The recent Federal Court judgment of Madam Justice Mactavish in Spidel v. A.G. Canada ( 2012 FC 958, July 31, 2012) puts us all back on the carousel of neglect that has characterized Correctional Service of Canada’s treatment of the Offender Complaints and Grievances system, for decades.
Once again there has been a determination that delays in responding to grievances are totally unacceptable. Once again CSC has been directed to address the issue. Once again they will not.
More important, everybody – CSC wonks and critics alike – are staring at the shiny object of the delay issue and ignoring a far more fundamental problem, the substantive effectiveness of the system as a problem solver.
It is true that much could be done to improve timeliness of grievance replies. To name a few long-standing suggestions:
- More grievance analysts could be hired.
- They could be better trained.
- Managers could be more forcefully required to take lessons from grievance decisions and apply them so that grievances on similar topics need not be repeated.
- They could also be held more accountable for timeliness as a performance measure
- .As was suggested (I am told) in a recent review of the system, one of the four (!!) levels of the system could be removed.
- Better use could be made of informal resolution before official complaints and grievances are lodged.
- There could be more authority to reject frivolous or bad faith grievances
- Offenders could be allowed to move grievances to a higher level unilaterally once deadlines were missed.
All of this looks good but in the real world these measures could simply result in far greater expense. Also it may well attract more and more grievances if it begins to look like timeliness is being restored. The system will collapse upon itself once again. Even if responses are more timely, nothing guarantees (in fact it is doubtful ) that they will be the considered, complete and procedurally fair decisions that are required in an effective administrative redress process.
The only people who will benefit from quicker-but-not-better decisions might be that group of lawyers who have no faith in internal redress and just want to get cases before the courts. In the long run more litigation will help some individuals with issues and will establish precedents for CSC to (hopefully) follow. This will not significantly help the great number offenders, however, who simply want an early and reasonable decision on everyday problems and who lack the money and time to move matters through the halls of justice.
No, we have to look at how we can make an internal system effective, not just timely.
For me, this will involve at least three elements.
First, there must be a local system in place to resolve disputes within institutions. In part this will require mediators, but to a greater extent it will require all line staff to be familiar with problem-solving methods and to be evaluated on how well they use them to address problems. This will mean that staff will be commended for applying policy fairly and with dispatch. It will also mean that staff will be sanctioned for ignoring or misrepresenting policy in dealing with informal complaints. The key element will be that the person in charge of the approach ( the Dispute Resolution Officer) will report directly to the Warden and will have the Warden’s support. In fact, this approach is being “piloted” by CSC in some institutions. I am not sure the pilot has all the necessary elements, and God knows when it will be completed, but it is small glimmer.
Second, there must be a means of formally adjudicating or mediating grievances where complex issues of fact and law exist, and especially where fundamental human rights are involved. In a manner similar to the Independent Chairperson, outside experts could be brought in at any level of the grievance system to chair hearings, to ensure everyone is heard and to record considered and authoritative decisions on cases. This method is often criticized as a time-waster and as overly formal for effective resolution of disputes. On the contrary a one-time review of all evidence and arguments under expert guidance would probably save time by avoiding the endless back and forth that occurs in a purely written system. Moreover a formal approach will provide the gravitas that many offenders find missing in the current system. Finally, it will ensure that all relevant issues are canvassed and a record produced to educate and inform staff and offenders for future reference.
Third, there must be control and management from the centre. This is fundamental. In order for responses to be consistent and suitably grounded those preparing the responses, and negotiating results, must be under the supervision of one source, at the highest level of the system. They must also be recruited by that level. Failing this, the rather cyclical dilution of the system – the “action plans” and “task forces” and the biennial reviews – will continue.
Lots of potential flaws, perhaps, but worth some thought. Or we can just continue paying and hopping on the pretty horses.