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
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.