JUST Committee Report

OFFICE OF THE
CORRECTIONAL INVESTIGATOR

6.1 Throughout its review of the Act, the Sub-committee heard testimony highlighting the importance of respecting offenders' rights inside our penitentiaries. Witnesses testifying on this point also emphasized that respecting the rights of offenders is essential to their reintegration into the community. Quoting the report tabled in Parliament in 1977 by the Sub-committee on the Penitentiary System in Canada, the Canadian Bar Association declared, "Justice for inmates is a personal right and also an essential condition of their socialization and personal reformation. It implies both respect for the person and property of others and fairness in treatment."⁸¹

6.2 The Sub-committee believes, it is essential that correctional authorities respect offenders' rights, particularly since the principles and provisions incorporated in the CCRA "derive from universal human rights standards supported by all the advanced democracies with which Canada compares itself."⁸² The Sub-committee is therefore convinced that it is important to support independent organizations that are authorized to monitor respect for human rights, in particular the Office of the Correctional Investigator, which has the specific mandate to defend the rights of federally sentenced offenders.

6.4 The Office of the Correctional Investigator was set up in 1973 under part II of the Inquiries Act, on recommendation by a commission of inquiry into a riot at the Kingston Penitentiary in the early 1970s.⁸³ Analysis of that event had highlighted the need to set up an independent agency to deal with complaints lodged by or on behalf of offenders, in order to reduce the risk of riots in the penitentiaries and make the Correctional Service more open and accountable. Although the role and responsibilities of the Office of the Correctional Investigator have remained largely unchanged since 1973, the 1992 legislative reforms to the correctional system changed the Office's legal basis and clarified its powers, now defined in part III of the Corrections and Conditional Release Act.

6.5 The Correctional Investigator, appointed by Cabinet under section 158 of the Act, is responsible for the Office of the Correctional Investigator. The purpose of the Office, with a total of 17 employees, of whom 10 are investigators, is:

To act as an Ombudsman on behalf of offenders by thoroughly and objectively reviewing a wide spectrum of administrative actions and presenting findings and recommendations to an equally broad spectrum of decision makers, inclusive of Parliament.⁸⁴

6.6 Thus the main responsibility of the Office of the Correctional Investigator is to conduct investigations into problems experienced by offenders in the correctional system, both in institutions and under supervision in the community, in order to evaluate independently and impartially whether the Correctional Service is meeting its obligation to respect offenders' rights and entitlements. The powers of the Office of the Correctional Investigator are set out in detail in subsection 167(1) of the Act:

It is the function of the Correctional Investigator to conduct investigations into the problems of offenders related to decisions, recommendations, acts or omissions of the Commissioner 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.

6.7 As was noted by witnesses heard by the Sub-committee, the Correctional Investigator is in a good position to right wrongs experienced by individual offenders and bring to light systemic problems that lead offenders to lodge complaints. Quoting Madam Justice Louise Arbour's report on the events occurring in 1994 at the Prison for Women, the Barreau du Québec emphasized:

[O]f all the independent observers of the Correctional Service, the Correctional Investigator is in a unique situation; he may both facilitate the resolution of individual problems and make public statements regarding systemic deficiencies in the Correctional Service.⁸⁵

Powers of Investigation: Access to Correctional Service Information and Facilities

6.8 Powers of investigation into the organization being monitored and access to its information and facilities are essential to the effectiveness of an external monitoring agency. During its visits to correctional facilities in all parts of Canada and its meetings with Ron Stewart, Correctional Investigator, and investigators from the Office, the Sub-committee learned that the Act gives the Correctional Investigator unqualified access to Correctional Service information and facilities. It also gives him broad powers of investigation that allow him to get to the bottom of problems brought to his attention.

6.9 As a result, investigators working for the Office of the Correctional Investigator have full access to Correctional Service institutions and information held or controlled by the Correctional Service. They may require individuals to testify under oath. Under the Act, they may also commence investigations on their own initiative or at the request of the Solicitor General of Canada, an offender, or another complainant. They may also determine how and when the investigation is to be conducted. In carrying out their duties, investigators may visit penitentiaries on a regular schedule or without prior notice.

Complaint Settlement Procedure

6.10 In settling oral and written complaints lodged by offenders or on their behalf, investigators may act officially or unofficially. Most often, they first contact the penitentiary administrators in order to resolve complaints as promptly as possible. However, complaints that investigators are unable to resolve at the institutional level are brought to the attention of the Correctional Service's Regional Deputy Commissioner or Commissioner. It is the investigators' responsibility to identify the appropriate person to resolve the complaint expeditiously. As a last step, if the Correctional Investigator considers that the Correctional Service is not taking appropriate timely action, the complaint is brought to the attention of the Solicitor General, and may be published in the annual report or a special report by the Correctional Investigator.⁸⁶

6.11 The Act requires the Correctional Investigator to advise the Solicitor General and Parliament annually of the Office's work by submitting a report describing its objectives, the strategies employed in the past year to achieve those objectives, and the results obtained. Under the Act, the Correctional Investigator may also submit special reports at any time during the year if that person believes a complaint must be addressed immediately. The Correctional Investigator reports to Parliament through the Minister. Section 192 and section 193 of the Act read as follows:

Section 192. The Correctional Investigator shall, within three months after the end of each fiscal year, submit to the Minister a report of the activities of the office of the Correctional Investigator during that year, and the Minister shall cause every such report to be laid before each House of Parliament on any of the first thirty days on which that House is sitting after the day on which the Minister receives it.

Section 193. The Correctional Investigator may, at any time, make a special report to the Minister referring to and commenting on any matter within the scope of the function, powers and duties of the Correctional Investigator where, in the opinion of the Correctional Investigator, the matter is of such urgency or importance that a report thereon should not be deferred until the time provided for the submission of the next annual report to the Minister under section 192, and the Minister shall cause every such special report to be laid before each House of Parliament on any of the first thirty days on which that House is sitting after the day on which the Minister receives it.

6.12 The Correctional Investigator's recommendations advise a broad range of decision-makers about problems in Canada's penitentiaries regarding general penitentiary administration, the quality of programs and services, internal problem-solving and grievance-settling procedures, transfers, administrative segregation, and respect for offenders' rights. Since the Correctional Investigator's recommendations are not binding, this power to make public statements and to advise a broad range of decision-makers is essential in carrying out the Office's mandate. In this regard, and in response to a recommendation by the Auditor General, the Correctional Investigator stated:

This external consideration of issues, given the non-binding aspect of the recommendations, is central to an effective ombudsman operation. This matter is raised to emphasize that the responsibility for the resolution of issues, especially within an environment like corrections, does not rest solely with the government agency and the ombudsman.⁸⁷

6.13 The relationship between the ombudsman and the organization being monitored is essential to the smooth operation of an external monitoring agency like the Office of the Correctional Investigator. The Sub-committee shares the opinion expressed in the 1997 Report of the Auditor General:

An ombudsman's strength lies in the ability to persuade others of the value of any recommendation or opinion flowing from an investigation. Consequently, the working relationship between the ombudsman and the institutions within the scope of his or her mandate must be carefully balanced. The nature of the work implies that this relationship can be neither too cordial nor too adversarial. This balance of creative tension is not easy to achieve, but it is very important.⁸⁸

6.15 Although the Office of the Correctional Investigator is independent of the Correctional Service under the Act, the Sub-committee noted during its review of the Act that some people have an erroneous perception of the Office's position in relation to the Correctional Service, the organization it is responsible for monitoring.

6.16 The Sub-committee finds it worrisome that although the Office of the Correctional Investigator is not part of the Correctional Service, evidence heard by it indicates there is a major problem with the Office's perceived independence.

6.17 In order to ensure that the Office of the Correctional Investigator can effectively carry out its mandate, the Sub-committee therefore considers it important to enhance the perception of the Office's independence. As the Correctional Investigator noted in a recent document, the appearance of independence is just as important as the Office's actual independence:

[T]he resolution of disputes in an environment traditionally closed to public scrutiny with an understandably high level of mistrust between the keepers and the kept, requires that the Office not only be, but be seen to be independent of both the Correctional Service and the Minister.⁸⁹

6.18 In order to solve this perception problem, Jim Hayes, Director of Investigations, Office of the Correctional Investigator, emphasized to the Sub-committee that it would be preferable to amend the Act so the Correctional Investigator reports to Parliament directly, instead of through the Solicitor General, who is the minister also responsible for the Correctional Service:

I think by reporting directly to Parliament we could strongly suggest that we don't work for a minister but for Parliament, and we make a report to them. People perceive us as having the same boss, so therefore we must "be in bed together." So perception can very often become reality.⁹⁰

6.19 The Sub-committee believes it would be preferable for the Correctional Investigator to report directly to Parliament. This is also the view of a number of witnesses appearing before the Sub-committee including John Conroy; Yvon Dandurand of the International Centre for Criminal Law Reform and Criminal Justice Policy at the University of British Columbia; Kim Pate of the Canadian Association of Elizabeth Fry Societies; Amy Friedman-Fraser; lawyer Julian Falconer; Thomas Mann and Robert Rowbotham of Prison Life Media; the Canadian Criminal Justice Association; and the Black Inmates and Friends Assembly of Toronto. The Sub-committee believes this amendment would enhance the Correctional Investigator's credibility and the Office's effectiveness in carrying out its mandate.

RECOMMENDATION 28

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.

6.20 Throughout its review of the Act, the Sub-committee heard evidence emphasizing the importance of setting up mechanisms for resolving disputes between the Correctional Investigator and the Correctional Service. Some witnesses were of the opinion that the Act does not adequately guarantee that issues raised by the Correctional Investigator will be addressed in a fair, reasonable and timely manner.

6.21 In order to improve the Correctional Service's openness, the Sub-committee believes that a parliamentary committee should explicitly be given responsibility for receiving and considering the Correctional Investigator's reports. Correctional Investigator Ron Stewart and lawyer Julian Falconer also hold this view. In the opinion of these witnesses and the Sub-committee, consideration by a parliamentary committee of issues raised by the Correctional Investigator could improve resolution efforts between these two organizations and more readily bring to light issues raised by the Correctional Investigator.

6.22 Given the importance of the principles of openness and accountability, the Sub-committee makes the following recommendation.

RECOMMENDATION 29

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.

6.23 In their testimony before the Sub-committee in Toronto, Amy Friedman-Fraser and lawyer Julian Falconer noted that one way to improve the Correctional Service's openness and accountability would be to have the Correctional Investigator report to Parliament, as does the Auditor General. According to Amy Friedman-Fraser, this measure would give the Correctional Investigator "actual status and authority [. . .] to effect change, thereby, as well, permitting public access to the real nature of prison life, to the grievances in particular, and to the way in which these grievances are attended to by the institution and the regional headquarters and the national headquarters."⁹¹ In order to improve the Correctional Service's openness, the Sub-committee also considers it preferable for the Correctional Investigator's report to include the responses by the Correctional Service to the recommendations it contains.

6.24 The Correctional Investigator is presently responsible for summarizing, in the reports, the responses by Correctional Service headquarters to the recommendations. The Sub-committee believes that the Correctional Service should be required to respond to each of the Correctional Investigator's recommendations, stating the action it has taken or intends to take in order to address the issues raised or, if no action is planned, giving its reasons for not acting. The Sub-committee believes that this procedure will give more authority to the Correctional Investigator's recommendations and improve the Correctional Service's accountability.

6.25 In light of the evidence it heard, the Sub-committee therefore believes that the Act should be amended so the Correctional Investigator report's format resembles that used by the Auditor General.

RECOMMENDATION 30

The Sub-committee recommends that section 195 of the Corrections and Conditional Release Act be amended so the responses by the Correctional Service to the recommendations by the Correctional Investigator are included in the Correctional Investigator's annual and special reports.

6.26 In Montreal, the Sub-committee heard evidence given by lawyer William Hartzog and the Drummond family. Dissatisfied with the Correctional Service's investigation into the death of their son, the Drummonds argued that in order to ensure impartial and independent investigations when an event results in serious injury or death of an inmate, the Correctional Investigator should be authorized to automatically conduct an investigation, even if the Correctional Service must carry out an investigation under section 19 of the Act.

6.27 At present, although section 19 of the Act requires the Correctional Service to give a copy of its investigation report to the Correctional Investigator, nothing in the Act requires the Correctional Investigator to conduct an in-depth investigation. In light of the Drummond family's evidence, the Sub-committee believes that the Correctional Investigator should conduct an investigation when an event results in serious injury or death for an inmate.

RECOMMENDATION 31

The Sub-committee recommends that section 170 of the Corrections and Conditional Release Act be amended to require the Correctional Investigator to conduct an independent investigation when an inmate is seriously injured or dies, even if another investigation is already being conducted under section 19 or section 20 of the Act.

6.28 In conclusion, the Sub-committee wishes to emphasize that the Office of the Correctional Investigator's effectiveness in carrying out its mandate depends largely on the budget allocated to it. According to the Correctional Investigator, the present annual budget of approximately $1.5 million does not make it possible to hire enough investigators. The Auditor General, too, in a recent audit of the Office, heard testimony from investigators that their number was insufficient. The report of the Auditor General emphasizes the problems resulting from the shortage of investigators as follows:

The Office of the Correctional Investigator operates with a small staff. The staff have indicated that they feel overwhelmed by demand and volume. Our audit also found that the Office had problems with managing the work processes, providing timely responses to complaints and maintaining the number of visits to the institutions.⁹²

6.29 The 10 investigators who work for the Office of the Correctional Investigator must process approximately 5,000 complaints each year. Although the Sub-committee realizes that the time required to conduct investigations depends on the nature of the complaints,⁹³ it is convinced that increasing the number of investigators can only benefit the correctional system as a whole. It would likely ensure better monitoring of the Correctional Service through more frequent penitentiary visits and investigations commenced on the Correctional Investigator's own initiative, as was pointed out by Jim Hayes, Director of Investigations, Office of the Correctional Investigator.

RECOMMENDATION 32

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.

81^# Report of the Sub-committee on the Penitentiary System in Canada, Supply and Services Canada, Ottawa, 1977, p. 87, quoted in the brief by the Canadian Bar Association, p. 10.

82^# Correctional Service of Canada, Working Group on Human Rights, Human Rights and Corrections: A Strategic Model, December 1997, chapter 2.

83^# Solicitor General of Canada, Towards a Just, Peaceful and Safe Society - Consolidated Report - The Corrections and Conditional Release Act Five Years Later - Report of the CCRA Working Group, 1998, p. 137.

84^# Solicitor General of Canada, Office of the Correctional Investigator: 1999-2000 Estimates, Public Works and Government Services Canada, 1999, p. 11.

85^# The Honourable Louise Arbour, Report of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston, 1996, p. 195, quoted in the brief by the Barreau du Québec, 1999, p. 27.

86^# Solicitor General of Canada, Towards a Just, Peaceful and Safe Society - Consolidated Report - The Corrections and Conditional Release Act Five Years Later - Report of the CCRA Working Group, 1998, p. 139.

87^# Auditor General of Canada, "Chapter 33. The Correctional Investigator Canada," Report of the Auditor General of Canada to the House of Commons, December 1997.

88^# Ibid.

89^# Solicitor General of Canada, Office of the Correctional Investigator: 1999-2000 Estimates, Public Works and Government Services Canada, 1999, p. 11.

90^# Evidence, June 2, 1999, 17:00.

91^# Evidence, May 13, 1999, 16:55.

92^# Auditor General of Canada, "Chapter 33. The Correctional Investigator Canada," Report of the Auditor General of Canada to the House of Commons, December 1997.

93^# Ron Stewart, Correctional Investigator, stated, "[S]ome [complaints] we can solve that same day. Others get drawn out because they're much more complicated and more people are involved with them." Evidence, June 2, 1999, 16:45.