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| John L. Hill |
The Correctional Service of Canada’s (CSC) internal grievance process is supposed to provide federal prisoners with an adequate alternative remedy to judicial review. So much so that incarcerated people must exhaust those procedures before the Federal Court will entertain a claim for a judicial remedy (Condo v. Canada (Attorney General), 2003 FCA 99; Giesbrecht v. Canada, 148 F.T.R. 81). The Commissioner’s Directives, the rules laid out to regulate prison operations, establishes a three-level process for resolving situations that cause frustration to incarcerated people such as complaints against staff, problems with food or failure to provide adequate health care.
In 2010, a person incarcerated in a federal prison sought a declaration that the CSC grievance procedure was an ineffective remedy (Bonamy v. Canada (Attorney General), 2010 FC 153). That application failed because of evidentiary problems and the incarcerated person’s failure to provide statistical reports of delays in processing grievances or expert evidence explaining the problem. Bonamy sought the declaration based on various annual reports from the Correctional Investigator of Canada.
David Mullan, a constitutional lawyer and law professor at Queen’s University, studied the grievance system in 2010 and found “serious problems” with the system. A routine grievance could take over 150 days from its initial filing to be resolved, partly because of improperly trained staff and a system bogged down by “frequent users.” Mullan found that in some institutions, just 12 people charged with offences accounted for 11.3 per cent of all submissions. Mullan suggested eliminating the second (regional) level grievance so that issues that could not be decided locally after a set number of days would be referred to a national oversight board for determination. His report was ignored.
In a 2012 CBC news report, Howard Sapers, Canada’s Correctional Investigator, stated, “My office has been raising these concerns for over 30 years,” He called the system “dysfunctional.” He continued, “But now, they can’t even meet their own administrative rules in terms of timely responses to serious offender complaints,” disrespecting timelines that were supposed to be followed.
In 2012, Michael Aaron Spidal filed a grievance within the prison system, alleging that prison officials were not adhering to the law by refusing to deal with the complaints of incarcerated people in a “fair and expeditious” manner in accordance with the Corrections and Conditional Release Act, which governs federal prisons. Ultimately, he put the system on trial and asked the Federal Court of Canada to declare it needed repair.
Justice Anne Mactavish examined hundreds of pages of documents. Spidel, who was self-represented in the Federal Court, presented a systemic problem of delayed and incomplete responses to the concerns of incarcerated people. In many cases, the only excuse for the delay was a growing backlog of complaints (Spidel v. Canada (Attorney General), 2012 FC 958).
Flash forward to modern times. Of 106,940 complaints and grievances processed between April 1, 2016, and March 31, 2021, only 67,633, or 63 per cent, were processed within the time frame prescribed by Commissioner’s Directive 081, according to data from CSC obtained by CBC News.
In June 2021, the Standing Senate Committee on Human Rights reported that “in every federal penitentiary the committee visited, federally sentenced persons told the committee that the grievance system is flawed and does not work.”
It also stated, “that the grievance system is severely backlogged and as a result, grievances take too long to be resolved if addressed at all.” This time, the blame was partially attributed to the COVID-19 pandemic.
Despite a problem that has been recognizable for years, there has been no apparent initiative to resolve delays, formulate changes to the system or secure a more efficient way to address incarcerated people’s complaints.
Without a workable grievance system and efficient avenues to vent the frustrations incarcerated people endure, prisons will likely continue with unnecessary violence aimed at staff and other incarcerated people. Since challenges to the system cannot be litigated in the Federal Court until the internal remedy of the grievance system has been exhausted, justice is delayed. As the old maxim says, justice delayed is justice denied.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing.). Contact him at johnlornehill@hotmail.com.
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