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| Andrew West |
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| Lea Keren |
In 2020, the COVID-19 pandemic rapidly swept through the Canadian prison system. Virus outbreaks at prisons and other correctional institutions in Canada were common due to communal living conditions and failures to follow public health measures. Prisoners, who already face significant barriers to adequate health care and other supports were entirely reliant on the strict adherence of correctional officers and other prison staff to public health measures, both inside and outside prison walls.
In recent months, The Lawyer’s Daily has published numerous articles regarding the ongoing failings of the inmate grievance system (see for example Jeffrey Hartman’s Corrections Canada quick to respond to criticism not grievances, John L. Hill’s Delays in prison justice, and Lea Keren’s The continued elusiveness of prison justice). As Keren of the John Howard Society of Canada writes, “[t]he far from effective and timely grievance system likely fails to serve the purpose for which it was introduced.” Keren’s concerns are not new and echo a sentiment that has been felt by many in the prison system. In 1996, the Arbour Report raised red flags about the system. 25 years later, the 2021 Senate Report outlined that the failings of the inmate grievance system have become more acute as a result of the COVID-19 pandemic.
From the onset of the COVID-19 pandemic, the John Howard Society of Canada heard from prisoners regarding their concerns about health and safety, particularly guards neglecting to wear masks as the virus spread. To understand the extent and severity of such concerns, and knowing that the inmate grievance process system often fails to provide effective forms of redress, in October 2020, the John Howard Society of Canada filed an access to information request for inmate grievances regarding correctional officers failing to wear masks at Bath Institution over a specific two-week period, in contravention of provincial public health mandates. The response from the Correctional Service of Canada redacted many of the released and applicable inmate grievances in their entirety on the basis that inmates’ handwriting may lead to the identification of the inmate and therefore constituted “personal information” under the federal Access to Information Act and Privacy Act.
The John Howard Society of Canada with assistance from McCarthy Tétrault, LLP, in a pro bono capacity, recently brought a successful application for judicial review of the Correctional Service of Canada's decision, following an unsuccessful complaint to the Office of the Information Commissioner of Canada requesting the release of the redacted grievances. The decision, John Howard Society of Canada v. Canada (Public Safety) 2022 FC 1459, has recently been released by the Federal Court of Canada.
People who are incarcerated in Canada have extremely limited, if any, access to computers. This means they rely on written communication to submit formal inmate grievances. The inmate grievance system is an internal mechanism that is intended to ensure lawfulness within these institutions. However, they rarely lead to effective forms of redress, and often never see the light of day. This makes it critical for organizations like the John Howard Society of Canada to be able to access those complaints via federal privacy laws so that it can carry out its mission in advocating for the human rights of incarcerated people.
There is limited jurisprudence in this area. In fact, there are no reported decisions from any judicial body in Canada, including provincial and territorial privacy commissioners, holding that handwritten information, as a rule, is considered “personal information” for the purposes of access to information and privacy laws.
The analysis is, and should, be entirely fact-specific. This conclusion was helpfully reiterated by Justice Glennys McVeigh in her reasons. Regardless of whether the inmate grievance process remains a handwritten one, or potentially (hopefully) becomes electronic, access is critical to oversight and accountability and remains a key tool for the John Howard Society of Canada in ensuring effective, just and humane responses to the causes and consequences of crime. In protecting potential access to specific inmate grievances through the access to information process, this decision represents one small step in fixing the very broken inmate grievance system. Following this decision, access to information requests will continue to allow organizations like the John Howard Society of Canada to gain a view into prison life in this country, which no brick wall can restrict.
Andrew West (awest@mccarthy.ca) is an associate in the Calgary office of McCarthy Tétrault LLP. Lea Keren (@Leaakeren) is a legal consultant for the John Howard Society of Canada. She works full time as a staff lawyer with Innocence Canada.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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