The Correctional Investigator's Proposed Remedy
Madam Justice Arbour's report applauded the work of the Correctional
Investigator, particularly his initiative in issuing the Special Report
which forced the issues of P4W into the public domain. She recognized
that "of all the internal and external mechanisms or agencies designed
to make the Correctional Service open and accountable, the Office of the
Correctional Investigator is by far the most efficient and the best equipped
to discharge that function" (Arbour Report at 195). In his 1995-96 report,
published just a few months after the release of the Arbour Report, the
Correctional Investigator reviewed the record of the CSC in dealing with
the recommendations of the CI's office and emphasized yet again the failings
of the Service.
The authority of the Office within [the legislative
framework of the CCRA ] lies in its ability
to thoroughly and objectively investigate a wide spectrum of administrative
actions and present its findings and recommendations initially to the
Correctional Service of Canada. In those instances where the Correctional
Service of Canada has failed to reasonably address the Office's findings
and recommendations, the issue is referred to the Minister and eventually
to Parliament and the public, generally through the vehicle of our Annual
Report. The Office, as such, in attempting to assure administrative fairness
and accountability within correctional operations is dependent in large
part on the willingness of the Correctional Service to approach the findings
and recommendations of this Office in an objective, thorough and timely
I have been singularly unsuccessful over the past
few years, as evidenced by my previous Annual Reports, in causing a change
in the Correctional Service's approach in dealing with matters raised
by this Office. ( Annual Report of the Correctional
Investigator, 1995-96 [Ottawa: Supply and Services Canada, 1995]
On the basis of this record, the Correctional Investigator went on to
recommend the establishment of an administrative tribunal to overcome
the road blocks thrown up by the CSC.
On the basis of my own experience over the past few
years and without limiting the judicial guidance and control called for
by Justice Arbour, I believe there is a need for a mechanism between this
office and the courts with the authority to order timely corrective action
in instances of illegalities, gross mismanagement or unfairness. The correctional
environment, the impact of administrative decisions on individuals within
that environment and the consistent failure of the Correctional Service
to approach individual and systemic areas of concern in an objective,
thorough and timely fashion demands that a timely and responsive binding
avenue of redress be available.
As such I recommend:
a) that an administrative tribunal be established
with the authority both to compel Correctional Service compliance with
legislation and policy governing the administration of the sentence and
to redress the adverse effects of non-compliance, and
b) that access to the tribunal be provided for in
those instances where if within a reasonable time after receiving a recommendation
from the Correctional Investigator pursuant to section 179 of the Corrections
and Conditional Release Act, the Commissioner of Corrections takes
no action that is seen as adequate or appropriate.
The above recommendation is intended to support and
complement, not attenuate or replace, the function of the Office in ensuring
that areas of offender concern are decided on in an objective and timely
fashion consistent with the Service's legislative responsibilities. ( Annual
Report 1995-96 at 2)
The rationale for, and advantages of, access to an administrative tribunal
are directly related to the limitations of existing remedies, both administrative
and judicial. The tribunal would have jurisdiction to deal with the whole
range of non-compliance issues. Through the development of specialized
expertise, it could also fashion a wide range of remedies, tailored not
only to redressing harm but also to compelling administrative solutions
to intractable problems. Thus, in addition to having general jurisdiction
to make any order or recommendation to the Service concerning the matter
before it, the tribunal would have specific authority to order the Service
to pay compensation to any offender adversely affected by illegal or unfair
treatment. This would include reimbursement for allowances, wages, or
other payments lost as a result of the treatment as well as "special compensation"
up to a maximum of $5,000 (similar to the provisions of the Canadian
Human Rights Act ). The tribunal would have the authority to recommend
to a court that the offender's imprisonment be modified in line with the
Arbour recommendations. It would also have specific authority to recommend
to the CSC, the police, or the Attorney General that disciplinary or criminal
proceedings be instituted against any person.
One of the most important advantages of the tribunal remedy is that
it would bring closure to those issues, often of a system-wide nature,
that have filled up the annual reports of the Correctional Investigator.
The very existence of such an avenue for resolution would provide a major
incentive for the Service to resolve these issues at an early stage.
To forestall critics concerned about the expense of creating such a
tribunal, the CI suggested that it could be constituted as part of an
existing tribunal, such as the Canadian Human Rights Tribunal, which has
an existing national administrative infrastructure. Hearings could therefore
be held at the site of the dispute, much the same as Parole Board hearings.
Another potential objection to the proposal is that the tribunal would
be swamped with complaints from prisoners, overwhelming its resources.
However, the tribunal is conceived primarily as a vehicle for resolving
issues within the legislative mandate of the Correctional Investigator
which that office has been unable to resolve using its normal procedures;
prisoners would have access to it only indirectly, through referral of
their cases by the CI. Some prisoners' advocates have objected that this
access would be too restrictive, and in my judgement, the tribunal should
have a discretionary jurisdiction to accept direct references from prisoners
where the case raises a serious issue of general importance to prisoners.
Jason Gallant's case, which involves both domestic and international human
rights standards, would be one example.
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