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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 fashion.

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] at 1)

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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