Law and injustice

Change is overdue at Corrections Canada to address Aboriginal incarceration rates

Why haven't long-standing recommendations and legislation been implemented?
Stephen Melkisethian

As Correctional Investigator of Canada, Howard Sapers has for years recommended the creation of a deputy commissioner for Aboriginal corrections. Earlier this year, the need for such a position was highlighted yet again with reports that Indigenous peoples now make up over 25 per cent of federal inmates. Among women and inmates on the prairies, the rates are even higher.

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"Year after year the proportion of offenders in federal penitentiaries who are of Aboriginal heritage continues to increase,” Sapers told Ricochet. “The Correctional Service of Canada, of course, is aware of this and they have put effort into creating a strategic plan for dealing with Aboriginal incarceration. They've put forward a model of intervention strategies for Aboriginal inmates. They have developed some Aboriginal-specific programs.”

“But what they haven't done is made the commitment at the most senior level to make sure that that effort results in some positive outcomes."

Implementation neglected

Aboriginal offenders typically face a series of poor outcomes. Compared to other offenders, they are more likely to spend time behind bars and less time in community supervision, wind up in segregation cells, and have higher rates of revocation or suspension of conditional release.

As Sapers has repeatedly pointed out, Aboriginal-specific sections of the Corrections and Conditional Release Act, which governs corrections services in Canada, have never been fully implemented.

"Section 81 allows 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 (Correctional Service of Canada) facility. Section 84 provides for Aboriginal community involvement in release planning of an Aboriginal offender returning to their community," he explained to the Standing Senate Committee on Aboriginal Peoples in 2013.

Kim Pate, the executive director of the Canadian Association of Elizabeth Fry Societies, cited Sapers' Spirit Matters report when she described the law's lack of implementation.

"Those provisions already say that Aboriginal communities — and it doesn't have to be a reserve, it could an Aboriginal community within an urban setting, it could be a community of support around an individual person — can and should be resourced to set up supports for those individuals," she said. The report's backgrounder makes explicit that Aboriginal-specific legislative provisions are underfunded, representing a "failing to fully meet Parliament's intent," and that the federal corrections system "perpetuates conditions of disadvantage for Aboriginal people in Canada."

Sapers went on to say in his testimony that after 20 years of having the Corrections and Conditional Release Act in place, implementation has been limited or "underutilized, overly complex, bureaucratic, unevenly applied and not well understood" by Corrections Canada.

A deputy commissioner of Aboriginal corrections, according to Sapers, is part of what is needed to address such long-standing deficits.

Reintegration barriers

Aboriginal corrections and Indigenous groups hope the recommendation will not be forgotten.

The fast growth of incarceration rates for Aboriginal women is especially startling, according to Darlene Shackelly, the executive director of the Native Courtworker and Counselling Association of British Columbia.

"We're starting to see that the numbers of Aboriginal women are becoming almost matched (to Aboriginal men’s) — within five years — which is quite startling,” Shackelly told Ricochet. “And the issues are more serious in terms of the charges. So we're quite aware of and support [the] recommendations to do with federal corrections."

Indigenous communities are often unaware of parts of the law meant to provide support for offender’s reintegration into the community.

Shackelly echoed Sapers' interest in issues faced by Aboriginal Elders who attend to the cultural and spiritual needs of offenders. Attention was drawn to the importance and availability of cultural support for Aboriginal offenders earlier this year, when advocates for Marlene Carter, a mental health patient who was moved from her home province of Saskatchewan to a facility in Ontario, argued that she would benefit from treatment near her community that incorporates Cree cultural programs and perspectives.

Shackelly also said that Indigenous communities are often unaware of parts of the law that are meant to provide support for offender’s reintegration into the community.

"I don't think enough work has been done around Corrections Services Canada to actually give to communities education and background on those sections — sections 84 and 81 — I think there's a whole gap there."

Pate said she isn't surprised that Aboriginal communities have not heard much about this law, saying that the change existed in name only.

When sections 81 and 84 “were brought in in 1992, there was no effort made in the initial instance to ensure that Aboriginal communities knew about it. For a while there were no efforts to even publicize it. And then one of the critiques came that no communities were interested.”

“It was ludicrous,” said Pate. “[With] life not being breathed into that portion of the legislation,” he explained, it was to be expected “that no communities came forward."

Aboriginal support staff needed

To the extent that Corrections Canada is absent in Aboriginal communities, it may be because there are very few community development or liaison officers who are Indigenous among the agency’s 19,000 staff.

Community development and liaison officers create partnerships with communities and assist offenders who may want to return to their community. Hiring Indigenous liaison officers, according to Sapers, would be one of the priorities for a deputy commissioner of Aboriginal corrections.

Louise Leonardi, the executive director of the Canadian Families and Corrections Network, agreed.

"The process to release someone is lengthy, cumbersome and frustrating,” Leonardi told Ricochet. “It's challenging for the inmate, it's challenging for the family, and we certainly need more than 12 Aboriginal community development officers to ensure adequate coordination takes places. It's not where everyone would like it to be yet."

"We really need someone there to help [when offenders] try to come back into the community," she said.

Shackelly emphasized that when an offender is released back into the community, there can be intense conflicts within small, close-knit areas, which Corrections Canada has largely left these unexamined.

"They haven't revisited that enough to look at the true impact on a community — because it has a chance, in my opinion, of being volatile," she said.

Leonardi also argued that sentencing could be affected positively by Aboriginal restorative justice sentencing process. Furthermore, she explained the absence of knowledge and the lack of access to Gladue reports — a right to take into consideration an offender’s personal history and examine an offender's background — can be a significant barrier to appropriate sentencing. The reports are named for the landmark Supreme Court case of 1999, R v. Gladue, which advises lower courts to consider Aboriginal offenders' backgrounds when making sentencing decisions.

Incomprehensible resistance

Given that a deputy commissioner of Aboriginal corrections would not cost much money, why has Sapers’ recommendation not been implemented? Is there resistance at Corrections Canada to giving up power at the executive level, or is it simply not a priority for the public safety ministry?

"That's something I've never been able to understand,” said Sapers. “I really don't understand what the hesitation is to adding that kind of expertise to and support around the executive committee table. It's such an important area of correctional operations that I've often been surprised by the degree to which the Services has said 'no,' that they don't want to create that position."

The senior deputy commissioner of the Correctional Service of Canada agreed to an interview for this piece but was not available by deadline.

Calls and emails to Minister of Public Safety Ralph Goodale's office received no response. Requests for comment made to Randall Garrison, the NDP's public safety critic, were acknowledged and forwarded to the NDP's press office, as Mr. Garrison himself was unavailable, though no subsequent response was received.

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