pdf version
ANNUAL REPORT
OF THE
CORRECTIONAL INVESTIGATOR
1999-2000
© Minister of Public Works and Government Services Canada, 2000
Cat. No. JA1-2000
ISBN 0-662-65145-6
Internet : www.oci-bec.gc.ca
June 29, 2000
The Honourable Lawrence MacAulay
Solicitor General of Canada
House of Commons
Wellington Street
Ottawa, Ontario
Dear Mr. Minister,
In accordance with the provisions of section 192 of the Corrections
and Conditional Release Act, it is my duty and privilege to submit to
you the 27th Annual Report of the Correctional Investigator.
Yours respectfully,
R.L. Stewart
Correctional Investigator
_________________________________________________________
The Correctional Investigator is mandated by Part III of the
Corrections and Conditional Release Act as an Ombudsman for
federal offenders. The primary function of the Office is to investigate
and bring resolution to individual offender complaints. The Office, as
well, has a responsibility to review and make recommendations on the
Service's policies and procedures associated with the areas of individual
complaints to ensure that systemic areas of concern are identified and
appropriately addressed.
The notion of righting a wrong is central to the Ombudsman concept. This
involves measurably more than simply responding to specific legal, policy
or technical elements associated with the area of concern under review.
It requires the provision of independent, informed and objective opinions
on the fairness of the action taken so as to counter balance the relative
strength of public institutions against the individual. It, as well,
requires responsiveness on the part of public institutions which are and
are seen to be fair, open and accountable.
_________________________________________________________
TABLE OF CONTENTS
OPERATIONS
SYSTEMIC ISSUES
1. SPECIAL HANDLING UNIT
2. INMATE PAY
3. INMATE GRIEVANCE PROCEDURE
4. CASE PREPARATION AND ACCESS TO PROGRAMMING
5. DOUBLE-BUNKING
6. TRANSFERS
7. PREVENTIVE SECURITY STANDARDS/GUIDELINES
8. USE OF FORCE
9. INMATE INJURIES AND INVESTIGATIONS
a) Institutional Violence
b) Inmate Injuries
c) Suicides
d) Investigations
10. FEDERALLY-SENTENCED WOMEN
11. ABORIGINAL OFFENDERS
CONCLUSION
CASE SUMMARIES
USE OF FORCE TO FACILITATE A STRIP SEARCH *
REPORTING AND INVESTIGATION OF INJURIES TO AN INMATE *
EXCEPTIONAL SEARCH *
MEETING THE NEEDS OF DISABLED OFFENDERS *
HOUSING OF MINORS IN PENITENTIARIES *
EXCESSIVE USE OF FORCE *
DELAY AND LACK OF COORDINATION IN CSC'S INVESTIGATIVE PROCESS *
ACCESS TO TRADITIONAL ABORIGINAL HEALERS (POLICY INERTIA) *
CONCLUSION
STATISTICS
APPENDIX A
APPENDIX B
APPENDIX C
OPERATIONS
The Office of the Correctional Investigator is mandated as an Ombudsman
for federal offenders. Part III of the Corrections and Conditional
Release Act governs the operation of this Office and parallels very
closely the provisions of most Provincial Ombudsman legislation, albeit,
in our case, within the context of investigating the activities of a
single government organization and reporting to the legislature through a
single Minister. The "Function" of the Correctional Investigator, as with
all Ombudsman mandates, is purposefully broad:
[T]o conduct investigations into the problems of offenders related to
decisions, recommendations, acts or omissions of the Commissioner (of
Corrections) or any person under the control and management of, or
performing services for or on behalf of the Commissioner, that affect
offenders either individually or as a group.
Inquiries can be initiated on the basis of a complaint or at the
initiative of the Correctional Investigator, with full discretion resting
with the Office in deciding whether to conduct an investigation and how
that investigation will be carried out.
In the course of an investigation, the Office is afforded significant
authority to require the production of information up to and including a
formal hearing involving examination under oath. This authority is
tempered, and the integrity of our function protected, by the strict
obligation that we limit the disclosure of information acquired in the
course of our duties to that which is necessary to the progress of the
investigation and to the establishing of grounds for our conclusions and
recommendations. Our disclosure of information to all parties is further
governed by safety and security considerations and the provisions of the
Privacy Act and Access to Information Act.
The provisions above, which limit our disclosure of information, are
complemented by other provisions within Part III of the Act which prevent
our being summoned in legal proceedings and which underline that our
process exists without affecting, or being affected by, appeals or
remedies before the Courts or under any other Act. The purpose of these
measures is to prevent us from being compromised by our implication,
either as a "discovery" mechanism or as a procedural prerequisite, within
our processes -- an eventuality which could potentially undermine the
Office's Ombudsman function.
The Office's observations and findings, subsequent to an investigation,
are not limited to a determination that a decision, recommendation, act
or omission was contrary to existing law or established policy. In
keeping with the purposefully broad nature of our Ombudsman function, the
Correctional Investigator can determine that a decision, recommendation,
act or omission was "unreasonable, unjust, oppressive and improperly
discriminatory; or based wholly or partly on a mistake of law of fact" or
that a discretionary power has been exercised "for an improper purpose,
on irrelevant grounds, on the taking into account of irrelevant
considerations, or without reasons having been given".
The Act, in section 178, requires that where in the opinion of the
Correctional Investigator a problem exists, the Commissioner of
Corrections shall be informed of that opinion and the reasons therefore.
The practice of the Office has been to attempt to resolve problems
through consultation at the institutional and regional levels in advance
of referring matters to the attention of the Commissioner. While we
continue to ensure that appropriate levels of management within the
Service are approached with respect to complaints and investigations,
this provision clearly indicates that the unresolved "problems" of
offenders are to be referred to the Commissioner in a timely fashion.
The legislation as well provides that the Correctional Investigator, when
informing the Commissioner of the existence of a problem, may make any
recommendation relevant to the resolution of the problem that the
Correctional Investigator considers appropriate. Although these
recommendations are not binding, consistent with the Ombudsman function,
the authority of the Office lies in its ability to investigate thoroughly
and objectively a wide spectrum of administrative actions and present its
findings and recommendations to an equally broad spectrum of decision
makers, including Parliament, which can cause reasonable corrective
action to be taken if earlier attempts at resolution have failed.
A significant step in this resolution process is found in section 180 of
the Act, which requires the Correctional Investigator to give notice and
report to the Minister if, within a reasonable time, no action is taken
by the Commissioner that seems to the Correctional Investigator to be
adequate and appropriate. Sections 192 and 193 of the legislation
continue this process by requiring the Minister to table in both Houses
of Parliament, within a prescribed time period, the Annual Report and any
Special Report issued by the Correctional Investigator.
Operationally, the primary function of the Correctional Investigator is
to investigate and bring resolution to individual offender complaints.
The Office, as well, has a responsibility to review and make
recommendations on the Service's policies and procedures associated with
the areas of individual complaints to ensure that systemic areas of
concern are identified and appropriately addressed.
All complaints received by the Office are reviewed and initial inquiries
are made to the extent necessary to obtain a clear understanding of the
issue in question. After this initial review, in those cases where it is
determined that the area of complaint is outside our mandate, the
complainant is advised of the appropriate avenue of redress and assisted
when necessary in accessing that avenue. For those cases that are within
our mandate, the complainant is provided with a detailing of the
Service's policies and procedures associated with the area of complaint.
An interview is arranged and the offender is encouraged initially to
address the concerns through the Service's internal grievance process.
Although we endorse the use of the internal grievance process, we do
not insist on its use as a pre-condition to our involvement. If it is
determined during the course of our initial review that the offender will
not or cannot reasonably address the area of concern through the internal
grievance process or the area of complaint is already under review with
the Service, we will exercise our discretion and take whatever steps are
required to ensure that the area of complaint is addressed.
In addition to responding to individual complaints, the Office meets
regularly with inmate committees and other offender organizations and
makes announced visits bi-annually at each institution during which the
investigator will meet with any inmate, or group of inmates, upon
request. We had, over the course of this reporting year, in excess of two
hundred meetings with various offender organizations, including inmate
committees, lifer groups, black inmate associations, and native
brotherhoods and sisterhoods.
The vast majority of the concerns raised in complaints by inmates are
addressed by this Office at the institutional level through discussion
and negotiation. In those cases where a resolution is not reached at the
institution, the matter is referred to regional or national headquarters,
depending upon the area of concern, with a specific recommendation for
further review and corrective action. If at this level the Service, in
the opinion of the Correctional Investigator, fails to address the matter
in a reasonable and timely fashion, it will be referred to the Minister
and eventually may be detailed within an Annual or Special Report.
The Office, over the course of the reporting year, received 5282
complaints. The investigative staff spend 364 days in federal
penitentiaries and conducted in excess of 2,800 interviews with inmates
and half as many interviews with institutional and regional staff. The
areas of complaint continue to focus on those long-standing issues which
have been detailed in past Annual Reports. A specific breakdown of areas
of complaint, dispositions, institutional visits and interviews is
provided in the statistics section of the Report.
The Sub-Committee of the Standing Committee on Justice and Human Rights
finalized its comprehensive review of the provisions and operations of
the Corrections and Conditional Release Act during the course of
this reporting year. The Committee's Report, A Work In Progress,
was tabled on May 29, 2000. The Office was an active participant in this
review process, and we look forward to the further discussion that will
be generated by the Report's detailed commentary and thoughtful
recommendations.
I was encouraged by the Report's recommendations on two matters of
ongoing concern directly related to this Office's operations, namely our
reporting relationship and resource base.
The Sub-committee recommends that sections 192 and 193 of the
Corrections and Conditional Release Act be amended so that the annual
and special reports of the Correctional Investigator are submitted
simultaneously to the Minister and to Parliament.
The Sub-committee recommends that section 192 and section 193 of the
Corrections and Conditional Release Act be amended so that the annual
and special reports of the Correctional Investigator are automatically
referred to the standing committee of the House of Commons responsible
for considering the activities of the Office of the Correctional
Investigator.
The Sub-committee recommends that the budget of the Office of the
Correctional Investigator be increased in order to expand the number of
investigators and cover directly related expenses such as office
equipment, communications, and travel required to conduct
investigations.
SYSTEMIC ISSUES
I provided in last year’s Annual Report an overview of those systemic
issues which had been detailed in previous Annual Reports. The Report
identified the specific areas of concern associated with each of the
issues and presented a series of recommendations designed to assist in
addressing the areas of concern.
I, as well, included in last year’s Report the Response of the
Correctional Service of Canada to each of the issues, to ensure that a
balanced and accurate record was presented. The Service’s comments, while
providing clarification on a number of the issues, indicated general
agreement with the areas of concern. The Service’s Response further
identified a number of operational and policy changes to be undertaken in
addressing the areas of concern.
I received on February 7, 2000, from the Senior Deputy Commissioner, an
updated report of the Service’s response to the issues raised in my
Annual Report. The covering letter indicated that the up-date outlined
"the issues of concern as described by your office and presents the
actions taken, as of November 1999, by the Correctional Service of Canada
in response to each issue". The Service, as well, requested our
written comments on its up-date, which we provided on February 29, 2000.
Our comments focused on those areas of concern where we felt that further
specific information or discussion was required in terms of the Service’s
previous undertakings. We, as well, stated that our objective was to
present in this year’s Annual Report a specific detailing of both the
actions taken by the Service in addressing the areas of concern and the
results of those actions.
A meeting with CSC officials chaired by the Senior Deputy Commissioner
was held on March 9, 2000 to review the comments provided by this Office.
I received on April 17, 2000 the Service’s Final Response on the issues
raised in my 1998-99 Annual Report.
Although progress has been made on a number of issues, I am quite frankly
disappointed in the results of the Service’s efforts to address these
systemic areas of concern. While I believed last year that our agencies
had come to an agreement on what needed to be done to begin addressing
these issues, the Service’s undertakings appear to have been overwhelmed
by a bureaucratic process of excessive review, consultations and endless
study.
I signed, in October of 1999, a Memorandum of Understanding with the
Commissioner of Corrections, a copy of which is provided in Appendix A to
this Report. One of the objectives of this Memorandum is to ensure that
"timely corrective action in relation to valid offender concerns is taken
by the Correctional Service of Canada". Evidence to date does not
indicate that this objective is being met.
I stated in my Annual Report a decade ago that "the Correctional Service
of Canada is a direct service agency whose policies and decisions impact
directly and immediately on the offender population. There is a need, and
an urgent need for the Service to take steps to ensure that its review
and decision-making processes, especially at the national level, are
capable of responding to and resolving issues in a timely fashion. There
is also a need for the Service to ensure that the information upon which
it is basing its decisions reflects the reality of its own operations.
Although there has been progress in some areas…I suggest that the current
bureaucratic and operational realities speak to the need for the Service
to be measurably more responsive in addressing those areas of concern
raised by or on behalf of offenders".
The concerns of the offenders tend to be forgotten at times during the
review of these Issues. I believe it is imperative that these concerns be
central to the process. The primary function of this Office is to
investigate and attempt to bring resolution to individual offender
complaints. The Office, as well, has a responsibility to review and make
recommendations on the Service’s policies and procedures associated with
the areas of individual complaint to ensure that systemic areas of
concern are identified and addressed in a timely fashion.
The positive impact on the offender population of the Service’s efforts
to address these systemic issues over the past year, I suspect, has been
negligible.
1.
SPECIAL HANDLING UNIT
The Special Handling Unit (S.H.U.) is a separate facility housing those
inmates which the Service has identified as dangerous offenders. There
are currently 75 inmates at the S.H.U.
Decisions on placement in and release from the S.H.U. are made by the
Service’s National Review Committee. As indicated in previous Reports,
the Service has measurably improved both the fairness provisions
associated with the decision-making process and the administrative
efficiency of the National Review Committee.
That having been said, the position of this Office, since the inception
of the S.H.U., has been that the policy of placing all dangerous
offenders in one facility is ill-designed. This practice labels offenders
as the "worst of the worst" and creates a solidarity amongst these
offenders that effectively negates the stated objective of the policy,
which is "to create an environment in which dangerous inmates are
motivated and assisted to behave in a responsible manner so as to
facilitate their integration in a maximum security institution".
There are three interrelated areas of concern associated with this issue,
as detailed in last year’s Annual Report:
- the overall effectiveness of the Service’s current policy of placing
all dangerous offenders in one facility;
- the low level of
participation in treatment programming designed to address violent
behaviour, due in part to the felt solidarity of the population;
and
- the significant number of
inmates released directly from the S.H.U. to the street, due in
part to the absence of participation in programming.
The Service, in responding
last year, acknowledged the importance of enhanced reintegration
programming. It indicated that "to address
this issue a Task Force had been commissioned to review programming
at the S.H.U. and to suggest methods of program improvement...the
final report of the Task Force is currently in preparation". In
addition, the Service indicated that it had established an
initiative with the United Kingdom "to
develop a strategy for the management of dangerous and persistently
violent offenders".
The Task Force Report was
finalized in November of 1999. The Report noted that participation
in programming related to violent and sexual behaviour was extremely
low, and recommended that "the Correctional
Service should develop a program designed specifically for the
Special handling Unit". With respect to direct releases to the
community, the Report stated that "the
Working Group members were of the unanimous opinion that release
from the S.H.U. on Warrant Expiry or Statutory Release should be
avoided at all costs".
The Office was advised in
February of this year that no decision would be taken on how to
proceed with the Report until the end of March, 2000. With respect
to the reasons why no decision has yet been taken, the Service
offers the following:
The
recommendations in the Report have significant resource and staffing
implications that require a series of determinations and
consultations.
No
decision on how to proceed with this Report will be taken until all
the consultations have been completed.
For
example, the Report was discussed at the National Review Committee
(N.R.C.) on April 4, 2000. The N.R.C. will submit a letter outlining
their position on the recommendations of the Report.
The National Review Committee
Report for the period April through December, 1999 indicates that
program participation numbers have not improved and the number of
direct community releases from the S.H.U. have increased.
The areas of ongoing concern
detailed in last year’s Annual Report remain areas of concern. The
Service, over the course of this reporting year, has provided
virtually no comment or information specific to either program
participation or direct community release from the S.H.U. Its
international efforts, while producing commitments to work together
in addressing the needs of dangerous and persistently violent
offenders, do not appear to have resulted in "the development of an operational
strategy". Finally, decisions on how to proceed with the Task
Force Report await further internal consultation.
2. INMATE PAY
There are two areas of inmate
concern associated with this issue.
First, the inadequate level of
inmate pay: wages have been maintained at their 1986 level, despite
the fact that costs have increased by nearly 80 per cent. In
addition, over the past decade, a number of health care and personal
hygiene items which used to be provided by the Service now must be
purchased by the inmates.
Second, the introduction of
the Millennium Telephone System in January, 1998, which has
significantly increased the cost of inmate telephone calls, from 25¢
to $2.00 in some places for local calls.
With respect to the matter of
pay levels, we were advised last year that the Service would include
proposals within the National Capital Accommodation and Operational
Plan for further improvements to the Inmate Pay System. "These proposals include increasing all pay
levels; introducing annual indexing into the inmate pay system; and
increasing offender purchasing power to off-set costs for certain
products and services that inmates must currently pay for".
The Office was advised in
February, 2000 that the Service "is
currently reviewing the issues involved in the level of pay.
Treasury Board has been informed that CSC is considering the
possibility that in the near future, it will be asking for a
mechanism to be put in place to index the level of pay of the
inmates".
In response to our question of
what exactly Treasury Board had been informed of, we were advised in
April of 2000 that:
CSC
informed TB that the purchasing power of inmates had diminished
considerably over the past 10 years because of the fact that wages
have been maintained at their 1986 and 1989 levels, the increase in
the cost of items purchased by inmates and the number of additional
items that inmates must now purchase themselves. CSC indicated to
the TB that it wanted to increase the purchasing power of inmates by
providing them with the equivalent of a value of $4 per pay period
for personal hygiene and health products. This proposal has been
endorsed by TB and CSC has obtained an amount of $1.5M for this
initiative. CSC expects to put this increase into effect early in
the new fiscal year.
It would appear that the
Service’s undertaking last year to put forth a proposal that
included "increasing all pay levels and
introducing annual indexing into the inmate pay system" in
addition to offsetting the cost of health care and personal hygiene
items is not being pursued.
These less-than-half measures
will not reasonably address this area of concern. As such, I return
to my decade old recommendation for an immediate across-the-board
increase in inmate pay levels. I further restate that the impact of
inadequate pay levels is two-fold:
- First, on institutional
operations: inadequate pay levels promote and maintain an illicit
underground economy; and
- Second, on the inmate’s
release: inadequate pay levels negate the saving of sufficient funds
to support reintegration.
With respect to the Millennium
Telephone System, we were advised last year that the Service’s
Executive Committee had reviewed a number of options to reduce the
cost of inmate-dialled calls, and that a "formal request for submissions would be issued
by January 31, 2000 in order to identify a successful provider for
the Service".
We were subsequently informed
that a contractor would be selected by early April, 2000 and that
the submission would address the following:
- Inmates will have the choice
of using either Direct Dial (debit) or collect calling options.
- Local Direct Dial calls by
inmates will be at the same price as calls from payphones in the
adjacent community. This means 25 cents in all provinces except
Alberta where it is 35 cents.
- The long distance rate for
inmates must be uniform across the country.
- The long distance director
dial rate must reflect the comparative realities in the market
place.
The Office was, as well,
advised that an implementation plan would be developed with the
selected provider, which may take three to ten months. No projected
date of implementation was provided.
Although the Service has taken
steps over the past year to address the areas of concern associated
with this matter, I feel it would be reasonable at this point for
the Service to subsidize the cost of inmate telephone calls,
consistent with the terms of the submission, until the
implementation of the new telephone system is completed, given that
this matter has been under review for two years.
3. INMATE GRIEVANCE PROCEDURE
This Office has a vested
interest in ensuring that the Service’s internal grievance procedure
is both fair and expeditious in resolving individual offender
complaints and identifying systemic areas of concern. With in excess
of twenty thousand federal offenders, we cannot be nor were we ever
intended to be the primary reviewer of offender complaints. The
grievance process, to be effective, must be and be seen by the
offender population to be thorough, objective and timely in
responding to their complaints.
While there have been
significant improvements in the system’s operations over the years,
significant areas of concern remain:
- continuing instances of
excessive delay in responding at the institutional and regional
levels of the process;
- limited evidence of
management analysis of grievance data or senior management direction
to address identified problems;
- the non-acceptance by senior
management of the responsibility and accountability for specifically
addressing offender concerns as recommended by Madame Justice
Arbour; and
- the effectiveness of the
current procedure in addressing the concerns of Female and
Aboriginal offenders.
In terms of delays in
responding last year, the Service indicated that 48 per cent of the
grievances at the regional level were late. We are advised that this
year 33 per cent of the regional level grievances were late.
Although this is an improvement, having one in three grievances
responded to outside of the established timeframe, a timeframe which
has been extended by fifteen working days, is unreasonable and does
little to promote offender confidence in the process.
No information was provided by
the Service with respect to the percentage of delays at the
complaint and first level of the system, and the Service did not
comment on whether any improvement had been noted at these levels
during the cours e of this year. We continue to find evidence at the
institutional level of excessive delays in responding to inmate
complaints.
With respect to our concern on
the absence of management analysis and direction, the Service
advises that it does "not concur with the
statement as there are several ways in which the data are being used
by different Sectors". In support of its position, the Service
referred us to its Corporate Results Report and provided copies of
its Quarterly production of grievance data for women offenders and
Quarterly production of grievance data for health care issues.
There is no doubt that the
Service collects data. The question is, what is done with the data?
The Service’s Corporate Results Report provides limited analysis and
management direction on the statistics presented. The Quarterly
grievance reports received on female offenders and health care
issues provided no analysis of the data.
In terms of senior management
responsibility and accountability for the operation of the grievance
procedure, I referred in last year’s Report to the recommendations
of Madame Justice Arbour. Justice Arbour concluded that the
Service's grievance procedure had failed the offenders miserably,
specifically on issues referred to the Commissioner’s level. Her
final Report put forth a series of recommendations to ensure that
the Commissioner and Deputy Commissioner for Women personally
responded to grievances brought to their attention or referred the
grievances outside of the Service for a binding disposition. The
Service rejected all of these recommendations.
Given our ongoing concerns
with both the operation of the procedure and the offender
population’s perception of its fairness, I recommended last year
that a reconsideration of the Service’s position be undertaken. In
response, the Service stated, "regarding the
recommendations by Justice Arbour, these have been examined and
responded to by CSC more than two years ago. Our position has not
changed".
With respect to the
effectiveness of the grievance procedure in addressing the concerns
of female offenders, I noted last year that only nine grievances
were referred to the national level. Given these small numbers and
the Service’s rejection of Justice Arbour’s recommendations, I
recommended that a thorough review be undertaken of how inmate
complaints are being managed at penitentiaries which house women,
taking into consideration the views of the women in terms of how
effectively they believe their concerns are being addressed.
This recommendation was also rejected by the
Service, which stated, "there is no
statistically discernible difference between male and female use of
the complaint and grievance process. Given the comparable use of the
system by male and female offenders, and the ongoing monitoring by
the Deputy Commissioner of Women, there is no basis for further
review".
I note during the first half of this
reporting year that one female offender grievance was referred to
the national level, while five hundred and seventy male grievances
were referred to the national level during the same time period. To
a statistician, this may not be a "discernible difference"; however, to me,
570 to 1 is indicative of a situation that needs to be reviewed. I
further note that fifty percent of the complaints filed by female
offenders at the institutional level came from female offenders
housed in male penitentiaries. I have serious concerns as to whether
or not these offender concerns are being reasonably addressed within
the Service's policy framework on Federally Sentenced Women.
With respect to Aboriginal offenders, a
review of the Service’s grievance data indicates a measurably lower
use of the procedure. In response to our query as to whether or not
there had been any analysis of this matter, I was advised by the
Service that "the low level of use has been
noted. There has been no national level review of the causes".
The legislation requires that there "shall
be a procedure for fairly and expeditiously resolving offenders’
grievances on matters within the jurisdiction of the Commissioner".
Given the above-noted concerns, I am not confident that the existing
procedure, as currently managed, is meeting this mandate.
4 . CASE
PREPARATION AND ACCESS TO PROGRAMMING
The areas of offender concern associated
with this issue centre on the ability of the Service to provide
responsive programming and to prepare inmates’ cases in a thorough
and timely fashion for conditional release consideration. The
Office, during our review of this issue over the years, has
acknowledged its complexity and the inter-relationship of the
numerous variables that impact on the provision of programming and
effective case management. The Office has as well acknowledged and
encouraged the various initiatives undertaken by the Service in
attempting to address this Issue.
I presented in last year's Annual Report a
number of observations, drawn from the Service's data, that were
reflective of the areas of inmate concern associated with this
Issue:
- full parole waiver and postponement rates
are virtually unchanged over the last year;
- the Aboriginal full parole waiver rate is
almost double that of non-Aboriginals;
- the number of Offenders incarcerated past
their full parole eligibility date remains unchanged;
- the percentage of Aboriginal offenders
incarcerated past their full parole eligibility date is measurably
higher than non-Aboriginals;
- the completion of the intake assessment
process continues to take longer than provided for by policy; and
- the number of suspension warrants issued,
while decreasing slightly, was significantly higher for Aboriginal
offenders.
The Service, in responding last year on
these matters, stated that it "shared our
desire for timely case preparation and access to programming".
It further stated that "Operation Bypass, a
project aimed at streamlining the case management process was
implemented in February 1999. The major changes brought about by
Bypass should ensure the accurate identification of dynamic risk and
need factors along with proper matching of programs at the front end
of the sentence. This will improve the chances of safe and
successful re-integration to the community at an earlier point in
the sentence. At this time, it is too early to determine the
effectiveness of Bypass. As we measure the immediate and final
results of the implementation of Bypass, this information will be
shared with the Correctional Investigator".
In terms of the disadvantaged situation of
Aboriginal offenders, I was advised last year that a "review of the case management practices and
programs will be undertaken to determine what changes could be made
to improve their timely and safe re-integration".
A review of the Service's most recent
Corporate Results Report indicates that, with the exception of the
intake assessment process, there has been no measurable progress in
the areas of observation noted last year.
In terms of the effectiveness of Operation
Bypass, the Service, in February, 2000, while providing further
information on changes currently underway and proposed, provided no
information on the results to date or anticipated results from these
changes. With respect to the matter of waivers and postponements, I
was advised that "changes to OMS to improve
the recording of reasons for waivers is expected to occur by April,
2000 which will make analysis of this issue much quicker and easier
to accomplish". I was, as well, told that "during the fiscal year 2000-2001, CSC will
develop an improved system for monitoring and managing program
capacity, so that more offenders can participate in programming at
the optimal time and place".
With respect to the provision of community
services aimed at maintaining safe re-integration for offenders, an
audit was commenced in January, 2000 ("At
the present, data analysis is being conducted"). In addition, a
Working Group completed a draft report in February, 2000 entitled
"Consolidated Review of Suspension and Revocation Practices and
Process: Framework for Action". To date, we have not been advised as
to what action will be taken on the draft Report's recommendations.
The Service, in commenting on its commitment
last year to conduct a review of case management practices and
programming for Aboriginal offenders, advised in April of 2000 that
the review is still ongoing. In response to our questions as to the
results of the review to date and the specific changes anticipated,
we are advised only that they "will include
changes to intake assessment to ensure it is more responsive to
cultural differences". In addition, the Service indicates, "A research project is being finalized for the
development of an Aboriginal offender custody rating scale to ensure
more reliable custody assessment and a pre-assessment orientation
program is being developed to prepare Aboriginal inmates for the
case management intake assessment". With respect to the
anticipated effect of these yet-to-be actioned changes, research
projects and program development, I was advised in April of 2000
that "these actions are comprehensive and
are currently ongoing; effects can not be measured until all changes
are in place".
The Service's responses on the issue of case
preparation and access to programming over the past decade have
always been phrased in the future tense, with no clear indication
provided as to the impact of previous changes or the expected
results of proposed changes. Things have not changed.
The Office continues to receive a
significant number of inmate complaints related to this issue, and
program waiting lists are not getting any shorter. As mentioned
earlier, the Service's information does not indicate any measurable
progress in these areas, nor have we been provided with a detailed
analysis as to why progress has not been achieved or evidence of
specific management direction on what needs to be done to ensure
that individual cases are presented in a thorough and timely fashion
for conditional release consideration.
5.
DOUBLE-BUNKING
There are two areas of stated agreement with
the Service on this Issue. Double-Bunking is "inappropriate as a permanent accommodation
measure within the context of good corrections" and "segregation cells shall not be used to
accommodate two inmates".
The Service’s inmate accommodation policy
(Commissioner’s Directive 550) was promulgated in November of 1998.
The Objective of this policy is:
To
contribute to the protection of society through the provision of
reasonable, safe, secure and humane accommodation that supports
correctional intervention and the reintegration of offenders as
law-abiding citizens.
The policy provides, under the Principles
section, that:
Single
occupancy accommodation is the most desirable and correctionally
appropriate method of housing offenders.
With respect to Cell Utilization, the policy
states:
Subject
to paragraphs 27 and 28, the following cells shall not be used to
accommodate two inmates or more...segregation cells.
Paragraph 27 provides that:
other
than in an emergency situation, any exceptions to this policy as it
relates to housing more that one inmate in a cell must be included
in CSC’s Accommodation Plan and approved by the Commissioner.
Last year, the Commissioner approved
exemptions, pursuant to paragraph 27, for over twenty medium and
maximum security institutions. I have not been advised as to the
number of exemptions authorized by the Commissioner for the fiscal
year 2000-2001.
During the course of this reporting year,
the percentage of federal inmates double-bunked increased from 21.2
per cent to 23.1 per cent. Although the Service advised that "systemic double-bunking in segregation has been
eliminated in three regions", I note that the percentage of
segregated inmates double-bunked over the course of this year
increased from 12.9 per cent to 15.7 per cent. I note as well that
the number of inmates admitted to segregation has measurably
increased and that a significant number of inmates in segregation
have been double-bunked for well in excess of thirty days.
The Service stated last year that "the national responsibility for segregation
related issues have recently become the responsibility of the
Institutional Reintegration Operations Division at NHQ. This
division is currently developing further direction for the Regional
Segregation Oversight Managers. This direction will re-enforce the
Service’s commitment to minimize, and to the extent possible,
completely eliminate the practice of double bunking in segregation
cells".
The housing of two individuals in a secure
cell, designed for one individual, for up to twenty-three hours a
day, for months on end, is inhumane. This unfortunately continues to
be the reality for many inmates. I again recommend that the Service
immediately cease this practice of double-bunking inmates in
non-general population cells. I further recommend that the exemption
provided for in paragraph 27 of the policy be eliminated and that a
follow-up review by the Task Force on Segregation be immediately
undertaken to examine the reasons for the increase in the use of
segregation.
6.
TRANSFERS
The number one concern of the offenders
raised with this Office, again this year, relates to transfers. As I
have stated in the past, transfer decisions are potentially the most
important decisions taken by the Service during the course of an
offender's period of incarceration. Whether it is a decision taken
on initial placement, a decision taken involuntarily to transfer an
offender to higher security or a decision taken on an offender
initiated transfer application, such decisions affect not only the
offenders’ access to family and programming, but also affect their
potential for favourable conditional release consideration.
The areas of concern associated with this
Issue as detailed in previous Annual Reports centre on:
- the excessive periods of time offenders
were spending in reception centres prior to initial placement;
- the thoroughness, objectivity and
timeliness of the process leading to transfer decisions;
- the number of offenders housed at a
higher security level than called for by their security
classification; and
- the questionable quality of the transfer
data used by the Service to monitor the process.
The Office's position for years has been
that the transfer process has to be centrally managed and supported
by an information system capable of producing data relevant to the
performance of the process.
With respect to the delay on the placement
of offenders following reception, I am advised by the Service that
significant improvements have been achieved. "For the first 7 months of 1999-2000, over
two-third of penitentiary placement transfers were executed within
10 days of the decision. The application and decision on
penitentiary placement occurs as soon as possible after completion
of the Correctional Plan". I do note, though, that during the
third quarter of this year, almost 30 per cent of the nearly seven
hundred Correctional Plans were not completed on time.
In terms of the efficiency of the process
leading to transfer decisions, the Service agreed last year "that offenders have a right to timely transfer
decisions". The Service as well last year referred to a "preliminary report indicating that 87% of
transfer decisions are made within the prescribed timeframes".
The Service promulgated a new policy on transfers in October of
1999. In responding this year on the efficiency of the transfer
process, the Service again referenced the preliminary report from
last year as evidence of reasonable timeliness. Given the
introduction of the new policy, I recommend that the Service
immediately initiate an evaluation of the effectiveness of the new
procedure.
In response to the concern raised by the
number of offenders housed at a higher security classification than
called for, the Service last year said that about 6 per cent were so
housed. We noted in correspondence to the Service, in February,
2000, that the percentage for the first three quarters of this year
ranged from 8.8 to 9.5. This represents between 900 to 1000 inmates
housed at a security level beyond that required. As of this date, I
have received no comment from the Service on this increase.
I was advised last year, in response to the
concern regarding the quality of the Service's transfer data, that
it was "steadily improving as we continue to
do in-depth reviews of sample cases, identifying discrepancies and
take action to resolve them." In February of this year, we asked
the Service for the results of its in-depth review and a detailing
of the specific actions taken to resolve the discrepancies. The
Service's response of April, 2000 states,
For
example, the following changes were implemented in OMS on March 31,
2000 to make the process easier to record and monitor:
-
Transfer warrants cannot be entered unless there is a locked
decision on the transfer application, except for emergency
transfers, - Penitentiary placements is a
type of decision separate from voluntary or involuntary transfer.
Furthermore, several new reasons are being
added so staff can more accurately identify reasons.
One of the Service's "Strategic Objectives" states "CSC will ensure that involuntary transfers are
kept to a minimum". We noted in our comments of February, 2000
on the Service's up-dated Response to last year's Annual Report that
there had been a significant increase in the number of involuntary
transfers and that the number of Aboriginal inmates involuntarily
transferred between the fourth quarter of 98/99 and the second
quarter of 99/00 had tripled. We asked if the Service had undertaken
any review or analysis of the increase or initiated any corrective
action. As of May 1st, 2000 no
response has been received.
I am not at all convinced that the Service
is in a position to ensure either that the process leading to inmate
transfer decisions is thorough, objective and timely or to
reasonably monitor the process' compliance with the administrative
fairness provisions detailed in the transfer policy.
7. PREVENTIVE
SECURITY STANDARDS/GUIDELINES
This Office continues to receive a
significant number of complaints from offenders concerning the
accuracy of information used by the Service to support its
decisions. Preventive Security Information, to which the offender
does not have access, often negatively impacts on decisions related
to visits, transfers, segregation placement and conditional release.
The area of concern centres on the absence
of any clear national direction concerning the coordination,
verification, communication and correction of this information or
who is responsible and accountable for the accuracy of this
information. I recommended in 1996 that Preventive Security
Standards and Guidelines be developed so as to bring some clarity to
this matter. The Service at the time acknowledged that there was no
clear national direction regarding the management of preventive
security information and undertook to produce guidelines by the Fall
of 1997.
I was advised by the Service last year that
"the area of Preventive Security is a
priority for the Service and that Preventive Security Standard
Operating Practices (SOP) are in draft form and we are now
proceeding with our consultation process".
On March 8, 2000, representatives from this
Office met with the Service's Security Division to review draft
policy. I am now advised that "it is
anticipated that these SOP's will be presented for approval to the
Service's Executive Committee by the Fall of 2000". It has now
been four years since the Service's initial commitment to produce
guidelines and standards in this area.
8. USE OF
FORCE
I stated last year, in
summarising the Office's position on this issue, that "Use of Force
against an inmate is a significant action. It is an action that
should only be taken as a last resort and an action that should be
thoroughly and objectively reviewed to ensure full compliance with
law and policy. There should as well be an ongoing review and
analysis of these incidents, independent of the institution, to
further ensure compliance and to provide reasonable and timely
decisions so as to keep these incidents to a minimum".
CSC’s use of force statistics,
for the first half of this year, recorded five hundred and fifty one
use of force incidents. These incidents resulted, according to the
Service, in one hundred and twenty five inmate injuries. The
Service's analysis of this Report states that "the present method of entering the Use of Force
statistics is not without its problems and requires significant
amendments".
The Service, in responding
last year to the concerns that we raised once again on the
reliability of its database, committed itself to providing a means
for information contained in the Use of Force Report to be entered
into the Offender Management System (OMS). "This is a significant task consisting of the
collection, recording, reviewing, analysis and sharing of
information on a national basis. To that effect, we have expanded
our planned changes to the existing incident report screen to
include the capacity to produce additional information related to
Use of Force". These changes were planned for February, 2000.
I have recently been advised
that these changes to OMS are now planned for the Summer of 2000.
The Service, as well,
indicated last year that it had developed a draft procedure dealing
with the provision and review of videotapes on use of force
incidents "to clarify specific
responsibilities and accountabilities within the Service for
ensuring that these incidents are thoroughly and objectively
reviewed". This procedure and the proposed revisions to the Use
of Force Report have yet to be finalised.
The Service, in response to
our observation last year that use of force incidents very seldom
result in the convening of an investigation, advised that "Performance Assurance drafted guidelines on
when an investigation is to be convened as a result of use of force
incidents". A draft of these guidelines is currently in the
consultation process.
The Service's 1997 Interim
Policy on Videotapes, in response to Madam Justice Arbour's
recommendation, requires that all videotapes of use of force
incidents and supporting documentation be forwarded to this Office
and the Service's National Headquarters within fifteen days of the
incident. During the course of a year, we review in excess of three
hundred incidents involving the use of force.
This Office's review of these
incidents has noted a disturbingly high rate of non-compliance with
the Service's policy related to the use of force. Our findings have
been shared with the Service and, in large part, are not
inconsistent with the results of its own review. A recent CSC
internal memorandum, in commenting on a specific incident, noted:
The
staff in the Security Division who review incidents involving use of
force have indicated repeatedly the areas of non-compliance. While
there have been some improvements in dealing with incidents of use
of force, it seems this incident underscores the fact that there are
serious problems with respecting basic rights of inmates.
While it is encouraging that
the Service acknowledges that there are serious problems, it is
obvious that its current review process is neither ensuring
compliance with policy nor reducing the number of incidents
resulting in the uses of force. The process is not working, in part,
because senior line managers do not see themselves as either
responsible or accountable for ensuring compliance with law and
policy. When the review process leaves the institution, the
identified areas of non-compliance become discussion points between
regional and national functional staff, rather than action points
resulting in specific direction from senior line authority at the
regional and national level.
I recommend that the Service
take immediate action to:
- finalize and implement the policy and
procedural changes currently pending;
- establish a review process that is
thorough, objective and timely, with the authority to address
areas of concern related to management responsibility and
accountability; and
- put in place an information system
regionally and nationally on use of force incidents that allows
for a thorough review and analysis to ensure that such incidents
are kept to a minimum.
I further recommend that the
Service immediately initiate a national investigation to determine
its current level of compliance with law and policy related to use
of force. Discussions with this Office should be part of this
investigation.
9. INMATE INJURIES
AND INVESTIGATIONS
There are four interrelated
areas of concern associated with this issue: institutional violence,
inmate injuries, suicides and investigations.
a) Institutional
Violence
The Service agreed last year
that violence in federal penitentiaries was a serious concern and
that the Security Task Force would address this issue in its
December, 1999 report.
This Office was provided, in
April of 2000, with a copy of Framework for Decisions by the
Executive Committee--Report of the Task Force on Security and
Executive Committee Decisions Concerning the Recommendations on the
Task Force on Security. The Task Force made in excess of seventy
recommendations. The Service, in referring this document to our
Office, did not identify which recommendations, or for that matter,
which decisions taken on the recommendations, were seen as
addressing the issue of institutional violence. I do note that those
recommendations that appear to be related to institutional violence
call for further research to be undertaken.
The Service, as well, stated
last year that
[a]s a
result of discussions with the Office of the Correctional
Investigator, we have proposed to expand our reporting of
institutional violence to include a wider range of indicators. This
should result in a more representative picture of violence within
our institutions. In addition to broadening the indicators for
institutional violence, the Service will ensure that the data are
analysed and that appropriate actions are taken. To this end, a
multi-sectorial group of individuals who have involvement in the
area of violence has been formed to analyse each report that is
produced.
A meeting of the
multi-sectorial group was held in June of 1999. This Office was
advised in July of 1999 that a wider range of violence indicators
would now be recorded, with the first report being produced by early
September and the analysis completed by late September. The Service,
in response to our request for a copy of the violence report, stated
in November of 1999:
This
report will be reviewed by a committee…to determine the best way to
analyse and distribute the information. We will forward a copy of
the report to your office once this committee has reviewed it to
determine whether or not it meets the needs of all concerned. I
expect you will receive the report no later than December 17,
1999.
The Office was advised in
January of 2000 that the "report continues
to be difficult to produce due to the vast amount of complex and
diverse information". We attended a meeting with the Service at
the end of March, 2000 to review this matter further. The Service,
in correspondence dated April 17, 2000, provided the following:
This
will confirm that on March 28, 2000, you met with a number of staff
from the Correctional Service of Canada (CSC) and were given a
demonstration of our recently developed automated system for the
statistical reporting of institutional violence. Concerns were
raised regarding the quality of the information and the ability of
the system to actually assist staff in predicting institutional
violence. You noted the importance of monitoring a wide spectrum of
information such as inmate injuries, voluntary segregation and
involuntary transfers as these could be indicative of institutional
pressures and problems.
As
further action to address this matter, CSC has committed to
improving the automated system by revisiting issues of accuracy of
data and types of information recorded. In addition, the Research
Branch, with the assistance of knowledgeable staff, will develop an
instrument whereby the stability and vulnerability of operational
units can be assessed systematically. This system will include
information currently collected in standard reporting systems,
multivariate statistics, and a review of methods used in other
countries.
The Service's commitments to
expand its reporting of institutional violence to include a wider
range of indicators and to ensure that the data is analysed have not
been actioned.
A review of the information
that the Service does collect indicates an increase this year in
inmate murders, hostage takings, major assaults on inmates, major
inmate fights and major disturbances.
b) Inmate
Injuries
There is currently no national
policy on the recording and reporting of inmate injuries.
The Commissioner of
Corrections in 1994, partly in response to a recommendation from
this Office, issued an Interim Instruction--Recording and Reporting
of Offender Injuries. The stated Objective of this policy was:
- to establish a consistent framework for
reporting and recording injuries to offenders;
- to provide for the systematic review of
the circumstances of injuries in order to ensure that these causes
are subject to appropriate review and to investigate, where
required by law; and
- to contribute to the maintenance of
healthful and safe living and working conditions through
corrective actions taken to prevent the incidents and recurrence
of accidents and wilful acts involving injuries.
A draft Commissioner's
Directive with the same stated Objective was circulated by the
Service for consultation in 1996, but was never promulgated.
I recommended again in last
year's Annual Report that the Service develop and implement a
national policy on the recording, reporting and review of inmate
injuries. The Commissioner's response, detailed in last year's
Report, stated:
The
service acknowledges that the absence of adequate direction for the
recording and reporting of inmate injuries has been a longstanding
issue and there is a need for policy direction in this area.
In
order to ensure that a coordinated approach to recording and
reporting inmate injuries is in place, a commitment was made to the
CI in late March 1999 to implement policy specific to this issue.
Policy development will ensure that all injuries are reported and
recorded and that those injuries categorized as serious bodily
injuries are investigated as per s. 19 of the CCRA.
The Office received, in
December of 1999, a copy of the Service's draft policy inviting our
comments. A review of the draft indicated that the focus of the
policy had been narrowed to the development of "a protocol to identify when an inmate had
sustained Serious Bodily Injury and how to record this information
in the Security Incident Report". We noted this concern in
correspondence to the Service in January of 2000 and referred it to
the broader policy objectives detailed in its Interim Instruction of
1994 and draft Commissioner's Directive of 1996. As of this date,
the Office has not received further comment from the Service on the
status of its policy development in this area.
c)
Suicides
I voiced my concern in last
year's Annual Report regarding the increase in inmate suicides from
nine in 1997-98 to sixteen in 1998-99. The number of inmate suicides
this fiscal year is recorded by the Service as eleven. In addition,
one inmate is identified as having died of a drug overdose and, in
four cases, the cause of death is identified as "unknown".
The Commissioner, in
responding to last year's Report, stated that "the Service shared the Correctional
Investigator's concerns for the lives lost through suicides".
One of our longstanding areas
of concern centred on the absence of a timely responsive review, at
the national level, of individual suicide investigations. The
Service has recently established an NHQ Suicide Review Committee to
examine the findings and recommendations from individual suicide
investigations and to bring summary recommendations to the attention
of the Service's Executive Committee. The Committee will, as well,
be mandated to ensure national consistency in the implementation of
recommendations. The Service anticipates that "the change in procedure will expedite a more
timely review of suicide investigations and will provide a mechanism
for the dissemination of information and direction, as well as
possible corrective action to the field". I was advised in April
of 2000 that the Committee is operational and is currently meeting
twice a month to review the 1998-99 suicide reports and action
plans.
The Service, in responding
last year to my Annual Report on the Issue of Suicide, provided the
following:
-
Commissioner's Directive 843, Prevention of Suicide and
Self-Inflicted Injuries, is being revised, based in large part on
the recommendations of a recent independent external review of our
policies and practices with respect to suicide prevention.
We are now advised that the
policy is expected to be promulgated by the end of 2000. The
referenced "recent independent external
review" was completed in January of 1998.
- A
standard Operating Practice will also provide even greater
specificity to our institutional and community personnel with
respect to issues of intervention and prevention.
This policy and procedural
direction will, as well, not be finalized until the end of 2000.
- The
Service's Executive Committee has committed to implement one of the
strongest recommendations of the independent Report: National
implementation of a peer support program.
The national guidelines to
assist with the implementation of this 1998 recommendation will be
finalized in the spring of 2000.
- In
1999/2000 CSC will also review the safety of inmate housing as well
as determine the training requirements of its front line staff.
We are now advised that this
review will be incorporated into "the
proposed Audit and Evaluation work plan for 2000/01".
-
Health Services will consult with the Security Division regarding
the appropriateness of stripping, special gowns, isolation and
camera observation.
We are now advised that these
consultations will take place during the summer of 2000. No
indication is given on when decisions might be taken to address
these matters.
- An
in-depth investigation of the factors predictive of suicidal
behaviour and self-injury by federally sentenced women will be
undertaken in the new fiscal year.
We were recently advised that
this study is in the development stages and no firm deadline has
been set.
The reality of the Service's
uncoordinated and ineffective approach to the early identification
and treatment of potentially suicidal individuals was tragically
evident recently at the Federally-Sentenced Women's Unit at
Saskatchewan Penitentiary. The delay in implementing national
policy, procedures and training programs in the area of suicide
prevention is inexcusable.
d)
Investigations
The Service's investigative
process is excessively delayed. The finalization of Board of
Investigation Reports, at the national level, can take up to a year.
The development of "approved" action
plans and follow-up on the Report's recommendation can take an
additional six months. These time lines are totally unacceptable for
a process with the stated Objective of
[e]nsuring that investigations into incidents
are carried out with integrity in a timely and fair way and that
they are independently credible, reliable and thorough [for the
purpose of] establishing the facts relating to a specific incident,
including the cause and outcome, to present relevant and timely
information, that will help prevent similar incidents in the future
and to demonstrate the Correctional Service of Canada's
accountability.
With respect to areas of
concern raised with timeliness in last year's Annual Report, the
Service indicated that it had reviewed its investigative process and
made a number of changes which "have
assisted in expediting the finalizations of investigations". I
have seen no improvement over the course of the last year.
The Service, as well, stated
last year that the "Director General,
Incident Investigations is currently conducting a comparative review
of other investigative agencies' milestones as part of CSC's
analysis of the timeliness of national investigations. This will be
shared with the C.I." In response to our request as to the
status of this review, we were advised by the Service in April of
2000 that "it had been tabled with the
Assistant Commissioner, Performance Assurance and it will be
forwarded to the Commissioner by early April 2000".
Discussions are currently
ongoing with the Service in an attempt to identify a process which
will provide this Office with a detailing of findings and
recommendations of Boards of Investigation in advance of the
finalization of the Report. The process would, as well, hopefully
provide a clear indication as to the Service's intended follow-up
actions on the Report's findings and recommendations.
Section 19 of the Corrections and Conditional Release Act
requires that the Service forward to this Office a copy of its
investigations into incidents of inmate death or serious bodily
injury. In addition to not receiving those investigations in a
timely fashion, I have raised concerns about the Service's level of
compliance with this section of the legislation. I stated in last
year's Annual Report that a recent list of section 19 Investigations
provided by the Service did not include a number of incidents which
had resulted in the death or serious injury of an inmate. The
Service, in responding last year, stated that it was "undertaking an analysis in the area of the
discrepancy between section 19 investigations received by the C.I.
and those received at NHQ. Results of this analysis will be shared
with the C.I." The results of this analysis have not been shared
with this Office.
The Service, in response to
our concerns on what was being classified as a "serious bodily injury" and who was doing
the classifying, has developed a protocol "to identify when an inmate has sustained
serious bodily injury and how to record this information in the
security incident report". The protocol, which was developed
jointly by the Service's Security and Health Services Divisions,
requires that "when a major injury due to a
security incident or an accident occurs, the Correctional Supervisor
will contact Health Services and obtain a determination from a
Health Care Specialist as to whether or not a serious bodily injury
has occurred. Serious Bodily Injury - refers to any injury which
endangers life or which results in permanent physical impairment,
significant disfigurement or protracted loss of normal functioning.
It includes, but is not limited to, major bone fractures, severing
of limbs or extremities and wounds involving damage to internal
organs". We have been advised that the protocol was issued to
the field on February 8, 2000 and that the process will be monitored
by the Service, on an ongoing basis, to determine how well it is
working.
I stated in last year's Report
that the current definition of serious bodily injury, as applied by
the Service, was inconsistent with both the intent of the
legislation and any reasonable person's concept of what constitutes
a serious bodily injury. Although I am hopeful that the protocol
will bring a more consistent and reasoned approach to the
classifying of inmate injuries, we will be meeting with the Service
over the next few months to review the impact of this new procedure.
I concluded last year's Report
on the Issue of Inmate Injuries and Investigations by stating that
there needed to be a clear focus on these matters, which have been
on the table for a number of years, with specific and immediate
action taken. The Service must commit itself to a review and
investigative process that is responsive to incidents of use of
force, inmate injuries, institutional violence, death and suicides
so as to ensure that they are kept to a minimum. I suggest a
re-focusing is in order.
10.
FEDERALLY-SENTENCED WOMEN
The placement of
maximum-security women and women with serious mental health problems
in male penitentiaries is inappropriate.
I indicated last year that
such placement was discriminatory and that regardless of the
accommodations made, it was, in fact, a form of segregation. These
women are not only removed from association with the general
population of the institution they are housed in; they are, as well,
segregated from the broader general population of female offenders
housed at the women's regional facilities. This segregation based on
security classification and mental health status places these women,
in terms of their conditions of confinement, at a considerable
disadvantage to that of male offenders.
The Service, in responding on
this matter last year, stated that "the
conditions of confinement for maximum security women do not meet the
legal requirements of segregation i.e., only out of cell for showers
and one hour exercise daily". I am not in agreement with the
Service's position as to what constitutes segregation, but the issue
here is not "legal requirements"; it's the conditions under which
these individuals have to live. These units in male penitentiaries
unreasonably isolate women and are discriminatory and
inappropriately resourced to address the identified needs of those
housed there. Further, some of these units, at times, have been
occupied by a single female offender. Is
this not segregation?
I stated last year that the
"temporary placement" of female offenders in male penitentiaries,
which began in August of 1996, had gone on for far too long. I
recommended that immediate action be taken to address this totally
unacceptable situation. I was advised, last year, that the Service
was developing an Intensive Intervention Strategy which would allow
the Service to move forward on its commitment to implement a
long-term strategy that will see the closure of the co-located units
(Women's Units in male penitentiaries).
The Intensive Intervention
Strategy was announced in September of 1999. The strategy calls for
the modification and expansion of the existing enhanced units of the
regional facilities to accommodate women offenders classified as
maximum security. As well, Structured Living Environment houses
would be constructed at each of the regional facilities to
accommodate women who have mental health needs that require more
intensive support. This would permit the units in men's institutions
to be closed. The projected completion date is given as September,
2001.
While this may be seen as a
long-term solution to the housing of female offenders in male
penitentiaries, it does not address the existing situation. The
Service, in responding to our concern that it would be at least
another year and a half before the female offenders are moved out of
the male institutions, offered the following in March of 2000:
With
respect to the co-located units, I can only re-iterate that CSC was
determined to develop a solution to maximum security and special
needs women that is a response to their needs and security
requirements. Research and consultation were initiated immediately.
However, the intensive analysis and developmental process took time
and, as you are aware, the decision was not announced until
September 3, 1999. As the facilities to implement the Intensive
Intervention Strategy at regional facilities must be constructed and
additional staff hire and trained, it is inevitable that further
time will be required before the new units are operational. However,
as you know, this issue remains a high priority for the Correctional
Service of Canada and every effort is being made to ensure that
construction and operational, for example, selection and training of
staff, implementation proceed without delay. I would also note that,
in addition to the co-located units, CSC established two intensive
mental health treatment programs and implemented staff training in
DBT. I can assure you that we will continue to support the women
offenders and the staff at the co-located units and implement
additional or different programs as required, until transition to
the regional facilities is completed.
The number of female offenders
housed in male penitentiaries has increased. I have noted only
limited implementation of additional or different programming to
meet the needs of these women. The situation, especially at
Saskatchewan Penitentiary, remains totally unacceptable.
I further note that:
- the Service's 1997 Mental Health Strategy
for Women has not been fully implemented;
- the verification of the Service's
security classification tools for women and aboriginal offenders
has not been finalized;
- the Service's review of factors
predictive of suicidal behavior and self-injury has not been
initiated;
- the number of incarcerated female
offenders has increased;
- a number of the regional facilities are
currently at or beyond rated capacity;
- there is only one minimum-security
facility for women with a rated capacity of ten, yet nearly half
of the two hundred plus inmates housed at the regional facilities
are classified as minimum-security;
- only 56 per cent of the Federal female
incarcerated population is identified as Caucasian;
- Aboriginal women represent 23 per cent of
the incarcerated population but only 11 per cent of the community
supervision population;
- Aboriginal offenders make up nearly 50
per cent of the federal female incarcerated population in the
Prairie region; and
- there are nearly as many Aboriginal women
incarcerated in male penitentiaries as there are at the Service's
Aboriginal Healing Lodge for women.
These are matters which
require immediate attention. This Office will be meeting with the
Deputy Commissioner for Women to initiate a review of these issues
inclusive of our information on areas of inmate concerns and the
findings and recommendations of the most recent report from the
Service's Cross Gender Monitor. I will, following that review,
provide to both the Commissioner and the Minister a detailing of our
position on Federally-Sentenced Women's Issues.
11. ABORIGINAL
OFFENDERS
Last year's Annual Report
focused on two areas of concern which had been consistently
identified by Aboriginal inmates as systemic problems:
- the discrepancy in the availability, the
level of co-ordination and the acceptance of Aboriginal
programming within the Service; and
- the failure of the Service to provide
timely and culturally-sensitive case management in support of
effective re-integration of Aboriginal offenders.
Aboriginals, as we all know,
are grossly over represented in our federal penitentiaries. While
they are in the care and custody of Correctional Service of Canada,
they are less likely to be granted unescorted temporary absences,
work releases or parole, and are more likely to be placed in
segregation, involuntarily transferred, referred for detention or
have their conditional release revoked than non-aboriginal
offenders. As clearly stated by an inmate, "The reality is, if it’s
bad and you’re an Indian, it will happen".
This reality remains
unchanged, unacceptable and discriminatory. The existing policies
and procedures of the Service have not measurably altered this
reality and, in fact, appear to work against the stated objective of
decreasing the level of Aboriginal incarceration.
I made two recommendations
last year:
First,
the Correctional Service must ensure that a Senior Manager,
specifically responsible and accountable for Aboriginal Programming
and liaison with Aboriginal Communities, is a permanent voting
member of existing senior management committees at the
institutional, regional and national levels.
Second,
given the continuing disadvantaged position of Aboriginal offenders
in terms of timely conditional release, it is imperative that the
Service's existing policies and procedures be immediately reviewed
to ensure that discriminatory barriers to reintegration are
identified and addressed. This review should be independent of the
Correctional Service of Canada and be undertaken with the full
support and involvement of Aboriginal organizations.
The Service's initial
response, as recorded in last year's Report, was, "CSC agrees with the C.I. that
over-representation by Aboriginal offenders is a high priority for
continued action, and will review his recommendations
carefully."
I was advised in February,
2000 that the Service had rejected my recommendations. In support of
its decision, the following was provided:
The
Director General, Aboriginal Issues, carries the major
responsibility for Aboriginal offender issues at National
Headquarters. She is not a member of the Executive Committee,
nevertheless, she acts as the senior advisor to the Service on
Aboriginal issues. There are no plans to change her status.
The
Prairie Region has a Regional Administrator, Aboriginal Programming,
who can attend the Regional Senior Management Committees at his
discretion.
In all
other regions, the Regional Program Co-ordinators are not members of
the Regional Senior Management Committees. There are no immediate
plans to change their status. The Service expects to meet Aboriginal
programming objectives with the current structure.
The
Correctional Service of Canada does not perceive a need for the
independent review proposed by the Correctional Investigator,
however, initiatives are underway to address the disproportion
number of Aboriginal offenders on conditional release.
The Office responded to the
Service's position on these matters on February 29, 2000, stating
that we did not find the rationale provided in rejecting our
recommendations convincing. We re-emphasized the fact that although
the Service had measurably increased Aboriginal programming over the
years and had appointed a Director General of Aboriginal Affairs,
the clearly-identified problems of a decade ago remain. The data
presented in the Service's Corporate Results Report, almost without
exception, show no improvement and, in some areas, a worsening of
the situation. It was as a result of the long-standing, systemic
nature of the problem that we had recommended last year that an
independent review of the Service's policies and procedures be
undertaken, and that the senior management positions be established,
specifically responsible and accountable for the management of
aboriginal programming, at all levels within the Service. We
concluded that, in our opinion, the recommendations had not been
reasonably addressed and, as such, would be re-submitted.
The Service's Final Response,
received in April, 2000, passed no further comment on this matter.
Given the gravity of this issue and the continuing disadvantaged
position of Aboriginal offenders under the care and custody of
Correctional Service of Canada, I recommend that:
- a Senior Manager,
specifically responsible and accountable for Aboriginal Programming
and liaison with Aboriginal Communities, be appointed as a permanent
voting member of existing senior management committees at the
institutional, regional and national levels; and
- the Service's existing
policies and procedures be immediately reviewed to ensure that
discriminatory barriers to reintegration are identified and
addressed. This review should be independent of the Correctional
Service of Canada and should be undertaken with the full support and
involvement of Aboriginal organizations.
CONCLUSION
In summary on these systemic
issues, I wish to re-emphasize that these identified areas of
concern impact directly on the inmate population of our federal
penitentiaries.
I do not raise these issues
year after year for the purpose of scoring points or to promote make
work projects for Corrections. I raise these issues because inmates,
their families and those who work with offenders consistently
identify these as significant areas of concern. I follow up on these
issues because this Office's investigations, and to a large extent
the Service's own reviews of these issues, support the need for
corrective action in these areas.
The Service's failure to
address these areas of concern reasonably undermines the stated
purpose of federal corrections as defined by the Corrections and Conditional Release Act,
which is:
to contribute to a just,
peaceful and safe society by
(a) carrying out sentences
imposed by courts through the safe and humane custody and
supervision of offenders; and
(b) assisting the
rehabilitation of offenders and their reintegration into the
community as law-abiding citizens through the provision of programs
in penitentiaries and in the community.
The Service, in leaving these
issues either unaddressed or in a perpetual state of review, is not
fulfilling its mandate.
CASE SUMMARIES
Our Office's principal
function is to address the problems of individual offenders in a
fair, effective and timely fashion. Most of our investigations are
initiated in response to individual concerns.
Accordingly, I have decided to
provide summaries of our actions in response to some of these
individual concerns. This, I hope, will provide greater insight into
our everyday interactions with the Correctional Service.
Each case involves a problem
that we have brought to the attention of CSC National Headquarters
in the hope of achieving timely resolution in accordance with the
our Memorandum of Understanding with the Service.
USE OF FORCE TO
FACILITATE A STRIP SEARCH
The incident
In an effort to find
drug-related contraband, a Warden ordered a general strip search of
all inmates on a range. Two inmates refused to submit to the rectal
inspection that forms part of a strip-search under s. 45 of the CCRA. They otherwise complied with all
aspects of the search.
The Institution decided to
admit them to segregation two days later on the grounds that their
refusal represented a danger to safety or security. Incident to the
admission, a routine strip search was conducted pursuant to s. 48,
para. (b) of the CCRA, which permits
strip searches when inmates are moved into, or out of, segregation.
During this search, they again refused to submit only to the rectal
inspection. Officers who had been summoned in case this occurred
used force to carry out the inspection.
The course of our investigation
Our Office reviewed the
videotape of the incident. It disclosed that as soon as the inmates
refused to comply, the Institutional Emergency Response Team
immediately wrestled the inmates into a position in which the
inspection could be effected. Other than the initial order to submit
to a search, there was no dialogue or warning beforehand.
In December, 1998, we wrote to
the Service expressing our serious concern about this pre-planned
and automatic use of force. Following receipt of further
documentation from the Service, we concluded in May, 1999 that "the
authorized use of force to facilitate a visual inspection of the
rectum in these cases was excessive, contrary to policy and
unreasonable". My Executive Director recommended that:
- an apology be offered to the inmates; and
- the Service immediately review its
policies and procedures related to the use of force and
strip-searching and issue clear direction to the field with
respect to:
- the considerations to be given prior to
authorising the use of force to facilitate a strip search,
inclusive of options;
- the utility of a visual inspection of
the rectum in finding contraband;
- the requirement for specific written
authorisation, with reasons, from the Warden; and
- the provision of these reasons to the
inmate prior to using force, and the role of medical staff in
both the authorisation process and the use of force itself.
The Service replied that there
was no requirement for specific risk assessment or authorization at
the time of the use of force as the searches were "routine"
(requiring no "individualized suspicion" of contraband) under s. 48
of the CCRA. Previously, the Service had
stated that a risk assessment had been conducted, in effect, when
the Warden had authorized the initial, general strip search of the
range, two days before.
This response did not address
our recommendations. Accordingly, in July, 1999, the Executive
Director requested a meeting to review our concerns further. At the
meeting, in September, 1999, we clarified our position regarding the
lack of authorization and justification for the forceful searches,
adding that the Service should have followed the exceptional
procedures set out in ss. 50 and 51 of the CCRA if it had reasonable grounds to
believe the inmates were carrying contraband in a body cavity. Under
these provisions, a Warden may authorize confinement to a "dry cell"
or seek the inmate’s permission to use an X-ray where there is a
belief that an inmates has ingested contraband or inserted it in a
body cavity. If the Service did not have reasonable grounds then the
use of force was unreasonable. We again referred back to our
specific recommendations.
The Service responded in
December, 1999, stating in part that "without admitting that the
force used was unreasonable or excessive, the Service does recognize
that the matter should have been handled differently". The Service
referred to a letter written to each inmate stating that there
should have been "better communication" at the time of the incident.
Nevertheless, the Service indicated that the special procedures of
ss. 50 and 51 were not necessary, as there was no reasonable belief
that the inmates were concealing contraband in their bodies.
Finally, the Service indicated that "a review of the videotape by
National Headquarters staff, including legal counsel" concluded that
the use of force was lawful in the circumstances.
In response, in December,
1999, the Executive Director reiterated his previous
recommendations, which I adopted in my January 21 letter to the
Commissioner under s. 177 of the CCRA.
Prior to the Commissioner's
response, the Director General of Offender Affairs replied to our
Executive Director's letter. He underlined, in part, that rectal
examination was a "statutorily mandated" aspect of strip searches
which should never be a part of the routine strip searches that
occur on an inmate's admission to neglected segregation.
The Commissioner responded to
my letter on March 20, 2000. The gist of the Service’s position is
that:
- strip searches are defined as including
the requirement to submit to rectal inspection;
- strip searches on entering segregation
are routine under the CCRA, and
require no specific authorization;
- even if it were determined that the
Service should make a risk evaluation prior to using force, this
had already occurred at the time the Warden had ordered a strip
search of all inmates on the range;
- given the above, to require the Service
to consider or use other, less forceful, measures to search for
contraband in the circumstances would be much more than the law
requires in any jurisdiction;
- the use of "dry cell" or voluntary X-rays
are mandated as alternatives only where it is believed that an
inmate has taken contraband into his body, as opposed to simply
concealing contraband between his buttocks.
The Service agreed that the
inmates should have been entitled to a warning that force would be
used if they did not comply with the order to submit to a complete
strip search. Indeed, the Service has revised its policy to
underline this principle and has provided training for staff based
upon the revision. Nevertheless, it maintains its position that the
use of sufficient force is legal and appropriate in the
circumstances of this case.
Despite the Service's
response, our position remains as stated in my January 21, 2000
letter. I wrote back to the Commissioner and emphasized the
following points:
- the Service acknowledges "that there were
no reasonable grounds to believe that either inmate had ingested
contraband or was carrying contraband in a body cavity";
- the inmates complied with all aspects of
the strip search except for the visual inspection of the rectum;
- the decision to use force was taken two
days after the inmates' initial refusal to comply with this aspect
of the search;
- despite the Service's assertion that a
"strip search on admission to the segregation area should never,
as a matter of fundamental safety and security practice, policy
and law, neglect to include a visual inspection of the rectal
area", evidence clearly indicates that discretion has been and
continues to be exercised in the application of the requirement;
and
- the decision to use force was taken to
enforce compliance with a direct order not to address safety or
security concerns.
In short, there were no
reasonable grounds to believe that either inmate was concealing
contraband in his rectal area, and the decision to deploy the IERT
to facilitate the visual inspection of the rectum was unreasonable
and the force used excessive.
I have suggested that we refer
the matter to non-binding dispute resolution, as permitted by the
Memorandum of Understanding between CSC and our Office.
REPORTING AND
INVESTIGATION OF INJURIES TO AN INMATE
The incident and our investigation
An offender was admitted to a
maximum-security institution after a suspension from conditional
release. He was placed in the general population after staff
conducted a check for incompatible inmates using the computerised
Offender Management System (OMS). This check revealed that none of
his known incompatibles were at the institution.
Within 90 minutes the inmate
was assaulted and stabbed several times in his cell by a number of
inmates, and soon after was assaulted again.
He was stabilized by
institutional Health Services staff and sent by ambulance to the
local hospital. Here he received treatment for a collapsed lung, a
suspected fractured nose, and numerous stab wounds to his arm and
back.
On June 29, 1998, four days after the event,
our Office received a Security Incident Report which indicated that
"[the inmate's] injuries are serious
(approximately 30 wounds) but not life threatening".
Almost three months after the
event, the Warden convened a local investigation into the
circumstances surrounding the incident.
The investigation was
completed November 2, 1998 and was
forwarded to this Office and to CSC National Headquarters on December 10, 1998 by the applicable
Regional Headquarters pursuant to s. 19 of the CCRA. This provision requires the Service
to investigate all instances of offender death or "serious bodily
harm" and to forward the reports on such investigations to our
Office.
In essence, the Report, as
approved by RHQ, indicated that:
- there were no pre-indicators for the
incident;
- all staff involved complied completely
with law and policy; and
- reports were timely and thorough.
We wrote to the Assistant
Commissioner, Performance Assurance in May
of 1999 requesting the results of his review of the
investigation. His response was received on August 17, 1999. It
stated,
Our review of the above noted
report consisted of three elements: the quality control, the issues
of non-compliance and what may be learned from a national
perspective. As a result of our review we are satisfied with the
report.
We wrote to the Assistant
Commissioner on August 30, 1999,
outlining numerous concerns and concluding that the investigation
had not been thorough, objective or timely. In particular, we
contended that:
- the person who investigated at the
institution was the same person who had drafted the Incident
Report, which indicated that there would be no problem with the
inmate’s placement in general population;
- the Investigative Report added no new
information to the Incident Report;
- totally unreasonable delays occurred
between the incident and the completion of review of the
investigation;
- there was no list of persons interviewed
or documentation reviewed;
- there was no detailing of injuries beyond
what was recorded on the day of the incident;
- there was no indication of who had
concluded that the injuries did not seem to be life threatening
(and, in particular, whether this person was a health services
expert); and
- there was no reference to s. 19 of the CCRA in either the Convening Order or the
Investigation Report, despite s. 19 being referenced in the
initial forwarding of the report to our Office.
The Assistant Commissioner
responded on November 10, 1999. He
indicated that:
- investigations should indeed be convened
as soon as possible;
- "local" investigations are meant to
provide additional information to managers;
- it is not unusual for the IPSO to conduct
investigations;
- the Service "ha[s] not required that local investigations
include…interviewee lists, or document lists…. for reasons of
practicality and due to the very nature and audience of local
investigations"; and
- the injuries in this case did not meet
the CSC policy definition of "serious injury". Mistakes were still
being made, despite the advice of CSC Headquarters, that resulted
in non-serious injuries being identified as serious.
In essence, then, the
Assistant Commissioner did not consider the incident, or those
involving similar injuries, to fall under the requirements of s. 19.
The file was referred to me
and, after detailed review with staff, I wrote to the Commissioner
under s. 177 of the CCRA, on January 29, 2000, indicating my
dissatisfaction with the quality and timeliness of the
investigation. As well, I took issue with the Service’s decision
that the individual's injuries did not constitute "serious bodily
injury" as set out in s. 19 of the CCRA.
The Issues
In our correspondence with the
Service we have reiterated our concerns that the investigation
should have taken place far more quickly; that it should have been
done by persons not involved in the events surrounding the injuries;
and that persons with medical expertise should have determined the
seriousness of the injury.
On the matter of the
definition, it is my view that the fact that the inmate suffered a
lung puncture placed him within the ambit of s. 19. Notwithstanding
this, there remains the larger issue, which I believe Parliament had
in mind when it enacted s. 19.
I believe that s. 19 was
intended to include a broader range of cases than those covered by
the Service’s definition. The issue is not the clinical nature of
the injuries so much as their seriousness, as a matter of monitoring
and preventing injuries that denote significant violations of
offenders’ entitlement to safe and humane custody and of their
rights to security of the person under the Constitution.
The Status of the Case
The Commissioner's reply was
received April 7, 2000.
He informed us that an
investigation under s. 19 of the CCRA
had now been convened thanks to the "new evidence" which we had
provided-- namely the hospital report of a punctured lung. (This
information was acquired from documents that the Service provided to
us).
He agreed that there might be
a perceived bias in permitting the Acting IPSO to investigate
matters arising, in part, from a report that he had written in the
first instance.
The Commissioner did not,
however, accept that a new definition of serious bodily injury was
required.
I have reserved further
comment on this case until we receive the Board of Investigation
Report.
EXCEPTIONAL
SEARCH
The incident
A resident of a CSC-operated
community facility was found in the tool shop, lying beside a
band-saw table, with a severe neck wound. A short time later, the
institutional head authorized a general strip search of all
residents under s. 53 of the CCRA.
This section provides:
(1) Where the institutional head is satisfied
that there are reasonable grounds to believe that
(a) there exists, because of contraband, a
clear and substantial danger to human life or safety or to the
security of the penitentiary, and
(b) a frisk search or strip search of all the
inmates in the penitentiary or any part thereof is necessary in
order to seize the contraband and avert the danger, the
institutional head may authorize in writing such a search, subject
to subsection (2).
(2) A strip search authorized under subsection
(1) shall be conducted in each case by a staff member of the same
sex as the inmate.
Section 58 of the Corrections and Conditional Release
Regulations governs reports respecting searches and seizures. It
provides, in part, that:
(3)A post-search report shall be in writing and
shall contain… (g) in the case of a
post-search report [regarding a s. 53 search], the facts that led
the institutional head to believe that the presence of contraband
constituted a clear and substantial danger to human life or safety
or to the security of the penitentiary, and an indication of whether
the danger was averted.
In reviewing this incident, we
noted that the search authorization form and the post-search report
seemed to indicate that the purpose of the search had been to
discover evidence to assist police with their investigation of the
matter, rather than to find dangerous contraband, as required by the
CCRA. Moreover, the post-search report
indicated no facts in support of a belief in dangerous contraband.
The Service's regional
Investigation Report on the matter included the following
statements:
All
inmates were ordered to return to the living unit and an emergency
count was undertaken. The inmates were subsequently strip searched
in an attempt to determine if anyone had injuries or signs of being
involved in a physical dispute with an inmate. The search was
authorized by the Institutional Head as, at the time of the
authorization, it was uncertain whether or not the incident was an
attempted murder or attempted suicide. The
search was to assist the police in gathering evidence or identifying
possible suspects [emphasis added].
We referred this seeming
breach of the CCRA to CSC National
Headquarters on May 3, 1999. In its July 22, 1999 response, the
Service stated that the Regional official who reviewed the
Investigation Report had had concerns with the appropriateness of
the search based on this wording. He had contacted the Chairperson
of the Board of Investigation. This person explained that the search
was conducted because it had not been initially clear whether the
incident was an attempted suicide or an attempted murder, and this
was the reason for the search. The Regional Official indicated,
based on a legal opinion which he had sought, that in the aftermath
of almost any serious incident of this kind, it was not unreasonable
to conclude that the reasonable grounds required by s. 53 existed.
I disagreed with this
conclusion, and wrote to the Commissioner on December 6, 1999,
pursuant to s. 177 of the CCRA,
expressing my view, based on the information contained in the search
authorization and the Post-Search Report:
- that the search was authorized
unreasonably and in a manner contrary to law and to established
policy;
- that the contents of the Post-Search
Report were prepared in a manner which is contrary to law; and
- that the contents of documentation
surrounding the search, including the required authorization and
reports, were produced in a manner that was contrary to
established policy and unreasonable.
I recommended:
- That the decision to conduct the search
be rectified by having the Service:
- inform all offenders and staff who were
involved that the search should not have been conducted;
- apologize to the inmates concerned; and
- correct any reference to the search on
any offender’s file, underlining the illegality of the search;
- That the Service review the Post Search
Report document form to clarify that the facts leading to a belief
that dangerous contraband exists must be indicated on the form and
that the completed form be sent to the Regional Deputy
Commissioner; and
- That CSC staff be instructed in the
proper procedures to ensure that searches are properly authorized,
carried out, documented and reviewed in future.
The Commissioner responded on
February 11, 2000. He acknowledged that irregularities had occurred
in the documentation of the search and that the relevant forms
should be revised to underline the need to provide the information
required by s. 53. He indicated that policy required staff to
be aware of the rules governing such matters and that staff were
being trained in the conduct of investigations. He did not, however,
accept that the search should not have been conducted, or that it
was conducted in a manner contrary to law.
The Issues
The general strip search of
all offenders, in all or part of an institution, is a very
exceptional measure which is very intrusive to the inmates involved.
As such, the law requires very specific preconditions to such a
search that must be considered where an institutional head is taking
a decision.
We maintain our position that
the search and the related reports were contrary to law and
unreasonable because:
- there was insufficient evidence to
conclude that such preconditions existed or that such
considerations occurred;
- the search was intended to assist a
police investigation--a purpose not contemplated by s. 58; and
- the Service's documentation did not
conform to the requirements of the CCRA and the Regulations.
Parliament intended, in my
view, that designated public servants not only comply with strict
rules regarding intrusive procedures, but also demonstrate that they
have done so.
The Status of the Case
We believe that the legal
issue here is an important one and have suggested that it be
submitted to dispute-resolution under the Memorandum of
Understanding. Otherwise, we have attempted to bring closure to the
matter by means of policy modifications that will ensure that
extraordinary searches are ordered only for appropriate and
well-documented reasons.
MEETING THE NEEDS
OF DISABLED OFFENDERS
In a prison context, no less
than in any other milieu, the disabled have the right under the Charter of Rights and Freedoms, and
numerous other statutes, to be afforded treatment equal to those of
sound mind or body. The CCRA
specifically provides, at s. 4, that:
The principles that shall guide the Service in
achieving the purpose referred to in section 3 are
(h) that correctional policies, programs and
practices respect gender, ethnic, cultural and linguistic
differences and be responsive to the special needs of women and
aboriginal peoples, as well as to the needs of other groups of
offenders with special requirements.
The CCRA further provides, at s. 76, that:
The Service shall provide a range of programs
designed to address the needs of offenders and contribute to their
successful reintegration into the community.
Accordingly, disabled
offenders are entitled not only to access to services in the
penitentiary that accommodate their handicaps, but also to
post-release programming in accessible circumstances.
The incident and our investigation
Two disabled offenders were
not permitted to leave their minimum-security facility on their day
parole release dates because no handicapped accessible residences
existed in the community. Moreover, even when later released, they
were initially placed in residences where the programming addressed
needs unrelated to their correctional treatment plans.
This occurred despite the
Service having been aware for months of their specific needs and for
years of the requirement to provide accessible community
correctional facilities.
We became aware of the problem
of both offenders after one of them complained to us that he was not
going to be released to a day parole facility because there was no
wheelchair-accessible accommodation for day parole in the Edmonton
area.
After lodging a number of
inquiries, we were eventually informed that both offenders had been
sent to a non-governmental community residence centre. While the
residence was accessible, it was a treatment-oriented facility
intended for aboriginal offenders. Neither offender was aboriginal
or had need of the treatment programme. The placement took place a
few days after the release date of one offender and several weeks
after that of the other.
There ensued a series of
correspondence between the Service and our Office.
In April, 1999, my staff
indicated their finding that the decisions and delays that had taken
place in this matter were unreasonable. We recommended that the
offenders receive apologies and compensation for the Service’s
failure to provide them with appropriate release conditions at the
time these were needed.
In addition to the specifics
of the cases, we referred to documents on file that disclosed that
the Service had undertaken to provide accessible housing for
disabled offenders in CSC-run facilities in the early 1990’s.
The Service indicated that its
accessibility plans were initially only preliminary and that more
specific plans had taken a long time to develop. Further, delays in
opening accessible facilities had been caused by problems in
negotiating agreements with the provincial government.
With respect to the two cases,
the Service said:
- that the delays in accommodating the
offenders had not been unreasonable;
- that staff had applied due diligence in
attempting to find facilities and had succeeded in effecting the
placement in the treatment facility only towards the end of the
process;
- that this was done on an exceptional
basis, considering the lack of treatment needs in both cases; and
- that the minimum-security facility in
which they were housed was also designated as a community facility
and, accordingly, the offenders were legally provided day parole
despite being retained in that institution.
In late August, 1999, our
Executive Director wrote to the Service confirming our position as
set out above and indicating that any delay in affording release to
disabled inmates based on their disability was unacceptable.
Further, in his view, to contend that maintenance in a
minimum-security facility somehow constituted a "release" was
unacceptable. Finally, he suggested that the delays in the Service’s
attempts to meet its human rights objectives over the years did not
reflect its stated commitment to accommodate the needs of those with
disabilities.
It was not until late January,
2000, that we received a reply from the Service, essentially
confirming its previous position.
I have since written a report
under s. 177 of the CCRA, reiterating
our findings and recommendations. This was sent on March 3, 2000.
As of May 1, 2000, we had not received a
reply.
For even two identified
offenders to lose just a few days of access to appropriate
conditional release activities based only on their disabilities is
unreasonable and probably contrary to law. Worse still is that this
should occur when a reasonable opportunity to anticipate and resolve
their problems was missed and when the issue was one of
long-standing concern to the Service.
On a related matter, during
the course of our discussions with the Service on this case, the
Service undertook to revise its Community Residential Facility
Directory to ensure that information regarding accessibility was
included. We were advised that the Directory would be revised by
October, 1999. I was subsequently advised in January of 2000 that
the Service had been unable to meet the target date and that it now
hoped to be in a position to issue a completed directory by July,
2000.
HOUSING OF MINORS
IN PENITENTIARIES
Our Office has consistently
voiced the opinion that minors should never be housed in
penitentiaries and that the Service has not provided minor inmates
with the services and protections that they require when housed in
penitentiaries.
Section 37 (c) of the United Nations Convention on the Rights of the
Child prohibits the placement of minors with adults other than
family members in prison. Canada has lodged a Reservation to this
provision. This states that Canada reserves the right not to keep children separate from adults
in prison where this is "feasible and
appropriate."
The Young Offenders Act (YOA) permits 16- and 17-year-old offenders
to be placed in adult facilities if convicted of certain serious
offences in adult court. Before this occurs, however, experts,
including representatives of CSC, are to be afforded the opportunity
to comment on any such placements.
In November, 1998, we received
a copy of correspondence from a Non-Governmental Organization
addressed to the Solicitor General concerning the continued housing
of children in federal penitentiaries. We referred the concerns to
the CSC's Human Rights Division.
CSC's response indicated that
they did not consider housing of minors in penitentiaries to be "a
desirable practice" but that, in essence, not much could be done
when the Courts order transfer to federal custody under the YOA.
In February, 1999, we replied,
asking if the Service had made representations before the Courts, as
the YOA permits, and recommending:
- that the cases of all young offenders who
were then in penitentiaries be reviewed in order to initiate
appropriate placement outside the federal correctional system; and
- that measures be put in place to ensure
that appropriate recommendations be made to the Courts at the time
of sentencing and in follow-up representations mandated under the
YOA.
As of September 30, 1999, we
had not received a response addressing our recommendations.
Accordingly, our Executive Director wrote to the Service, asking it
to provide a response to outline its plans to deal with young
offenders.
On December 29, 1999, the
Service wrote to indicate that it had reviewed all cases and could
find no reason to re-visit the appropriateness of the assignment of
any of the young offenders currently in federal prisons. The Service
reiterated its view that it had a very limited opportunity to
address the Courts on placement of young offenders at the time of
sentencing.
The Service also provided a
draft issue paper on the subject which confirmed the Service's
opinion that the placement of young offenders in penitentiary "is
inappropriate" and that a collective effort should be mounted
towards "preventing youth from being sentenced to federal
penitentiaries".
In January, 2000, we wrote to
the Service relating the results of our preliminary review of the
circumstances of young offenders in federal custody. Here are some
excerpts from that review:
- all but one of these individuals is
non-white;
eight are aboriginal, one is
black;
- all are security classified at either
medium (5) or maximum (5);
- none have been placed at an Aboriginal
Healing Lodge;
- many have been double-bunked;
- with the exception of the two youth
serving indefinite sentences, all others have passed eligibility
dates without benefit of conditional release;
- some have spent considerable time in
segregation;
- a number of the individuals have been
housed in three different penitentiaries while in the federal
system;
- five of the individuals serving a
sentence of three-and-a-half years or less have passed their full
parole eligibility dates;
- one individual who entered the federal
system at age 16 serving a sentence under three years has been
detained, and another individual who entered a federal
penitentiary at the age of 16 with a sentence of two years in
October of 1988 remains incarcerated at Stony Mountain, awaiting
his statutory release date of February 18, 2000; and
- during the first half of this fiscal
year, eight offenders under the age of eighteen began serving time
in federal penitentiaries.
Based on these concerns and
our position that continued placement runs contrary to the International Convention, I wrote to the
Commissioner under s. 177 of the CCRA on
March 5, 2000 and recommended that the Service take all means at its
disposal:
- to advocate amendments to the Corrections and Conditional Release Act
[CCRA], the YOA and Bill C-3 which would prohibit the
placement of young offenders in penitentiaries; and
- to attempt to convince the Courts, under
s. 16.1 of the YOA, to reject all
referrals of young offenders to federal penitentiaries.
As of May 1, 2000, we had not
yet received the Service’s reply.
The Issues
In a number of contexts, the
Service has stated that it is not appropriate to place minors in
penitentiaries in association with adult inmates. Nevertheless, its
position appears to be that it is relatively powerless to prevent
such placement, given the authority of the Courts to place young
offenders in penitentiaries under the YOA. The Service indicates that:
- its representations to partners in the
administration of justice have resulted in Bill C-3 ( the
revisions to the young offender legislation) being modified to
provide a presumption in favour of placement in youth facilities;
and
- it is attempting to improve the
identification, case management and treatment of young offenders,
especially aboriginal offenders, in penitentiaries.
In my letter to the
Commissioner, I took the position that the Service’s view that it is
never appropriate to place young offenders in penitentiaries is a
complete answer to Canada’s Reservation under the international
treaty.
I went on to state that the Convention, and numerous other United
Nations provisions, are firm in their protection of children in the
correctional context. The Service’s experience and knowledge, and
ours, makes it patent that young people should not be placed in
penitentiaries, both as a matter of effective protection and
programming, and as a matter of clearlyacknowledging that society must distinguish
between adults and children.
To those who would argue,
despite the Service’s position, and ours, that some distinction may
be made regarding the nature of minors – their danger to other minor
inmates, for example – I would respond that:
- it is never impracticable, with
sufficient will, to meet such considerations in a youth-centered
context; and
- the impact of penitentiary placement
always justifies such alternatives.
It is my hope that the trend
towards more punitive and restrictive confinement of young offenders
will be reversed, at least insofar as this involves placing them in
association with adult offenders.
I note that legislation has
recently been enacted in the United Kingdom which promotes
separation of younger offenders from older ones, even up to the age
of 24, and that an oversight body has been put in place to monitor
the situation of young people in the justice system. As a matter of
sound corrections, we might learn from our British colleagues.
EXCESSIVE USE OF
FORCE
The Service's current policy,
in response to a recommendation from Madam Justice Arbour, requires
that this Office be provided with a copy of all videotapes and
supporting documentation related to Emergency Response Team
interventions and cell extractions where force is deployed.
We have noted, through our
review of these videos, numerous ongoing violations of both law and
policy related to the use of force. We have also noted a reluctance
on the part of the Service to convene investigations into these
incidents. These violations have been the subject of ongoing
discussions with the Service, and for a detailing of this matter, I
refer you to the systemic issues section of the Report.
I referred two use of force
incidents to the attention of the Commissioner for his review and
comment, pursuant to s. 177 of the Corrections and Conditional Release Act.
The videotapes in both incidents raised serious questions with
respect to the Service's compliance with law and policy. In neither
case had the Service, subsequent to its review, convened an
investigation into the incident.
The first incident occurred on
March 24, 1999. The videotape clearly showed an inmate who was
locked in a cell being beaten on the hands with a baton. This same
inmate, later, during the course of being moved to another cell, was
gassed. He was then left naked, wet and chained, in an apparently
semi-conscious state, on a slab of cement. The accompanying
documentation, in addition, left a number of unanswered questions
concerning the level of health care attention provided to this
inmate. The documentation further indicated that the Warden,
following his review of the video, concluded that only the necessary
amount of force was used, and that an investigation was not
required. The Service's regional headquarters appeared to support
that conclusion.
This Office, subsequent to our
review of the material, forwarded to the Senior Deputy Commissioner
on April 27, 1999 a detailing of our concerns, with a
recommendation that a national investigation be immediately convened
to:
- investigate the Service's actions
specific to this incident, and
- investigate the level of compliance with
the current policies and procedures of the Service with respect to
use of force incidents.
We further recommended that
the Board meet with representatives from this Office during the
course of the investigation.
The Service advised us in May
of 1999 that a "national review" would be convened. In July of 1999,
we were further advised that this had not occurred. A meeting was
held with the Service in August, where we provided a further
detailing of our concerns with the Service's handling of this case.
The Senior Deputy Commissioner responded in September, rejecting our
recommendation for a national investigation. She finalized the
Service's position in correspondence dated December 23, 1999, which
stated, in part:
The
purpose of investigations is to establish the facts relating to a
specific incident, including the incident's cause and outcome, to
present relevant and timely information that will help prevent
similar incidents and to demonstrate the Correctional Service of
Canada's accountability. In this instance, the video and supporting
documentation clearly indicated deficiencies in the handling of this
incident and an investigation would have provided no further
information likely to prevent further similar incidents. It was
deemed more relevant and important to address corrective measures
through a general review.
I note that this "general
review", which initially did not specifically focus on the incident
in question, and the eventual corrective measures taken occurred
well after the fact.
The second incident occurred
in January, 1999. The Service's policy requires that a copy of the
videotape and supporting documentation be forwarded to this Office
and the Service's NHQ within fifteen days of the incident. This
material was received four months after the incident. On November 2,
1999, we received the results of the Service's NHQ review of the
videotape and documentation, which noted "serious breaches of
policy".
The videotape showed two
inmates being moved to segregation, strip-searched and left naked,
chained to a bed in a cell without a mattress. At one point, an
officer appears to have punched one of the inmates, then turns to
the camera operator and says "turn it off", and the taping stops.
The accompanying documentation raised a number of questions related
to the provision of health care to these inmates. The documentation,
as well, clearly indicated that the Warden had decided, subsequent
to his review, that no investigation was necessary. The Service's
regional headquarters appears to have supported this determination.
The Service's review at NHQ,
while noting "serious breaches of policy," had, as well, not
convened an investigation. On November 12, 1999, this Office
recommended to the Assistant Commissioner, Performance Assurance
that a national investigation be immediately convened to:
- review the Service's actions specific to
this incident, inclusive of the failure to report this incident as
per existing policy; and
- review the Service's level of compliance
with current policies and procedures related to use of force
incidents.
The Service responded on
January 19, 2000, rejecting our recommendation and advising that a
decision had been made to convene a regional investigation into the
circumstances surrounding the incident. This Office responded to the
Assistant Commissioner on January 27, 2000, indicating that the
actions taken by the Service did not address the specifics of our
recommendation or provide any rationale for the Service's decision
to turn the matter back over to the region for further review a year
after the incident. Our response advised that the details of this
case, inclusive of our recommendations, may be included in a Report
by this Office under sections 192 and 193 of the Corrections and Conditional Release Act
inviting further comment from him on any aspect of the case. The
Assistant Commissioner was, as well, advised that the matter had
been referred to my attention for further examination.
Following my examination of
both incidents, I wrote the Commissioner on March 3, 2000
reiterating my Office's findings, and concluding that a national
investigation should have taken place in both cases.
I further found that the
Service's decision to convene a regional investigation into the
second incident was inappropriate, given
- the importance of the issues that I
believe need to be addressed; and
- the fact that certain difficulties and
delays in reasonably managing this incident were caused at the
regional level.
I recommended that a
nationally-convened investigation into the second incident be
undertaken and, in addition to the Service's management of the
specifics of this case, that the investigation include a thorough
review of staff compliance with the law and policy on use of force
and its reporting within the Service.
The Service must ensure that
incidents of excessive force and non-compliance with law and policy
are addressed in an objective, thorough and timely fashion. Both the
law and CSC policy demand this.
The Service has recently put
forth a number of proposals to improve its process of reviewing and
investigating use of force incidents. Policy is pending on videotape
reviews and the convening of investigations. Changes have also been
proposed to the documentation requirements on use of force incidents
to promote accountability.
I nevertheless find that these
incidents, and others that we have examined, disclose the need to
ensure that investigations be carried out in a timely fashion at the
level that most promotes transparency, accountability, and
compliance with legal and policy requirements across the Service.
I hope that the resolution of
these cases and our ongoing discussions with the Service will meet
this goal.
As of May 1, 2000, I have not
received a response from the Commissioner.
DELAY AND LACK OF
COORDINATION IN CSC'S
INVESTIGATIVE PROCESS
The Office received on
November 25, 1998 a copy of a Use of Force Report concerning an
incident that occurred on November 16, 1998. The Report indicated
that the incident had been videotaped and that a Regional
Investigation had been convened "in light of medication being
administered without consent".
The Service's policy requires
that all videotapes are to be forwarded to this Office within
fifteen days of the incident. The videotape was received at this
Office in February of 1999.
In January of 1999, we were
provided with the results of the Service's Security Division Review,
which concluded,
There
was some concern about administering medication (by Hypodermic
needle X2) without inmate's consent. The region convened an
investigation into this aspect of the incident. This is not an issue
regarding Use of Force and therefore, should not be pursued by NHQ
Security Division.
The Office also, in January of
1999, received a copy of the Regional Convening Order dated December
2, 1998 for an investigation into use of force/violation of rights.
The Board of Investigation was to deliver a report by December 31,
1998.
In February of 1999,
subsequent to our review of the videotape, we requested a copy of
the Investigative Report. The Office was advised that "as soon as
the investigation report is made available, it would be forwarded".
The Report was received July 16, 1999, eight months after
the incident.
The Board of Investigation
found that:
the
administration of intra-muscular medication to the inmate, against
his will, was contrary to the provisions of the Corrections and
Conditional Release Act, the Service's policy and the Mental Health Act.
The Board recommended that:
immediate action be taken to ensure all staff
at the treatment facility are knowledgeable of the Mental Health
Act and its provisions.
In addition to the specifics
of this case, a number of more general areas of concern involving
the use of restraints and the involuntary administration of
medication to inmates with mental health problems were forwarded by
this Office to the Service's attention in April of 1999.
The Service's response to both
the specific violations of law and policy identified in the
November, 1998 incident and the associated areas of concern raised
in April of 1999 has been excessively delayed and uncoordinated.
While three divisions at the
Service's National Headquarters--Security, Performance Assurance and
Health Care--were aware in December of 1998 that a regional
investigation had been convened into a use of force/violation of
rights incident involving forced medication, no action was taken to
ensure that Service policy was consistent with the law and
understood by staff in other regions. Security saw it as not their
concern. Performance Assurance and Health Care were waiting for the
completion of the regional investigation.
The regional investigation, which was
convened in December of 1998, was not forwarded to the Service's
National Headquarters until July of 1999, and was not reviewed by
Performance Assurance until September of 1999, ten months after the
incident. Health Care forwarded correspondence to the Region and
Performance Assurance expressing "serious concern about the
incident" in December of 1999, more than a year after the incident.
In January of 2000, this Office received confirmation that action
had been taken on the Board of Investigation’s recommendations
related to the November, 1998 incident. A detailing of this Office's
concerns with the Service's management and follow-up on this matter
was forwarded to the Senior Deputy Commissioner on
January 20, 2000. A meeting was held in February of this
year with senior Correctional Service officials to discuss areas of
concern related to health care treatment situations involving the
use or potential use of force, including those forwarded to their
attention in April of 1999.
A response was received from
the Senior Deputy Commissioner on March 29, 2000, providing the
following:
- CSC recognizes the importance of sharing
with national and regional management, in a timely manner,
information that is collected from the videotapes;
- the Commissioner has emphasized that the
Director General, Security has the authority to review and suggest
corrective actions associated with the use of force that impact on
the safety and security of staff and inmates;
- where force has been used to provide
medical treatment, the video and supporting documents are
forwarded to the Director General, Health Services, for further
review;
- the distribution of the Use of Force
Review Log has been changed to identify issues that have to be
examined by other Divisions, including Deputy Commissioner for
Women, the Director General, Offender Affairs, Investigations and
Health Services;
- a security bulleting on the use of force
involving medical intervention will be finalized by March 31,
2000;
- at the next meeting of the Health Service
Council, scheduled for April, 2000, the Director General, Health
Services will advise the Chiefs, Health Service and Psychology to
include in their statement of qualifications a requirement for
knowledge of Provincial Mental Health Acts;
- a review of Institutional policies
relating to consent and involuntary treatment to ensure that they
reflect the law (CCRA) and a review of
Health Service's policy and provincial mental health legislation
will be completed by March 31, 2000; and
- the provisions of training on the
relevant Provincial Mental Health Acts is now provided in all CSC
mental health facilities.
I am hopeful that the
above-noted policy and procedural changes will assist in ensuring
that significant breaches of law and policy are both identified and
acted upon in a coordinated, objective, thorough and timely fashion.
ACCESS TO
TRADITIONAL ABORIGINAL HEALERS (POLICY INERTIA)
A number of concerns were
raised with this Office relating to the absence of clear policy
relating to inmate access to Traditional Aboriginal Healers. The
Correctional Service of Canada's Health Service's Manual under the
heading Health Needs Of The Aboriginal Offender states:
All
health professionals shall be aware of the useful and complementary
role that traditional medicine can play in the rehabilitation of the
offender and shall be encouraged to seek counsel of elders and
native liaison workers, as appropriate.
In March of 1998, we wrote to
the Aboriginal Issues Branch at CSC National Headquarters, asking if
the Service had a specific policy regarding access to Traditional
Healers. We were advised in April of 1998 that the matter raised
relates to more than one policy: "I shall consult with my colleagues
and write again with a reply to your query".
In June of 1998, in referring
to the above noted section of the Health Services Manual, the Office
was told that the "Manager, Health Services Operations, Policy and
Administration, advised all regional officials responsible for
Health Services to ensure that this issue is discussed at their
regular meeting with the Chief Nurses in order to increase staff
awareness of this policy and to identify training needs that may be
needed". The Health Services Manager’s memo to regional officials
reads, in part: "at this time, I have no reading on how this
(Service policy) has been translated into practice in the field".
On September 1, 1998, the
Office was advised that "[i]n order to ensure that this issue is
addressed nationally, the Manager, Health Services, has included
CSC's policy on Aboriginal healers as an agenda item at the upcoming
meeting of the Health Services Council which has two delegates from
each region. A representative from Aboriginal Programs has also been
invited to attend this meeting which is scheduled for late November
1998".
On December 17, 1998, this Office wrote to
the Service, asking to be advised of the results of the Health
Services Council's review of this issue. On January 20, 1999, we
were provided with a copy of an Issue Sheet designed to promote and
direct discussions and decisions on this issue. We were, as well,
advised at that time that "[u]nfortunately, the heavy agenda for the
meeting [of the Health Services Council] required that the issue be
postponed to the next meeting of the Council, which is scheduled for
February". This Office wrote to the Service in March of 1999,
requesting to be advised of the results of the Council's discussions
in February. The Service responded in May of 1999, providing a
detailing of its ongoing consultations, and concluding that they
estimated "that the thorough consultation process required for this
matter will not have reportable results until September of the
current year".
The Office wrote again in
October, 1999, asking to be provided with the results of their
consultation process. A response was received from the Service in
December of 1999, saying, "our objective remains the facilitation of
reasonable access to healers; however, our research and analysis
have revealed a number of factors that must be addressed in the
resolution of this issue….To bring about resolution of this matter,
I have been advised that a member of the Aboriginal Issues Branch
will consult with a cross-section of Elders and Service providers in
Aboriginal communities and identify factors that must be considered
in developing options for providing the desired safe access, as well
as the sensitive mater of compensation. That consultation will be
completed by the end of February 2000. Consultation with
Correctional Service staff will follow with the objective of
distributing policy proposals to the Executive Committee by the end
of April 2000".
Further correspondence was
received from the Service. Dated March 30, 2000, the correspondence
stated, in part, "[d]ue to budgetary constraints, the travel
required to conduct these consultations has been extended into the
next fiscal year. This contingency, together with the immense
complexity and sensitivity of the issue, has resulted in our
extending the completion of this project to the spring of 2001".
This "project" has now
extended through three fiscal years. Two years after raising the
issue, the Service still has no policy on the matter, and the
offenders still do not have reasonable access to Traditional
Aboriginal Healers.
CONCLUSION
I have attempted in this
Annual Report to bring both a clear focus to those systemic areas of
concern raised by offenders, and to provide examples of individual
areas of concern and the protracted process involved in addressing
those concerns.
It is important for all
parties to appreciate that the Correctional Investigator is neither
an agent of the Correctional Service of Canada, nor the advocate of
every complainant or interest group that lodges a complaint. The
Office's mandate is to investigate complaints from an independent
and neutral position, to consider thoroughly the Service's action
and the reasons behind it, and to either endorse or explain that
action to the complainant, or, if there is evidence of unfairness,
to make appropriate recommendations concerning corrective action.
The interest of the Correctional Investigator lies in ensuring that
offender concerns are objectively and fairly addressed in a timely
fashion. This interest cannot be met without a consistent level of
responsiveness on the part of the Correctional Service to these
concerns that is and is seen to be fair, open and accountable. The
Service's responses to offender concerns, raised by this Office,
continue to be excessively delayed, overly-defensive and absent of
commitment to specific corrective action.
STATISTICS
TABLE A CONTACTS (1) BY CATEGORY
|
CASE TYPE |
CATEGORY |
I/R (2) |
INV (3) |
TOTAL |
Administrative
Segregation |
|
|
|
Conditions |
24 |
33 |
57 |
Placement/Review |
91 |
90 |
181 |
Total |
115 |
123 |
238 |
Case Preparation |
|
|
|
Conditional Release |
164 |
174 |
338 |
Post Suspension |
36 |
39 |
75 |
Temporary Absence |
43 |
64 |
107 |
Transfer |
85 |
126 |
211 |
Total |
328 |
403 |
731 |
Cell Effects |
115 |
103 |
218 |
Cell Placement |
45 |
18 |
63 |
Claims Against the
Crown |
|
|
|
Decisions |
24 |
17 |
41 |
Processing |
40 |
23 |
63 |
Total |
64 |
40 |
104 |
Community
Programs/Supervision |
4 |
4 |
8 |
Conditions of
Confinement |
79 |
37 |
116 |
Correspondence |
53 |
24 |
77 |
Death or Serious
Injury |
4 |
1 |
5 |
Discipline |
|
|
|
ICP Decisions |
20 |
12 |
32 |
Minor Court Decisions |
12 |
9 |
21 |
Procedures |
58 |
22 |
80 |
Total |
90 |
43 |
133 |
Diet |
|
|
|
Medical |
14 |
15 |
29 |
Religious |
12 |
5 |
17 |
Total |
26 |
20 |
46 |
Discrimination |
23 |
12 |
35 |
Employment |
57 |
34 |
91 |
File Information |
|
|
|
Access -
Disclosure |
59 |
50 |
109 |
Correction |
214 |
39 |
253 |
Total |
273 |
89 |
362 |
Financial Matters |
|
|
|
Access |
26 |
28 |
54 |
Pay |
94 |
39 |
133 |
Total |
120 |
67 |
187 |
Food Services |
14 |
4 |
18 |
Grievance
Procedure |
67 |
66 |
133 |
Health and
Safety--Inmate Worksites/Programs |
3 |
2 |
5 |
Health Care |
|
|
|
Access |
149 |
219 |
368 |
Decisions |
142 |
109 |
251 |
Total |
291 |
328 |
619 |
Mental Health |
|
|
|
Access |
10 |
19 |
29 |
Programs |
5 |
8 |
13 |
Total |
15 |
27 |
42 |
Official
Languages |
7 |
11 |
18 |
Operation/Decisions of
the OCI |
10 |
5 |
15 |
Other |
9 |
2 |
11 |
Penitentiary
Placement |
39 |
15 |
54 |
Programs |
|
|
|
Access |
94 |
89 |
183 |
Quality/Content |
31 |
28 |
59 |
Total |
125 |
117 |
242 |
Release
Procedures |
10 |
9 |
19 |
Safety/Security of
Offender(s) |
48 |
39 |
87 |
Search and
Seizure |
14 |
6 |
20 |
Security
Classification |
67 |
48 |
115 |
Sentence
Administration-- Calculation |
28 |
19 |
47 |
Staff
Responsiveness |
231 |
71 |
302 |
Telephone |
52 |
52 |
104 |
Temporary Absence
Decision |
32 |
36 |
68 |
Transfer |
|
|
|
Decision—Denials |
111 |
96 |
207 |
Implementation |
19 |
52 |
71 |
Involuntary |
148 |
65 |
213 |
Total |
278 |
213 |
491 |
Urinalysis |
26 |
12 |
38 |
Use of
Force |
9 |
17 |
26 |
Visits |
|
|
|
General |
108 |
132 |
240 |
Private Family Visits |
90 |
96 |
186 |
Total |
198 |
228 |
426 |
Outside
Terms of Reference |
|
|
|
Conviction/Sentence—Current
Offence |
15 |
- |
15 |
Immigration/Deportation |
10 |
- |
10 |
Legal Counsel--
Quality |
1 |
- |
1 |
Outside Court--
Access |
19 |
- |
19 |
Outside
Litigation |
15 |
- |
15 |
Parole Decisions |
30 |
- |
30 |
Police Actions |
9 |
- |
9 |
Provincial Matter |
14 |
- |
14 |
GRAND TOTAL …………………. |
3082 |
2345 |
5427 |
1. See Glossary 2. I/R: Immediate Response - see Glossary
3. INV: Investigation - see Glossary
GLOSSARY
Contact: |
Any transaction
regarding an issue between the OCI and an offender or a party
acting on behalf of an offender. Contacts may be made by
telephone, facsimile, letter, and during interviews held by
the OCI's investigative staff at federal correctional
facilities. |
Immediate Response: |
A contact where the
information or assistance sought by the offender can generally
be provided immediately by the OCI's investigative
staff. |
Investigation: |
A contact where an
inquiry is made to the Correctional Service and/or
documentation is reviewed/analyzed by the OCI's investigative
staff before the information or assistance sought by the
offender is provided.
Investigations vary
considerably in terms of their scope, complexity, duration and
resources required. While some issues may be addressed
relatively quickly, others require a comprehensive review of
documentation, numerous interviews and extensive
correspondence with the various levels of management at the
Correctional Service of Canada prior to being
finalized. |
TABLE B CONTACTS BY
INSTITUTION
Region/Institution |
# of contacts |
# of interviews |
# of days spent in institution |
FSW |
|
|
|
Edmonton Women's
Facility |
34 |
30 |
6 |
Regional Reception Centre
(Québec) |
10 |
6 |
1 |
Grand Valley |
30 |
24 |
4 |
Isabel McNeill House |
6 |
4 |
3 |
Joliette |
105 |
55 |
13 |
Okimaw Ohci Healing Lodge |
7 |
4 |
3 |
Nova |
45 |
20 |
5 |
Prison for Women |
40 |
26 |
5 |
Regional Psychiatric Centre
(Prairies) |
24 |
12 |
5 |
Saskatchewan Penitentiary |
41 |
22 |
7 |
Springhill |
20 |
6 |
4 |
Region
Total |
362 |
209 |
56 |
MARITIMES |
|
|
|
Atlantic |
359 |
168 |
11 |
Dorchester |
252 |
120 |
9 |
Springhill |
152 |
65 |
5 |
Westmorland |
67 |
26 |
4 |
Region
Total |
830 |
379 |
29 |
ONTARIO |
|
|
|
Bath |
71 |
43 |
6 |
Beaver Creek |
19 |
15 |
4 |
Collins Bay |
167 |
130 |
13 |
Fenbrook |
68 |
59 |
7 |
Frontenac |
45 |
43 |
4 |
Joyceville |
132 |
46 |
8 |
Kingston Penitentiary |
251 |
78 |
8 |
Millhaven |
51 |
44 |
6 |
Pittsburgh |
15 |
5 |
3 |
Regional Treatment Centre |
33 |
16 |
3 |
Warkworth |
129 |
94 |
8 |
Region
Total |
981 |
573 |
70 |
PACIFIC |
|
|
|
Elbow Lake |
10 |
4 |
4 |
Ferndale |
32 |
11 |
3 |
Kent |
164 |
84 |
7 |
Matsqui |
29 |
23 |
7 |
Mission |
83 |
58 |
7 |
Mountain |
60 |
43 |
6 |
Regional Health Centre |
49 |
33 |
5 |
William Head |
75 |
50 |
8 |
Region Total |
502 |
306 |
47 |
PRAIRIE |
|
|
|
Bowden |
330 |
146 |
16 |
Drumheller |
194 |
85 |
14 |
Edmonton |
228 |
161 |
15 |
Grande Cache |
100 |
73 |
7 |
Pê Sâkâstêw Centre |
45 |
29 |
5 |
Regional Psychiatric Centre |
119 |
68 |
6 |
Riverbend |
31 |
14 |
4 |
Rockwood |
30 |
5 |
2 |
Saskatchewan Penitentiary |
232 |
114 |
10 |
Stony Mountain |
167 |
31 |
2 |
Region Total |
1476 |
726 |
81 |
QUÉBEC |
|
|
|
Archambault |
161 |
57 |
7 |
Cowansville |
64 |
44 |
7 |
Donnacona |
128 |
83 |
8 |
Drummondville |
54 |
18 |
5 |
Federal Training Centre |
72 |
53 |
6 |
La Macaza |
113 |
99 |
8 |
Leclerc |
184 |
119 |
12 |
Montée St-François |
29 |
20 |
5 |
Port Cartier |
225 |
142 |
15 |
Regional Reception Centre/SHU
Québec |
67 |
20 |
5 |
Ste-Anne des Plaines |
34 |
15 |
3 |
Region Total |
1131 |
670 |
81 |
GRAND TOTAL…………. |
5282* |
2863 |
364 |
* Excludes 88 contacts in
CCC's and CRC's and 57 contacts in provincial institutions
TABLE C COMPLAINTS AND INMATE POPULATION - BY
REGION
Region |
Total number of
contacts (*) |
Inmate Population
(**) |
Maritimes |
858 |
1141 |
Québec |
1135 |
3285 |
Ontario |
998 |
3424 |
Prairies |
1525 |
3209 |
Pacific |
506 |
1733 |
TOTAL ………………. |
5022 |
12792
| (*)Excludes 405 contacts from CCC/CRC's
and FSW facilities.
(**)As of 13 March 2000,
according to April, 2000 Performance Measurement Report issued by
the Correctional Service of Canada.
TABLE D DISPOSITION OF CONTACTS BY CASE
TYPE
CASE TYPE |
DISPOSITION |
# OF COMPLAINTS |
Immediate
Response |
Information given
…….. |
1236 |
|
Outside mandate
…….. |
113 |
|
Pending …………….. |
45 |
|
Premature…………….. |
878 |
|
Referral ……………….. |
599 |
|
Withdrawn………………. |
261 |
Total |
|
3132 |
Investigation |
Assistance given
………... |
468 |
|
Information given
……….. |
584 |
|
Pending ……………….. |
128 |
|
Premature …………….. |
92 |
|
Referral ……………….. |
297 |
|
Not justified
…………… |
304 |
|
Resolved ……………… |
322 |
|
Unable to Resolve
……… |
46 |
|
Withdrawn ……………. |
54 |
Total |
|
2295 |
GRAND TOTAL |
|
5427 |
MEMORANDUM OF
UNDERSTANDING between THE OFFICE OF THE CORRECTIONAL INVESTIGATOR and THE CORRECTIONAL
SERVICE OF CANADA
PURPOSE OF
MEMORANDUM OF UNDERSTANDING
This memorandum of
understanding (MOU) describes the framework and protocol for the
working relationship between the Office of the Correctional
Investigator (OCI) and the Correctional Service of Canada (CSC). It
provides a structure for interaction between the two agencies during
the course of the OCI’s investigations into offender concerns. This
document reflects a shared understanding of, and commitment to,
establishing a cooperative and productive working relationship that
may facilitate the timely resolution of offender concerns. The CSC
and the OCI believe that openness, good faith, respect, cooperation
and effective communication characterize a good working
relationship.
The CSC and the OCI recognize
and respect the different mandates, roles and functions of their
respective agencies. The Mission Document affirms that CSC is
committed to working cooperatively with the OCI and that CSC will be
open and responsible in all interactions with the OCI. The OCI
shares the commitment to working cooperatively, and with openness
and responsibility, when dealing with the CSC. It is recognized that
there will be issues where there will be fundamental disagreement.
Nevertheless, the parties believe that the timely resolution of
offender problems is almost always attainable within the context of
the mission of both agencies.
The procedures outlined in
this document will ensure that the following objectives are met:
- that the CSC provide accurate information
in a timely manner to the OCI in response to requests which stem
from matters under the OCI's jurisdiction. The information will be
provided in either electronic or in hard copy format;
- that timely corrective action in relation
to valid offender concerns is taken by the CSC; and
- that both agencies are committed to the
clear and objective identification of offender concerns and the
early resolution and closure of issues of concern to offenders.
MANDATES
The mandates of each agency
are outlined in the Corrections and
Conditional Release Act (CCRA).
ROLE OF THE CORRECTIONAL INVESTIGATOR
OMBUDSMAN
The parties recognize that the
role of the OCI is inquisitorial and not adversarial. The OCI’s
mandate as outlined in the CCRA is to
gather information pursuant to a complaint by an offender or
pursuant to an investigation or on the initiative of the CI. This
information is then analyzed and presented in an objective and
thorough fashion without any predisposition with respect to the
position of the Service or the complainant in any given
investigation. It is only after an investigation is completed that
the OCI will adopt a position with respect to the resolution of a
problem. The interest of the OCI is in arriving at reasoned and
supportable findings with respect to the problem, whether or not
these support the complainant or the Service, in order to achieve
timely resolution of offender problems.
The parties are aware that the
OCI process operates notwithstanding any other investigative or
judicial process and that the CCRA
contains provisions that protect information acquired during OCI
investigations from disclosure in other proceedings.
Accordingly, given the
distinct nature of the OCI’s relationship with the CSC, as compared
to that of persons or organizations outside the Public Service who
interact with the CSC in other contexts, the OCI and the CSC agree:
- that in reporting findings and
recommendations to the CSC, the OCI make its best effort to ensure
that reports are complete and reasoned and contain all of the
information, analysis and submissions that are necessary to
understand the case;
- that the findings and recommendations of
the OCI will be reviewed by the CSC in an open and non-adversarial
fashion, irrespective of the CSC’s treatment of the applicable
facts and circumstances in other investigative or litigious
contexts; and
- that the OCI will be conscious of this
undertaking in observing the provisions of the CCRA with respect
to disclosure of information.
In accordance with the
mandates of each agency, the CSC and the OCI have agreed on the
following protocols to guide their working relationship.
COMMUNICATION
A. The Process of Communications
The following principles will
govern communication between the parties:
- the CSC has the statutory right and
obligation to manage its own affairs, including the maintenance of
a coordinated and informed approach to communication with the OCI;
- during the course of an investigation,
the OCI has the statutory right and obligation to require any
person to provide information with respect to matters under
investigation, that in the opinion of the OCI the person may be
able to provide;
- for the purpose of timely resolution of
offender problems, and of managerial accountability, findings and
recommendations submitted by the OCI shall be treated by the CSC
official(s) with the authority and responsibility to respond to
the issue; and
- for the purpose of timely and coordinated
responses from the CSC to the OCI, the OCI will generally
correspond through the office of the DGOA, except as otherwise
indicated in this Agreement.
With these principles in mind
and to enhance effective communication, the parties will communicate
in writing as follows:
1. Correspondence to the
Commissioner will be signed by the Correctional Investigator, and
vice versa.
2. OCI staff other than the
Correctional Investigator may correspond with any CSC official they
deem appropriate, other than the Commissioner, but will copy
National Headquarters level correspondence to the Office of the
DGOA. The CSC Official in question will respond to the OCI unless
the Service determines that another Official with analogous line
authority over the matter should respond instead or should share in
the response.
3. Subject to the above, the
OCI will normally correspond with the Service, as follows
- When requesting information from the
Service , OCI will direct inquiries as follows:
- Investigators:Institutional and Parole
Office staff including institutional heads;
Regional staff other than Deputy
Commissioners and Assistant Deputy Commissioners; and the Office
of the DGOA, and staff at National Headquarters below the level of
the DGOA.
- Executive Director, Legal Counsel,
Directors of Investigations and Coordinators of Aboriginal and FSW
Issues:
The staff set out above, the
Regional Assistant Deputy Commissioners and Regional Deputy
Commissioners, the Deputy Commissioner for Women and the Director
General Offender Affairs
- When reporting findings and
recommendations on an investigation to a CSC Official at National
Headquarters, OCI staff may correspond directly with the official
who has authority over the matter.
B. Meetings
The parties agree to schedule
regular business meetings to discuss issues of concern, the agendas
of which shall be a collaborative effort between the two agencies.
In particular, the Executive Director of the OCI and the Director
General, Offender Affairs, will make best efforts to meet at least
every two months.
During the course of
investigating an offender-related issue, the OCI shall first deal
with the head of the institution/parole office or applicable staff
members unless the subject-matter is one which is under discussion
or subject to decision at a higher level or one which has been
previously resolved.
During the course of
investigating an issue, both agencies have the right to refer an
issue to a higher level within the other agency, if resolution is
not forthcoming or if the decision at issue was taken at the higher
level. If either agency chooses this course of action, they shall
first provide written notification to the other agency. Written
notification shall normally be provided to the level at which the
issue is being investigated.
C. Content and
Timeframes of Communications
i) General provisions on time frames and
requests for information
- Each agency shall respond to the other’s
inquiries, requests, findings and recommendations in a timely
manner, but normally within 30 days. If the receiving agency
cannot meet its time frame, the requesting agency shall be
provided with an interim response outlining steps taken to date
and providing a target date for the final response. The requesting
agency may refer an overdue matter to a higher level of the other
agency and so inform the intended respondent.
- Requests from both agencies shall
normally be provided in writing and shall provide clear and
precise details regarding the type of information requested.
ii) Specific information requests
- Requests for draft reports of CSC’s
national investigations shall be submitted in writing from the
Correctional Investigator to the Commissioner.
- The CSC Official designated to respond to
OCI requests for legal opinions is the Assistant Commissioner
Corporate Development.
iii) Informing the Service of findings and
recommendations
The method of informing the
CSC of findings and recommendations will be in accordance with
sections 170-180 of the CCRA.
Upon notification by the OCI
of a concern or upon receipt of recommendations, the CSC shall
respond to the OCI on a timely basis. The response will include
background information and statistics relevant to the matter under
review. The CSC may consult with the OCI to determine the corrective
action that will be taken upon investigation of the problem.
Upon receiving CSC’s response
and/or corrective action to a problem, the OCI shall acknowledge the
CSC’s response and shall provide the CSC with an assessment of the
response and/or corrective action.
-
- Specific
provisions on statutory reports:
With respect to ss. 177-179 of
the CCRA, the OCI shall present the
Commissioner with a clear and concise description of a problem(s)
and subsequent recommendations. Background information and other
relevant data gathered by the OCI during the course of their
investigation shall also be provided at the same time to assist the
CSC to respond to the problem or recommendation in a meaningful way.
On receipt of a report under
ss. 177-179 of the Act, the Service may, normally within one week,
seek clarification of any information contained in the report and
the OCI will provide this as soon as possible, normally within one
week.
The normal time frame for a
response to a report under ss. 177-179 shall be 30 days, unless the
parties agree to a longer period. If it appears that the Service
will not be able to respond within the normal or agreed-upon period,
the Service will notify the OCI of this and provide reasons for the
delay. Where the Service does not respond within the normal period
or any agreed-upon period, the OCI may decide to refer the matter
under s. 180 and, if so, will inform the Service of their intent to
do so.
With respect to s. 180 of the
CCRA, in the event that the CI refers an
issue of concern to the Minister, the CI shall notify the
Commissioner of their intention to refer the matter. Similarly, the
Commissioner shall also notify the CI of his intention to refer a
matter to the Minister.
REVIEW OF DISPUTES AND CLOSURE OF
INVESTIGATIONS
Before the OCI issues findings
and recommendations on a matter to the Commissioner, the Minister or
Parliament, as applicable, the OCI may decide, or the parties may
agree, that an attempt should be made to bring closure to the
matter.
The meaning of "closure"
"Closure" refers to an
agreement between the parties with respect to the measures, if any,
which the Service will take to resolve a problem of offenders. Based
upon this agreement: a) the OCI refrains
from making further inquiries, findings or recommendations on the
matter until new circumstances occur which permit the matter to be
re-opened; and b) offenders may seek
expedited redress in order to benefit from the Service's
undertakings.
Note: Circumstances permitting
re-opening of a matter include those described in this MOU and those
to which the parties may specifically agree at the time of closure.
No closure agreement can
supersede the OCI's statutory obligation to report findings and
recommendations where it determines that a problem of offenders
exists, or persists.
Accordingly, even after
closure has been attained, the OCI may take further steps on the
matter in question if it becomes clear: a)
that the Service's solution is not being effectively implemented or
is not resolving the issue; or b) that
matters on which the OCI has agreed to forego further action are
giving rise to problems that must be addressed.
To the extent that agreed-upon
solutions are inadequate or not implemented, or that an incomplete
or premature resolution occurs, real closure will not be achieved.
From this perspective, closure means describing circumstances which
will maximize the period during which the parties may realistically
set aside a matter under investigation.
Terms of closure agreements
The parties will make their
best efforts to apply the following principles in bringing
resolution to a matter:
- no problem, or element of a problem,
should remain unresolved where it can be addressed through open,
thorough discussion and review;
- no problem is, in fact, resolved if
offenders continue to experience the problem notwithstanding the
purported solution;
- points of agreement on resolving problems
should be maximized, even where complete agreement is not
achieved;
- all agreed-upon solutions should be
implemented in an effective, timely and reliable fashion;
- areas of disagreement should be
re-visited only in circumstances where this is reasonable and
useful to both parties, or necessary in order for the OCI to
fulfil its mandate; and
- abiding by the terms of agreement
necessarily implies that new complaints which indicate that
offenders have not benefited from the solution must be addressed
immediately.
With these principles in mind,
before closing a matter, the parties will attempt to draft closure
terms including, but not restricted to, the following provisions:
- an outline of the information, issues,
findings and recommendations upon which the parties agree, or
disagree;
- with respect to points of agreement, the
measures which the Service will take to implement resolution of
the matter, expressed in measurable, operational terms, with
time-frames for accomplishing resolution and means of evaluating
results at identified junctures;
- the role, if any, of the OCI in this
process;
- with respect to points not agreed upon,
the circumstances, if any, under which these may be re-visited and
when/how this may occur*;
- the information on the above which will
be communicated to offenders and identified staff of each party
and the means of ensuring effective communication; and
- the level at which complaints or
grievances based upon the agreement may be lodged and the measures
taken to ensure that these will be addressed in a timely fashion.
*Note: In considering the
re-opening of a matter, an important factor will be the extent to
which a problem reoccurs despite the solution which has been
identified and implemented.
The parties may agree to
divide the matter and to bring closure to some elements while
allowing the OCI to proceed with a report on other elements.
Review of Disputes
The parties may decide to
attempt resolution of points on which agreement has not been
achieved by agreeing to the non-binding mechanisms which follow, or
to any others that they deem appropriate:
- Mediation, facilitation , non-binding
arbitration or other alternative dispute resolution mechanism
- Review by an expert from outside the
parties, the department, or the government
- Joint on-site investigation at the
location where the problem arose
- Formal or informal hearings
- Supplementary research
- Consultation with persons and
stakeholders
The Officials authorized to
undertake such measures are:
- Prior to the submission of a report to
the Commissioner under s. 177, the Director-General of Offender
Affairs and the Executive Director of the OCI.
- Prior to submission of a report to the
Minister under s. 180, the Commissioner and the Correctional
Investigator.
- Prior to the submission of a Report to be
tabled in Parliament, the Commissioner and the Correctional
Investigator, in consultation with the Minister.
- Any costs incurred in such procedures
will be shared between the OCI and the CSC.
Time frames for closure
The parties will attempt to
complete the process of closure within 30 days.
Where either party concludes
that the closure process will not effectively resolve the matter,
either party may terminate the procedure. Before doing so, it may
issue a final proposal for closure of the matter. Within one week,
or at an agreed-upon later date, the other party may produce its own
final proposal.
At this juncture, if agreement
is still not attained, the final proposals of the parties and any
other joint record that was produced (including records of
dispute-settlement attempts) may be referred to by either party in
the context of subsequent reports by the OCI.
Re-opening of a matter
Matters on which closure is
achieved, and substantially similar matters, will remain closed and
the parties will abide by the terms of closure until:
- the terms of the closure agreement permit
re-opening;
- a substantial or urgent change in
circumstances occurs which necessitates re-opening of the
matter**;
- it becomes clear to the OCI that the
problem of offenders in question has become, or remains, a matter
of substantial concern;
- the parties agree to re-open the matter.
**Note: "substantial change of
circumstance" includes, without limiting the generality of the
expression:
- a significant change in the law or the
Service's policy or practice with respect to the matter; or
- a major incident or an incident involving
serious injury or death to which the policies, practices or law
contained in the closed matter are relevant and at issue.
Where the OCI decides to
re-open a matter, it will inform the Service in writing of its
decision, and of the reasons for this. Within one week, or other
agreed-upon period, the Service may respond to the decision. The
record of this exchange will form a part of any subsequent report on
the matter.
Expedited Redress
Where a matter has been
closed, the Service will communicate the terms of the closure
agreement to all institutions and Parole Offices and will ensure
that offenders have the opportunity to be apprised of the agreement.
Thereafter, where an offender experiences a problem that the parties
intended to resolve in the agreement, he/she may make use of the
grievance procedure, or may address his/her complaint directly to
the OCI based on the terms of the agreement. The complaint or
grievance may be lodged at the level to which the parties agreed
within the closure agreement.
CONSULTATION
The CSC may consult with the
OCI and/or the OCI may make unsolicited or ad hoc recommendations to
the CSC on proposed or existing offender-related policies or any
amendments thereto. The CSC shall direct requests for feedback to
the Executive Director of the OCI and outline a time frame for
providing feedback. The OCI will inform the CSC if it does not wish
to provide feedback or of any expected delay in providing written
feedback. The CSC will give consideration to the recommendations of
the OCI.
The CSC may request the OCI's
participation on working groups or task forces. The Service will
notify the OCI of upcoming working groups or task forces in which
the OCI may wish to participate. Where the CSC has requested such
participation, participation or contribution by the OCI shall not be
construed as full endorsement of any or all of the findings and
recommendations arising from the collaborative effort.
ANNUAL REPORT PROCEDURES
The parties recognize the
importance of attempting to resolve matters which may be included in
the Annual Report of the OCI. They concur that, if complete
resolution is not possible, the positions and undertakings of the
parties respecting their interactions to date and the steps to be
taken in future should be reflected in the Annual Report. This will
permit the Correctional Investigator to provide informed findings
and recommendations on all subjects.
To these ends, in a given
reporting year:
- Except as otherwise indicated in this
section, the normal procedures, time frames and other rules
indicated in this agreement will govern the parties. In
particular, the parties will attempt to reflect the closure and
dispute settlement procedures included in this agreement in their
consideration of Annual Report matters.
- At any time during the reporting year
that the OCI determines that it may report on a matter in the
Annual Report, it will indicate this to the Service when it
provides findings, recommendations and supporting information on
the matter.
- Before the end of March, the OCI will
update the Service in writing on its position on matters raised
under paragraph 1 and will similarly apprise the Service of any
other items that it intends to raise in the Annual Report. The
Service will provide any response in writing before the end of
April.
- When providing information findings and
recommendations on any matter under paragraphs 1, 2 and 3 the OCI
where applicable, will provide notice pursuant to s. 195.
- The OCI will provide its report to the
Minister, with copy to the Commissioner of Corrections before the
end of June. The Report will contain a fair and accurate depiction
of the Parties' comments and positions on each subject, including,
as applicable, information on closure and dispute-settlement
attempts.
- The Correctional Investigator and the
Commissioner of Corrections will normally meet, with appropriate
staff, in early May to review their positions on Annual Report
items and to attempt to resolve as many matters as possible in
line with the closure provisions of this agreement. They may also
agree to meet at other times to the same end. The Executive
Director of the OCI, or his delegate[s], may meet with the DGOA,
the CSC managers to whom the OCI would normally address findings
and recommendations, or other appropriate CSC staff, in order to:
- prepare for meetings between the Agency
Heads;
- implement agreements arising from the
meeting; and
- otherwise facilitate the Annual Report
process.
COMMUNICATION WITH OFFENDERS
- The CSC shall assist the CI to
communicate the functions of the OCI through avenues such as the
initial institutional orientation for inmates, the offender
handbook, information pamphlets on access to the grievance process
and informal networking with inmate committees.
INFORMATION AND RESOURCES
- The CSC shall provide the OCI with access
to some of CSC’s electronic information systems. Details and
paramaters describing the access to information systems are
outlined in a separate Letter of Understanding on Access to
Electronic Information.
- The CSC shall share with the OCI, on a
regular basis, any status reports on Commissions of Inquiry and
Task Force Recommendations as they relate to the OCI’s mandate.
FINANCIAL COSTS RELATED TO AGREEMENT
- The parties agree they are responsible
for bearing their own costs related to the administration of this
agreement.
DURATION OF AGREEMENT
- This memorandum of understanding shall
commence on, and take effect from the date on which it is signed
and shall remain in force unless terminated by either party in
accordance with the termination clause.
TERMINATION OF AGREEMENT
- Either party, upon 30 days written
notification to the other party, may terminate this agreement.
AMENDMENTS
- This agreement may be amended at any time
by mutual written consent.
APPENDIX B
CORRECTIONAL SERVICE COMMENTS OF JUNE 12, 2000
On
May 23, 2000 our Office provided the Commissioner of Corrections
with a copy of our draft Annual Report.
Virtually all of the information in the Report had already been
brought to the Service's attention in last year's Annual Report or
in letters and reports that we sent to the Service during the
reporting year. In our view the Service had had the opportunity to
make representations on this information, consistent with the
requirements of s. 195 of the CCRA.
Nevertheless, the Service communicated further responses on June 12,
2000. These are reproduced below.
The following comments are
made with respect to s. 195 of the CCRA.
I was disappointed to note
that the Annual Report often characterizes facts, opinions and
comments in a substantially different way than that which was
reflected in the individual Correctional Service of Canada (CSC)
communication. Where and when portions of selected responses from
the Service have been included, they are sometimes inadequate in
conveying the substance and intent of the Service's position. Due
regard for financial and other considerations often formed a
significant part of the Service's position and have not been
reflected in the Report.
Inmate
Pay-- Millennium Telephone System Your
suggestion that CSC subsidize the cost of inmate telephone calls
pending the completion of the contract tendering process for a new
service provider has not been raised with the Service prior to this
draft Report. For your information, the tendering process has been
completed and the agreement with the new provider is expected to be
signed in June. I note that CSC currently bears the entire cost of a
significant number of inmate telephone calls by allowing the use of
administrative telephones in special circumstances.
Inmate
Grievance Procedure With respect to
delays at the complaint and first level stages, the Assistant
Commissioner, Corporate Development, issued data reports for 1998/99
containing graphs depicting the average completion rates for these
levels. The overwhelming majority of institutions reported average
completion rates that were well within the stipulated timeframes.
The average completion rate for institutional complaints was
reported at 14 days and for first level grievances, 15 days. The
graphs measured performance over the last five years. During
1999/2000, 12 per cent of complaints and 16 per cent of first level
grievances were late. A total of 577 complaints and 153 first level
grievances (4 per cent and 5 per cent of the overall totals
respectively) were completed more than 25 days beyond the due date.
While this record could be improved, these figures do not reveal a
systemic problem. The only area of concern noted was in grievances
at the second level in two regions. This has been addressed with the
regions involved.
Transfers You have
suggested that CSC "immediately initiate an evaluation of the
effectiveness" of the new transfer procedure. As this procedure was
implemented as recently as October, 1999, I would suggest that it is
premature to "immediately initiate" an evaluation. Furthermore, I
note that your concerns for the transfer process are not generally
reflected by the Service's relative success in defending individual
court challenges to the process.
Use of
Force In your report, you include a
portion of a "recent CSC internal memorandum" that commented on a
use of force incident that "underscores the fact that there are
serious problems with respecting basic rights of inmates". I note
that this comment, which lacks context, is being generally
characterized as the Service's position rather than an expression of
the author's opinion.
In addition, I take exception
to your generalization that "senior line managers do not see
themselves as either responsible or accountable for ensuring
compliance with law and policy". Senior line management takes action
to address issues raised using various accountability mechanisms
such as discussing issues at Executive Committee meetings, training
of staff, and using the principles of progressive discipline where
appropriate.
Please note that the use of
force interim policy was promulgated on May 26, 2000.
Suicides I now
refer to your comment that "the reality of the Service's
uncoordinated and ineffective approach to the early identification
and treatment of potentially suicidal individuals was tragically
evident recently at the FSW unit at Saskatchewan Penitentiary". This
reference to a specific incident should not be interpreted as
demonstrating a general state of affairs. To do so is unfair and
unreasonable in the context of the Annual Report. Furthermore, it
would appear that this comment is based on information gleaned from
a draft National Investigation Report, in circumstances where a
Coroner's Inquest is pending, and misstates the tentative findings
and conclusions of the Board of Investigation.
Inmate
Injuries and Investigations In the Case
Summaries section of your draft Report, you note your belief of what
Parliament had in mind when it enacted s. 19. You suggest that
Parliament "intended to include a broader range of cases than those
covered by the Service's definition. This issue is not the clinical
nature of the injuries so much as their seriousness, as a matter of
monitoring and preventing injuries that denote significant
violations of offenders' entitlement to safe and human custody and
of their right to security of the person under the Constitution."
Your interpretation of the intent of the legislation does not
elaborate on what information your belief is based on.
Furthermore, under the heading
"Investigations", you state that "the current definition of serious
bodily injury, as applied by the Service, was inconsistent with both
the legislation and any reasonable person's concept of what
constitutes a serious bodily injury." I would like to stress that
the Service's definition of serious bodily injury is based on the Criminal Code and other related
definitions. CSC is not prepared, at this time, to revisit this
definition.
The draft Report obtusely
mentions the Service's protocol to identify when an inmate has
sustained a Serious Bodily Injury (SBI) and how to record this
information in the Security Incident Report. This comment does not
adequately reflect the intent of the protocol and the implementation
of the new procedures that will ensure that a Health Care
professional will be making the determination of SBI rather than a
staff member who may not have a medical background.
Use of
Force to Facilitate a Strip Search The
first case is a summary concerning the use of force on two inmates
to conclude a strip search by requiring them to "bend over" for a
visual inspection of their rectal areas prior to placement in
administrative segregation. Your position has been that "there were
no reasonable grounds to believe that either inmate was concealing
contraband in the rectal area…." CSC reiterates its position that
reasonable grounds to believe that an inmate is concealing
contraband in the rectal area are not a legal prerequisite for the
routine strip search of inmates being admitted to segregation.
Exceptional Search The case summary concerning the exceptional
strip search of inmates after the discovery of a severely injured
inmate in an institutional tool shop is based on your office's
reasoning that because the written documentation was inadequate and
misleading, the search was therefore contrary to law and
unreasonable. CSC maintains its position that reasonable grounds
existed to believe a clear and substantial danger could have been
presented by contraband.
Meeting the Needs of Disabled Offenders In the cases of the conditional release of
two disabled offenders and their placement in wheelchair accessible
facilities, you conclude that "to lose just a few days of access to
appropriate conditional release activities based only on their
disabilities is unreasonable and probably contrary to law". CSC
maintains its position that the conditional release of these
offenders met with the requirements of the law. These cases are
currently the subject of a complaint to the Human Rights Commission.
Please note that on May 11,
2000, CSC responded to your letter that was sent to us on March 3,
2000 (copy attached).
Housing of Minors in Penitentiaries In your Report, you indicated that as of May
1st, you had not received a response
from the Commissioner. Please refer to the attached letter which was
sent to you on May 15, 2000, and addresses many of the concerns and
issues identified in your draft Report.
Excessive of Force In your Report, you have indicated that as of
May 1st, you had not received a
response from the Commissioner. Please note that I signed a response
on his behalf on May 26, 2000 (copy attached).
If you have any questions
concerning our additional representation, we would be pleased to
discuss them with you and your staff.
WOMEN OFFENDERS SECTOR
RESPONSE TO DRAFT 1999/00 CORRECTIONAL INVESTIGATOR (CI)
ANNUAL REPORT
The March response makes a
number of points which are not referenced by the Office of the CI
(OCI):
The Deputy Commissioner for
Women (DCW) reviews all third-level grievances from women offenders
before they are signed off by the delegated authority.
We reviewed the quarterly
grievances reports and investigated further through a sampling of
one of the top grievance areas: staff performance and staff
harassment. The results of this review were shared with the OCI. In
March, we also agreed that in future we would share the results of
our reviews of the quarterly reports.
The OCI also makes no
reference to the fact that women offenders have traditionally used
many other avenues to voice their concerns, including the monthly
visit from the OCI investigator; visits from local, regional and
national E. Fry; in the past three years, visits from the Cross
Gender Monitor; and meetings, telephone and mail contact with the
DCW and Women Offender Sector staff.
It is clear that CSC and the
OCI will continue to differ on the need for further review of women
offenders' frequency of use of the grievance system.
FEDERALLY-SENTENCED WOMEN
The OCI is well aware of the
Intensive Intervention Strategy, which
reflects the results of two years of discussion, consultation and
research. The Strategy is based on the conclusion that
maximum-security women present a different risk and need level, and
describes the accommodation and operational interventions required
by this group of offenders. The announcement also noted the target
date for full operation and CSC's commitment not to transfer
maximum-security women until the new units are fully operational,
consistent with our mandate for public safety. The project is on
schedule.
The suggestion that the
co-located maximum-security units for Federally-Sentenced Women
constitutes segregation is inconsistent with the law and policy.
CSC has the authority in law,
under s. 30 of the CCRA, to separate
different security levels, and separation is not segregation.
The concern with respect to programs and services for maximum-security
women offenders during the construction/implementation period
are noted. Resources were and continue to be provided to the
co-located units to ensure that core programs (counselling and elder
services as well as recreation, etc.) can be delivered. Programs are
disrupted as a consequence of incidents and when program staff,
whether contract or permanent, move on to other employment.
The number of maximum-security women remains
stable at approximately 30 offenders. However, the population of the
co-located units has increased due to general population increases.
CSC is acting to address the population increase through additional
construction at the regional facilities. However, until the new
houses are available, the only accommodation option is to use the
co-located units. Regions have been advised to establish objective
criteria for transfers of medium security women to the co-located
units. For example, in Atlantic Region, where population pressures
have resulted in a need for this accommodation alternative,
population pressures at Nova will be managed through a policy that
there will be no new admissions to Nova whenever the population
exceeds 40.
The Mental Health Strategy was completed in
1997 with a three-year implementation timeframe. Since that date,
there have been significant changes as a result of the Strategy,
including an increase in the resource standard for psychological
services [ratio changed from 1/45 to 1/25], as well as the training
plan and implementation of Dialectical Behaviour Therapy and the RPC
Intensive Treatment program.
The regional facilities are
the nationally-approved accommodation standard for minimum- and
medium-security women offenders. The Okimaw Healing Lodge is the
national standard for minimum- and medium-security women offenders
who are committed to following aboriginal teachings and the
aboriginal healing path. This national standard was purposely
designed for women offenders, and differs from the national
accommodation standard for minimum- and medium-security male
offenders.
In the past year, individuals
have suggested that accommodation for minimum security women
offenders should be constructed outside the secure perimeter. CSC is
examining this issue within the context of the annual accommodation
planning exercise. The planning exercise requires the development of
a detailed analysis, which would include a population analysis and
program/operational plan for a minimum security house. This type of
detailed analysis is required for any accommodation proposal.
Finally, the issues which the
OCI proposes to review further are all issues which have received,
and continue to receive, constant attention by CSC. They are not
issues, however, which are easily and quickly resolvable.
APPENDIX C
CORRECTIONAL INVESTIGATOR RESPONSE TO CSC COMMENTS
We thank the Service for its
views.
Certain elements of the
response refer to events that took place beyond the time at which we
presented our draft Report to the Commissioner of Corrections. In
this regard, I believe it would be inappropriate to reproduce or to
comment upon letters that CSC sent us so many weeks after the
reporting year ended, and even longer after the time frames for
reply had passed under the Memorandum of Understanding.
Most of the Service's other
comments are straightforward and require no further reply, having
been addressed at some length in our communications with the Service
over the reporting year. I leave it to the reader to evaluate the
relevance and impact of these comments on the discussion of the
issues involved.
Nevertheless, I do offer a few
observations.
Millennium Telephone System
The Service
indicates that it was not until we issued our draft Report that we
raised the issue of CSC subsidizing the cost of inmate calls pending
completion of the contract. This is true. It occurred only because
we did not receive the Service’s Final Response to last year's
Report until April of this year. Our suggestion on subsidization
arose from our consideration of that response.
For clarification, we did not
recommend subsidization until the tendering process is complete. We
recommended this pending complete implementation of the new system.
We note that the Service
provided no other response on our proposal.
Transfers
Surely it is not too soon to
begin evaluation of a system after it has been in operation for
eight months.
Suicides
The overall comment in the
Annual Report with respect to the issue of suicides is that the
Service has failed to complete a number of undertakings, all of
which were designed to ensure timely, responsive and coordinated
efforts in identifying and managing potential suicide cases. The
case specified by the Service tragically speaks directly to the
results of that failure. To claim, as the Service does, that
"reference to a specific incident is unfair and unreasonable in the
context of the Annual Report" is difficult to understand. In
addition, our conclusion was based on our review of the
documentation relevant to this incident and shared with the
Service's Board of Investigation prior to our receipt of the draft
report.
Inmate Injuries and Investigations
For the first time in five
years, the Service refers to something other than its own, internal
definition of serious bodily harm. It will be interesting to
discover the relevance of definitions from other sources to the
intent of Parliament in enacting s.19 of the CCRA.
Federally-Sentenced Women
Our focus was the way in which
the Service responds to complaints from women in
penitentiaries--effective redress and follow-up. The formal
grievance process is but one aspect of this. What we recommended,
two years ago, was a review of how inmate complaints are managed at
penitentiaries that house women, including the views of the women in
terms of how effectively they believe their concerns are being
addressed.
Case Summaries
With respect to certain of our
case summaries, the Service states that it "maintains its position"
on points of legal interpretation. So do we.
Unfortunately, as of late
June, 2000, we have not yet been able to submit legal issues to
third-party dispute settlement. To date, the Service has been
unwilling to do so.
**********
|