The Offender Redress system – again

I recently gave a session at a training course in Moncton for ombudsman[1] investigators. It was administered by the Forum of Canadian Ombudsman, a wonderful group that promotes a vital option for all citizens faced with adverse government decisions. My former employer, the Correctional Investigator of Canada has been an active FCO member and supporter from the outset.

My workshop dealt with how the Courts are likely to review whether decisions of corrections officials are “contrary to law”, an important determination for ombudsfolks.

Among the cases we discussed was May v. Ferndale Institution, a 2005 Judgment of the Supreme Court of Canada, which I have mentioned in previous posts.[2]

An aspect of that case that came to mind during my presentation was the Court’s holding that the current offender grievance system is not a “a complete, comprehensive and expert procedure”. This meant that use of the grievance procedure could not be a requirement before submitting a habeas corpus application to a superior provincial court. Consequently prisoners contesting decisions that, in effect, detain them ( in the May case, Involuntary transfers to higher security institutions) need not go through the grievance procedure before seeking relief from the court.

The Supreme Court distinguished the grievance procedure from other administrative recourses which it held should indeed be used before going to court. The Court referred to Chief Justice Laskin’s determination in Pringle v. Fraser, [1972] S.C.R. 821 that the Immigration Appeal Board possessed the independence, the expertise and the procedural tools (similar to those of a Court) to decide cases as a required antecedent to Court action.

The Court’s reasons for this were interesting. The Court considered the status of the grievance procedure as a viable alternative to the Court based on previous cases which had held that the appeal board in the refugee determination process, was indeed such an alternative.

“62                               In our view, the grievance procedure can and should be distinguished from the immigration context for several other reasons. The scheme of review which militated against the exercise of habeas corpus jurisdiction in Pringle and Peiroo is substantially different than the grievance procedure provided in the CCRA . The Immigration Act in force at the time of Peiroo provided for an appeal from decisions of immigration authorities to an independent administrative tribunal, the Immigration Appeal Division, vested with all the powers of a superior court of record including jurisdiction to issue summons, administer oaths and enforce its orders: S.C. 1976-77, c. 52 (am. S.C. 1988, c. 35), s. 71.4(2).  It was a process wherein the impartiality of the adjudicator was statutorily assured, the grounds for review were articulated, and the process for review was clearly laid out: ss. 63, 64 and 71.4 to 78. A detailed procedure was also provided for the manner in which applications and appeals were to be brought before the Federal Court: ss. 83.1 to 85.2.

63                               In contrast, the internal grievance process set out in the CCRA  prescribes the review of decisions made by prison authorities by other prison authorities. Thus, in a case where the legality of a Commissioner’s policy is contested, it cannot be reasonably expected that the decision-maker, who is subordinate to the Commissioner, could fairly and impartially decide the issue. It is also noteworthy that there are no remedies set out in the CCRA  and its regulations and no articulated grounds upon which grievances may be reviewed. Lastly, the decisions with respect to grievances are not legally enforceable. In Peiroo, the Ontario Court of Appeal emphasized that Parliament had put in place a complete, comprehensive and expert statutory scheme that provided for a review at least as broad as habeas corpus and no less advantageous. That is clearly not the case in this appeal.” [3]

The Court in May also emphasized that, contrary to truly independent tribunals, the grievance system provided expressly that the process could be interrupted if an offender took Court action, whereas no such access to the Courts is normally available while a matter is before a tribunal which is a valid alternative to habeas corpus.

The Court did not consider the lengthy delays that are likely to occur in the course of a grievance, compared to the firmer time-lines established, for example, within the immigration appeal process. I would like to think that these delays are a factors that makes the grievance procedure “less advantageous” than more independent redress mechanisms.

The May judgment, in this respect, has not migrated well to other realms. In particular, since May many Courts of Appeal across Canada have addressed cases where prisoners contested decisions of the Parole Board of Canada denying them release or returning them to custody ( “revoking” their parole or statutory release). Almost unanimously the Courts have decided that the PBC’s Appeals Division is a valid alternative to Court that must be used before applying for habeas corpus.

This raises two issues ( among several).

First, is the PBC and its Appeal Division really a valid alternative?

Second, if the Offender Grievancesystem is not up to snuff, can it or should it be re-structured?

I will defer comment on the first question because it involves a lot of law and analysis, enough to be the basis for a future blog (I’m working on it)

As to the second question, we should first look before we leap. Independent administrative tribunals can have both good and bad points

Good;

 If the administrative tribunal does its job in a timely, competent way it will often possess the specialized knowledge and “feel” for the issues that a Court won’t – and it will proceed with dispatch.

The grievance arbitration system in labour relations is often an effective, more timely, substitute for Court action. In particular, arbitration Boards will review employer actions including access to calling and cross-examining witnesses, whereas this is rarely an aspect of application procedures before the Courts. This process is almost always the most effective way to adduce and to evaluate relevant information.

As well, arbitrators will often deal with matters on a standard that approaches correctness – they will not give the employer a huge amount of latitude in how they interpret and apply collective agreements, principally because there is a mass of precedents available to cover a range of very specific situations.

The impartiality of labour relations arbitrators is assured to a considerable extent. The parties to a labour grievance normally choose the arbitrator jointly – and the arbitrator is therefore beholden to both sides.

Not so good:

 New processes have a habit of getting bogged down. Waiting periods for arbitration are legendary in some labour relations sectors. This is especially the case when redress mechanisms can delay the implementation of disciplinary measures.

Persons who are appointed by government to adjudicate in specialized areas might not possess the subject-matter knowledge or experience in the field to measure up – not to mention the legal skills.

There can be bias.

[ Both incompetence and bias can be mitigated by effective appointment mechanisms that canvass all the interested players. This does not occur often enough, however]

Not all tribunals possess the adjudicative tools to ensure evidence is properly introduced and evaluated. Herein, the opportunity to compel attendance of witnesses for cross-examination is a procedure that absence is telling, as is the ability to require production of records.

Building a better grievance procedure

Lets consider some options in any case.

Only the final level of the procedure is important with respect to independence, impartiality, expertise and effective evidentiary procedures – the hallmarks of a valid alternative dispute resolution mechanism under Supreme Court standards. Accordingly, it would be at the National Level of the current procedure that the new model would be built.

Competent, impartial arbitrators

The parties to the grievance, the Commissioner’s representative ( i.e. the highest authority in the organization) and the griever ( the inmate or group) jointly choose an arbitrator. This could be anyone with expertise in correctional matters and adjudication/litigation procedures.

It might be helpful for there to be a list of “certified” arbitrators from whom the parties could choose. This list could be developed by independent and expert persons not employed by the correctional system such as the Correctional Investigator, the Canadian Bar Association, one or more Judges who would not review the results of the arbitration.

The list would be established by a staffing process that would test the knowledge, skills and values of the applicants.

Alternatively, the arbitration could actually be presided over by a Superior Court Judge, assigned to the case by the Court.

Independence

 Decisions of the arbitrator would be enforceable, subject only to judicial review by the Federal Court or the province’s Superior Court (for habeas corpus).

Procedure

 There are often issues of credibility, weight and probative value of evidence in grievance disputes – certainly those involving decisions on restrictiveness of custody and reliability of source information. To my mind the most effective way to resolve such issues is to through a full natural justice process – permitting parties to require production of documents and attendance of witnesses, and providing for examination and cross-examination of those witnesses.

But……

 This is all well and good, but what of the increased costs of such a procedure and the long delays caused by its overuse?

Here, I believe the rules could specify that arbitration would have limited scope. Perhaps it could be available only in the case of CSC decisions to increase restrictiveness of custody – e.g. in placement, segregation and transfer situations. To this might be added use of physical restraints and physical confrontations in use of force circumstances.

This would provide a narrow enough range to limit the use of arbitration, and therefore its costs and timeliness.

Herein if an offender contended that they should be allowed to go to srbitration and CSC decided that they di not meet the criteria, then the matter could go to Federal Court or, for habeas corpus, to a Superior Court.

Worth some thought.

[1] There is a debates on what to call ombudsman – ombudsperson, ombuds, etc. The term actually was coined in Scandinavia where, aNorwegian recently told me, it is gender-neutral and the word does not change in the plural.

[ 2] [2005] 3 SCR 809

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