ARCHIVED - THE OFFICE OF THE
CORRECTIONAL INVESTIGATOR OF CANADA:
THE CHALLENGES OF OVERSIGHT
IN FEDERAL CORRECTIONS

Howard Sapers
Correctional Investigator

International Corrections and Prison Association Annual Conference
Prague
October 2008

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Introduction

This year marks the 35th anniversary of the Office of the Correctional Investigator (OCI). The creation of an ombudsman office specifically responsible for addressing prisoners' complaints is a cause for celebration.  It is a recognition that even those who have committed serious crimes must have access to an independent avenue of redress to voice their concerns and ensure that they are subject to fair and humane treatment while in the care and custody of government officials.  By their nature, penitentiary systems are largely closed to the public eye and operate behind closed doors. Historically, there can be no doubt that this operating reality has on occasion masked unfairness, inequity and even brutality from public view.  Openness, transparency and accountability in corrections are thus fundamental objectives to ensure that the rule of law prevails behind prison walls. The Office of the Correctional Investigator has contributed significantly to those three objectives in the last 35 years.

Guaranteeing the human rights of prisoners is an important challenge faced by most countries. The degree to which this guarantee is met impacts upon not only the period of incarceration, but also upon the success of a prisoner's reintegration into society once released. A good balance between internal and external monitoring can help prevent human rights breakdowns, detect violations when they occur, and rectify situations to ensure that they do not happen again. Striking the appropriate balance between internal and external oversight is not easy. Canada, like many other countries, has struggled with internal monitoring alone and added external monitoring thirty five years ago. Improved accountability and transparency in decision-making, fundamental features of a system compliant with human rights, have been the hoped for result.

Corrections are all about Human Rights. Most decisions made by correctional authorities affect the human rights of prisoners. Daily activities, such as whether a prisoner has contact with their family and friends, whether and how they can practice their religion, when they can access medical services, remunerated work or education, and when they can eat and sleep, are all regulated by correctional authorities. 

The correctional authority may restrict the human rights of prisoners in some specific circumstances prescribed in the law. Correctional staff may conduct searches, impose administrative segregation and disciplinary sanctions, or use reasonable force to prevent breaches of security. Since prison authorities have a great deal of power and can significantly restrict the retained rights of prisoners, correctional authorities must endorse a human rights legislative and policy framework and rigorously comply with the Rule of Law.

Human Rights in Federal Corrections

International and domestic human rights instruments affirm that persons deprived of their liberty have the right to be treated with fairness and humanity and have the right not be subjected to cruel, inhumane or degrading treatment or punishment. The best argument for observing human rights standards is not merely that they are required by international or domestic law, but that they actually work better than any known alternative - for offenders, for correctional staff and for society at large. Compliance with human rights obligations increases, though does not guarantee, the odds of releasing a more responsible citizen. Through respecting the human rights of prisoners, a strong message is conveyed that everyone, regardless of their circumstance, race, social status, gender or religion is to be treated with respect and dignity.

The human rights standards and principles outlined in international instruments, such as the International Covenant on Civil and Political Rights, the Convention Against Torture and the Standard Minimum Rules for the Treatment of Prisoners, should be reflected in all rules regulating correctional practices and procedures.

The international human rights obligations pertaining to Corrections can be summarized in four key principles:

  • The safety of correctional staff, prisoners and society at large is paramount.
  • Prisoners retain the human rights and fundamental freedoms of all members of society, except those that are necessarily removed as a consequence of sentence.
  • Decisions affecting prisoners are made in a fair and forthright manner.
  • Correctional authorities apply the "least restrictive measures" consistent with public safety.

In the long-term, failure to comply with any of these four principles jeopardizes public safety because it hinders the ability of correctional professionals to effect changes in prisoners - in other words, it hinders rehabilitation. Prisoners may attend very good rehabilitation programs, however, if they live within an environment disrespectful of human rights, any gain that may have been made in treatment will quickly erode or even dissipate completely. In sum, an environment respectful of human rights is supportive of positive changes, whereas an environment disrespectful of human rights will have the opposite effect; it will harden criminals by reinforcing disrespect for authority.

The History of the Public Sector Ombudsman

Broadly speaking, an Ombudsman is a public official appointed by a legislature to receive and investigate citizen complaints against administrative acts of government.  Ombudsman offices are unique as they provide independent, unbiased investigations into complaints against government agencies by gathering facts, reporting findings, issuing recommendations and bringing reason and understanding to disputes.  It is generally accepted that the first "Ombudsman" was appointed by the Swedish legislature in 1809 to respond to increasing public complaints against government agencies. The Swedish word "Ombudsman" means "protector or defender of citizens' rights." 

The features common to all Ombudsman offices which make them attractive as mechanisms for complaints resolution have been described by the British and Irish Ombudsman Association (BIOA) as follows:

  • Ombudsmen offer access to redress not available for cases which might not be considered by the Courts.
  • Ombudsmen are independent and impartial and conduct their investigations in private.
  • Ombudsmen are free to complainants.
  • Ombudsmen can usually take account of what is fair and reasonable and are not bound by interpretation of the law or precedent.
  • It is not necessary for the complainants to obtain professional advice prior to bringing a complaint to an Ombudsman.
  • Compliance with an Ombudsman's recommendation is secured by a variety of means - by law, by contract, by moral force and the standing of the Ombudsman.
  • Ombudsman schemes make extensive use of informal settlements and conciliation; some offer access to mediation.
  • Ombudsmen level the playing field between the under-represented complainant and large and powerful organizations.
  • Ombudsmen are inquisitorial, not adversarial, and investigations are conducted in private. Ombudsmen can examine and interview witnesses and use professional experts where appropriate. The procedure for investigations can be tailored to the circumstances of the case.

With the above in mind, it is clear that Ombudsmen have dual roles. Mary Seneviratne (2000) argued that while they provide redress for individual grievances, they are also concerned with the improvement of standards of service delivery. An ombudsman is therefore not merely an agent of redress, but also has a quality control function.  Through investigating individual cases ombudsman may highlight weaknesses in practices, rules and attitudes.  Discovering these weaknesses is of advantage to both complainants and those who have not complained because the resulting improvements in the system provide a generalized benefit.  Seneviratne (2000) further argued that these two roles do not conflict, nor should they be separated. Any office that receives and investigates complaints is only doing half its job if its casework experience is not used to provide comprehensive feedback to the organization investigated.  For example, such feedback could relate to improvements in the way internal complaints are dealt with, so that fewer complaints would make their way to the ombudsman.  Feedback could also lead to improvements when investigations have revealed systemic problems or failures.

The Development of the Specialized Prison Ombudsman

The establishment of specialized prison Ombudsman offices is relatively recent, but continues to gain in popularity around the world. Scotland and Northern Ireland are examples of jurisdictions which have recently established a specialized prison Ombudsman office. Many countries view such an office as one of the most effective models of external oversight to address prisoners' complaints and grievances. The specialized expertise and close working relationship with correctional authorities and stakeholders make prison Ombudsman offices oversight bodies capable of unbiased investigations and timely resolution of offender complaints.

Historically, most prison Ombudsman offices have been created as a direct result of well-publicized serious human rights violations and to address the chronic inability of internal prison complaint and grievance mechanisms to fairly and effectively respond to offenders' complaints. Canada is no exception in this regard. 

In 1971, Kingston Penitentiary in Ontario (one of Canada's oldest prisons) experienced one of the bloodiest riots in its history. Five correctional officers were taken hostage and a group of prisoners were brutally tortured - two of the prisoners died, 13 others were seriously injured, and part of Kingston Penitentiary was destroyed. Following the riot, many of the inmates implicated in the disturbance were transferred to Millhaven Penitentiary. Subsequently, correctional staff at Millhaven Penitentiary assaulted 86 offenders involved in the riot, causing injuries of various degrees. A Royal Commission of Inquiry, chaired by Justice Swackhamer, was appointed to examine these tragic events and made strong recommendations to improve the management and operations of the Canadian Penitentiary Service, as it was then known. The Office of the Correctional Investigator was established in 1973 pursuant to Part II of the Inquiries Act in response to Justice Swackhamer's sweeping recommendations for strengthening the accountability and oversight of the federal correctional system.

The Office was finally entrenched into legislation on November 1, 1992 with the enactment of the Corrections and Conditional Release Act.

The Office of the Correctional Investigator of Canada

The Office investigates and attempts to resolve individual federal offender complaints.  As well, it has a responsibility to review and make recommendations on the Correctional Service of Canada's policies and procedures associated with individual complaints.  In this way, systemic areas of concern can be identified and appropriately addressed.

The Office can initiate an inquiry on the basis of a complaint or on its own initiative.  The Correctional Investigator has complete discretion in deciding whether to conduct an investigation and how to carry out that investigation.

The Office addresses the vast majority of inmates' complaints at the institutional level, through discussion and negotiation. When a resolution is not reached at the institution, the matter is referred to regional or national headquarters, depending upon the area of concern, with a specific recommendation for further review and corrective action.

Whenever a matter has not been adequately addressed, the Office's findings and recommendations are presented to the Commissioner of Corrections. Comprehensive information supporting the Office's conclusions and recommendations are provided.

If the Commissioner, in the opinion of the Correctional Investigator, fails to address the matter in a reasonable and timely fashion, it is referred to the Minister of Public Safety and eventually may be detailed within an Annual or Special Report. (The latest Annual Report may be found at www.oci-bec.gc.ca.)

In the course of an investigation, the Office's staff have very significant authority to enter premises and to acquire information from files or individuals.  This authority is tempered by strict legal rules limiting their ability to disclose the information acquired. A vital assurance to all those with whom the Office deals, this confidentiality underlines the independence of the Ombudsman model from other forms of investigation and adjudication.

The Correctional Investigator is, above all, an Ombudsman. This involves a fundamental balancing of authority and functions, which has long characterised the Ombudsman approach. Legislation arms the Office with the operational tools and discretion to carry out thorough investigations on a broad range of offender problems. Nevertheless, the Correctional Investigator may only recommend solutions to offender problems. Recommendations may be directed toward institutional staff and management through regional and headquarters staff. The recommendations may also be directed to the Commissioner of Corrections and the Minister and, ultimately, all Parliamentarians.

As with other Ombudsman agencies, this balancing gives rise to two features that underpin effectiveness as compared to other investigative or adjudicative mechanisms:

  • enhanced and direct access to information permits the Office to bring timely closure to most matters, usually at the institutional level; and,
  • the focus on persuasion that flows from the power only to recommend means that the Office tends to address the most significant unresolved matters and only after a complete review of supporting information

It will be the relevance and weight of the evidence that is provided and the clarity and strength of conclusions that determine the outcome of efforts.

The Office of the Correctional Investigator currently has twenty-two staff, with sixteen directly involved as intake officers, investigators, coordinators or directors, in the day to day addressing of inmate complaints. The Office receives between six and eight thousand offender inquiries and complaints annually. Last year, approximately two thousand were addressed through an "immediate response" (the provision of information, assistance or referral) and more than four thousand resulted in an inquiry or investigation. The investigative staff last year spent three hundred days in federal penitentiaries conducting interviews with more than two thousands offenders and met with inmate organizations at every institution in the country.

Of the total 6,398 offenders' inquiries and complaints received by the Office this past year, the ten most frequent issues were related to:

  • health care (13%);
  • transfers (8%);
  • cell effects (7%);
  • administrative segregation (6%);
  • staff responsiveness (6%);
  • sentence administration (6%);
  • the internal grievance procedure of the Correctional Service (5%);
  • case preparation (6%);
  • visits and Private Family Visits (5%);
  • conditions of confinement (5%);
  • file information (access, corrections and disclosure) (4%); and,
  • financial matters (3%). 

Offender complaints related to mental health services and delivery are part of health-related complaints and are relatively infrequent. However, mental health issues are often a key factor in many other complaints received by the Office. For example, offenders may complain about being placed in administrative segregation or transferred into a higher security penitentiary. After investigating, the Office often discovers that the placement in administrative segregation or the transfer to a higher security institution were the result of a disruptive behaviour due to a mental health condition. Moreover, the Office receives many complaints about staff performance. The Office, as well as the CSC, recognizes staff are often not well trained and lack basic knowledge regarding how to deal with mentally-ill offenders. 

The Challenges of Oversight in Federal Corrections

The key strength of the OCI is its ability to address individual offender complaints at the institutional level. The dedication and commitment of those involved in investigations and resolution of complaints are what makes the OCI an important and effective organization. The independence of the office, in combination with impartial and professional investigative staff and a respectful relationship with the Correctional Service are key components of being a productive ombudsman office. It is important to note that more often than not, Correctional Service staff and managers at the institutional level are very responsive to OCI representations and are, therefore, partners in ensuring the fair and reasonable resolution of offender complaints.  

Unfortunately, the major weakness of the OCI is its limited ability to cause the Correctional Service to reasonably address systemic issues and to ensure that its operations fully comply with its legislative and policy framework. The OCI is, therefore, destined to deal with the same issues year after year, and has been unable to break this cycle and prevent complaints from emerging in the first place.  Interestingly, the Correctional Service's internal grievance system is caught in the same unproductive cycle, responding to thousands of similar complaints and grievances year after year with limited ability to fix systemic issues that are the root causes of offender complaints.   

Below is a list of key features that have proven to be effective at producing resolution of offender complaints:

  • Accessibility and responsiveness: Any Ombudsman office must be accessible and responsive to the needs of its clientele. This is even more important with Corrections Ombudsman offices which can deal with offender complaints involving serious violations of human rights.  Accessibility and responsiveness are a vital component of an effective Ombudsman function.

The OCI has implemented a 1-800 phone line to ensure that emergency matters, such as medical issues, involuntary transfers, and placements in segregation, are addressed in a timely fashion. Prisoners can contact the OCI via mail and meet with investigators during regular visits of correctional institutions.  On average, the OCI investigative staff conduct about 200 prison visits and interview in excess of 2500 offenders every year. All contacts remain confidential.

  • OCI staff qualifications: The OCI has been able to recruit staff with both extensive correctional and investigative experience. OCI staff have a strong commitment to social justice, evidence-based Corrections and human rights.  Investigative staff have a diversity of academic and professional backgrounds, including law, sociology, psychology, criminology and social work.
  • Good working relationships: Establishing good working relationship between the oversight agency and the organization subject to the oversight is very important, especially when the oversight agency's mandate is limited to one specific organization. Clearly, some tensions are inevitable, and to some degree desirable as no tensions would probably mean that the oversight agency isn't performing an adequate challenge function. Nonetheless, a good professional, courteous relationship is key to successful resolution of complaints. One of the building blocks of successful Ombudsman offices is the ability to remain fair and impartial, and not develop a reputation as either advocates for prisoners or correctional staff. Every recommendation must be grounded in sound evidence and analysis. Bringing well-documented, balanced recommendations to the attention of correctional authorities ensures a long-term professional working relationship.  

One way that has proven to have positive effects upon the working relationship has been to assign investigators to specific correctional institutions for a period of two years. This allows investigators to become familiar with institutional staff and senior management, and develop strong working relationships. Beyond two years, OCI staff are reassigned to bring them new challenges in their respective careers, and ensure that the relationship between investigators and institutional staff is never compromised and that impartiality is not questioned.  

  • Good communications and understanding roles and responsibilities: To be most effective, oversight by Ombudsman offices requires that both the Ombudsman offices and the organizations they oversee understand and mutually respect each other's roles and responsibilities, and adopt a constructive and positive approach. Effective communications can be challenging for both the oversight agency and the organization subject to the oversight. Some degree of formality is required, but at the same time informal and candid discussions are required to perform effective investigative work. Establishing mutual trust is at the center of good communications, and such communications must be both timely and responsive, especially when human rights issues are at stake.

After each institutional visit, investigators take the time to debrief wardens.  This allows for a constructive exchange of information on improvements and remaining challenges, as well as a mutual understanding of follow-up actions required.  A debrief letter is forwarded to wardens shortly after each institutional visit.  Directors of Investigations also follow-up on regional issues of concern with regional correctional authorities. Finally, key unresolved issues are addressed with management at the National Head Quarters. For systemic issues and policy matters, a continuous dialogue is maintained.

  • Responsiveness of the correctional authority: The power of an Ombudsman is limited to making recommendations. The challenge of Ombudsman offices is often to find ways to have their recommendations implemented and systemic issues addressed. To that end, Ombudsman offices can rely on a variety of strategies that targets the correctional authorities, the Minister responsible for the operations of Corrections, Parliamentarians, the media, NGOs and the public. Determining what strategy will yield the best results can be a delicate task. Although factors such as the importance of maintaining good working relationship, the political environment of the day, personalities of the players involved, and the degree of responsiveness displayed by the correctional authority must be considered, at the end of the day fairness and human rights must be the focus of all decisions.

Ivan Zinger (2006), Director of Policy and Senior Counsel, Office of the Correctional Investigator, made the following comments in a special issue of the Canadian Journal of Criminology and Criminal Justice on human rights and prison oversight:

"Certain factors should influence the level and vigilance of oversight mechanisms.  First, oversight should be enhanced when there is a high societal prevalence of law-and-order agenda in which politicians, in response to a vocal segment of their electorate, advocate for harsher measures against prisoners for political gains, regardless of the foreseeable impact of these measures on public safety. If the correctional authority capitalizes on this context and feels a certain degree of immunity from public scrutiny, this poses an additional challenge. For example, (prison) Ombudsman offices, which rely on recommendation, persuasion and publicity to effect change, will have great difficulties resolving systemic issues in these circumstances." 

Some correctional authorities around the world are under increasing legislative and societal pressure to introduce more austere ("no frills") prison regimes, impose new restrictions on prisoners, and tighten security requirements.  Even traditionally liberal and open regimes have taken measures in recent years to introduce a more spartan and, in some instances, more punitive prison regime in response to the prevailing law-and-order agenda. In this law and order climate, (prison) Ombudsman offices around the world will have to utilize all available strategies to ensure compliance with the Rule of Law in correctional settings.  It will become increasingly important for Correctional Ombudsman, such as the OCI, to remain vigilant and demonstrate innovation in this new security-driven global world.

 

References:

British and Irish Ombudsman Association (BIOA). Ombudsman Schemes: Guidance for Departments. Retrieved January 27, 2006, from BIOA Web site:
http://www.bioa.org.uk/BIOA-New/guide-dept/OMBUDSMAN%20SCHEMES.htm

Correctional Investigator. (1974). Annual Report of the Correctional Investigator 1973-1974. Ottawa: Information Canada.

Seneviratne, M. (2000). Ombudsman 2000. Nottingham Law Journal, 13-24.

Swackhamer, J.W. (1971). Commission of Inquiry into Certain Disturbances at Kingston Penitentiary during April, 1971.   Ottawa: Ministry of the Solicitor General of Canada.

Zinger, I. (2006). Human rights compliance and the role of external prison oversight. April Canadian Journal of Criminology and Criminal Justice 127. 

Legislation:

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment.  10 December 1984, Can. T.S. 1987 No. 36.

Corrections and Conditional Release Act. S.C. 1992, c. 20.

Inquiries Act. R.S.C.1985, c. I-13.

International Covenant on Civil and Political Rights. 16 December 1966, 1976 Ca. T.S. No.47.

Standard Minimum Rules for the Treatment of Prisoners. ECOSOC Res. 663 (XXIV) of 31 July, 1957 and 2076 (LXII) of 13 May 1977.