location: publications / books / Justice Behind the Walls / Sector 1 / Chapter 3 Corrections, The Courts and the Constitution / Title The Prisoner Grievance Process and the Office of the Correctional Investigator

The pilot procedures differed in one very important respect from the Parliamentary Sub-Committee's recommendation. Under the pilot project, decisions of the outside review board were binding unless the warden could show that the decision would be contrary to law, a danger to any individual or not possible within the current budget for the institution. The pilot project ran for six months and was evaluated as a significant improvement over the existing procedures.

The pilot procedure resolves large numbers of grievances at lower levels. Of all grievances filed under the pilot procedure, about two-thirds were settled or withdrawn at the informal stage, without the necessity of a hearing before the staff-inmate committee. The Committee was able to effect a final settlement of only about a quarter of the grievances reaching that level but recommended action by the Director in most other cases. In all, the Director's level actually received only about a quarter of all grievances filed under the pilot procedure, of which he upheld about a half in the grievor's favour. The outside review stage received appeals in only five cases during the pilot project, or fewer than 3 percent of all grievances filed under the pilot procedure. (Nuffield at 132)

Following the pilot project, the Commissioner's Directives were amended to incorporate the new model procedures with the important modification that the decision of the outside review board, where such review was invoked, was advisory only. The promise of system-wide implementation of the Saskatchewan pilot project was not, however, met. For most prisoners it remained a model only on paper. In a significant number of federal institutions, there were no grievance committees appointed nor any referrals to outside review boards.

The Correctional Law Review also recommended changes to the existing procedures, particularly adding a provision for binding arbitration. Under the CLR's proposal, a prisoner would have the right to have a grievance referred to an independent arbitrator. The decision of this arbitrator would be binding on the institutional authorities unless it was established to the satisfaction of the Federal Court that the decision would be contrary to law, would represent a clear danger to any individual or group of individuals, or would require funds not available in the current budget. In the latter case, the Commissioner of Corrections would be required to present to the court a plan for the implementation of the decision in future fiscal years (CLR Working Paper No. 5 at 115-16). As the CLR pointed out, experience in the United States with successful grievance procedures had shown that provision for independent review, even though used in only 1 to 5 per cent of all cases, was a critical element in establishing the credibility of the process in the eyes of prisoners. However, this element of the CLR's recommendation, one endorsed by the Canadian Bar Association, was not incorporated into the CCRA. Instead, the basic shape of the existing procedures was retained, although their status was elevated from policy to law by inclusion in the Regulations. Under these procedures a prisoner may request that the institutional head refer the grievance to an outside review board and while the institutional head must make that reference, any recommendations of the board are not binding. Where the institutional head chooses to disregard the recommendations, the prisoners only remedy is to appeal the decision to the next level of the grievance process and ultimately to the Commissioner of Corrections. ( CCRA Regulations, sec. 79)

The CCRA, in keeping with its professed aims of codifying and integrating the essential legislative elements of correctional law, sets out in Part III the function and powers of the Office of the Correctional Investigator. Section 167(1) sets out the CI's mandate in these terms:

To conduct investigations into the problems of offenders related to decisions, recommendations, acts, omissions of the Commissioner [of Corrections] or any person under the control and management of, while performing services for or on behalf of the Commissioner, that affects offenders either individually or as a group.

Despite the often repeated criticism of the 1973 provisions establishing the Correctional Investigator's office that the CI did not report directly to Parliament but to the Solicitor General, the CCRA maintained this reporting relationship, although it did establish a time frame and structure within which the Minister must present reports from the CI to Parliament.

In his Annual Report for 1992-93, the Correctional Investigator summarized his experience, in the pre- CCRA era, with the Commissioner of Corrections' responses to his office's recommendations on a whole range of issues, including the effectiveness of the internal grievance system, by lamenting that they "continued to be excessively delayed, defensive and non-committal." However, he went on to express his hope that "as the appreciation and understanding of the new legislation increases, all parties involved in the correctional process will accept their responsibility in ensuring that offender concerns are addressed in a thorough, timely and objective fashion" ( Annual Report of the Correctional Investigator, 1992-1993 [Ottawa: Supply and Services Canada, 1993] at 45). Later in this book I will examine through the vehicle of the annual reports of the CI, whether the CCRA has in fact generated a climate characterized by respect not only for the Rule of Law and human rights but also for the recommendations of Canada's prison ombudsman.

The CCRA provided that, after five years, a comprehensive review of the Act 's provisions and operations would be undertaken by Parliament. In May 2000, a subcommittee of the House of Commons Committee on Justice and Human Rights tabled its report on the CCRA (Sub-Committee on Corrections and Conditional Release Act of the Standing Committee on Justice and Human Rights, A Work in Progress: The Corrections and Conditional Release Act [Ottawa: Public Works and Government Services, 2000]. Prison justice was not the primary focus of the report. That focus, in keeping with the temper of the times, was public protection. My research for this book began shortly after the enactment of the CCRA. Its focus has been justice and human rights behind the walls. Placed in the context of over thirty years of research and advocacy, the chapters that follow represent my own evaluation of Canada's correctional legislation and the state of prison justice as we begin the twenty-first century.

Page 3 of 3