Good afternoon, everyone.
This is meeting number 32 of the Standing Committee on Public Safety and National Security, on Tuesday, March 27, 2012.
Today we're continuing our consideration of Bill , an act to amend the Corrections and Conditional Release Act, vexatious complainants.
Towards the end of today's meeting we have reserved approximately ten minutes in order to deal with some committee business. We'll go in camera for that.
In our first hour and 40 minutes we're very pleased to have, and to welcome back to our committee, Mr. Don Head, Commissioner of the Correctional Service of Canada. On the same panel, we have Michael Côté, director general, rights, redress, and resolution at Correctional Service of Canada; and Shane Dalton, acting analyst, offender redress.
I invite you, Mr. Commissioner, to give an opening statement explaining the department's position on Bill before we proceed to questions from members of this committee.
Again, we want to welcome you and thank you for appearing before our committee as often as you do. It's good to have you here.
Thank you, Mr. Chair. Given the time of year, I've been debating as to whether I'll declare you dependants on my income tax, I've been here so often.
Anyway, good afternoon, Mr. Chair and members of the committee. I'm pleased to have the opportunity to appear before you today to discuss Bill , which would make amendments to the Corrections and Conditional Release Act to identify and manage offenders who could be considered vexatious complainants.
I'm joined this afternoon by Mr. Michael Côté, the Correctional Service of Canada's director general for rights, redress, and resolution; and Mr. Shane Dalton, acting analyst, offender redress.
I would like to begin by outlining the current offender complaints and grievance process and providing you with some facts and figures. I will then briefly discuss the impact on CSC should Bill come into force.
The complaint and grievance process provides offenders with a means of redress when they are dissatisfied with an action or decision by a staff member. Providing offenders with a fair, impartial, and expeditious complaint and grievance process is mandated by law. It also has many benefits. Among these, it encourages offenders to deal with issues in a pro-social manner. It empowers them and provides another forum whereby their concerns can be heard and dealt with appropriately. The process can also be used as a monitoring tool to identify trends that are linked to increased tension or discontent among the inmate population.
This is a four-level process. Offenders must first submit a complaint to a correctional manager or their case management team, who will seek to resolve the issue at the lowest level possible. If this is not possible, the offender can submit a first-level grievance, which is responded to by the institutional head. Any grievances unresolved at the institutional level then proceed to regional headquarters, where the regional deputy commissioner is the decision-making authority. Finally, if the grievance cannot be resolved at the regional level, it's elevated to national headquarters, where a comprehensive review and analysis of the grievance is completed within the policy and research sector, and submitted to the senior deputy commissioner, to whom I have normally delegated my decision-making authority.
It should be noted that if an offender is not satisfied with the decision at any level, he or she can seek a legal remedy, normally through the Federal Court.
In fiscal year 2010-11, CSC received 28,858 complaints and grievances. This fiscal year we have received about 26,717 up to February 26, 2012. Last year 25 inmates submitted over 100 grievances each. They are the frivolous or vexatious grievers who are the focus of this bill. Within this group of 25 there are a small number who submit many hundreds, as in more than one per day.
By way of explanation, we consider “frivolous” to mean that the complaint was submitted with no serious purpose; “vexatious” encompasses grievances submitted for the purposes of harassment for their own personal means, or to disrupt the system. Both are equally disruptive and consume hours of analysis and review by my staff.
On the financial costs of the process, last year over $3.8 million was dedicated to the salaries of the grievance analysts and operating costs. This year the figure is over $5 million. This increased cost is because CSC has made significant investments in the offender grievance process in order to increase the potential efficiency and effectiveness of this program, as well as to provide adequate and appropriate resources.
Specifically, CSC recently launched a pilot program based on an alternative dispute resolution process, with approximately $1 million of dedicated funds. An additional $1 million was allocated to address the anticipated increase in offender grievances and the backlog of grievance responses at the second and third levels.
Should Bill come into force we believe it will be much easier for CSC to identify and manage these offenders. The Corrections and Conditional Release Act would be amended to allow us to create a specific policy that would provide a process required to identify an offender as a vexatious complainant. This internal policy would lay out the steps required to assess and identify an offender as vexatious, including how the offender would be notified of the decision.
Staff inside institutions, at regional headquarters, and at national headquarters will have more time to focus on offenders who do not misuse the system and ensure that high-priority grievances are addressed in a timely manner. It will limit the ability of vexatious complainants to monopolize the grievance process and attempt to use this very legitimate system for illegitimate means.
As the honourable member who sponsored this bill pointed out, these changes would also be of ultimate benefit to the vexatious complainants themselves. A single-minded focus on lodging complaints is counterproductive to the correctional process. Offenders' time would be better spent on following their correctional plan in order to better prepare them for release and ensure safer Canadian communities.
Mr. Chair, as I indicated previously, the complaints and grievance process is an important part of the federal correctional system. It provides vital checks and balances to ensure the Correctional Service of Canada carries out its mission and mandate while respecting the fundamental rights of offenders. We must take seriously any allegations that CSC has failed in this regard. Unfortunately, the efforts of a small number of offenders who abuse this process take precious time and resources away from offenders who avail themselves of the system with legitimate intentions.
This bill will hold to account those who disrupt a well-functioning redress mechanism. It would alleviate pressures in terms of time and resources and it would reaffirm the commitment of the Correctional Service of Canada to a fair, impartial, and expeditious complaint and grievance process as mandated by law.
Thank you once again for the opportunity to appear before you today. At this time I would be happy to answer any questions you may have of me or my staff.
Sure, I'll give you a few.
I personally have, throughout my career, dealt with complaints and grievances. I've dealt with them as a front-line manager in an institution, at the second level at regional headquarters, and at national headquarters when I was in the role of senior deputy commissioner. Here are some examples of frivolous grievances.
An individual complains about not getting access to the doctor in a timely way. We go back; we analyze that; we determine that, yes, there probably could have been something that could have been done differently; and we schedule that individual for the next time the doctor comes in. So for all intents and purposes the issue is dealt with.
The way the law is currently written, that individual, even though the issue has now been resolved, can still file a grievance and just complain about the fact that it wasn't resolved in a timely way by our own admission and carry it on to the next several levels in the grievance system. That type of grievance serves no purpose at all because the issue brought forward was identified as being a shortcoming by staff and was rectified, but now the offender is using the opportunity within the legislation and the policy to continue to just push a point through the various levels, and each level requires a response.
No, I don't think it as simple as that, categorizing in that way. Are there some who have some mental health issues? Yes, there are some. There are some well-educated individuals who fall into this category. We actually have a very good profile of the types of individuals who have been filing these grievances.
I'll take a few seconds to add a couple more stats, which I think will be relevant. Although we're talking about 25 offenders who have filed 5,215 of the 28,000 grievances I talked about, or about 18% of complaints and grievances, those are individuals who have filed more than 100 grievances. If I back the scale up a bit, and talk about individuals who have filed more than 25 grievances in a year, it's 136 inmates who file 9,857 grievances, for a total of about 34% of all the grievances filed. And that's 136 inmates out of a total of 6,213 inmates who filed grievances in the fiscal year I'm talking about. So 2.2% of the offenders are filing more than 25 grievances a year, which account for 34% of all the complaints and grievances that we get.
We have stats for all the levels, but I'll give you an example of the third level, which is my level or that of my delegate, who is the senior deputy commissioner.
At the third level, 32% of the grievances that came to the third level are either upheld or upheld in part. Actually, the vast majority of those are upheld in part. They're usually upheld in part because the timelines at the lower levels were not met and the inmate has made that part of the grievance. We end up upholding the fact that they had a late response.
But 55% of those that come to the third level are denied, and some 20% are rejected for various reasons.
Thank you to the witnesses, in particular Mr. Head for appearing here multiple times. We always find your testimony valuable.
I think I'm going to fall into the same trap I discussed about this bill, that it tends to take our attention away from the larger contributions of a complaint system to a well-run correction system. I talked before about how this helps identify problems within institutions. It helps relieve pressure by providing an outlet for those grievances, and it does help settle individual problems. By focusing on this small group, we tend to veer away from those positive contributions. Having said that, I'm going to do that myself.
You said something interesting. You said that you have a profile on the 25, I believe, and I'm presuming also on the 136 that are the most prolific. Have you assessed any patterns to the causes there, and have you explored solutions or programming to address them?
We looked at each of the cases. We've identified factors that are mostly unique to each individual. I'll just give you an example.
There is a case we had several years ago. An individual who was doing a very long sentence had basically done many of the programs that he could do earlier on in his sentence, now had basically time to do, and decided to start to fill his time by writing two or three grievances a day. There really wasn't much in terms of programs we could do for him. We needed to find other things to occupy his time. When we did that, then he just found things that he didn't like about how his day was being filled, and he started to complain and grieve about those activities.
We know there are some individuals who have made it their raison d'être to flood the system, to keep the system occupied with these kinds of grievances. There's not much we can do. A couple of these individuals were relatively high-functioning individuals, well-educated individuals, and they made a very concerted effort to flood the system. This proposed bill, or something along these lines, will help us to deal with those individuals.
Your earlier comment, from my perspective, is right on: for the vast majority of offenders who have complaints, there's some legitimacy somewhere there. Most of it is being dealt with at the complaint stage, either giving offenders more information or correcting something, or setting them on the right path to resolution. It gives us an indicator if there are certain issues developing in a specific institution. But if our time is being taken up with those very few who are flooding the system with a significant number of frivolous and vexatious grievances, we're not able to serve the vast majority of offenders who may have some kind of legitimate issue.
Thank you very much to all three of you for being here.
As I'm listening to this I'm shaking my head and thinking that a lot of Canadians outside of the Ottawa bubble would be shaking their heads, rightly or wrongly, because we have a process whereby convicted criminals can tie up the system by complaining that their egg is too small or their ice cream is too cold, and that process can go all the way to you, Mr. Head, and it possibly could go to court.
When we have people around this country.... Whether it's health care, education, food, housing, we know the challenges that law-abiding Canadians face. And hearing that we have a system in place.... I would just say, Mr. Head, that you are a much more patient man than I am a patient woman. I would really have very little patience for that, so it's good that you're doing that job.
I'm wondering if you could tell me how front-line officers react when they have to deal with this kind of.... And let's be clear, we're not talking about just one vexatious complaint. This bill would address individuals who make multiple vexatious complaints or grievances. Can you please tell us how front-line officers feel about the ability of inmates to do this, and how they feel about this bill?
Thank you. That's a really good question.
This committee has heard me speak volumes before about how proud I am of my staff. They are ultimate professionals in terms of the job they have to do, day in and day out.
It is a challenge for them, whether it be the front-line correctional officers, parole officers, program delivery officers, nurses, and other staff who are sometimes the target of these multiple vexatious and frivolous grievances. It takes a toll, because in the vast majority of investigations into those complaints and grievances.... The staff have done their jobs, they've done them well, and they continue to act as professionals. But when you have certain individuals who continually file grievances against them....
You can imagine, given your previous profession, what it would be like to have a couple of citizens constantly filing grievances about the way they thought you interacted with them. At some point you step back and start to feel, “Am I doing a good job? Is this the job I want to be in? Is this the kind of environment I want to be in, where individuals are allowed to get away with making those complaints?” And there's really no recourse to their filing those in a frivolous and vexatious manner.
I'll use the example of a maximum security institution. A good example is when an inmate is playing the radio and turns up the volume. They do that for all kinds of reasons. Security problems are created when that happens. The staff member will go down the range and ask the offender to turn down the radio. The offender refuses. The staff member then gives an order to the inmate. The inmate refuses. Then the inmate can potentially be internally charged for refusing an order.
The inmate's recourse then is to file a complaint, a grievance. In those cases a grievance would normally be denied, assuming that the officer interacted with the inmate in an appropriate manner. But if the inmate doesn't like that, they can file a second-level grievance and a third-level grievance, and each time we go back to the staff member and ask them to explain why they did the job they were supposed to do.
You can imagine, if you get an offender who then waits for you to show up on every shift and watches your every move and then puts in a complaint, and then a grievance on that, it really is demoralizing for the front-line staff member--knowing that when he or she comes on and is on that floor to protect the safety of the inmates and the safety of his or her colleagues, to protect, ultimately, the safety of Canadians, the offender is writing up a complaint or grievance on every step he or she is taking. It does become demoralizing after a while.
Thank you so much for being here. Your presentation was excellent in terms of the information that you provided.
You said something just now about there being a cause behind people filing vexatious complaints. I'd be interested in knowing your thoughts around that.
In addition, when Ms. James presented her bill, proposed subsection 91.1(6) states that “The institutional head shall ensure that a plan is developed to assist any offender who has been designated as a vexatious complainant to break the cycle of complaints and first-level grievances.” So, first of all, what do you know, or what research have you done into how and why you manage this? Secondly, do you have any thoughts about how you're going to put some processes in place to deal with these vexatious complaints? Thirdly, if so, will this develop another system that you are then going to have to implement, manage, etc.?
That is a very good question.
If the bill were not as prescriptive, there would be possible ways of getting at the frivolous and vexatious issue, which is a problem for us. The overall intent of the bill, from my perspective, is a very good one. But because of the way it's laid out there, we have to do some thinking, and put in some processes that can be dealt with in a different way.
In terms of your first question, there are some root issues behind why these inmates are putting in these complaints. They usually do not have anything to do with the actual words they're putting on paper. It's because their time isn't being filled properly. That's our responsibility. We need to get them more engaged in programs or activities.
But under the current system, I don't have anything to persuade them to go that way when they can just continue to write about that. They can then put in a complaint against my staff that they're being harassed to go into programs, and then I've got to deal with that complaint, and those three levels of grievances.
One of the things this bill does is allow me to give that designation to certain individuals—albeit they have to meet the criteria of being persistent and not just doing this one time—and then we can work on what needs to be done, in terms of trying to get them focused on the things they need to focus on, in order that they can return to the community as law-abiding citizens.
I want to thank the witnesses. This is absolutely fascinating. I do not claim to be an expert on this topic, and I am here replacing one of my colleagues, but I have a few questions off the top of my head.
I worked as a lawyer in labour law, especially in the area of collective agreements and grievance adjudication. The major dilemma is always deciding which process works the best and is the most effective and fair for everyone involved. I have always advocated the most direct processes. You have the first, second, third and fourth levels. Eventually, there's no end to the never-ending process, and you often go around in circles.
I know that my colleague Mr. Chicoine asked this already, but I'm not sure I heard your answer properly. Wouldn't it be better to reduce the number of levels in order to become more effective? If there were fewer levels, you would be less bogged down by all the complaints you receive.
—it could still be done. Because it seems a pretty heavy process, in my opinion, at this point in time, especially considering the type of grievance or complaint that sometimes you're getting. I do hope you don't have four paliers
for somebody who has cold ice cream. I would be really pulling my hair out.
That being said, when I read the law—because it's always interesting to read the law—and you look at subsection 91.1(2)
proposed, you see that it says the following:
||The Commissioner may designate an offender as a vexatious complainant when, in his or her opinion, the offender has submitted multiple complaints or grievances that are of a vexatious or frivolous nature, or not made in good faith.
I want to begin with my question. How do you think you, in your capacity as commissioner, will go about this? How many complaints constitute multiple complaints? The wording “vexatious or frivolous nature, or not made in good faith” is used.
I want to go back once again to my experience as a lawyer in labour law. In the area of evocation, when we would be talking about behavioural concepts “of a vexatious or frivolous nature, or not made in good faith”.... In life, one of the most difficult things to prove is bad faith because people's good faith is always presumed.
I am trying to see how these new powers will help you and whether you will not instead be bogged down, under proposed clause 91.3, when faced with a mountain of appeals for judicial review of your decisions.
Is the system being modified and weakened through another system? That is sort of what I think about when I read this kind of legislation.
Those are very good questions. I have a couple of responses.
I'll deal with your latter questions first. In terms of weighing down, given that this is a very significant decision being made in terms of an individual who's under the care of the state, I actually see within my organization—whether it rests with me or if I'm able to delegate it to my senior deputy commissioner—that it's the right level for these kinds of designations.
Again, based on our current numbers, I would see anywhere between 25 and just over 100 a year that could possibly be deemed to meet these criteria, and I think that warrants the most senior review within the organization, given that these people are under the state's care.
In terms of differentiating, I imagine, based on your previous career in terms of labour law, you would know when one side is bargaining in bad faith. It's just so evident to you. I've got over 34 years in corrections now, and a lot of my senior managers have many years as well. It's one of those things you can tell. At the end of the day, we're going to have to justify our decisions, because they could go to judicial review. They're going to have to be well documented, knowing that they could be subjected to judicial review, and we've got a lot of experience in that area in terms of the concept of duty to act fairly, the rule of law. So I feel comfortable that we're able to determine and distinguish frivolous and vexatious from a good grievance, for lack of a better word.
I'm looking at the legislation again. This kind of ties into one of the questions Ms. Young was asking.
Proposed subsection 91.1(3) says, “When the Commissioner commences his or her consideration of a vexatious complainant designation for an offender, he or she shall”, and then it lists a couple of subsections. One of them says, “give the offender an opportunity to rebut the possibility of such designation” and also to “present an alternative plan or means to address the offender's issues". That says to me that if you levy that designation on the offender, you have to give the person an opportunity to at least present an alternative plan or a means to deal with their issues.
In your opinion, would that potentially eliminate the next step of having to ensure that a plan is developed to assist the offender, which is found in proposed subsection 91.1(6), which you talked about? It could create some onerous conditions or some in-depth planning to decide how and where you would go about that. If the offenders were able to come forward with an alternative plan, most likely with the assistance of a case manager or a front-line officer, would you see that as being possible so that you would not have to invoke that subsection?
Thanks for that question. It actually is a concern for us. It goes to my earlier comment.
Again, I find the intent of the bill absolutely bang on, and it will help us out. The prescriptive nature in terms of the ways it's laid out there I think potentially could create some problems for us. On the language around creating “a plan”, my concern about looking forward in that, whether it's a separate plan, or whether it's part of the correctional plan, is that this will be something where, if the offender has the right, then, to go for judicial review around the designation there, we know the courts will look to the law.
They'll look to the letter of the law. If they see the word “plan”, they're going to look for a plan, so that is a concern for us in terms of a sort of a procedural step that we're now going to have to put in place and that we don't have in place now.
At this point, we don't have enough data to say whether this is going to have any impact on what would be deemed as frivolous and vexatious grievances. We tend to think that at least with that core 25, this probably won't change anything. For the rest of the offender population, it will help to get far more expeditious decisions, which is really what we're trying to get at.
Going back to one of the earlier questions, it's like anything, even labour law. If you tinker with one little thing, you can create a whole bunch of problems. Rather than tinkering with one thing, we're trying to make sure we have all the pieces lined up. Your suggestion earlier, if we can compress the number of levels, that's a solution, but if you do that in isolation of the three or four other pieces we have, we could end up creating more processes with more time, energy, and money being spent.
We're trying to look for the right continuum for both, for what we call legitimate grievances and for those that fall into the frivolous and vexatious category.
Thank you for that clarification.
I just have one little quick question, although maybe it has been dealt with.
I think you see the spirit of what this bill is trying to do. The person who drafted the bill is here, and the government has recognized that there is a problem there, in corrections, with vexatious complaints. On the other side of it, there's a real concern that all of a sudden we're going to be throwing people into a position where now they've been branded as a vexatious complainer and it's going to limit them down the road.
Are there any concerns you have with this bill? Is there anything we could do to make it better?
As I recall, the government in debate said that an amendment would come forward that may allow you to delegate another individual. Certainly that isn't going to mean that multiple people out there will have the opportunity to do this, but if that amendment were to carry, there would be one person delegated to perhaps work through all these vexatious complaints. Is that because of time, or what?
If that kind of amendment came forward, it would basically be enabling language, so I would make a decision at some point on whether I would delegate or not.
Having that kind of language there is actually helpful just in terms of thinking this through and looking at the number of individuals. Maybe in the early days I wouldn't delegate that; I would keep that under my own authority. As time went on and we built up the right knowledge base in terms of managing that, I might delegate that to one person in each region, which may be my regional deputy commissioners, who are assistant deputy ministers. So that kind of amendment would be helpful.
The other thing I would suggest to the committee for consideration is to look at stepping back a little bit from the prescriptive nature of the way the bill is proposed. Again, the intent of the bill is going to help us out tremendously, but in the prescriptive nature—the way it's laid down right now—there are some administrative issues that could be problematic for us going forward.
I think the committee has actually talked around some ideas that might be helpful in terms of keeping the intent and addressing the very significant issue we have without being as prescriptive in the legislation.
There is also an opportunity through regulation. I would see some of the steps being more in the regulation than in the act, with the act being the sort of overarching piece that allows us to get at this problem.