Remarks for
Howard Sapers, Correctional Investigator of Canada

Aboriginal Corrections and Criminal Law

12th Annual Aboriginal Law Speaker Series
March 07, 2014

University of Alberta
Edmonton, Alberta

I am so very happy to have been invited to meet with you today.  Thank you for the opportunity to address this annual speaker series.  I am honoured to be included amongst such an impressive group of speakers.

At the outset, I want to acknowledge the traditional stewards of this territory.

My remarks today are focused on the challenges facing Aboriginal men and women serving a federal sentence. One year ago today a report by my Office was tabled in Parliament – Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act.  It was only the second time in the history of my Office that a Special Report to Parliament has been issued.  In my assessment, the issues facing Canada’s Aboriginal people in the federal correctional system continue to be urgent and alarming.  

This afternoon, I will provide some commentary on the social, cultural and historical circumstances that contribute to disproportionate rates of Aboriginal incarceration in Canada.  I will conclude with some thoughts about what could be done to narrow the widening gap in correctional results and outcomes for federally sentenced Aboriginal people.

Let me say at the outset that I appreciate that the disproportionate rates of Aboriginal over-representation fall largely outside the Correctional Service’s  area of responsibility and jurisdiction.  

Reducing the rate at which Aboriginal people come into conflict with the law requires a whole of government approach addressing, amongst other things, education, employment, housing and healthcare.  With that said, there are some things the federal correctional system can and must do to address the disparities in outcomes for Aboriginal offenders.  It is on these matters that I want to focus my remarks today.

The over-representation of Aboriginal people entangled in Canada’s criminal justice system is not new.  The social, cultural, historical and economic factors that give rise to Aboriginal incarceration rates that are several times higher than national rates have been extensively documented.  

As the Royal Commission on Aboriginal People concluded, high rates of Aboriginal incarceration speak to a people’s loss of culture, identity and spirit.  On occasion, these matters have given rise to interventions by Canada’s highest courts. In the 2012 Ipeelee ruling for example, the Supreme Court of Canada reaffirmed its earlier landmark decision in the case of R. v. Gladue.  

Let me quote the Court in Ipeelee:

The courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.

The point of taking “judicial notice” of such matters is to acknowledge that remedial measures are necessary to mitigate the underlying factors circumstances that lead to disproportionate rates of Aboriginal offending.  The courts have made it clear these Gladue factors must be considered whenever the liberty interests of an Aboriginal person are at stake.  In corrections, this means that the CSC must consider the social history of an Aboriginal offender in security classification, penitentiary placement, institutional transfer and administrative segregation decisions.

The Supreme Court references in Gladue and Ipeelee recognize that a history of disadvantage follows Aboriginal men and women into prison.  Beyond sentencing, a number of Gladue factors are to be considered by decision-makers when the interests of an Aboriginal offender are involved:

  • Effects of the residential school system.
  • Experience in the child welfare or adoption system.
  • Effects of the dislocation and dispossession.
  • Family or community history of suicide, substance abuse and victimization.
  • Loss of, or struggle with, cultural/spiritual identity.
  • Level or lack of formal education.
  • Poverty and poor living conditions.
  • Exposure to and membership in Aboriginal street gangs.

In correctional language, Aboriginal social history roughly translates as “high risk,” “high need” and “low reintegration potential.” The gaps and disparities between Aboriginal and non-Aboriginal offenders are distressing on a number of measures:   

  • Aboriginal people under federal sentence tend to be younger, less educated, and more likely to present a history of substance abuse, addictions and mental health concerns.
  • Aboriginal offenders are classified as higher risk and higher need in categories such as employment, community reintegration, substance abuse and family supports.
  • Aboriginal offenders are more likely to be classified as maximum security, spend more time in segregation and serve more of their sentence behind bars.
  • Aboriginal offenders are far more likely to be detained to warrant expiry or return to prison with or without a new crime.
  • Aboriginal persons are disproportionately involved in use of force interventions and prison self-injury incidents.

These realities unfortunately define Aboriginal corrections in Canada and they defy easy solutions.  What is especially troubling is that the gap in results and outcomes for Aboriginal offenders is widening on the most significant indicators of correctional performance.  

At the time of the Spirit Matters investigation, parole grant rates, security classification, segregation placements, work releases, disciplinary charges, community employment were all trending in the wrong direction for federally sentenced Aboriginal people.

Now, the news is not all bad. Many of these issues have been long recognized as requiring attention and it would be inaccurate to suggest the Correctional Service has been ignoring them.

For example, there is some positive progress being reported in the areas of Escorted and Unescorted Temporary Absences for Aboriginal offenders to participate in cultural activities and to maintain community contact, as well as higher program enrolment and completion rates of Aboriginal programs.  The CSC is creating more Aboriginal-specific positions such as Aboriginal Community Development, Programs and Community Liaison Officers.  The number of Aboriginal offenders returning to their communities is finally beginning to increase.

However, these gains are more than offset by ever widening gaps in areas such as overrides to higher security, day and full parole waivers and suspensions and revocations.  Indeed, the majority of First Nations, Métis and Inuit offenders gain release from a federal prison by statute, at the two-thirds point of their sentence, not through parole.

The CSC recently released the results of a research study looking at a sample of Aboriginal offenders enrolled in the Aboriginal Offender Substance Abuse Program.  Based on self-reported data for 316 Aboriginal men, the study painted a distressing picture:

  • Half of the sample indicated that they had been in the care of the child welfare system – 71% had spent time in foster care and 39% in a group home.
  • 61% had family members who had spent time in prison.
  • 73% reported a familial history of involvement with the residential school system; 18% said they themselves were residential school survivors.
  • Almost all (96%) indicated that substance use was related to their current offence; 85% reported they were under the influence at the time of their offence.  And,
  • 88% reported they had a family member with an alcohol or drug addiction.

Today, nearly one quarter of the federal incarcerated population is Aboriginal, compared to 2000-01, when Aboriginal offenders accounted for 17% of the federal inmate population.  My Office estimates that Aboriginal adults are now incarcerated at a rate that is almost 10 times the national average.  And these rates are increasing.  Since 2005-06, there has been a 43% increase in the Aboriginal inmate population, compared to just a 5.6% increase in non-Aboriginal inmates.  There are now over 3,500 Aboriginal offenders inside federal prisons.

The statistics are not any better at the provincial or territorial levels.  In 2010-11, 27% of adults in provincial and territorial custody were Aboriginal, a rate which is six to seven times higher than their proportion of the total adult Canadian population.  26% of all admissions to youth corrections that year were Aboriginal.

The numbers are even more alarming for women.  By the end of 2011, 41% of all women incarcerated in Canada were Aboriginal. 

At the federal level, one-in-three federally incarcerated women is Aboriginal. In fact, Aboriginal women are the fastest growing sub-population in federal corrections today. The number of Aboriginal women in federal custody has doubled in the last 10 years.   Aboriginal women account for 59% of federally sentenced women here in the Prairie Region. Women are also more likely to come to prison with histories of self-harm, physical and psychological trauma and sexual abuse.

This is the context within which my Special Report to Parliament on Aboriginal corrections was released.  Spirit Matters represents my Office’s assessment of how Aboriginal-specific provisions of the Corrections and Conditional Release Act – the law that governs federal corrections – have been applied since they came into force in 1992.  

In particular, the reportexamines the use of Sections 81 and 84 of the law. 

Section 81 allows for the Minister to enter into agreements with Aboriginal communities to transfer care and custody of Aboriginal offenders who would otherwise be held in a CSC facility.  Section 84 provides for Aboriginal community involvement in release planning of an Aboriginal offender returning to their community.

The legislation also provides for a National Aboriginal Advisory Committee, and it makes it clear that Aboriginal elders and Aboriginal spirituality have the same status as other religions and other religious leaders. 

When enacted in 1992 by the federal government, Aboriginal-specific provisions of the CCRA were part of a series of remedial measures designed to stem the tide of over-representation of Aboriginal people in corrections.  Other reforms, in part driven by the Royal Commission on Aboriginal Peoples in 1995 included the introduction of new sentencing principles in 1996 and culminated in the aforementioned landmark Supreme Court of Canada decision in R. v. Gladue in 1999.

These sections of the law govern correctional practice and treatment of Aboriginal offenders under federal sentence.  They do not imply or give rise to “preferential treatment.”  Aboriginal-specific provisions of correctional law give expression to the notion that in order for our system to be fair, individual differences must be acknowledged.  Equality does not mean treating everyone the same; it means recognizing disadvantage and disparities in both opportunity and outcome and trying to remediate them.

The purpose of Spirit Matters was to investigate whether the Correctional Service is doing all it can and should to make sure the will of Parliament is respected in regard to appropriate consequences and treatment for Aboriginal offenders.

So what did we find, 20 years after the CCRA was enacted by Parliament? In short, we found some serious and troubling gaps between the law and practice.

  • We found limited use of Section 81 and 84 provisions to transfer of care, custody and programs to Aboriginal communities.
  • Only four Section 81 agreements have been concluded with Aboriginal communities since 1992.
  • Only 68 Section 81 bed spaces have been created across Canada (Equals capacity for just 2% of some 3,500 Aboriginal inmates.)
  • There are no Section 81 agreements in BC, ON, Atlantic Canada or in the North.
  • Although one existing agreement has been expanded, no new Section 81 agreements have been signed since 2001, despite a 40% increase in Aboriginal incarceration.
  • Three of four Section 81 facilities are on reserve land, yet most Aboriginal offenders are released to an urban setting.
  • There were no Section 81 beds for Aboriginal women until September, 2011.

We also found disparities between CSC Healing Lodges and Section 81 facilities.  For example:

  • No permanent funding arrangements are in place for Section 81 facilities
  • Section 81 facilities operate on substantially lower budgets and there are significant salary and benefit disparities
  • There are heavy reporting and insurance burdens on Sec. 81 operators

With respect to Section 84 provisions, we found implementation to be under-utilized, overly complex, bureaucratic, unevenly applied, and not well understood within or outside of the CSC. At the time that the report was released, out of a workforce of approximately 19,000 employees, CSC had only 12 Aboriginal Community Development Officers to help facilitate section 84 releases. We found that the number of Section 84 releases dropped by more than 50% between 2005/06 and 2010/11. 

As reported in Spirit Matters, fewer than 100 Aboriginal offenders benefited from section 84 releases in 2010-11, though these numbers are beginning to climb now that this option has been made available to Aboriginal offenders for their statutory release. 

Other key findings of Spirit Matters include:

  1. Restricted eligibility criteria effectively exclude most Aboriginal offenders from Section 81 consideration.
  2. Limited understanding of Aboriginal peoples, cultures and approaches to healing within federal corrections.
  3. Inadequate and uneven application of Gladue social history considerations in correctional decision-making.
  4. Funding and contractual limitations impede the work of Elders inside federal institutions and,
  5. Inadequate response to the urban realities and demographics of Aboriginal people.

To address these findings, Spirit Matters makes 10 recommendations, among them:

  1. Appoint a Deputy Commissioner for Aboriginal Corrections to ensure adequate focus and accountability.
  2. Negotiate permanent, realistic and at-parity funding levels for existing and future Healing Lodges and significantly increase the number of bed spaces where the need exists.
  3. Expand CSC staff training initiatives about Aboriginal people, history, culture and spirituality to include training in the application of Gladue principles.
  4. Resolve workload, payment and standards of service issues faced by Elders to ensure that they are equal partners in the delivery of programs and services within CSC.
  5. Reduce the amount of red tape and accelerate the process for Section 84 releases.

The Correctional Service’s initial response to Spirit Matters was disappointing.  All of the report’s recommendations were either rejected or used to endorse the status quo.  In short, I concluded that CSC’s response failed to meet the urgency, immediacy or importance of the issues raised in the report.

CSC’s response to Spirit Matters was so disappointing that, in my latest Annual Report released on November 26, 2013, I called upon the Service to consult with its National Aboriginal Advisory Committee to update its response.  I further recommended that the Service publish a public accountability report card summarizing correctional outcomes, programs and services for federally sentenced Aboriginal people that would be tabled annually in Parliament by the Minister of Public Safety.

Faced with these new recommendations, the Service is of the view that its Aboriginal Corrections Accountability Framework is robust and integrated with its other public reporting requirements. I disagree. Simply put, in the interest of transparency and accountability, CSC should be required to report to Parliament and Canadians its progress in narrowing the gap in correctional results and outcomes for Aboriginal offenders.  

To that end, internal performance measures and mechanisms, including CSC’s Aboriginal Corrections Accountability Framework, should be publicly accessible documents.  Canadians should not have to file access to information requests to see how their correctional system is faring in managing nearly one-quarter of its population.

Regarding the call to appoint a Deputy Commissioner for Aboriginal Corrections, I acknowledge that more bureaucracy will not solve the problems at hand.  At the same time, there must be stronger, more coherent and consistent leadership on these issues at CSC’s senior management table. To my mind, that means appointing an individual solely and exclusively accountable for progress in reducing the gap in disparities and outcomes for federally sentenced Aboriginal people.

The release of Spirit Matters attracted substantial media coverage. Most of the reporting was balanced and positive. Overall, I was quite pleased by the level of public interest and engagement. It suggests to me that Canadians are genuinely concerned about these issues and looking to all orders of government to better engage Canada’s Aboriginal people. 

Of course, not all commentary has been positive or helpful.  For example, I continue to encounter the argument that Aboriginal incarceration is a matter of choice or character, a kind of predisposition to commit crime.  As one recent national editorial put it: “If the number of aboriginal prison inmates is growing, it is not because of racism … it is because they are committing crimes.”  By this way of thinking, the reason there are a disproportionate number of Aboriginal people behind bars is because they break the law more often.

The inference is that an Aboriginal offender, like any other sentenced criminal, gets what he or she deserves. 

I have also heard mention of the need for Aboriginal people to take more responsibility for their criminal actions.  Others have expressed the view that only bad people go to jail.  Again, the argument is there are more Aboriginal people behind bars because they commit proportionally more crime.

Such claims are simplistic, dismissive and wrong. In the first place, they fail to take account of the prevailing economic, social and demographic conditions that place certain groups at increased risk of early and recurring conflicts with the law.  Secondly, they ignore Canada’s own history of race-based policies and rhetoric. 

The factors, circumstances and social histories which give rise to Aboriginal offending – failed government policies and programs of assimilation, institutionalization, poverty, intergenerational trauma, addiction and people’s lack of control over their lives – are either ignored in this analysis or are dismissed as unimportant.  The system itself is assumed to be fair, independent and equal for all. 

The fact that outcomes for Aboriginal offenders are so poor and deteriorating over time is considered to be the result of a lack of individual enterprise and a failure to take responsibility rather than evidence of systemic disadvantage.  This argument ignores the broader context in which people come into conflict with the law.

When interviewed or questioned about Spirit Matters, I am often asked whether the correctional system discriminates against Aboriginal people, whether it is biased, prejudiced or even racist in its design or intent.  Let me be clear - I found no evidence that anybody purposefully designed CSC programs, policies and practices to be discriminatory.  Yet, in fact, these programs, policies and practices produce differential outcomes for Aboriginal offenders.  Systemic discrimination is rarely pre-mediated or intentional. 

This happens when large systems, while trying to be neutral, ignore important differences that result in an identifiable group being harmed by insensitive administrative policy and practice. 

In its 2001 Speech from the Throne, the Government of Canada committed “to significantly reduce the percentage of Aboriginal people entering the criminal justice system, so that within a generation it is no higher than the Canadian average.”  Thirteen years later, we are farther away from reaching that commitment than ever.

The Correctional Service has had 20 years to develop and implement agreements with Aboriginal communities to facilitate the community transfer of Aboriginal offenders who would otherwise be held in a penitentiary. In my view, considering the rising levels of need, the lack of significant progress on this file is indefensible.  We can and must do better.  

I am much more encouraged by the response at the community level. Since the release of Spirit Matters, I have met with a number of provincial, territorial and national Federations and Grand Councils representing First Nations, Métis and Inuit peoples across Canada.  Within local and national Aboriginal communities, there is both engagement and concern in how to best address disproportionate rates of crime, victimization and incarceration.

I see indications that there is renewed interest among Aboriginal communities to use Aboriginal specific provisions of the law to better support safe and timely release. The fact that nearly one-quarter of our prisons are occupied by Aboriginal people and that most Aboriginal offenders are released from prison by statute, at the two-thirds point of their sentence, are just two indicators of how far the yardsticks need to move. 

I understand that the problems before us concerning the relations between Canada and its Indigenous peoples are literally centuries in the making.  There is no erasing the past.  We will continue to have to face the legacy of failed public policies including colonialism, displacement and residential schools.

Criminal justice fixes are most certainly required, but so are health, housing, education and employment fixes. 

The path of healing and reconciliation reach well beyond corrections and the mandate of a prison Ombudsman. I have no doubt that the solutions will be rooted in fairness, accountability, transparency and respect. 

Spirit Matters concluded that stronger leadership and improved implementation of mandated Aboriginal initiatives are required to address the growing problem of Aboriginal over-representation in Canada’s prisons.

The problems are indeed well known and potential solutions have been identified.  It is time to get on with it.

Thank you again for inviting me to be here with you today.  I wish you all success with your work and studies.