. There are people who draw warm baths and, instead of doing a crossword puzzle, they fill out freedom of information requests. This does happen, but it is certainly not something we should allow to happen in the correctional environment with chronic complaining, allowing someone to embrace themselves with victimhood, and basically make grievance more of a fashion accessory. It is wholly unproductive to all the other work that goes into socialization, reformation and rehabilitation.

The notion that we should cap someone's right to grieve is perfectly logical. It makes perfect common sense. No one has unlimited ability to grieve over and over and over in the real world. To the greatest extent possible, within institutional life, we should be trying to mirror those realities. This bill is one small step in that proper direction, and it is something that I wholeheartedly endorse.

The Chair: Thank you, sir.

John Conroy, Lawyer, as an individual: I come from the same area as Mr. Martin, but I do not know if he has been going into the same prisons as I have been going into because I certainly would not describe them as university dormitories.

In my experience as a practising lawyer, I am not scanning the Internet for cases but I have actually been going and seeing people in prison now for over 40 years. When I started, what we used to have was no grievance system. We had riots, hostage takings and violence. The whole purpose of the grievance procedure was to encourage people to use peaceful remedies — people who came from violent backgrounds. That has been my experience.

I agree completely with Professor David Mullan's recent assessment of the entire grievance process and suggest that senators focus on his report and his resolutions and recommendations that did not focus on this specific vexatious and frivolous aspect, although he does deal with the multiple griever.

I should say that there seems to be some confusion in the evidence before you because in the commissioner's evidence he talks about numbers and so on, and it seems to fit with the multiple griever that Professor Mullan and I have experienced rather than the frivolous and the vexatious. There needs to be clarification in terms of the statistics and the numbers that are actually frivolous and vexatious and in bad faith. I agree it is a problem, but I think there are other bigger problems and bigger solutions identified by Professor Mullan.

I disagree with the approach in this legislation to solving the problem. I believe it will exacerbate the problem. It is a prohibition. When something in demand is prohibited, people do complain, not just people in prison, and they will find a way around it or it will be abused in a different way. I have read some of the comments from other witnesses and I agree with them that this will probably lead to more work on the part of the commissioner rather than less.

I would argue for a regulatory approach along the lines recommended by Professor Mullan — eliminating the second level grievance process and focusing on regulating these types of problem complainers rather than prohibition. I strongly support the recommendations of Professor Mullan.

Hopefully, before you make any decisions on the bill, you will all read of Madam Justice Mactavish's decision in Spidel from July 12 of this year, just six months ago, in which the explanation for the problem in the grievance process was indicated to be a sudden recent increase in complaints, and not the frivolous and vexatious. The evidence in that court case showed the Correctional Service of Canada has not been fulfilling its statutory mandate for years in relation to this process, and it has not simply been because of these frivolous and vexatious complainants. They need to go back to encouraging more use of grievance clerks and grievance coordinators and involving prisoners themselves in this process, because they will be able to persuade other prisoners who are impacting upon their ability to grieve probably more effectively than the commissioner under the process proposed in the bill.

The Chair: Thank you, Mr. Conroy.

We will begin questions with the deputy chair, Senator Fraser.

Senator Fraser: Thank you both for being here. Your testimony was very interesting.

Mr. Conroy, could elaborate on the distinction between multiple grievers and the frivolous/vexatious category?

Mr. Conroy: In the current grievance procedure, there is a power given to the first person who gets the complaint to deal with complaints that are frivolous, vexatious or not made in good faith; complaints that are offensive, that are abusing the system, that are playing a game, as opposed to someone who is simply filing a lot of complaints. I have clients who file a lot of complaints, but they used to act out violently and attack staff. Part of their reformation and rehabilitation has been to encourage them to use the grievance procedure. The effort now is to have them focus on quality over quantity.

My concern is that if you simply prohibit people who are multiple grievers — within whom, the evidence indicates, this other group seems to be subsumed — from filing grievances, these people could again resort to violence. Our objective is to encourage these people to appreciate and respect the law and use peaceful remedies to resolve their disputes.

Senator Fraser: Of your clients who are multiple grievers, how many are filing what a lay person would consider to be real, legitimate complaints, and how many are just finding another way to act out?

Mr. Conroy: I think it is often a combination of both. You will see a large number of grievances and be overwhelmed and try to find the ones that are the most meaningful. Upon going through them, you will see that amongst that group there are some legitimate grievances.

An individual I am thinking of, for example, recently had 15 Privacy Act complaints upheld by the Privacy Commissioner in relation to trying to access videos of events that had occurred in the institution. However, he is frequently told that his complaints are frivolous or vexatious, not in good faith. The concern is that there are legitimate complaints among the frivolous or the multiples, so somebody should look at them and consider them, not just prohibit them.

Senator Fraser: Mr. Conroy, first, and then Mr. Martin, will you speak about the advisability of a system where the commissioner gets to rule on whether someone is allowed to grieve against the service provided by the commissioner, which is what this bill would eventually provide for? Is that a workable and fair system?

Mr. Conroy: No, I do not think it is workable. I think it will create more work for him, and I do not think it is fair.

Professor Mullan recommends that we eliminate some of the levels of grievance so that there are fewer levels. My own view is that there should be one level. You complain at the institution and the institution can decide whether to consult the regional level or the national level on the grievance, and that is the decision. The next step is the Federal Court. If it is of significance to the prisoner and he is funded and able to bring a court action — and there will be people who would be willing to fund it if it has some merit — an independent court, the Federal Court Trial Division, would be the better place to pass on whether the complaint meets that criteria.

If the decision at the institution is that a complaint is frivolous and vexatious, a person should be able to take that to the Federal Court and the Court should pass on that, not the commissioner.

Mr. Martin: As a preface to that, the majority of complaints are dealt with informally, just as a matter of dialogue between staff and inmates. When it proceeds beyond that, I have full confidence in the commissioner. I think we need to entrust that level of discretion to the commissioner. I have no problem with the commissioner having that authority.

 [Translation]

Senator Dagenais: If I understand you correctly, Mr. Conroy, we are better off letting the few who abuse the grievance system have free rein for fear of provoking violence and riots. Did I understand you correctly?

 [English]

Mr. Conroy: If the person who receives the grievance in the normal grievance process is of the view that the grievance is frivolous, vexatious or in bad faith, then that is what their decision should be. It should be left to the prisoner to decide whether to go to court or take some sort of action about that classification rather than have the commissioner decide, which will result in further grievances, complaints and judicial reviews of the commissioner's decision.

Senator Baker: Mr. Conroy and Mr. Martin, congratulations on your excellent presentations.

Mr. Conroy, you suggested that we read Spidel v. Canada, a recent decision of Justice Anne Mactavish, I believe. As I recall, that was an application for judicial review of a decision by the commissioner — and in this case the deputy commissioner appeared before the Federal Court — regarding a complaint of Mr. Spidel concerning the way in which the complaints process is dealt with in our prisons. Is that correct?

Mr. Conroy: Yes.

Senator Baker: Here is what really disturbs me about this after reading that judgment: The commissioner said that the reason for the backlog, the reason for the problem with the complaints system in our prison — and vexatious complaints were not mentioned at all — is the complexity of the complaints. In Justice Mactavish's conclusion she points to the fact that the deputy commissioner, on behalf of the commissioner, is saying that the problem is the complexity of the complaints and has nothing to do with the subject matter of the bill before us. Was that your conclusion?

Mr. Conroy: That is correct.

Senator Baker: That was a proceeding before the Federal Court. A proceeding before a Senate committee is a judicial proceeding under section 118 of the Criminal Code. Section 136 of the Criminal Code says that you cannot say one thing before one judicial proceeding and something else before another judicial proceeding or you violate the code and may go to jail for 14 years.

This bill claims that the problem in the system is vexatious complainants, and the commissioner, in testifying before this committee, practically agreed with that, but he said another thing to the Federal Court, and the Federal Court sent it back to the commissioner to give the real answers on what the problems are regarding complaints. Can you comment on that?

Mr. Conroy: I essentially agree with that. The court found that the evidence of the people from the Correctional Service of Canada indicated that they did not really understand the nature of the problem. I thought the evidence was that the problem was due to a recent increase as well as complexity in relation to the grievances, but nothing was said about frivolous and vexatious. Nothing was said about the multiple filer.

That is not to say that those are not problems. I agree that they are problems, but Professor Mullan, in his report, identifies a number of other constructive solutions to try to get the Correctional Service of Canada to meet the statutory mandate that it has not met in more than 10 years. That is very well documented in this decision. Of course, you get multiple complainers because, if you complain and they do not comply with the act, with the regulations or with the directive, then this person will complain that they have not done what they were supposed to do. Then, if they do not respond to that, they will complain again. That is human behaviour. It is called having an opportunity to complain about the way you are treated. To label and to prohibit that, in my experience, will lead to greater reactions and problems, not fewer reactions and problems.

Senator Baker: Thank you. Congratulations to the witness for the recent great victories that he has had, on many judgements, in competition with the minister here in Ottawa, the Honourable Vic Toews. I congratulate him on that.

Senator White: Mr. Conroy, you referred to a prisoner who actually went to the Privacy Commissioner in relation to complaints that had been pushed aside as vexatious. Should this legislation be passed, there would not be any change. There would still be the opportunity for a prisoner to go to an external resource like the Privacy Commissioner and or the Human Rights Commission. Is that correct?

Mr. Conroy: Absolutely. I do not know if he had been ruled as vexatious. He would certainly fit into the category of the multiple filer. All I am saying is that any of us, when faced with multiple complaints, find it difficult to deal with, especially if it goes on.

I agree that that is a problem. All I am trying to say is that, unfortunately, amongst those multiple filings, there will be some legitimate grievances. To block them all will lead to a problem.

Senator White: It would not take away from the fact that they could still go to an external resource if they felt that it was necessary.

Mr. Conroy: If it fits within a privacy or human rights type of complaint, absolutely.

Senator Joyal: My question is to both of you and stems from my reading of the substance of the bill. The way I understand the bill is that it would deprive an offender, to use the words of the bill, of the right to make complaints for a year. When you deprive somebody of a right, principles of natural justice apply.

You have to know the law, first of all, and the law would have to be precise about what we mean by frivolous. Then the law should have to clearly establish what is vexatious and what proof you have to conclude that the complaint is not made in good faith.

Furthermore, as my colleague Senator Fraser has said, the body that makes the decision has to appear independent and not be in charge of implementing the system and judging the system at the same time because you are depriving somebody of a right. That is very serious. It is for a year, not for a short period of time. When you are in prison and deprived of liberty, a year is a lot of time.

It will complicate the system because it adds another level that will be more open to judicial review than the present system. When a person is deprived on the basis that he or she has made complaints or grievances that are frivolous, vexatious and not made in good faith, all of those qualifications are susceptible to review by the court to come to the conclusion of whether they are really frivolous, vexatious or not in good faith. What is the number of complaints that you have to file to come to that conclusion? All of that will be reviewable by a court, so it seems to me that we are entering into a very loaded approach, judicially, to solve a problem.

Professor Mullan recommended a much more amicable way of resolving conflicts than “judicializing” the system. Am I right in interpreting the bill in that way, or do you think, as was stated by one witness, it is just a “may” in the context that the commissioner will do it, in some circumstances, for a very specific number of people? Once the legislation is enacted, the commissioner will have to use it. He is entitled to use it, and as I said, challenging will be open to anyone who feels aggrieved by the decision.

Mr. Conroy: I think you accurately portrayed the situation, and that is why I say the problem is prohibition as opposed to regulation. It says annual review, but the front-line person who gets that first complaint will make that decision as to whether it is frivolous or vexatious. That might happen over a number of occasions. The way this is planned, they will then say that it is persistent, and off it will go to the commissioner's office. Somebody else will have already made the decision, and he will simply rubber stamp it. He will review it, say that it meets the number decided upon and rubber stamp it.

Given that they cannot comply with the existing time frame, my expectation is that there might be an annual review, but it will take longer than a year before you will be able to complain again under this system. Based on the fact that they cannot comply with the existing time frames, why would you think that they will comply with that time frame?

Mr. Martin: I would respectfully disagree that the bottom line of the proposed bill is to deprive someone of their right. I would suggest that it is to make a statement that there are consequences for abusing the right. This does not terminate one's right to grieve the day the bill becomes law.

Senator Joyal: For a year.

Mr. Martin: I do not see that as being out of line, unrealistic or heavy handed whatsoever.

Senator Jaffer: Mr. Conroy, you started off by saying that originally there was violence in the prison system and that the grievance process was a way of dealing with it and not having as much violence. Did I understand you correctly?

Mr. Conroy: It was brought in during the 1970s. We did not have a grievance procedure, and it came in as an effort to help to reduce the violence and encourage people to use peaceful remedies.

Senator Jaffer: You said in the Law Times in August 2012, that “the grievance procedure has been outrageously bad and ineffective for years. My advice to prisoners, over 40 years of practice, has been to avoid it, except to lay down an evidentiary record and to show how ludicrous the CSC's position can be.”Is your opinion still the same?

Mr. Conroy: It is, and it is reinforced by the findings of Madam Justice Mactavish in Spidel and the findings of the Correctional Investigators going back more than 10 years, including those of Mr. Sapers, the current Correctional Investigator. They put all sorts of things in the directives and the guidelines, and they do not follow them. Unfortunately, prisoners have to resort to them before they can go to court. You go through it to see what they say in reply in order for it to form part of the evidentiary record before the court.

Senator Jaffer: The way that I read the bill, 91.1(2) says that “The commissioner shall review each prohibition under subsection (1) annually and shall give the offender written reasons for his or her decision to maintain or lift it.” I do not read it as a one-year ban. It can go on for many years. What I have been hearing since we have had this bill in front of us is that the process takes forever. How will the commissioner review this every year for all the complaints that there are? I cannot see it happening, and I would like your point of view.

Mr. Conroy: That is my view as well. It will be more work. There was some discussion in the evidence about whether he will be able to delegate it. If he cannot delegate it, it is mind-boggling to see the commissioner having to then decide all these issues, and then he will be subject to judicial review on them. That is why I am quite convinced, based on my experience, that someone else will make the decision. He will review it, perhaps, and make a final decision, but it will go on and on. It will not just be, “Okay, it is now over” after one year.

Senator Jaffer: Mr. Martin, how do you think he will cope?

Mr. Martin: This is obviously not something that will eliminate the problem. Everything is more complex. Ask a police officer how long it used to take to write up a DUI compared to today. That is just part of the evolution.

We have been become much more skilled at grieving. It has become an art form. It has become a leisure activity for many people, and no one has more leisure time than people doing time in the institutions. For many people, this takes the place of playing Sudoku or crossword puzzles or cards. It is literally a pastime. No one piece of legislation will straighten out that problem.

However, when you put a reasonable cap on it, whether it is 25, 50 or 100 grievances, someone has the foresight to see that, “Hey, I am getting kind of close to my allotment here, and I will have to pick and choose my grievances with a little more care.”

I do not see that as being unrealistic. I see that as consistent with the type of life skills we have. None of us lose our licence overnight for speeding. We usually get three, four or five cracks at it before we get that letter from the minister responsible.

I think that progressive approach, whereby there is a cap, where we are not going to accept any more vexatious and trivial grievances, particularly around things like cafeteria food and lumpy mattresses, is realistic and reaffirms the type of behaviour we want people to engage in when they are released, and most of them will be released.

Senator Baker: I have a question that Mr. Conroy may not want to answer, but I would like for him to consider answering it anyway. This is something that puzzles me.

When you represent a prisoner and you are asking for a judicial review under the Federal Courts Rules, and when the Federal Court rules in your favour — and I notice that they rule in your favour more than they rule against you — costs are awarded to you for that proceeding. I notice that the costs are usually fixed to Part 3 of the Federal Courts Rules, if I am correct. However, when you lose a case on behalf of a prisoner — the prisoner has hired you and you have gone to the Federal Court and you lose — at the end of the judgment, if I read your cases from 2011 correctly, every now and then you get costs awarded against you, in other words, against your client, the prisoner. I can look up Schedule 3 in the costs and see how much money you get from the Crown when you win, but I do not know how much your prisoner has to pay or you have to pay when you lose. Could you inform us about this?

Mr. Conroy: Yes. It comes to the same amount. It is usually somewhere between $3,000 and $5,000. It is funny you raise this, because of all those — I think there were 11 or 12 treaty transfer cases — I have not claimed any of the costs. The government then decided to set down a claim for the costs against the two we lost. I thought, “Okay, I may as well claim for all the ones that we won.”

Now they have a hearing going on where they are trying to claim a grand total of about $10,000 from people who are still in prison and cannot afford to pay, and I intend to collect something like $15,000 or $20,000 from the Government of Canada, which can afford to pay, although it claims all the time that it cannot.

[Translation]

Senator Boisvenu: My question is for Mr. Martin. I understand that, in 1971, there was no system and there was violence in penitentiaries. In 2012, we have 33,000 or 34,000 complaints. The pendulum has not swung completely in the opposite direction, but it is close. The recidivism rate in Canada is around 70 per cent.

If our system were so wonderful, it would surely have an impact on the quality of rehabilitation. But the data shows that our rehabilitation programs or initiatives are relatively unproductive and ineffective. We have a complaints system that is run by the criminals more than by the administration.

To put back some rigour into the system, should we not simply be putting the pendulum back towards the middle a little, rather than letting it continue to swing out of control?

[English]

Mr. Martin: Certainly the pendulum has swung, but there are so many factors involved in that.

If we go back to the 1950s and 1960s, there was basically a different breed of inmate in the institution. Today we tend to see inmates coming from a variety of backgrounds, and we are incarcerating very different people with different sets of problems, including mental health problems.

In terms of the ability of Corrections to fulfill its mandate — namely, to protect the public and to rehabilitate — that has become incredibly complex and difficult as institutional life has changed. For instance, the old system of parole used to be much more effective in terms of the carrot and the stick. If you wanted out before the expiration of your system, there were some hoops you would have to jump through. Inmates who wanted to play that game, who sought early release, had to conduct themselves in a particular manner of behaviour.

Today, we tend to see such a small window between a realistic opportunity at parole and statutory release that many inmates think, “Why would I want to play the game? Why would I want to go through the hoops and do all this stuff? I will get out at that particular point in time anyway.” Therefore, it is much more difficult to coerce behaviour out of inmates than it used to be, and I think the grievance thing is compounded in here.

The Chair: I will have to cut you off, sir. I apologize. We still have other senators and we are running over time.

Senator Jaffer: How many people in the system do you think make a lot of vexatious complaints?

Mr. Martin: The number being thrown around is about 25.

Senator Joyal: Do you have a copy of the bill in front of you, Mr. Conroy and Mr. Martin?

Mr. Martin: I do not have it right here, but I am familiar with it.

Senator Joyal: I would like to ask for your opinion on the interpretation of 91.2, where the bill states that the Governor-in-Council may make regulations with respect to offenders who are subject to a prohibition under proposed subsection 91.1(1).

The way I read it — and that is why I am asking your opinion — is that those regulations will apply once the offender has been the object of a decision. Again, the wording states:

The Governor-in-Council may make regulations respecting the complaints and grievances regime with respect to offenders who are subject to a prohibition . . . .

It means the prohibition has already been given. In other words, the regulation will apply only in relation to subparagraph (2) of 91.1 but not to 91.1.

Am I right in interpreting the text like that? It means that the possibility of future challenges of the act, in my opinion, is much greater.

Mr. Conroy: In my opinion, your interpretation is a reasonable interpretation of that section. I am opposed to these situations where they put everything in the regulations and take it out of the statute. In my opinion, substantive things should be in the statute and just the procedures should be in the regulations.

To answer your question, I think you are right; the prohibition will be in existence, and what is contemplated or authorized by this subsection are regulations that deal with the person who has already been prohibited.

Mr. Martin: The regulations would likely address issues of the timeliness of review and the format of that review, and I do not see that as being necessarily inconsistent with other legislation that looks at mediation and conflict resolution.

The Chair: Thank you, gentlemen. We very much appreciate your appearance here today and your contributions to the committee's deliberations.

(The committee adjourned.)


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