Creating a federal inmate grievance tribunal.

• Author: Patrick, Jeremy
• Position: Canada

In the summer of 2004, the Office of the Correctional Investigator (OCI) released a discussion paper titled Shifting the Orbit (Canada, OCI 2004b). The primary question raised by the paper was "whether some form of independent adjudication of the decisions affecting significant human rights and statutory entitlements will further the entrenchment of justice in the care, custody and reintegration of federal offenders" (27). In other words, should an independent adjudicative tribunal be created to deal with certain inmate grievances? If so, how should such a body be structured?

The thesis of this article is that independent, external, and binding adjudication of certain inmate grievances is a necessary step in the movement toward greater accountability and respect for the rule of law in the correctional system. In the words of Mary Campbell, "not only must substantive rights be well articulated, there must be a framework that both provides a mechanism for exercising those rights [and which] exposes the implementation of those rights to systematic scrutiny" (1998: 286). A federal inmate grievance tribunal is one way of shoring up such a framework.

However, special care and attention must be given to the particular features of the tribunal in order to ensure that it is fair, speedy, and capable of effecting real change. Unfortunately, as experience demonstrates, an unresponsive, biased, or exceedingly slow grievance system can be just as problematic as having no system at all: "the worst possible scenario ... is to have a complaint and grievance process which is so deficient, both in time and in substance, that it becomes itself a source of further frustration and resentment" (Arbour 1996: 194). The first section of this article discusses the rationale for creating an independent adjudicative tribunal, while the second section examines how that tribunal should be organized.

The case for a grievance tribunal

From an outsider's perspective, the Correctional Service of Canada (CSC) sits in a curious and largely inexplicable vacuum of accountability. After all, every other government actor in the criminal justice system is subject to at least one specialized external oversight mechanism with the power to issue binding opinions on the propriety of particular conduct (Arbour 1996: v): police officers are subject to public complaint commissions (Ceyssens 2003: 7-1-7-94), prosecutors and criminal defence counsel are subject to discipline by law societies (Hutchinson 1999), and judges must answer to the Canadian Judicial Council (Judges Act, [section] 58-71) or its provincial analogues and to appellate courts. A closer examination of the CSC demonstrates that its anomalous position is simply not warranted--indeed, several features of the correctional system militate strongly in the direction of increased accountability.

Canadian penitentiaries are run, by and large, outside the public eye (Arbour 1996: v). A bewildering maze of statutes, regulations, commissioner's directives, regional instructions, standing orders, and post orders is supposed to govern the day-to-day operation of these institutions (Arbour 1996: 3-4), but in practice applicable rules may be unknown, misunderstood, or simply ignored (Arbour 1996: 181; Canada, Solicitor General 1987: 9-10). Apart from law enforcement, the CSC is the only domestic government agency that uses physical force on an almost daily basis: more than 1,100 use-of-force incidents were recorded in the 2002-2003 reporting year (Canada, OCI 2003: 3). A recent OCI analysis of the CSC's use of force found "unreasonably high levels of non-compliance" in areas such as strip-searching, deployment of gas, and the use of physical restraints (Canada, OCI 2001: 15).

Given that Canada's 13,000 inmates (Statistics Canada 2003: 39) filed almost 7,000 inquiries and complaints with the OCI in the last reporting year (Canada, OCI 2004a: 47), a fair and effective mechanism to address these complaints is clearly needed. According to a Correctional Law Review study

[a] grievance procedure which preserves the appearance and reality of fairness prevents much of the feelings of frustration and bitterness experienced by inmates, and emphasizes to all parties that they are responsible for reaching workable solutions. (Canada, Solicitor General 1987: 110) Unfortunately, the consensus among inmates and researchers is that the internal grievance system is slow, frustrating, and ineffective.

In her well-known 1996 report on the forced strip-searching and segregation of inmates at the Kingston Prison for Women, Justice Louise Arbour (1996: 153) notes that almost all of the problems examined during the inquiry were first raised through the inmate grievance procedure; but the grievances were either ignored, answered several months late, or answered by someone without the authority to investigate the facts or provide an effective response (154). Arbour concludes that "by far the most troubling aspect of the responses to these grievances, which raised important issues of fundamental inmate rights, was the number of times in which the responses failed to deal properly with the substance of the issues raised" (154) and that the grievance process "has no chance of success unless there is a significant change in the mindset of the Correctional Service towards being prepared to admit error without feeling that it is conceding defeat" (193).

A decade later, the same problems persist. Almost half of "priority" inmate grievances were answered late by CSC officials in 2001-2002, according to the Canadian Human Rights Commission (CHRC 2003b: 64); inmates consider the process "slow and not very effective" or "useless" (63); and recently both the CHRC and the OCI have concluded that the system is often ineffective in vindicating inmate rights (CHRC 2003b: 63; Canada, OCI 2003: 31, 2002: 31, 2001: 23).

The intransigence CSC has shown toward inmate grievances can also be found in its response to recommendations for change made by the OCI. The CSC's "demonstrated unwillingness" (Arbour 1996: 194) to actually implement change is an old but persistent problem. Indeed, the organization often refuses to consider the substance or specifics of recommendations made to it. For example, a recent OCI annual report notes that the CSC simply did not seriously address certain concerns raised by the OCI regarding Aboriginal offenders (Canada, OCI 2003: 18), women offenders (20), access to programming (23), inmate injuries and institutional violence (25), double bunking (28-29), the use of force (30), and inmate grievance procedures (37). The report concludes that "the lack of responsiveness of the Correctional Service to our findings and recommendations made it virtually impossible to focus upon, and bring resolution to, the content of our submissions" (2003: 4; see also Canada, OCI 2000: 59; Jackson 2002: 576). (2)

Similarly, even when the CSC examines recommendations and agrees that change is necessary, actual implementation of proposals is stymied by "a bureaucratic process of excessive review, consultations and endless study" (Canada, OCI 2000: 5). It took almost 12 years for the CSC to implement recommendations regarding community placement of women offenders (CHRC 2003b: 54); "consultation" and "draft" policies on sexual harassment circulated for at least six years (Canada, OCI 2002: 13), while "draft" policies on suicide prevention circulated for more than three years (Canada, OCI 2001...