Luncheon Address
Howard Sapers, Correctional Investigator of Canada

National Forum on Community Safety and Ending Violence
Hosted by the Assembly of First Nations (AFN)
and
Native Women’s Association of Canada (NWAC)

April 9, 2013
Edmonton, Alberta

 

Elders, Co-Chairs, Chiefs, Councillors and distinguished members of the audience, first I would like to acknowledge the traditional stewards of this land and that I am a guest in this territory. I am humbled by the invitation to meet together with you and I am honoured by your attendance. Thank you for the opportunity to address this important and timely National forum.

My remarks today are focused on the challenges facing Aboriginal people in federal corrections. I have been asked to talk about how appropriate correctional interventions can help prevent violence in communities. I will draw largely from a report by my Office that was tabled in Parliament on March 7 – Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act.

At the outset, I would like to formally recognize and commend the support of both the Assembly of First Nations and the Native Women’s Association of Canada in ensuring that my report reached a national audience and achieved national profile. Over the years, your support of the work of my Office’s has brought credibility to the issues I have raised concerning Aboriginal people in conflict with the law.

You may have seen some of the national media coverage that Spirit Matters generated. 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 are urgent and alarming.

Let me also say that I do not underestimate the commitment and resolve of the Correctional Service of Canada to provide safe and humane custody, nor is it my intention to diminish the progress that has been made in regard to culturally appropriate interventions for Aboriginal offenders over the last decade.

Furthermore, I appreciate that the challenges facing the CSC with respect to disproportionate rates of Aboriginal over-representation fall largely outside its jurisdiction and require a whole of government approach addressing, amongst other things, education, employment, housing and healthcare. But, as I concluded a few weeks ago, there are some things CSC can and must do to narrow the gap in disparities and outcomes for federally sentenced Aboriginal offenders. It is on these matters that I want to focus my remarks today.

The over-representation of Aboriginal men and women 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. It manifests from the lingering effects of residential schools and the creation of Reserves. From first contact onward, the dominant metaphors have been assimilation, dispossession, and displacement of Aboriginal people.

The factors that give rise to Aboriginal over-representation have been recognized by the Supreme Court of Canada, for example in R. v. Gladue (1999) and more recently in R. v. Ipeelee (2012). Let me quote the Court in the Ipeelee decision:

“To be clear, 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.”

In the criminal justice system, we know these as Gladue principles. Beyond sentencing, the following 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 of Aboriginal people.
  • Family or community history of suicide, substance abuse and/or victimization.
  • Loss of, or struggle with, cultural/spiritual identity.
  • Level or lack of formal education.
  • Poverty and poor living conditions.
  • Exposure to/membership in, Aboriginal street gangs.

It is apparent that a history of disadvantage follows Aboriginal men and women into prison. In correctional language, Aboriginal social history roughly translates as “high risk,” “high need” and “low reintegration potential.” As the Royal Commission on Aboriginal People concluded, high rates of Aboriginal over-incarceration speak to a people’s loss of culture, identity and spirit.

Today, 23% of the federal incarcerated population is Aboriginal. In 2000-01, Aboriginal inmates accounted for 17% of the federal inmate population. My Office estimates that Aboriginal adults are incarcerated at a rate that is 10 times the national average.

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. Meantime, 26% of all admissions to youth corrections that year were Aboriginal.

The numbers are even worse for women. By the end of 2011, 41% of all women incarcerated in Canada were Aboriginal. At the federal level, one-in-three federally sentenced women is Aboriginal. On average, Aboriginal female youth between the ages of 12 and 17 are incarcerated at a rate that is 6 times greater than their proportion in the general population. Women are also more likely to come to prison with histories of self-harm, physical and psychological trauma and sexual abuse.

Aboriginal women are the fastest growing sub-population in federal corrections today. The number of Aboriginal women in federal custody has virtually doubled in the 10 year period between 2002 and 2012. Aboriginal women account for 59% of federally sentenced women in the Prairie Region.

A few other facts and figures from the Prairies Region may help further illustrate the dimension of the issue:

  • In the two year period between March 2010 and March 2012, the Prairie Region (Manitoba, Saskatchewan and Alberta) accounted for 51% of all new net federal inmate growth. Most of this growth was led by new Aborigianl admissions.
  • The Prairies is the fastest growing region in the country, housing more than 4,000 inmates in 14 federal institutions. Aboriginal inmates comprise 46.5% of the regional offender population.
  • At Stony Mountain Institution in Manitoba 65% of the population is Aboriginal. At Saskatchewan Penitentiary, 64% of the population is Aboriginal. At the Regional Psychiatric Centre in Saskatoon, 58% of the count is Aboriginal. And at Edmonton Institution for Women 60% of the population is Aboriginal.
  • So far this year, CSC’s Prairie Region leads the country in double bunking, lockdowns, self-harm incidents, inmate homicides and assaults.

These regional figures are consistent with what we know about national outcomes for Aboriginal men and women in federal corrections. For example, Aboriginal offenders are much more likely to serve their entire federal sentence behind bars than their non-Aboriginal counterparts. In 2011-2012, Aboriginal offenders accounted for 45.1% of all cases held to warrant expiry despite comprising 22% of the inmate population.

In fact, the majority of First Nations, Metis and Inuit offenders gain release from a federal prison by statute, at the two-thirds point of their sentence, not through parole.

Aboriginal offenders receive a much lower proportion of full and day parole releases than might be expected based on their representation rates within the inmate population. Although conditional release grant rates are low for all inmates, they are worse for Aboriginal men and women.

Aboriginal offenders accounted for 45% of all self-injury incidents in federal prisons. Eight of the twelve most prolific self-harming offenders in federal prisons last fiscal year were Aboriginal – four of them were Aboriginal women.

Aboriginal offenders are over-represented in segregation and maximum security institutions. They are classified as higher risk and higher need in categories such as employment, community reintegration, substance abuse and family supports. These realities unfortunately define Aboriginal corrections in Canada and they defy easy solutions.

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 to stem the tide of over-representation of Aboriginal people in corrections, in part driven by the Royal Commission on Aboriginal Peoples in 1995. The reforms 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.

So what did we find, 20 years after the CCRA was enacted by Parliament?

We found limited use of Sections 81 and 84 legislative provisions to transfer care/custody, services 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 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 found disparities between CSC Healing Lodges and Section 81 facilities:

  • No permanent funding arrangements for Section 81 facilities
  • Section 81 facilities operate on substantially lower budgets
  • Salary and benefits disparities
  • Heavy reporting, financial, insurance and operational burdens

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 CSC. Out of a workforce of approximately 19,000, CSC has only 12 Aboriginal Community Development Officers to help facilitate section 84 releases. The number of Section 84 releases dropped by more than 50% over the last 5 years. Fewer than 100 offenders benefited from section 84 last fiscal year.

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 my report has been disappointing. All of the report’s recommendations were either rejected or used to endorse the status quo. In my assessment, there is nothing new in the Service’s response that will arrest, much less narrow, the gap in correctional outcome and disparities that contribute to rising incarceration rates for Canada’s Aboriginal people. In some cases, for example the recommendation to appoint a Deputy Commissioner for Aboriginal Corrections, the response simply recycles previously held positions. In summary, CSC’s response fails to meet the urgency, immediacy or importance of the issues raised in my report.

Regarding the call to appoint a Deputy Commissioner for Aboriginal Corrections, I acknowledge that more bureaucracy won’t solve the problems at hand. I believe what will begin to address the issues is a strong and consistent presence at CSC’s senior management table who will be solely responsible to provide leadership and be accountable for progress on these matters.

The report’s release 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 their governments to do better.

Of course, not all commentary has been positive or helpful. Some of it was rather reactionary, dismissive or beside the point.

For example, there has been mention of the need for Aboriginal people to take more responsibility for the criminal actions that are behind the high incarceration and victimization rates for Aboriginal people. Others expressed the view that only bad people go to jail. The inference is that an Aboriginal offender, like any other sentenced criminal, gets what he or she deserves. There are more Aboriginal people behind bars because Aboriginal people commit more crime. “What’s the problem,” some have asked?

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 is simplistic and just plain wrong as it ignores the broader context in which people come into conflict with the law.

This negative commentary is puzzling to me because the report itself does not excuse criminal behaviour. In fact, corrections is based on the assumption that people who break the law will receive a consequence. The law requires that the consequence be appropriate and proportionate to the harm caused, as determined and imposed by an independent court. The law further provides for consequences to be culturally appropriate. When considering the negative comments, let’s remember that personal responsibility is at the core of Aboriginal corrections and healing programs. These programs are all about harmony, respect, humility and adopting pro-social values.

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 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.

The purpose of my report was more modest: it investigates 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. I found some serious and troubling gaps between the law and practice. Stronger leadership and improved implementation of mandated Aboriginal initiatives are required to address the growing problem of Aboriginal over-representation in Canada’s prisons.

Concluding Remarks

When interviewed or questioned about the report, 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. 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.” One dozen years later, we are farther away from reaching that commitment than ever.  

At its core, corrections has always been a question about priorities – who and how many of our citizens do we need to lock up and for how long? Once in custody, what is it that should be done to increase the chances for safe and timely release? And how do we make sure that we are not doing more harm than good? The fact that nearly one-quarter of our jails and prisons are occupied by Aboriginal people casts doubt upon how we are answering these questions.

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.

Thank you again for inviting me to be here with you today as we seek solutions.