A flawed Compass: a human Rights Analysis of the Roadmap to Strengthening Public Safety

Grievances

As with the need for independent adjudication for those placed in segregation, the importance of a fair, timely and responsive grievance system has been a theme of royal commissions, Parliamentary committees and government task forces. The CCRA now requires that CSC establish “a procedure for fairly and expeditiously resolving offenders' grievances”.³⁹⁸ The difficulty CSC has had in living up to the law’s promise has been a recurrent theme of the Annual Reports of the Correctional Investigator. The 1994-95 annual report detailed the continuing "excessive delay, defensiveness and non-commitment" of the Service, especially at the National Headquarters level, and concluded with this observation:

The Service's responses over the course of this reporting year are consistent with their past performances. The responses have avoided the substance of the issues at question including a failure to address the specific observations and recommendations contained in last year's Annual Report. The responses are defensive, display little if any appreciation for the history or significance of the issues at question and provide at best a further string of endless promises of future action, with no indication as to expected results or how the results of these proposed actions will be measured or analyzed.³⁹⁹

The effectiveness of the grievance system came under particular scrutiny in the course of the Arbour Commission's inquiry into events at the Prison for Women in 1994 and was the subject of some of Justice Arbour’s harshest criticisms:

Some of these grievances were never answered at all. Those that were answered were almost always answered late, in some cases several months after the answers were due. In a number of instances, the grievances were responded to by an inappropriate person: either someone not at the appropriate level to respond, or someone who could not be expected to have access to the relevant facts. There is no system to effectively prioritize those grievances where the only effective response would be one received on an urgent basis.⁴⁰⁰

Fast forward 13 years and it is a litmus test of the reality of change, the Glube report notwithstanding, to read the Correctional Investigator’s unveiling of the blatant failure of the grievance system in Ashley Smith’s case.

In response to Ms. Smith's overly restrictive conditions of confinement at Nova Institution for Women, Ms. Smith submitted formal complaints through the CSC's Offender Complaints and Grievance System.  Ms. Smith submitted seven complaints in August 2007.

Ms. Smith alleged the following in her complaints:

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  CSC used excessive force against her during an incident;
  
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  CSC inappropriately refused to accept a complaint from her that was written by another inmate on her behalf even though she was not permitted paper or writing instruments;
  
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  for a four-day period, she was not permitted to leave her cell to engage in physical exercise;
  
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  she did not receive a copy of the decisions from the first and fifth working day reviews of her segregation status;
  
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  she was not being permitted sufficient toilet paper for hygiene purposes;
  
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  she was not being permitted soap in her cell, was only provided with finger foods, and was given only a small piece of deodorant on her finger at a time; and
  
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  while menstruating, she was not permitted underwear or sufficient sanitary products to meet her hygiene needs.
  

Response times for complaints

According to Commissioner's Directive 081 - Offender Complaints and Grievances, when a complaint or grievance is received from an offender the Correctional Service must identify the time frame for response.  That is, the response must be designated as either routine priority (requiring a response within 25 working days) or high priority (requiring a response within 15 working days).  Correctional Service policy defines high priority as:

...complaints and grievances concerning matters that have a direct effect on life, liberty or security of the person or that relate to a griever's access to the complaint and grievance process. 

Based on the above definition and our review of the grievance documentation, it is my opinion that many, if not all of Ms. Smith's complaints at Nova Institution should have been designated as requiring a high priority response.  I note, however, that all seven complaints were designated as routine priority.

Inappropriate responses to Ms. Smith's complaints

Commissioner's Directive 081 - Offender Complaints and Grievances states that the Complaints and Grievance process should:

...ensure that decisions affecting offenders comply with the rule of law, respect for human rights, and are ethically sound.

All seven of the complaints submitted by Ms. Smith at Nova Institution were denied by the Correctional Service.  It is my opinion that the responses were largely inappropriate and not in compliance with CSC policy.  For example, Ms. Smith had complained that she was being provided with an inadequate amount (four squares at a time) of toilet paper and an insufficient number of sanitary products during her menstrual cycle.  The Correctional Service rejected these two complaints on the basis that she had been "misusing" the toilet paper and sanitary products.  She was advised that she would be provided with more of these items when she reduced her self-injurious behaviour.  These responses were inappropriate as they did not permit Ms. Smith to meet her basic hygiene needs.

Lack of vigilance

Given that Ms. Smith had never submitted complaints to the Correctional Service prior to August 2007, and given the subject matter, I question why these complaints did not trigger within the Correctional Service a review of Ms. Smith's conditions of confinement to ensure that they were in keeping with law, policy and Ms. Smith's basic human rights.  Given the severe restrictions placed upon Ms. Smith, the Correctional Service had a heightened duty to remain vigilant of her care and treatment, inclusive of any allegations of human rights violations.  This does not appear to have occurred at Nova Institution.  There is no evidence that these issues were brought to the attention of the Warden.  Furthermore, this lack of vigilance appears to have continued after Ms. Smith's subsequent transfer to GVI.  

Upon transfer to GVI at the end of August 2007, Ms. Smith found herself in all too familiar restrictive conditions of confinement.  In September 2007, Ms. Smith made a final attempt to improve these conditions by placing one more complaint in a sealed envelope into the designated receptacle on her unit at GVI.  Incredibly, this complaint was only opened by the Correctional Service two months after Ms. Smith died.  Despite a policy requirement that should a griever die following the submission of a complaint, a response will be prepared and made available to any person conducting a lawful investigation, there is no evidence that this grievance has been either reviewed or answered.

I provide these details of Ms. Smith's experiences with the CSC's Offender Complaints and Grievance System as concrete examples of the inability of that system to appropriately and reasonably resolve inmate complaints in a timely manner. The presence of a more timely, effective, fair and responsive internal complaints and grievance system within the Correctional Service could have significantly improved Ms. Smith's overly restrictive and dehumanizing conditions of confinement.⁴⁰¹

1. The Panel’s Consideration of Grievances

In the light of the Correctional Investigators recitation of CSC's record, it is telling that the only issue the Panel was asked to consider regarding the grievance system was that of “frivolous and vexatious grievances by offenders”. This is the Panel’s commentary:

CSC is faced with a small number of offenders who file grievances continuously and in large numbers. These grievances must be managed more expeditiously, while protecting the offender’s right to raise issues of concern for review and action.

The Panel reviewed legislative alternatives but concluded that they do not offer a fair and expeditious approach to managing these types of grievances. The Panel has concluded that these types of grievances should be reviewed and resolved at the first level of the grievance process [the warden] and applying CSC policies at that level.

The Panel is to be commended for not adopting some of the draconian responses to multiple grievers to be found in the American federal prison but one is left wondering whether, but for the tragedy of her death, would Ashley Smith’s last unanswered complaint had been designated “frivolous and vexatious” and following the recommendation of the Panel left to be resolved by the Warden of the institution in whose custody she died.

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