Audit of offender redress, 2018

Internal Audit Sector

March 6, 2018

Acronyms & Abbreviations

ADR:
Alternative Dispute Resolution
CCRA:
Corrections and Conditional Release Act
CCRR:
Corrections and Conditional Release Regulations
CSC:
Correctional Service Canada
The Commissioner's Directive:
Commissioner's Directive 081 (Offender Complaints and Grievances)
The (CSC) Guidelines:
Guidelines 081-1 (Offender Complaints and Grievances Process)
EXCOM:
Executive Committee
NHQ:
National Headquarters
ORD:
Offender Redress Division
The Process:
The offender complaint and grievance process
RHQ:
Regional Headquarters
V&C:
Visits and Correspondence Unit

1.0 Introduction

1.1 Background

The Audit of Offender Redress was conducted as part of the Correctional Service Canada (CSC) Internal Audit Sector's 2016-2019 Risk-Based Audit Plan. This audit links to CSC's corporate priority of "efficient and effective management practices that reflect values-based leadership" and to the corporate risk that "CSC will not be able to implement legislative changes".

The offender complaint and grievance process is comprised of three internal levelsFootnote 1. The Corrections and Conditional Release Regulations (CCRR) describes the three level process as follows:

The complaint is the first step in the process and is meant to be answered by the supervisor directly responsible for the person or area that is the subject to the complaint. At this stage, the CCRR requires that every effort be made to resolve the matter informally through discussion. If the offender is not satisfied with the decision at the complaint level, he or she may submit a written grievance to the initial level, which would be responded to by the Institutional Head or District Director, as the case may be. Should offenders be unsatisfied with the response to their initial level grievance, they can raise it to the final (national) level, where a grievance analyst drafts a response for review and approval by the decision maker, which is either the Senior Deputy Commissioner or the Assistant Commissioner, Policy as delegated by the Commissioner. In order to reduce any potential concerns of conflict of interest, there are specific situations where a complaint or initial level grievance is to be submitted directly to the next level without first receiving a response from the prior level. For example, this would include complaints pertaining to allegations of harassment, sexual harassment or discrimination which would proceed directly to the initial level, unless the allegation was against the Institutional Head or District Director, in which case the matter must be addressed as a final level grievance.

Table 1 summarizes the number of complaints and grievances received by decision level over the period from fiscal years 2014/15 to 2016/17. For information regarding the most frequently grieved subject matter, please refer to Annex C.

Table 1 - Total Number of Offender Complaints and Grievances Received (By Decision Level)Footnote 2
Decision Level Fiscal Year Grand Total 2014/15 2015/16 2016/17
Complaint 18,680 15,861 15,093 49,634
Initial Grievance 4,201 3,882 3,583 11,666
Final Grievance 9,541Footnote 3 4,941 3,989 18,471
Grand Total 32,422 24,684 22,665 79,771

1.2 Legislative and Policy Framework

Legislation

The offender complaint and grievance process is addressed in the Corrections and Conditional Release Act (CCRA), sections 90 and 91 as well as in the CCRR, sections 74-82.

The CCRA requires that CSC provides "a procedure for fairly and expeditiously resolving offenders' grievances on matters within the jurisdiction of the Commissioner" and that "every offender shall have complete access to the offender grievance procedure without negative consequences". The offender complaint and grievance process provides offenders with a means of redress when they are dissatisfied with an action or decision by a staff member.

The CCRR describes the three level complaint/grievance process, as outlined in the Introduction section of this report. Key excerpts from both legislative documents are included in Annex D.

CSC Directive and Guidelines

There is one primary Commissioner's Directive and related guidelines pertaining to offender redress.

The purpose of the Commissioner's Directive 081 - Offender Complaints and Grievances is to:

The purpose of Guidelines 081-1 - Offender Complaint and Grievance Process is to:

1.3 CSC Organization

National Headquarters

The Office of Primary Interest (OPI) for offender redress is CSC's Policy Sector. The Assistant Commissioner, Policy, has the authority to develop guidelines that must be followed with reference to the Process. The Policy Sector's Offender Redress Division (ORD) plays a major role in carrying out CSC's redress-related responsibilities.

The mission of the ORD is to provide expeditious access to a fair and effective offender redress mechanism and recommend corrective action in cases where there is mistreatment or injustice. The ORD is responsible for drafting responses to grievances at the final (national) level.

Regional Headquarters

Effective October 2013, Regional Headquarters (RHQ) no longer plays a formal role in the offender redress process. The grievances that used to be answered by RHQ are now escalated directly to the final level. This change was made in an attempt to streamline the Process.

Institutions/Districts

The Institutional Heads/District Directors are responsible for ensuring that offenders have complete access to the Process without negative consequences and that there is a mechanism in place to monitor the use of the Process at his/her institution or district.

The onus for responding to complaints and grievances rests with decision makers, who are to ensure that grievors are provided with complete, documented, comprehensible and timely responses to all issues that are related to the subject of the complaint or grievance. According to the Commissioner's Directive, the term 'decision maker' refers to "the staff member who responds to a complaint or grievance at any level of the offender complaint or grievance process (normally the supervisor, Institutional Head/District Director, the Commissioner, or the senior staff member that the Commissioner designates)".

1.4 Risk Assessment

A risk assessment was completed by the audit team based on a review of past audits and other reports related to the Process; as well as interviews with key stakeholders. Applicable legislation and policy documents were also considered.

A consistent concern brought to the attention of the audit team was the length of time it took for offenders to receive responses to complaints and grievances; and a backlog of unanswered grievances at the national level.

Overall, the preliminary assessment completed by the audit team identified the main risks that:

These risks were considered in developing the audit objectives and criteria.

2.0 Objectives and Scope

2.1 Audit Objectives

The overall objectives of this audit were to provide reasonable assurance that:

  1. an adequate framework was in place to support the Process;
  2. CSC was meeting its statutory obligations pertaining to the complaint and grievance process as outlined in the CCRA and CCRR; and
  3. CSC had appropriately planned for and implemented a strategy for the effective and efficient resolution of grievances filed at the national level.

Specific audit criteria are included in Annex A.

2.2 Audit Scope

The audit was national in scope and assessed relevant procedures and practices in place at both selected sites and the ORD. The audit included visits to institutions which collectively housed incarcerated offenders of varying demographics (i.e. men, women, indigenous), but scoped out community facilities given the relatively low volume of offender complaints and grievances submitted against these sites.

The audit also included a sampling and review of responses to complaints and grievances, which were received over the period from fiscal years 2014/15 to 2016/17, to determine the degree to which decision makers were making satisfactory efforts to respond.

The audit did not assess the correctness or technical accuracy of the responses, primarily as the audit team noted that over the period from fiscal years 2014/15 to 2016/17, for those initial grievances that were raised to the final (national) level, only 2.1% of these grievances had been upheld by the final level. This demonstrates that a significant proportion of decisions that were challenged by offenders at the institutional level were later maintained by the ORD, thereby reducing the risk that institutions were issuing incorrect responses to any significant extent.

6.0 About the Audit

6.1 Approach and Methodology

Audit evidence was gathered through a number of methods:

Interviews

A total of 95 interviews were conducted with senior management and staff primarily at the national and at the institutional level. At the national level, interviews were conducted with senior executives, including sector heads; the ORD's management team as well as the ORD's grievance analysts. At the institutional level, interviews were conducted with decision makers, including institutional heads, division heads and correctional officers; as well as with complaint and grievance personnel. In addition, a total of 38 interviews were conducted with offenders, including with the Inmate Welfare Committee of each respective institution visited. Note that the offenders interviewed were pre-selected by the audit team from a system-generated list of offenders who had made complaint and/or grievance submissions in the in-scope audit period.

Review of documentation

Relevant documentation including legislation, policies, procedural documentation, job descriptions, plans, performance reporting and other relevant corporate documentation were reviewed.

Testing

The audit included a sampling and review of responses to offender complaints and grievances. The purpose of this review was to determine the degree to which decision-makers' responses were addressing all of the offender's documented concerns; whether decisions were substantiated with reference to CSC policies or other authoritative documents; and whether the response was written in an objective, professional manner. A sample size of roughly 30 filesFootnote 7 were selected from each respective site visited using primarily a random sampling methodology, with a smaller judgemental sample selected to ensure sufficient coverage of responses at all three decision levels (i.e. complaint, initial grievance and final grievance). The total sample size for all 10 sites visited was 288.

Site Selection

The goal of the site selection methodology was to choose a varied mix of institutions in order to obtain a comprehensive appreciation of institutional complaints and grievances processes across the Service. To this end, the site selection included institutions with relatively high and relatively low rates of complaint and grievance escalation to the next decision level; a measure which may be indicative of the effectiveness (or lack thereof) of institutional complaint/grievance practices. In addition to this site selection criterion, the audit team chose sites from each of CSC's five regions, at all security levels (minimum, medium and maximum), including clustered sites. Annex B identifies the sites visited.

Observations

While on-site at each institution visited, the audit team conducted a walk around of the institution to determine whether complaint/grievance submission boxes existed; the degree to which these boxes were accessible to offenders; and the process followed by institutional staff to collect and deliver submissions to the administrative branch of the institution for processing.

6.2 Past Audits and Reviews Related to the Offender Redress Process

Past CSC internal audits and external assurance work were used to assist in scoping the audit work, including the following.

Offender Complaint and Grievance System Audit Report (June 2002)

The audit found that institutional and regional grievance coordinators had been assigned to the position with little or no formal training and expected to learn on the job, hence, there appeared to be a number of interpretations with respect to acknowledgements, expectations from the respondents and timeframes. In addition, the audit noted that there was no official regional or national support system in place for the coordinators; they often depended on their counterparts from other institutions for advice and guidance.

Audit of Offender Complaint and Grievance Process (May 2009)

With respect to the management framework, the audit found that the definition and intent of the multiple grievor status was unclear. More specifically, staff questioned the need for the status, as it did not limit the offenders' ability to submit complaints and grievances. Lack of training for grievance personnel and the need for better performance measurement and monitoring of the grievance process were also flagged as issues. With respect to compliance with legal and policy requirements, the audit noted that there were challenges in meeting timelines for response to complaints and grievances; clarification was needed with respect to the requirement to collect and review complaints and grievances on weekends and holidays from inmates on segregation/cell-confinement status; and improvements could be made with respect to the completeness and quality of grievance file content, including the documentation of corrective action taken.

Review of Practices in Place to Prevent/Respond to Death in Custody (February 2012)

The review found that consistent with a past internal audit recommendation, CSC had updated the Commissioner's Directive-081 to indicate that complaints and grievances submitted by segregated offenders must be collected and assessed daily including weekends and holidays. However, the review determined that 60% of the applicable sites visited did not have a process in place to collect and review these complaints and grievances on weekends and holidays.

External Review of Correctional Service of Canada Offender Complaints and Grievance Process (July 2010)

The external review recommended that CSC commit more resources to the resolution of complaints and grievances at the institutional level, including appointment of a Grievance Coordinator at every institution as well as a Mediator at every maximum and medium security institution. In addition, the report noted the need for a significant enhancement in the training provided to correctional officers, other staff, and management in the operations of the complaints and grievance process. There was also discussion of the need to remove the second level of the process, given its limited utility in resolving grievances. Lastly, the report recommended that the process of designating an offender a 'Multiple Grievor' be simplified and that there be greater restrictions placed on the filing of complaints and grievances flowing from this designation.

6.3 Statement of Conformance

In my professional judgment as Chief Audit Executive, sufficient and appropriate audit procedures have been conducted and evidence gathered to support the accuracy of the opinion provided and contained in this report. The opinion is based on a comparison of the conditions, as they existed at the time, against pre-established audit criteria that were agreed on with management. The opinion is applicable only to the area examined.

The audit conforms to the Internal Auditing Standards for Government of Canada, as supported by the results of the quality assurance and improvement program. The evidence gathered was sufficient to provide senior management with proof of the opinion derived from the internal audit.

Sylvie Soucy, CIA
Chief Audit Executive

Glossary

The following are definitions of common terms used to describe offender misuse of the complaint and grievance process, as outlined in the Commissioner's Directive 081 (Offender Complaints and Grievances):

Frivolous:
Where the decision-maker concludes on the balance of probabilities that the complaint or grievance was submitted with no serious purpose.
Vexatious or not made in good faith:
Where the decision-maker concludes on the balance of probabilities that the overriding purpose of the complaint or grievance is:
  1. to harass
  2. to pursue purposes other than a remedy for an alleged wrong, or
  3. to disrupt or denigrate the complaint and grievance process.

The following is a summarized description of all complaint/grievance decision types, which are fully described in CSC Guidelines 081-1 (Offender Complaints and Grievances Process):

Upheld:
When a complaint/grievance is justified on the grounds that the treatment of the offender or the procedure was unfairly or arbitrarily applied, or contrary to guiding legislation or policy.
Upheld in part:
A complaint/grievance will be upheld in part when several issues are grieved and/or elements are addressed in the response but not all are upheld (i.e.: other elements are denied, rejected, no further action).
Denied:
After reviewing the complaint/grievance and conducting the analysis, the issue is considered unfounded or the decisions or actions of staff members were deemed appropriate.
Resolved:
If an offender no longer wishes to pursue a complaint/grievance through the redress process, he/she must submit a written explanation indicating how the matter was resolved.
No further action:
When it is deemed that the action taken at previous level(s), or since the submission of the complaint/grievance, rectified the situation in accordance with law and policy, the issue therefore requires no further action. Though the action may not be to the offender's satisfaction, the issue is nonetheless deemed to have been appropriately addressed.
Beyond authority:
A complaint/grievance is beyond authority when the decision maker establishes that the issue must be addressed at the next level (is beyond the authority of the current level to address).
Rejected:
A complaint/grievance may be rejected for several reasons including if, for example, the issue being grieved is not under the jurisdiction of the Commissioner.

Annex A: Audit Criteria

The following table outlines the audit criteria developed to meet the stated audit objective and audit scope:

Objective Audit Criteria Met/
Met with Exceptions/
Partially Met/
Not Met
1. An adequate framework is in place to support the offender complaints and grievance process. 1.1 Accountability
  1. Authority, responsibility and accountability are clear and communicated.
  2. Personnel have been provided with the training, tools and information required to carry out their respective responsibilities.
Partially Met
1.2 Prevention of misuse
The design and implementation of the complaint and grievance process sufficiently prevents misuse of the system by offenders.
Not Met
1.3 Monitoring and Reporting
A mechanism exists at all levels to collect and analyze complaint and grievance related data, and management uses the resulting information to make decisions.
Partially Met
2. CSC is meeting its statutory obligations pertaining to the complaint and grievance process as outlined in the CCRA and CCRR. 2.1 Legislative Framework
  1. CSC is fairly and expeditiously resolving offenders' grievances;
  2. Offenders have complete access to the grievance procedure;
  3. Efforts are being made by staff members and offenders to resolve matters informally; and
  4. Offenders are provided with a written copy of the decision.
Partially Met
3. CSC has appropriately planned for and implemented a strategy for the effective and efficient resolution of grievances filed at the national level. 3.1 Oversight
Oversight of backlog remediation activities has been established and effectively implemented.
Partially Met
3.2 Project Management
CSC has appropriate project management plans, tools and resource allocations in place to eliminate the backlog of grievances and prevent it from reoccurring.
Partially Met

Annex B: Site Selection

Region Sites
Atlantic
  • Atlantic Institution
  • Nova Institution for Women
Quebec
  • Federal Training Centre
  • La Macaza Institution
Ontario
  • Bath Institution
  • Joyceville Institution
Prairies
  • Saskatchewan Penitentiary
  • Stony Mountain Institution
Pacific
  • Mountain Institution
  • Pacific Institution

Annex C: Most Frequently Grieved Subject Matter

The following table ranks the top five areas that were most frequently grieved by offenders over the period from fiscal years 2014/15 to 2016/17.

Rank Complaint/Grievance Subject Number of Complaints and Grievances Received Percentage of Total Complaints and Grievances Received
1 Staff Performance 12,122 15.2%
2 Correspondence / Telephone Communication 8,249 10.3%
3 Amenities - Food and Diet 6,005 7.5%
4 Personal Effects 5,636 7.1%
5 Non-Urgent Health Services 3,261 4.1%
Total Number of Complaints and Grievances Received 79,771

Annex D: Key Excerpts from Legislation

Corrections and Conditional Release Act:

Grievance procedure

90 There shall be a procedure for fairly and expeditiously resolving offenders' grievances on matters within the jurisdiction of the Commissioner, and the procedure shall operate in accordance with the regulations made under paragraph 96(u).

Access to grievance procedure

91 Every offender shall have complete access to the offender grievance procedure without negative consequences.

Frivolous complaints, etc.

91.1(1) If the Commissioner is satisfied that an offender has persistently submitted complaints or grievances that are frivolous, vexatious or not made in good faith, the Commissioner may, in accordance with the prescribed procedures, prohibit an offender from submitting any further complaint or grievance except by leave of the Commissioner.

Review of prohibition

(2) The Commissioner shall review each prohibition under subsection (1) annually and shall give the offender written reasons for his or her decision to maintain or lift it.

Corrections and Conditional Release Regulations:

Offender Grievance Procedure

74(1) Where an offender is dissatisfied with an action or a decision by a staff member, the offender may submit a written complaint, preferably in the form provided by the Service, to the supervisor of that staff member.

(2) Where a complaint is submitted pursuant to subsection (1), every effort shall be made by staff members and the offender to resolve the matter informally through discussion.

(3) Subject to subsections (4) and (5), a supervisor shall review a complaint and give the offender a copy of the supervisor's decision as soon as practicable after the offender submits the complaint.

(4) A supervisor may refuse to review a complaint submitted pursuant to subsection (1) where, in the opinion of the supervisor, the complaint is frivolous or vexatious or is not made in good faith.

(5) Where a supervisor refuses to review a complaint pursuant to subsection (4), the supervisor shall give the offender a copy of the supervisor's decision, including the reasons for the decision, as soon as practicable after the offender submits the complaint.

75 Where a supervisor refuses to review a complaint pursuant to subsection 74(4) or where an offender is not satisfied with the decision of a supervisor referred to in subsection 74(3), the offender may submit a written grievance, preferably in the form provided by the Service:

  1. to the institutional head or to the director of the parole district, as the case may be; or
  2. if the institutional head or director is the subject of the grievance, to the Commissioner.

76(1) The institutional head, director of the parole district or Commissioner, as the case may be, shall review a grievance to determine whether the subject-matter of the grievance falls within the jurisdiction of the Service.

(2) Where the subject-matter of a grievance does not fall within the jurisdiction of the Service, the person who is reviewing the grievance pursuant to subsection (1) shall advise the offender in writing and inform the offender of any other means of redress available.

78 The person who is reviewing a grievance pursuant to section 75 shall give the offender a copy of the person's decision as soon as practicable after the offender submits the grievance.

80(1) If an offender is not satisfied with a decision of the institutional head or director of the parole district respecting their grievance, they may appeal the decision to the Commissioner.

(3) The Commissioner shall give the offender a copy of his or her decision, including the reasons for the decision, as soon as feasible after the offender submits an appeal.

80.1 A senior staff member may, on the Commissioner's behalf, make a decision in respect of a grievance submitted under paragraph 75(b) or an appeal submitted under subsection 80(1) if the staff member:

  1. holds a position equal to or higher in rank than that of assistant deputy minister; and
  2. is designated by name or position for that purpose in a Commissioner's Directive.

Annex E: Comparison of Final Level Compliance with Commissioner's Directive (CD) Required Timeframes (for each in-scope Fiscal Year)

FY 2014/15:
Priority Level CD Timeframe Requirements Results Rate of Compliance Average Response Time for Delayed Responses
High 60 working days 97 / 1,231 8% 270 days
Routine 80 working days 5,475 / 8,229 67% 328 days
Overall Results (For both High and Routine Priority): 5,572 / 9,460 59% N/A
FY 2015/16:
Priority Level CD Timeframe Requirements Results Rate of Compliance Average Response Time for Delayed Responses
High 60 working days 486 / 1,338 36% 177 days
Routine 80 working days 913 / 2,172 42% 249 days
Overall Results (For both High and Routine Priority): 1,399 / 3,510 40% N/A
FY 2016/17:
Priority Level CD Timeframe Requirements Results Rate of Compliance Average Response Time for Delayed Responses
High 60 working days 559 / 809 69% 113 days
Routine 80 working days 837 / 1,453 58% 137 days
Overall Results (For both High and Routine Priority): 1,396 / 2,262 62% N/A
FY 2014/15 to 2016/17:
Results Rate of Compliance Average Response Time for Delayed Responses
Combined Results
(FY 2014/15 to 2016/17 For both High and Routine Priority):
8,367 / 15,232 55% High - 217 days

Routine - 281 days

Overall, for high priority grievances improvements have been noted in complying with the required timeframes. For routine priority grievances, although the compliance rate remains low, there has been noted improvement in the overall timeframe of delayed responses as it has decreased from 328 days in 2014/15 to 137 days in 2016/17.

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