The Prisoner Grievance Process and the Office of the Correctional Investigator

It should not come as a surprise that in this review of the law I have focussed heavily on the role of the courts, the Charter, and correctional legislation in bringing prisoners within the protective umbrella of human rights. Resolving the competing interests of the keeper and the kept within the framework of a "due process" model is part of the natural order of things for those who are legally trained. This model proceeds on the assumption that the principal way to legitimize state power and prevent its abuse is to pour specificity into the criteria for decisions and gird the making of these decisions with rules that ensure fairness. Professor Fred Cohen, a thoughtful American commentator on developments in correctional law, has suggested that the adoption of due process as the strategy of choice for controlling discretion of prison officials is an example of the umbilical tie lawyers have to the use of analogy: since due process is required in other areas of the criminal justice system to ensure fairness, it is necessary also in the area of prison justice. Cohen suggests that one of the traps of "excessive reliance on analogy is the limitation it imposes on the development of more creative solutions to the problem and the apparent tendency to accept on faith the inherent worth of the missing fact" (Fred Cohen, "The Discovery of Prison Reform" [1971] 21 Buffalo Law Review 855 at 868).

One of the other problems with excessive reliance on a due process model, ultimately superintended by the courts through judicial review, is that it is subject to the vagaries of litigation and the limited access prisoners have to legal aid. This results in few cases reaching the courts and, for those that do, a heightened adversariness between the parties. For all these reasons, the development of alternatives to litigation, emphasizing non-adversarial and more informal dispute-resolution processes, has been identified as a necessary part of an effective system of prison justice. The Archambault Commission in 1938 observed:

A serious feature in the penitentiaries is that a prisoner has no outlet whatsoever for his grievances . . . with the result that the prisoner feels that he has no access to a fair administration of justice and is absolutely removed from the protection of his fellow man. (at 344)

Some thirty years later the report of the Swackhamer Commission, in addressing the causes of the 1971 riot at Kingston Penitentiary, also identified the lack of an effective form of redress:

Grievances of all types are bound to exist among the prison population. Whether those grievances are justified or not, they require to be dealt with so that order and morale of the institution can be maintained. At present, we heard that such grievances can only be resolved, if at all, when an inmate's only avenue of complaint is the very administration which is frequently the source of his dissatisfaction. It is perfectly evident that at Kingston Penitentiary the total absence of any formula by which such matters could be effectively aired was a factor in the disturbance itself. (at 62)

Largely as a result of this report, the Office of the Correctional Investigator was created in 1973, and the following year an internal grievance system was established for federal prisoners. These two features, while quite distinct, have important points of intersection and together constitute the primary non-judicial mechanisms for prisoner redress.

The Office of the Correctional Investigator (CI) was created by an Order-in-Council under Part II of the Inquiries Act (R.S.C. 1970, c.I-13), rather than by special legislation. The Order-in-Council mechanism, which allowed a quick response in the aftermath of the Kingston riot, was intended to be a temporary measure until legislation could be drafted. However, it was not until 1992, nineteen years later, that the mandate of the CI found its proper place in correctional legislation in the Corrections and Conditional Release Act. The mandate of the first Correctional Investigator, Inger Hansen, was to "investigate, on her own initiative or on complaint from or on behalf of inmates as defined in the Penitentiary Act, and report upon problems of inmates that come within the responsibility of the Solicitor General" (P.C. 1973-1431: June 5, 1973). However, excluded from the mandate were complaints "where the person complaining has not, in the opinion of the Correctional Investigator, taken all reasonable steps to exhaust available legal or administrative remedies," a provision designed to encourage prisoners to first use the internal grievance system. The CI was given unrestricted access to prisoners in federal penitentiaries, and correctional officials were directed to provide "full co-operation" to the CI's office. Although the concept of the CI was derived from that of the ombudsman, one of the criticisms of the Canadian initiative was that, unlike most other ombudmen's offices, the CI did not report directly to Parliament but rather to the Solicitor General. This limitation notwithstanding, the appearance of the CI on the correctional horizon opened up an important window for prisoner redress. In its first year of operation, the CI's office received complaints from 595 prisoners, and in her opinion "none of their complaints was frivolous" ( Annual Report of the Correctional Investigator, 1973-1974 [Ottawa: Information Canada, 1974] at 3).

The value of the CI's office was also seen in its ability to conduct inquiries into allegations of abuse. Early in its history, the CI conducted an inquiry into the use of gas and force at Millhaven Institution. As described by Mary Campbell:

Without the existence of the CI, this would likely have gone unnoticed as just "routine business" at that institution. The incident itself stemmed from a seemingly innocuous event, the early termination of the shower period one evening. Missed showers had, however, become a frequent occurrence and meant that some inmates were going several weeks without bathing. On the night in question, the inmates began shouting and banging on cell doors. When they refused to stop, staff decided to move the ring leaders to segregation, eventually using gas in the process. The inmates were left naked in segregation over night without mattresses or bedding. None of the rules regarding the use of gas and its decontamination, or regarding use of force, were followed. Even prior to this incident, specific instances of abuse of inmates were not uncommon.

Through evidence from correctional officers as well as inmates it was established beyond question the inmates have, from time to time, been restrained by being handcuffed behind their backs, shackled with their legs bent backwards and upwards in order that the chain between the legs could be pulled through the chain on the handcuffs. It was also established the inmates had been left in their cells for hours in this position and a number of officers agreed that they had witnessed inmates left lying in their own excrement . . . When questioned about these methods of restraint, the Director of Millhaven Institution stated that he was not aware that this was taking place. (Correctional Investigator, Report of Inquiry -- Millhaven Incident, 3rd of November, 1975 (Ottawa 1975) at 15)

The significance of the Millhaven Inquiry is the emphasis on (1) the vulnerability of the prisoners in the hands of the system, and (2) what can happen where there is a complete absence of a climate of rights. Moreover, given that there wasn't a widespread riot and no lives were lost, it is questionable whether this incident would have ever been held up to public scrutiny if the CI had not existed. (at 300-301)

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