Indigenous and Northern Affairs Committee on Nov. 26th, 2009

[The Chair, Conservative, Bruce Stanton]

Good morning, Committee members, witnesses and guests. This is the 4^th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. This morning, we have on our agenda study of the findings of the Correctional Investigator's Report regarding the incarceration of Aboriginal women.

This morning we welcome Mr. Howard Sapers, the correctional investigator. He brings with him Mr. Ivan Zinger, executive director and general counsel for the Office of the Correctional Investigator.

Mr. Sapers, Mr. Zinger, it's good to have you with us.

We will begin, as we discussed briefly before the meeting, with a 10-minute presentation.

Before we go to that, we have an intervention.

Monsieur Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Chairman, I have two important issues to bring forward, and I need answers.

Firstly, we must do an examination of the 2009-10 Supplementary estimates part B. When do you plan on having us examine these estimates?

Secondly, a remark was made by our whips at caucus. Some of you did not attend your respective caucuses yesterday. I fully understand. We are being asked to mention at each of our Committees that from now on MPs will not have to use their MP points for travel or missions within Canada. We were told yesterday that the Standing Committee on Aboriginal Affairs and Northern Development is one of the only committees — there may be a few others — whose members are required to use their points to travel in Canada. We were also told that we were to make requests to travel in smaller groups or, if the entire membership of the committee is to travel, that we must ask for additional monies.

Those are the two issues I wanted to bring up with regard to future travel by the Committee.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Lemay.

On the first point, on the supplementary estimates, it would be quite probable to discuss that possibility at our subcommittee meeting, which is planned for Tuesday of next week, at 10 a.m. I believe. This is certainly quite possible.

You will know that the committee did adopt a work plan, which did not include the review of those supplementary estimates. However, you will also know that in the course of the consideration of those estimates, if the committee chooses not to consider them, they're deemed to be adopted and approved. We'll carry on and so on. We can discuss that at subcommittee.

On the question of the utilization of members' special points for committee travel, we did discuss that. It was the feeling that all of the committee should travel, and that, in order to stay below the $100,000 cap in respect to committee travel, it would have been necessary to require the committee to use their special points. Had we not pursued that course, it would have been much more expensive, approximately 40% more than what the cost of travel was. However, we take that point into consideration.

There is no future travel planned at the moment, but when we pursue the possibility of travel in the future, this is something that we can consider at committee and choose the course that we feel is the most appropriate.

I have Mr. Bagnell on this point as well, and Madam Crowder.

Go ahead, Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

I'll be really brief, because I want to get to the witnesses.

I just want to agree, not for this trip but for future policy, that we send a message to the Board of Internal Economy. I know that a number of us are almost out of special points, and minimally, at least, if they cannot be considered special points, they can be, as plan B, regular points. A number of us almost couldn't have travelled because we're out of special points, but we have regular points left.

Secondly, I'd ask if sometime in the future we could discuss adding Air Canada and CMHC to our witness list, as we heard in committee meetings in the north.

Thank you.

[The Chair, Conservative, Bruce Stanton]

I must apologize, Mr. Duncan. I didn't realize that your name was on the list before Mr. Bagnell.

Mr. Duncan, followed by Madam Crowder.

[John Duncan, Conservative, Vancouver Island North, BC]

Mr. Chair, my point is that these were both foreseen. My memory is that both items, the supplementary estimates and this question of travel, were fully discussed at the subcommittee. We determined a course of action and we went with it.

I'm a little surprised, after the fact and at the eleventh hour, to be hearing this as if it's brand new subject matter. It's not. We've had a full discussion and I thought we had made decisions.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Duncan.

Madam Crowder.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

On the issue of the supplementary estimates, my recollection of it is that we had agreed that we would have the minister for supplementary estimates. I'm a little concerned that we deferred the decision, the discussion on it, until Monday, December 1, when we have to have this meeting prior to December 10. My recollection of that discussion was that it was always in the planning that we would have the minister for supplementary estimates. This committee has a history of always having the minister on supplementary estimates.

[The Chair, Conservative, Bruce Stanton]

Okay. Let's deal with it right now.

Is it the wish of the committee to change our work plan to incorporate a meeting for supplementary estimates prior to the deadline of December 10?

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Yes.

[The Chair, Conservative, Bruce Stanton]

There is no consensus.

Do we need to have a vote on the question? Okay.

All those in favour of changing the schedule to accommodate review of the budgetary estimates?

(Motion agreed to [See Minutes of Proceedings])

So we'll go ahead with that. That's the decision of the committee and we'll make the accommodations to have that happen.

Let's proceed, then, with our orders of the day.

Monsieur Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

My apologies to the witnesses. I will be brief, Mr. Chairman. It is important that we give notice to the parliamentary secretary in order for him to warn the minister that we are going to ask that he appear before us next week, or the following week, with regard to the Supplementary Estimates. That is a certainty, even if we come back to it and discuss it on December 1^st.

[The Chair, Conservative, Bruce Stanton]

We assume that to be the case with budgetary estimates.

I will say, though, to the committee that we will have to look at what time that would be. We'll look at the schedule accordingly and try to work it in, as we said, before the deadline.

Now we will resume with our consideration of the orders of the day before us. We will begin with Mr. Sapers.

Mr. Sapers, you have 10 minutes

[Howard Sapers, Correctional Investigator, Office of the Correctional Investigator]

Thank you, Mr. Chairman.

Thanks for the invitation to appear before this committee once again, and thank you for acknowledging the importance of reviewing the situation of aboriginal peoples in federal custody.

In the course of my remarks, I'll speak to issues pertaining to the care, treatment, and custody of federally sentenced aboriginal offenders from the point of view of drawing comparisons between aboriginal and non-aboriginal offenders.

The Office of the Correctional Investigator's executive director and general counsel, Dr. Ivan Zinger, will take you through some of the key findings of a recent progress report on aboriginal corrections released by my office just two weeks ago.

I'm aware that the treatment of federally sentenced aboriginal women is of particular interest to the committee at this point. I'll try to provide some context to help you better understand their issues in the course of my remarks today.

Over the years, my office has issued a series of reports and recommendations regarding the treatment of aboriginal offenders under federal sentence. In fact, the very first annual report released by the Office of the Correctional Investigator more than 35 years ago documented instances of systemic discrimination against federally sentenced aboriginal offenders. Unfortunately, many of our recommendations made since then have gone unheeded or only partially addressed, or the response to them has not yielded the intended result.

As members may be aware, my office released a progress report on federal aboriginal corrections on November 13, 2009. I believe the report has been circulated to the committee members. The report is entitled “Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections”. It was commissioned by my office and independently authored by Michelle Mann, whose previous work on aboriginal issues may be familiar to some committee members. The title refers to the fact that despite numerous well-intentioned plans, strategies, and commitments by the Correctional Service of Canada, the CSC, to address the documented gaps in correctional outcomes between aboriginal and non-aboriginal offenders, the actual results achieved to date have been nothing short of disappointing. The gap as measured by key correctional indicators is growing wider over time, not narrowing, despite the good intentions and the hard work of Canada's correctional authority.

It's important to note that the “Good Intentions” report looked only at what the Correctional Service had identified for itself as priorities. The commitments studied are those made by the service to Parliament, to the Treasury Board, and to Canadians in general. We purposely only considered progress or the lack of it against the stated intentions of the service. While there have been some positive developments and progress, the good news is limited.

I will ask Dr. Zinger to elaborate.

[Dr. Ivan Zinger, Executive Director and General Counsel, Office of the Correctional Investigator]

Mr. Chairman, on nearly every indicator, the Good Intentions report notes that correctional outcomes for Aboriginal offenders continue to lag significantly behind those of non-Aboriginal offenders.

Here are a few of the trends we have seen with regard to Aboriginal offenders: they tend to be released after having served a longer portion of their sentence; they are over-represented in segregated populations; they are often held in custody to warrant expiry; they are classified as higher risk and higher need; they are more likely to re-offend and have their conditional release revoked.

Aboriginal people have been disproportionately over-represented in federal correctional populations for a very long time. The problem is not new. However, what is new is the disturbing trend that rates of over-representation are getting worse, not better, over time. Aboriginal people now comprise 20% of the total federal offender population. That statistic translates into approximately 2,600 Aboriginal people incarcerated on any given day, in a federal penitentiary.

Statistically, one in five new admissions to a federal correctional facility is a person of Aboriginal descent. Among women offenders, the over-representation rate is even more dramatic — one in three federally sentenced women is of Aboriginal origin. The Aboriginal rate of incarceration is now approaching nine times the national average. Younger demographics for Aboriginal peoples suggest that disproportionate rates of incarceration will continue well into the next decade.

The geography of this over-representation is also skewed. In the Prairies' region of the Correctional Service of Canada, a region which incorporates the provinces of Manitoba, Saskatchewan and Alberta as well as the Northwest Territories and a portion of Northern Ontario, 64% of the current inmate population is Aboriginal. Visit any penitentiary in the Prairie provinces of Canada and you will witness the reality of over-representation first-hand.

In terms of personal characteristics, Aboriginal offenders under federal sentence tend to be: younger — with a median age of 27 years —; incarcerated for more violent offences; have much higher needs relating to employment and education; and have backgrounds of domestic, physical and/or substance abuse.

The vast majority of Aboriginal offenders in the system today are incarcerated in either medium or maximum security institutions. Aboriginal women offenders are grossly over-represented at maximum security. The Committee may be interested in knowing that the most severe crowding, including most of the double-bunking, is in medium security prisons, and that maximum security institutions have the most limited access to correctional programs.

[Howard Sapers]

The classification of aboriginal offenders has been a long-standing concern for my office, and for very good reason. It's disturbing that the most common form of release for an aboriginal offender from a federal penitentiary is statutory release. As the “Good Intentions” report attests: “The combination of over-classification and lack of Aboriginal programming illustrates how systemic barriers can hinder timely and effective offender reintegration.”

I would be the first to acknowledge that many of the factors contributing to the excessively high rates of aboriginal incarceration—poverty, social exclusion, substance abuse, discrimination—go well beyond the capacity of the correctional service to address in isolation. I am well aware that the federal correctional authority does not have control over the number of federally sentenced offenders. Nevertheless, the report states that the Correctional Service of Canada has the jurisdiction and the obligation, statutory and constitutional, to manage sentences in a culturally responsive manner. On this point the federal correctional service has fallen short, with negative consequences for aboriginal offenders and their communities.

Under the Corrections and Conditional Release Act, the legislation governing federal corrections, there are special provisions meant to give expression to the unique social and cultural circumstances of aboriginal offenders. Upon examination, we found a limited use of these legislative provisions designed to enhance aboriginal reintegration. Instead, we found an under-utilization of healing lodges, a chronic shortage of elders and dedicated aboriginal program delivery officers, inconsistent access to aboriginal programming, lack of an aboriginal anti-gang management and intervention strategy, lack of an aboriginal-sensitive classification instrument, absence of publicly available statistical evidence indicating progress or improvement in managing aboriginal offenders, and a lack of capacity to address the unique social and historical circumstances contributing to aboriginal offending.

Despite explicit intervention and direction from the courts in the Gladue decision, there is little sustained, concrete evidence suggesting that Canada's correctional service adequately addresses the history of dislocation, disadvantage, and discrimination that aboriginal people continue to experience when making decisions that significantly affect retained rights and liberties such as segregation placement, involuntary transfers, case preparation, and penitentiary security classification.

The situation for aboriginal people under federal sentence is not acceptable. In my view, the lack of sustained progress in improving outcomes for aboriginal offenders needs to be met by dedicated, focused, and accountable leadership within the Correctional Service of Canada. This is why my one single recommendation, coming as a result of the “Good Intentions” report, was a renewed call for the appointment of a deputy commissioner for aboriginal corrections.

While I would not normally see the addition of a senior bureaucrat as a solution to an operational impasse, in this case I am convinced that the service requires an executive with the authority to get things done and be accountable when there are questions about progress. There are executives sitting at the decision-making table focusing attention on women, health care, and human resources. Why not have the same focused attention and accountability for aboriginal corrections?

Mr. Chairman, I want to thank you and the committee for inviting us. We look forward to your questions.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Sapers and Mr. Zinger.

Now we will proceed to questions from members. Our first round for members will be seven minutes.

Let's begin with Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Good morning to each of you.

First of all, I want to thank you for your work. This is very important work. While statistics sometimes can tell us part of the picture, we're talking about people's lives here, the lives of many aboriginal people and their families, and their communities. We can never take away the human element that this represents.

It is astounding that we haven't seen progress when the reports have been coming out, as you tell us, for about 35 years. You say there is systemic discrimination. We haven't seen, with all of the recommendations, with all of the good intentions....

As a lot of people say, we know that the road...somewhere....is paved with good intentions. I'm sure for many aboriginal people, given this report, I mean, they're there.

If it's systemic discrimination, the system itself is flawed. Does the introduction of a program, or a series of programs, change that? Or are we looking at the architecture itself of the Correctional Service of Canada that has to be changed?

I know you made one very strong recommendation about the architecture itself, its structures, about having the deputy commissioner for aboriginal corrections, which has been rejected by the Correctional Service of Canada in the past.

I'm asking if the programs themselves can change it. Is it a fundamental issue of changing the architecture within the Correctional Service of Canada?

You know, it is unacceptable in Canadian society that one in five incarcerated people are aboriginal people; worse for women. It is unbelievable.

I read in your report that there's a bias in the classification system that says aboriginal people will go into medium and maximum security prisons more often than non-aboriginal people. When you get into those institutions, there's less programming so that people can reintegrate back into the communities. At the end of the day, we're not supposed to put people in prison and throw away the key. They're supposed to do their time in accordance with the law and the sentences that were handed down, but our job is to make sure that we have healing, that we have people reintegrated into their communities so that they become contributors to their communities. It's important in aboriginal communities as well as anywhere else in the country.

Programs are important, I know, but programs by themselves, if there is systemic discrimination, I personally would have some concerns about. Is it that we must change the architecture and the structure of CSC?

[Howard Sapers]

Thank you.

You've identified very well the complexity of the matter at hand. I would agree absolutely that any program in isolation from the context in which that program is being offered is not likely to have the intended or sustained results.

The Correctional Service of Canada has in fact made progress, has in fact become more culturally competent, has put more effort into policy clarification, has increased its efforts in terms of recruiting and retaining aboriginal staff throughout the service, and has developed and tested good programs. In spite of all of that work, we're seeing the problem getting worse. Part of the reason the problem is getting worse, of course, is that the intake, the men and women who are being sent by the courts, continues to grow. That is beyond the Correctional Service of Canada's capacity or mandate to deal with.

The Correctional Service of Canada acknowledges that. In their strategic plan for aboriginal corrections, they talk about the context. In our report we talk about the context. This is an issue for Canadians, not just an issue for corrections.

[Todd Russell, Liberal, Labrador, NL]

As you say, more aboriginal people are getting thrown into jails. The Correctional Service of Canada has no responsibility for that, of course, and no mandate around that particular piece. But they certainly have an obligation—moral, legal, ethical—to help these people who are thrown into jails, to help them once they're there.

I notice in your report, as well, that you say with all these new laws that are supposed to come into effect....

You know, I'm not sure how much work has been done to look at the impact a number of these new mandatory minimum laws are going to have. One thing you're saying is that because of these laws, we may have more people actually going into jail--so an accelerated rate of incarceration, probably primarily for aboriginal people given the demographics--and there will be less flexibility because of mandatory minimum sentences for the CSC to do certain things.

Can that not only exacerbate an already terrible state of incarceration for aboriginal offenders?

[Howard Sapers]

I have not seen a comprehensive roll-up of the cumulative impact of all the current and proposed legislative policy proposals. But we do know this: based on the current trends and the current demographics of the aboriginal population in Canada, based on the current practice of the courts and law enforcement and correctional authorities, growth is predicted in aboriginal intake into federal penitentiaries. And we know that the length of time in custody is also predicted overall to become longer.

The concern is that without investments in both infrastructure and human resources, and without developing better and more targeted program capacity, we will see more aboriginal offenders being held longer in custody—probably at higher security levels—and being released poorly prepared for community reintegration.

[The Chair, Conservative, Bruce Stanton]

You're out of time, Mr. Russell.

We're going to go to Monsieur Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I wish to thank you for being here today. I much appreciate what you are telling us. I am choosing my words carefully, but my only thought is that I am horrified. Obviously, I am not horrified by the work that you do. In my opinion, you are doing an extraordinary job. This is why I will be asking that we invite the minister of Public Safety to come and discuss the situation of Aboriginals in custody. We must talk to the right people.

It is with great respect that I say that the observations contained in your report are horrifying. I will just read one. I do not know if you have already seen this lovely little book, but I imagine that the answer is yes. This is the annual report for 2008-09 of the Office of the Correctional Investigator. We see here that the incarceration rate for Aboriginals has gone from 815 per 100,000 in 2001-02, to 983 per 100,000 in 2005-06.

I hope that Mr. Head is listening, because I would like to ask a question. I would like to know where we are at now. We must be approaching 1,000 Aboriginals in jail per 100,000 . That is unbelievable. Not only is it unbelievable, but it is nine times the rate for non-Aboriginals. Your observations leave me dumbfounded. I visited a penitentiary in Manitoba and one in Saskatchewan. It is true that virtually all of the residents are Aboriginals. Of course, there are a few Whites, but not many compared with the number of Aboriginals.

If you are asked to appear before the Committee next year, the situation will be the same. Things will not have improved. I have a tremendous amount of respect for Ms. Mann. In our penitentiaries, individuals are classified. You deal only with penitentiaries; provincial prisons do not come under your authority. From the very beginning, the classification of inmates has been poorly done. We find ourselves with an over-population or an over-representation of prisoners in isolation.

I have but one question to ask you. What do you expect from us, apart from calling upon the minister of Public Safety to appear before the Committee? What could we do to assist you?

[Howard Sapers]

As I said in my opening comments, I think it's very important that these issues be discussed in a broader context than just corrections. The fact that we're appearing now, as the Office of the Correctional Investigator, for the second time before this committee, gives me hope that in fact the political leadership is paying significant attention to this matter. I think the Correctional Service of Canada also relies very much on the knowledge and awareness of parliamentarians on this issue because their challenge as well is in part their mission and mandate being understood and their need for resources being well understood. I'm encouraged by that, and I think it's the best way I can answer your question in terms of what my expectations or hopes would be from this committee.

I should say, to your earlier point about the incarceration rate for aboriginal offenders, that in fact statistics change over time. For our review we looked back to 2001 and brought the numbers forward to 2008. We see a progression of the over-incarceration. I have to also tell you that it's a little difficult to make comparisons, because for whatever reason, and I'm not totally sure why, Alberta, as a reporting jurisdiction, has been taken out of the most recent calculations made available by Statistics Canada. I think we would all acknowledge that Alberta numbers would be important in getting a fulsome picture of aboriginal incarceration, so please keep in mind that the numbers I'm about to share with you do not include Alberta.

In 2001-02, the aboriginal incarceration rate per 100,000 was 760. The non-aboriginal or the general adult incarceration rate in Canada in that reporting year was 118. If we bring the figures forward to 2007-08, that number is now 970 per 100,000 for aboriginal adults, as opposed to 130 for the general adult population in Canada. Every year has been worse than the year before.

[The Chair, Conservative, Bruce Stanton]

You have 40 seconds left.