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| Lea Keren |
Individuals facing incarceration in federal prisons are offered one means to address the human rights abuses they experience — the Inmate Grievance system. It is for this reason that the present failings in the Inmate Grievance system are a blatant obstruction to justice and a monumental failure of our justice system.
The Inmate Grievance System allows federal prisons to grieve to the Correctional Service of Canada (CSC). This system means that, should a federal prisoner experience racism, violence, rape or any other unlawful or unjust behaviour, the prisoner has an accountability mechanism without having to go to court. In fact, often, before hearing a court case, the Federal Court of Canada will consider whether this internal remedy has already been exhausted.
Recently, The Lawyer’s Daily published a series of articles addressing the failures of this system.These pieces describe countless issues, including flagrant human rights abuses, denials of procedural fairness and absurd delays. Many grievances take years to be resolved. These failures are a part of a larger lack of accountability. As Jeffrey Hartman writes, “CSC is perhaps the least accessible government agency.” This adequately reflects our experiences as a charity whose mandate includes promoting human rights and the rule of law in prisons.
For example, individuals incarcerated in federal prisons face countless various barriers just to contact us. Many have their phone calls recorded by CSC, preventing them from speaking freely. An April 2021 internal audit documented that CSC frequently breached solicitor-client privilege by intercepting even privileged phone calls. Those who communicate by mail often have their mail opened, reviewed and sometimes intercepted.
These are obstacles even before one considers the countless prisoners who struggle to read and write, have severe mental health ailments, do not speak English or are otherwise unable to access the phone lines or mailboxes. Not a single federally incarcerated individual has unimpeded computer access. It is in this context that the Inmate Grievance System offers a lone mechanism for accountability.
I work for the John Howard Society of Canada (JHSC), a charity which advocates for just, effective, and humane criminal justice and corrections. To further these ends, the JHSC is required to stay informed about the obstacles that federally incarcerated individuals face. A fundamental mechanism for achieving this is by reviewing the Inmate Grievances of federal prisoners. These grievances allow us to gain fundamental insights and important knowledge about the challenges to safe incarceration and re-integration.
Often, the JHSC files Access to Information and Privacy (ATIP) requests. These requests, when properly responded to, provide an important source of information about the extent to which laws, regulations and policies are being applied by CSC. One such type of information which is particularly helpful are anonymized Inmate Grievances that point directly to those unlawful acts.
In the past, as per the law, CSC has provided these grievances without question. However, recently, CSC has refused to release some grievances on the basis that a prisoner’s handwriting constitutes personal information under the auspices of s. 19(1) of the Access to Information Act. This entirely inconsistent and unjustified application of s. 19(1) is of great concern to advocates, academic, and the media who are resultantly deprived of information about prisoners’ complaints and how they are being resolved, and who continue to see the rule of law skirted by CSC over 25 years since the Arbour Report was released. This information is essential to safeguarding human rights, including the Charter rights, of those detained in CSC’s prisons.
Given the lack of prisoners’ access to computers or even typewriters, exempting all handwriting from disclosure would effectively bury all grievances which often go unaddressed and unresolved. Without access to CSC’s Inmate Grievance system, it is challenging to determine the prisoners’ concerns, how the wardens and other correctional staff are responding to those concerns, and as a result, the lawfulness of the government’s response to these concerns.
The far from effective and timely grievance system likely fails to serve the purpose for which it was introduced. Further shielding the issues raised by prisoners from the public by denying access to anonymized grievances through a claim that handwriting itself is personal information seems far-fetched. If CSC were seriously worried about the identity of the prisoners being revealed by their handwriting, it could transcribe the handwriting or provide prisoners with access to computers to file grievances. It is the content and not the form of the grievances that is of interest to those of us who seek to ensure that prisoners' voices are heard and their issues addressed.
For these reasons, the JHSC, with the pro bono support of McCarthy Tétrault LLP, has recently brought an application for judicial review of the ATIP release referenced above, arguing that the continued provision of anonymized grievances is essential to ensuring CSC is in compliance with the law. CSC’s systemic and consistent disregard for addressing the needs of an incredibly vulnerable population, while simultaneously obstructing their access to both internal and external mechanisms for redress, necessitates our charity’s access to these very grievances.
Lea Keren (@Leaakeren) is the articling fellow for the John Howard Society of Canada.
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