Great. Thank you very much.
Thank you for inviting us to appear. I'm sorry that we don't have a brief to present, just because of the timeliness, but we appreciate, even with a short timeframe, being called.
I bring comments on behalf of our organization, on behalf of our 26 members across the country who work with marginalized, victimized, criminalized, and institutionalized women and girls.
I want to start by saying that one of the concerns we have with Bill is that there are already provisions within the current legislation and policy that take into account the very concerns raised by the proponents of this bill. Under section 91, and in particular under subsection 74(4) of the regulations, there are already provisions that allow institutional heads to limit the abilities of prisoners who are seen as making vexatious or excessive grievances and to in fact stop that process. It also requires a review process. So it's not something that can be done for an indefinite period of time.
We would suggest that we continue that process. In fact, the presumption that those prisoners who want to have their situations reviewed could apply to the Federal Court for judicial review is in fact not borne out at all in practice. We know that in fact with cuts to legal aid, the court challenges program, and the like, it's very difficult for prisoners to get access to legal aid, period, and certainly for any kind of purpose such as this, which is to challenge the process.
We know also that this concern has long been on the radar of the Correctional Service of Canada. In fact, in the women's prisons the majority of wardens actually encourage prisoners to put in grievances, because women are notoriously under-grievers, not over-grievers. Anything that would in any way suggest that there should be a limitation on that practice we would certainly not support. And we would caution against providing any excuse to limit those processes.
I point, of course, to the very fact of why we have a grievance process. Some of the recommendations were made following the deadly riots in Kingston Penitentiary. They followed up on the Swackhamer report, which actually resulted in the creation of the Office of the Correctional Investigator because of that very issue that there were so few opportunities for prisoners to seek any kind of redress. It was deemed that there was no legitimate access or avenue for redress, so the Office of the Correctional Investigator was established.
Also reinforced in 1992, with the introduction of the Corrections and Conditional Release Act, was the need for an adequate grievance process. Since then, we've had repeated reviews of this, both by the Correctional Service of Canada itself and by the Office of the Correctional Investigator. Most recently, in their 2007-08 annual report, they did a thorough review of this process and in fact encouraged a review to be done by corrections, which corrections did do. I'm sure you have a copy of the external review of the Correctional Service of Canada complaints and grievance process conducted by Dr. Mullan, of Queen's University, which was sought, paid for, and contracted by the Correctional Service of Canada. In it he recommends an overhaul and external oversight of the corrections grievance process, more support for the development of offender grievance committees, and assurances that staff know what the procedures are.
Certainly it has been my personal experience when going into the prisons on visits to have staff sometimes indicate that they don't know what the grievance process is. In fact, we have participated in doing some of that training from time to time.
In 1996 Louise Arbour, after reviewing the situation at the Prison for Women in Kingston, made a number of recommendations that have since been reinforced by both the Canadian Human Rights Commission and the Office of the Correctional Investigator. And they are supported by many within the Correctional Service of Canada. In her report she said:
||It was striking that virtually all of the issues that have arisen in the course of this inquiry were raised in the first instance by inmates in complaints, grievances, and in some cases in letters addressed to senior Correctional Service officials.
They were largely ignored.
She indicated further that
||...an inmate's version of events was treated as inherently unreliable, and that to grant a grievance was seen as admitting defeat on the part of the Correctional Service.
She went on to make a number of recommendations for external oversight as a result of those findings.
Similarly, in the work that Michael Jackson has done, both with and on behalf of the Correctional Service of Canada when he was asked to join their segregation review panel following the Arbour commission, he has made a number of recommendations about the need for an adequate and effective grievance process. I commend to you the section of his book, Justice Behind the Walls, from page 581 through to page 603, which talks about the need for overhaul. If you're not consulting with Dr. Jackson yourselves, I encourage you to at least refer to those recommendations.
The Canadian Human Rights Commission similarly found this process.... They are in fact in the process of reviewing access of prisoners to that complaint process by virtue of some complaints that have been referred to the tribunal currently.
Just to summarize some of the concerns we've seen in preparation, not for this process, interestingly enough, but for some other initiatives with which we're involved.... Notably, over the past ten years we have been involved—at the request of prisoners and supported by the Correctional Service of Canada—in a training process of developing resources for prisoners so that they know what their rights are. We have also participated in the training of staff in human rights issues.
We are about to do some upgrading of that training in some of the institutions. In preparation for that, we asked women prisoners to talk about why they're not filing grievances, because unless they're encouraged to by the institution, many of them don't. I'll quote for you some of the reasons that were provided to us, and then I'm going to end with some of the findings we've had around this process.
One of the things is that many women feel that even when senior staff are encouraging grievances.... What I'm told by many wardens is that they want to see grievances, because they see it as the mechanism by which they can test the temperature of an institution. Many senior front-line staff—and when I say “senior”, I mean experienced front-line staff—will often say, similarly, that they would rather see a grievance than see any other kind of attempt, whether it's self-mutilation or suicide attempts, or, in men's prisons, more outward attempts like riots or other kinds of uprisings.
If there is a legitimate complaint and grievance process that can be used, then in fact it's more likely that prisoners will bring their issues forward. If in fact they're listened to and there are adequate responses, you in fact will see the temperature of an institution decrease. At these times when we're seeing overcrowding, particularly in the women's prisons—and we're likely to see more overcrowding in the men's prisons as well—I think this is an ongoing concern. It certainly is a concern for our organization. For those I speak to within the Correctional Service of Canada and within the Union of Canadian Correctional Officers, it's also a concern.
One of the concerns raised is that in fact their timeframes aren't often adhered to. What you may not be aware of is that those timelines have historically gone from five days to ten days, from 15 to 25 days, and from 60 to 80 days in the past several years in terms of the levels: the first level, the second level...so the local institutional level, the regional level, and the national level. Some grievances can take more than six months to achieve a final decision. When you have a serious situation, whether it's in segregation or with regard to serious issues around prison conditions, that is far too long.
So we know those are concerns. Staff are indicating that their concern is that their inability to meet those timeframes is not because of vexatious or excessive grievances, but because often there is not a culture of protection of human rights that will in fact keep them and the prisoners safe.
As well, the Correctional Investigator has found that most of the multiple grievers who do exist—most of whom are not actually in the women's prisons but in the men's—are actually individuals with significant mental health issues. So any change in legislation is not likely to appreciably change this issue of multiple grievers, because if they have mental health issues, then there are other issues around what probably needs to happen.
Similarly, as the Correctional Investigator has pointed out, things that are sometimes viewed as frivolous, whether it's food or clothing, are sometimes not seen as frivolous by individuals. Again, they can create huge concerns, particularly for those with mental health issues, whether those concerns are about dirty underwear, inadequate food, not getting access to hot food, or the like. Again, these are issues that need to be taken seriously, and the effects can be minimized.
In short, we recommend that rather than continue on this and expend important and valuable taxpayer dollars on this kind of enterprise, Correctional Service of Canada be supported to provide meaningful ways to implement things such as the recommendations made by Dr. Mullan in the 2010 report they requested and contracted for.
I'll leave with a final example. When Ashley Smith put in a grievance at the Grand Valley Institution, when she put in a number of grievances, none of them were responded to. The Correctional Investigator has documented that well in their report. Sadly, we'll likely also see a full chronicling when we go through the inquest. When her grievances were responded to, they were not responded to adequately or in a timely manner. Her final grievance about the conditions of confinement within which she was placed, filed three weeks before she died, in fact was never looked at until we urged it. Finally the Correctional Investigator demanded that it be retrieved. Three months after she died it was retrieved from the box in which it was placed, never having been opened.
So our concern is about the timeliness of grievances, and the fact that people may put in multiple grievances when they haven't heard, in a context where they may not be getting responses because either their grievances aren't taken seriously, or they're discouraged from filing them, or, as women have advised, they're told to withdraw the grievances. Or as in Ashley's case, when other women started filing grievances on her behalf they were told that they would be sanctioned if they continued to do that. Even though she was not receiving responses and they were trying to assist her in addressing her concerns, they were not able to.
When we sought to use the judicial review process, it was at significant cost to our organization. It took us almost three years to gain some of the very documents and information she was trying to seek through that complaint and grievance process and the information process generally.
So I caution this committee, very sincerely and seriously, to look at whether we need to be going down this road, or whether we should be providing mechanisms—particularly at a time when we're likely to see increased tensions within our prisons—for individuals to be able to bring forward their legitimate complaints in a timely and efficient manner, have them taken seriously, and have the assistance of those individuals inside who have the opportunity to lay these.
During the Canadian Human Rights Commission review they found documents indicating that when someone raised a very serious concern, such as in Ashley's case several years later…. At the time we had memoranda and electronic messages indicating that individuals who put in grievances, using the legitimate complaint mechanisms, might be considered to be not following their correctional treatment plan.
Clearly, that's not legal. It's not appropriate, and we would not want to see that kind of situation continue. In a context where we already have staff asking us to assist them with this training process, when we have Dr. Mullan urging a training process for correctional staff.... Our concern is that if this kind of discretion is placed in the hands of individuals who aren't trained, it may result in increased tensions within the prison, instead of complaints being resolved and the grievance system’s being the safety valve it's intended to be.
Thank you very much.
I just want to make a very quick point.
Thank you for that. I think that would lead to my next comment.
All of us support the complaints process. I think it will be interesting when the commissioner comes, to hear exactly how the process works. But as I read this bill, individuals actually even have the latitude to make some vexatious complaints, which actually gives room for people who may be having a mental illness issue, or they might have an issue that might not seem valid to us, but to them it is. It gives room for that because this bill doesn't say if you make one vexatious complaint, which by the way, according to Webster's, says, “Denoting an action, or the bringer of an action, that is brought without sufficient grounds for winning, purely to cause annoyance to the defendant.” So that would be the definition of vexatious according to Webster. This bill actually allows individuals to do that. It actually allows for some vexatious complaints. It does not allow multiple complaints or grievances that are vexatious, frivolous in nature, or not made in good faith.
I don't understand, and I really would like to understand, because I know both of you are advocates for inmates. I think I told you before that I volunteered for many years at Stony Mountain, and I believe a lot of hope and healing can come to prisoners. I just see this as such a good, positive bill that actually would give more room to people who are making legitimate complaints, like the ones you referred to when you said that when you hear about complaints, it's about people not having a plan or not having access to treatment. Those were all complaints that should be addressed. I guess I just don't understand.
It would be so refreshing to have applicants come in to say this actually is a good step forward, that there's more work that needs to be done, but it's a positive step. It's sometimes disappointing that it takes so much to get that positive feedback when I think we really are trying to do the best thing in terms of our correctional system. This complaints process should be strong. It should be something inmates know they can count on and that they won't be penalized. I think this does that.
I hope you look at this again, and that we could count on your support for this bill.