Pervasive impact of documentary non-disclosure by Correctional Service of Canada | Vivian Sim

By Vivian Sim

Law360 Canada (May 29, 2023, 11:26 AM EDT) --
Vivian Sim
Vivian Sim
Access to Information and Privacy (ATIP) requests are a valuable avenue for prisoners, legal counsel and public interest advocates like the John Howard Society of Canada to obtain information from the Correctional Service of Canada (CSC). Just a few examples of the kind of information obtained by ATIP request are video of excessive use of force, a prisoner’s own health records, and particulars on the use of structured intervention units (i.e., the extent of their use, the demographics of those most subjected to their use, and details on the treatment of prisoners occupying such units).

If I were to describe the management of ATIP requests by CSC in just one word, it would be: outstanding — in the sense that by and large, most requests for disclosure of records remain outstanding well beyond the statutory timeframes for fulfilment set out in the Access to Information Act and the Privacy Act.

An institution like CSC, with the core objective of correcting legal non-compliance, might itself be expected to routinely comply with the law. But routinely, it does not. Non-compliance is the rule rather than the exception when 82 per cent of ATIP requests are incomplete within the standard statutory 30-day timeframe, and 58 per cent of ATIP requests remain incomplete by the 60-day mark, which is the ceiling permitted by statute when CSC sends notice of extension to the requester (source: CSC’s Annual Report to Parliament on the Access to Information Act: 2021-2022). My colleagues, practitioners of correctional law, report waiting upwards of five years for the fulfilment of ATIP requests to CSC.

The subversion of requests for information impacts other mechanisms such as the inmate grievance process, litigation and coroner’s inquests. Prisoners are often well aware of what the requested documents will show — so in many cases, the withholding of information has the primary effect of hiding information not from prisoners, but their lawyers, judiciaries, coroners, prisoners’ rights advocates and ultimately the public. The non-disclosure of documents suppresses the monitoring of prisons by advocates and efforts to seek remedies for misconduct and mistreatment perpetrated by CSC. CSC’s failure to disclose records is the subject of a human rights complaint by Nick Dinardo, represented by Prisoners’ Legal Services, and the reason behind the most recent delay of the coroner’s inquest into the death of Terry Baker, which occurred in 2016, to 2024, as poignantly stated by Emilie Coyle of the Canadian Association of Elizabeth Fry Societies.

Rather than focus its resources on fulfilling ATIP requests, CSC’s ATIP team has recently adopted the tactic of attempting to split individual ATIP requests into multiple requests. For example, a requester might make a request to CSC for records of the number of patient advocates designated by CSC and the amount of money spent on the patient advocacy program. CSC might then contact the requester and demand that the request be split into a first request for the number of patient advocates designated by CSC and a second request for the amount of money spent on the patient advocacy program, and further insist that an additional $5 be paid for the second request. A back and forth might then ensue between the requester and CSC regarding whether to split the request, and if so, how it will be reformulated.

On its face, this splitting of a request into two seems to be a matter of $5, as each ATIP request to CSC costs the requester $5 to submit. The municipal counterpart to the federal Access to Information Act sets out a similar $5 request submission fee, which was described by adjudicator Brian Beamish in Order MO-2201 as a “token” or “minimal” amount to institutions. To be clear, the root of my concern has less to do with the additional $5, and more to do with CSC’s active contribution to delays in the processing of requests and potential distortion of reports to Parliament about their productivity.

In 2021-2022, the CSC’s ATIP division’s total revenue from ATIP request fees amounted to less than 0.3 per cent of its operating costs. Thus, from a financial standpoint, request splitting isn’t particularly effective, as even a doubling of request fee revenue would not drastically boost the division’s budget. From a productivity standpoint, request splitting is equally hard — if not harder — to understand, as it only creates more administrative work, while the number of documents that need to be searched and redacted to respond to a request is the same whether it is treated as one or two requests. I have personally been privy to two recent attempts by CSC’s ATIP division to split a single ATIP request into multiple requests within the last two months, which begs the question of what the rationale for this tactic is. I can’t presently be certain as to their motivation for doing so, but I certainly hope that it is not an attempt to deceptively inflate CSC’s ATIP request completion rate in their annual reports to Parliament.

The systemic and ongoing non-disclosure of documents by CSC demonstrates the weakness of their commitment to transparency in corrections, not to mention a disregard for the rule of law and their statutory obligation to produce requested records in a timely manner. The competent management of documentary disclosure is of interest to prisoners and non-prisoners alike, because at stake are (1) the ethical treatment of prisoners, and (2) the interest of all Canadians in an accountable public service.

Those interested in the government’s response to this state of affairs are encouraged to support and follow the progress of ongoing political and legal efforts to improve access to information, especially as it pertains to institutions that operate largely outside the public eye.

Vivian Sim is an articling fellow at the John Howard Society of Canada.

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