Indigenous and Northern Affairs Committee on Dec. 1st, 2009

[The Chair, Conservative, Bruce Stanton]

Good morning, committee members, witnesses and guests. We are starting the 41st meeting of the Standing Committee on Aboriginal Affairs and Northern Development. On the agenda, we have the findings of the Correctional Investigator's Report Regarding the Incarceration of Aboriginal Women.

This morning, we welcome Ms. Kim Pate, Executive Director of the Canadian Association of Elizabeth Fry Societies.

Ms. Pate is here to represent the Canadian Association of Elizabeth Fry Societies.

Members, you'll know that we have one hour for this session, and then we will be resuming our consideration on the study of the honour of the crown.

Ms. Pate, we allow ten minutes for the opening presentation, and then we will go directly to questions from members.

Please go ahead with your presentation.

[Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies]

Thank you very much, and thank you, Mr. Chair, for inviting us here. I bring regrets from my president, Lucie Joncas, who was planning to attend with me but is tied up in some other matter.

Given that it's the first time in a while that we've been before this committee I thought I would outline a bit about the organization and then comment on some of the issues pertaining particularly to aboriginal women prisoners.

Some of you are aware that I've been doing this work now for about 26 years, starting first with young people, many of whom were aboriginal as well because I started in Alberta, and then I worked at the national level with men. For the last 18 years I've worked with women in the federal prison system predominantly, but also I've done work internationally as well.

Our organization has 25 members across the country. As many of you are aware, they are voluntary non-governmental organizations. We have a complement of about 582 staff, about half of whom are part time and half of whom are full time, across the country in those 25 societies, and in excess of 1,200 volunteers. The count last year was 1,243 volunteers doing that work. So we have a sound community base, and we rely on that community base to direct policy and practical work that we do out of the national office.

We have been working with aboriginal women in this context for 25 years, since the organization began, and 70 years since our first Elizabeth Fry Society started in British Columbia. One of the issues that are very key for us is the fact that women are the fastest growing prison population in this country as well as in other parts of the world. In particular, we're seeing that growth astronomically when we talk about aboriginal women in a more focused way.

There are the reports of the correctional investigator, but also successive reports over the years in my history with this organization, starting with the Task Force on Federally Sentenced Women in 1990, the Louise Arbour commission report in 1996, the Canadian Human Rights Commission report in 2004, and several United Nations documents. In fact, last week I was in at United Nations meetings looking at the very issue of the treatment of women prisoners in particular around the world, and the issue of overrepresentation of indigenous women is an issue for more than just Canada. There are also the reports that you're considering, in particular the Mann report and the annual report of the correctional investigator. All of those reports document very clearly a discriminatory impact, systemic discrimination as well as some of the discriminatory effect of policies that are discriminatory in other ways, whether it's by gender or by disability, particularly for women with mental health issues, for instance.

So I don't think I need t go over that. I did distribute in advance so you would have in that material some of the fact sheets that we use. We distribute those fact sheets the first week of May every year. We always have a National Elizabeth Fry Week preceding Mother's Day to draw attention to the number of women in prison who are mothers.

I'm most interested in trying to answer any of the questions you may have, but suffice it to say that one of the trends we're seeing, which you have probably already heard about from the correctional investigator and the Correctional Service of Canada, is that we see aboriginal women in particular, and men as well and young people, but in particular we're seeing this overrepresentation in the prison system. We're seeing it in terms of the charging practices, the remanding practices, the conviction practices, and sentencing practices; and then, once individuals are in prison, the overclassification, the more limited access to programs, the greater difficulty in gaining access to conditional release, and for individuals who do manage to be released on conditional release, the increased likelihood of that being revoked and their being returned to prison.

Those are some of the impacts we're seeing. We have particular focus--and I understand you have an interest in this also--on the management protocol, which is a peculiarity for women prisoners. I say that because the impact of the management protocol has created such incredible discriminatory effect for those women who have been subjected to it that I'm very pleased this committee is looking at it. We have flagged it since its inception. The first policy round we saw was in 2003. We flagged right away some of the very issues that have unfortunately unfolded—we would rather have been wrong on this—that we would likely see more people in more isolated conditions for longer periods of time with less access to programs, less access to services, and in fact conditions of confinement that are likely to increase rather than decrease the very behaviour that the management protocol was ostensibly established to address.

As I sit here today, all four of the women on the management protocol are aboriginal. There was one woman released recently who was taken off the management protocol. It's the second time someone has succeeded in being taken off the management protocol. The first woman was one who, everybody argued, including many Corrections staff, should never have been placed on it. The second one was one who was placed on it based on information that came from the provincial system while she was remanded in custody. It was later found to be erroneous, and it still took almost six months for that information to be corrected and for her to be taken off the management protocol.

The seventh woman who was on the management protocol was actually released directly from prison, from being shackled when she was being moved out of her cell, cuffed to the back in a security gown, with two to three—anywhere up to five—security staff with her, into the community. That woman has not gone on to commit the heinous crimes that everybody predicted she would, based on the fact that she was placed on the management protocol. I think it is this, as well as the number of cases we were in the midst of developing, as well as the correctional investigator's looking at this and making some recommendations about ending the protocol, that has now led to a review by the Correctional Service of Canada.

Our concern is that it may only be replaced by something equally egregious, and so I am very pleased that the committee is looking at this and that we can make some very strong recommendations about how we try to remedy it.

We continue to call for external accountability and, in particular, judicial oversight of corrections. This situation of aboriginal women, aboriginal women with mental health issues, speaks all the more clearly to this need, because although there is a deputy commissioner for women, that deputy commissioner does not have line authority or the ability to actually change the decisions. And while we generally support the recommendations of the correctional investigator and support the recommendation for a deputy commissioner for aboriginal issues, our concern is that it could be a role just as functus as the one we currently have for the women's portfolio.

So I caution you in that respect. Really, what we need to see is greater accountability mechanisms, an ability to trigger reviews—and, we would argue, judicial reviews, reviews that can cause the courts to look at these matters in the way that Louise Arbour recommended when she looked at what happened at the Prison for Women in 1994.

Those are my preliminary comments. I'm happy to try to answer any questions you have and, if there is additional information we can provide, to try to provide that as well. Thank you.

[The Chair, Conservative, Bruce Stanton]

Thank you, Ms. Pate.

Now we'll go to questions from members. This is a seven-minute round, and for your benefit, it's seven minutes for both the questions and the answers.

We'll begin the first round. I don't have anybody on the list yet.

Mr. Russell is going to take the first question.

You have seven minutes. Go ahead.

[Todd Russell, Liberal, Labrador, NL]

I'm going to share my time with Mr. Bagnell.

Thank you for appearing before us. Certainly it's timely, given that everybody is talking about violence against women during the next week or so leading up to the anniversary of the massacre in Montreal.

I asked this question to Mr. Sapers and I'll ask it to you as well. We know the facts. They're unacceptable. Something must be done. It's almost like a revictimization, if you come back to the fact that a lot of aboriginal people end up in prison because of societal circumstances or historical understandings and happenings and things of that nature. If there's systemic discrimination in the system, which may be somewhat reflective of society itself, will things change? As the commissioner came before us and said, we now have these directorates—these CDOs, I think they're called—that now bring in a new accountability framework. If there is systemic discrimination, will just doing this help things, or does the architecture of CSC itself have to change?

I hope you understand what I'm getting at. You're saying that we keep the same architecture in place, but we have external accountability or judicial oversight or both, and you're saying that you have some misgivings about putting a commissioner in charge of aboriginal affairs. So I'm asking, what more needs to be done if there is systemic discrimination and the architecture itself is infested with it?

[Kim Pate]

Thank you very much for the question.

If I wasn't clear.... We certainly wouldn't say that the system staying the same and just having a few accountability measures would change it. Absolutely not. So thank you for giving me the opportunity to clarify.

There are a number of recommendations we have made. In fact, the Canadian Human Rights Commission report came about as a result of a complaint we filed in conjunction with the Native Women's Association of Canada, Amnesty International, and about 24 other national and international groups, talking about the systemic nature of discrimination against women, particularly racialized women--especially aboriginal women--as well as women with mental health issues and women generally.

That complaint was not just about Correctional Services. It was about the fact that, as we've seen cuts to social services, health care, education, and all the areas whose services those who are most marginalized tend to rely more on, as we've seen those services dissipated--demolished in some areas, basically the ground and the rug pulled out from under people--it's not a big surprise that those individuals who are most marginalized, most victimized, and therefore most reliant on those services have ended up increasingly in prison. Again, worldwide, that's seen as the single biggest factor contributing to why women are the fastest growing prison population. It's not because of criminality. It's not that there's a crime wave involving women anywhere, particularly among indigenous women.

As you pointed out--and I'm wearing the Sisters in Spirit pin--many of the women who have disappeared and are presumed dead, who have gone missing and have been murdered, are women who have also known the criminal justice context. It's not acceptable that we rely on prisons to try to mop that up.

Having said that, however, I think there are things that can be done within the prison context. We know that women generally, and in particular aboriginal women, are more likely to plead guilty, so they're often charged high. I've heard different people within Corrections talk about women getting shorter sentences, particularly aboriginal women, but that's if you look only at the charge, only at the sentence, not at the context. In most other contexts, those charges would have been pled down to something lesser. The sentence looks low only if you look at the charge alone. If you look at the context, the sentence actually often looks very high.

[The Chair, Conservative, Bruce Stanton]

We have to leave a bit of time here for Mr. Bagnell to get in. There are only about two minutes left.

[Kim Pate]

Okay. I would say we need to be looking at alternatives before people end up in prison, and those involve shoring up the community. We need to be looking at greater opportunities for release from prison, and we need to be fundamentally changing some of those systemic barriers like the classification systems and the manner in which people are examined and identified when they come into the system. Right now, if you start out poor, without housing, with family members who have been in trouble, and not having had an education, you're likely to have a higher security classification. Those issues do not necessarily mean you're a risk to the public.

[The Chair, Conservative, Bruce Stanton]

Go ahead, Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

I looked at the testimony from our last meeting on this. I just have two questions.

One is, the correctional investigator said he had proposed a lot of things that would make a difference, but they weren't implemented. It was like banging his head against a wall.

The second thing I'd like to comment on is that the commissioner of corrections outlined a broad array of things they were actually doing, although they haven't changed the statistics yet. But they were in progress. Do you think all these initiatives are good? Will they solve the problem?

[Kim Pate]

I think there are initiatives commenced from time to time that are very good. The question you need to ask and the question I always ask when I go into the prisons--I go to all the federal penitentiaries where women are serving sentences on a regular basis, and we also have regional advocates going in regularly--is this: how often are those programs or services offered, to how many women, and for what length of time? Unfortunately, as you know from the statistics provided by the correctional investigator, by us, and by others, that the overrepresentation of women and men at the higher security levels is not accidental. It's part of the systemic discrimination. But it also means that at that level you have less access to programs and services.

I would say there have been some new initiatives. Whether or not all aboriginal prisoners have access is the main question. Certainly in our experience that wouldn't be the case. We're looking at only 18% of the federally sentenced women being at a low enough security level to be able to access those services. The higher security level means they aren't able to. For instance, a healing lodge was designed and set up for the very women who at that time were at the Prison for Women in Kingston at all security levels. It was intended to be a multi-level institution. It has never taken maximum security women. It often doesn't even take medium security women.

[The Chair, Conservative, Bruce Stanton]

We'll have to leave it there.

Thank you, Ms. Pate.

We'll now continue with Mr. Lemay.

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

I'm going to let my colleague ask questions, Mr. Chairman.

I know the Elizabeth Fry Society well and the remarkable work it does. I wanted to emphasize that and to thank you for being with us today. My colleague has some very interesting questions for you.

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you for coming, Ms. Pate. Last week, the committee heard from the Commissioner. In his view, repentance is virtually non-existent among the first nations after more or less lengthy incarceration. That very often prevents parole.

Do you know why as many men as women tend to isolate themselves when they are incarcerated? It may depend on the lack of staff, support or listening in penitentiaries or correctional facilities? Or do they isolate themselves because they feel they are not understood?

[Kim Pate]

I would say it isn't my experience that people are unreceptive to opportunities to engage in programs or services or interaction. In fact, it's quite the opposite. It's usually that the programs and services are not set up to engage the individuals. And it's not just aboriginal people, but it's people with mental health issues as well.

When we're talking about individuals, many of whom have experienced abuse in the past, when we're talking about aboriginal women alone in the federal prison system, the task force is the last very complete review, and it has found that 90% to 91% of the aboriginal women had histories of abuse. When you compound that with histories of residential schools, family members with history in residential schools, and social service involvement, there's a high degree of distrust for the system. So to engage, the most effective methods we've found—in fact, we're doing a project that came out of the human rights process, recommended by many of the aboriginal women—was a process of providing them with the skills to advocate on their own behalf.

The most effective programs anywhere are usually programs that involve the individuals themselves in peer-related activities. So individuals have come through, come back in, and provide some support. And those are the most effective, in our experience, with aboriginal women and men.

You can imagine what it's like if you don't see someone who looks like you in terms of your life experience, your class, your education level. Many people in Canada have never even been to a reserve and so have no idea that we have living conditions in those areas that are lower than those in most developed countries—no running water, not clean water, not adequate utilities, any of those sorts of things. So coming into the system, you come in with a lack of understanding of how to negotiate that system, and it's not a very friendly system for engaging you in that process. Those are the starting points.

Then you have a classification system that is based on, if you'll forgive me, a very white, male, middle-class model of what society is like. So if you don't have a bank account before you come in, if you haven't had a job, if you don't have other family members or some of the social conditions that you cannot change, if those are your social conditions that predetermine that, you're going to be at a higher classification to start with. If you then have a history of violence, whether you're the perpetrator of the violence or the victim of the violence, the points get ratcheted up as well.

We've documented this quite well in our submissions to the Canadian Human Rights Commission back in 2001 to 2003. I'm happy to provide those, if they would be useful, because they go through some ways that you could actually turn that around. And we talked about capacity-building models. We said, instead of allocating resources that only identify risk—taking needs and translating them into risk factors—we should be looking at allocating resources according to those needs that you identify and building up the supports, so that individuals are both supervised in a structured environment and then supported to be able to survive.

A good example is that last night I was up until the wee hours doing a submission to the National Parole Board for a woman I've known for 18 years, an aboriginal woman who's doing very well in the community. She might be seen as a statistic of someone who has not done well—quite the opposite. But here is the paperwork of her life: abandoned on a bus at the age of six months; cycled through the system; lived on the street; had to learn how to fight to protect herself, so had assault charges; pleaded guilty to every charge that she did; only pleaded not guilty to the ones she wasn't responsible for and was acquitted on most of them. But as you know, those follow you through the system, nevertheless. On paper, she looks like a danger. In reality, almost every one of those situations has been a response to her being attacked. It doesn't excuse her having to use violence--

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

I'm going to interrupt you because a very important question has just come to mind. Have you conducted an evaluation of the representation these clients receive from counsel? Are the counsel who represent them really aware of the culture or way of life of these people and mainly of their way of thinking? Have you conducted a study on the ability of counsel to represent most of their clients?

[Kim Pate]

Two pieces of information might be useful. We have a syllabus. I co-teach a course at the University of Ottawa law school on defending battered women on trial. There is a whole section on aboriginal women that talks about exactly that, the lack of understanding by the police, by prosecutors, by defence counsel, by judges, by the prison system. And we go through, for instance, the Gladue case and talk about how the Gladue case looks like an attempt to fix a problem earlier on in the system, where Jamie Gladue was described as having a jealous rage and killing her common-law husband. In fact, when you read the preliminary inquiry transcripts, which we get the law students to do, you realize, no, her sister had just been raped by him. He had just beaten her up and she was trying to get away, and it was in that context. Yet they only listened to the white, non-aboriginal witnesses. Most of the aboriginal witnesses were asked what beer they drank, so you already see a bias, not just a systemic bias but a very individual racialized bias against those individuals. When you read the Gladue sentencing decision, you realize it's probably an attempt to rectify the discriminatory treatment at the stage of the trial.

We have also tried to intervene with the Native Women's Association of Canada. Those of you who are lawyers know that is not usual--

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Lévesque.

[Kim Pate]

I'm happy to provide that information. There's a paper by--

[The Chair, Conservative, Bruce Stanton]

Thank you. That's all the time.

Now we will go to Ms. Crowder for seven minutes.

Go ahead, Ms. Crowder.

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

Thank you, Chair.

In the context of the numbers, that 32% of women in federal prisons are aboriginal, that aboriginal women's incarceration rate has increased by 151% between 1997 and 2007, and that 45% of the maximum security federally sentenced women are aboriginal and so on, the numbers are pretty shocking.

Mr. Chair, in that context, it is important that this committee report back to the House on this matter so that we can keep it on the radar that the committee has taken it under consideration.

There are three questions I'd like you to address. You mentioned in the management protocol that a process was being done. First, has there been a consultation process with organizations like Elizabeth Fry, the Native Women's Association of Canada, and other organizations around this management protocol and how it adversely affects women?

Second, you indicated that you thought it would be important to have an external accountability process. What would that look like? If I have time, I'll come back.

Third, what is the single most important thing you think this committee can recommend?

I'll let you just go to it.

[Kim Pate]

In terms of consultation, I'm very pleased the committee is doing this work, because it seems to coincide with the combination of this committee focusing on this area and the correctional investigator issuing his report.

Corrections is currently doing a consultation on the management protocol. It started two weeks ago, I believe it was, and prior to that there was a consultation on the proposed policy that evolved to be the management protocol. It's interesting that the first time I ever saw the management protocol as a proposal, it was on union letterhead. It was something that had been proposed by the Union of Canadian Correctional Officers for the treatment of women who were posing management problems. We had proposed some very different approaches and we had proposed that, in fact, there'd be more intervention with elders, more supports from the aboriginal communities the women came from, more access to their children, more of the interventions that we saw would actually link into the women they were and encourage them to want to move out and get back into the community as opposed to putting them in more and more isolation, with less and less stimulation. In fact, unfortunately, it has gone to the complete opposite--isolation cells, security, no human contact, even to the point where I'm sometimes not even allowed access to segregation to go in and see these women. That's been since the death of Ashley Smith. We're still negotiating access.

So yes, some consultation has been started.

In terms of external accountability, I think the best recommendations I and our organization have seen so far are the recommendations that Louise Arbour made. Rather than trying to replicate or restate them, I will just summarize them.

She said if there is correctional interference with the administration of a sentence, there should be an ability to go back and review that sentence. For instance, some of the women on the management protocol.... One woman started on a three-year sentence and has now accumulated over 20 years, all within prison. This is a phenomenon that, when I started this work, when the commissioner started his work, when the correctional investigator started his work, we did not see. In fact, I was just at the United Nations, and a number of the European countries were horrified to hear that you could actually accumulate charges and sentences that way in a context that everybody recognizes happens in a prison setting because sometimes staff are tired, or sometimes they are inexperienced, and often you're dealing with people who are there because they've had huge challenges. Instead of racking up more and more charges and longer sentences, the presumption is that you should take a different approach, and those should be seen as administrative breaches, which they are as well, because usually those individuals get punished in the prison setting and also get additional sentences.

I think many other things will flow from having the kind of external accountability and judicial oversight that Louise Arbour talked about: things like the changing of the overall environment that I was asked about earlier, things like ensuring that people have an understanding of aboriginal issues, things like developing the appropriate programs at the appropriate times for individuals.

We are being asked increasingly now, more than we have been in the last two years, by very senior people in Corrections as well as people in the front line in the institutions working as correctional officers, to intervene in situations. I would never have dreamed when I started this work that we'd be asked to sue Corrections, or we'd be asked to bring more human rights complaints, or we'd be asked to put more pressure on from the outside to change things because people are feeling so impotent inside the institutions. I think there is a vital need for external oversight to provide a way to start to change that environment, because inside there is increasingly a bunker mentality. People feel unsafe, which then creates unsafe working conditions. It creates unsafe situations for prisoners as well. Ultimately, it creates greater risk to the public when people are coming out if in fact we haven't dealt with the very issues that precipitated people being in the system to start with.

[The Chair, Conservative, Bruce Stanton]

You have one minute left there, Ms. Crowder.

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

I know there are some challenges with the way statistics are gathered. My understanding, from what the Correctional Service people have said, for example, is that they really didn't have a good handle on how many of the prison population were FASD, for example. I wonder if you have any sense of the percentage of women offenders who have had a history of mental health, substance abuse, FASD. Is there any kind of tracking? That, of course, directly relates to the impact on people's lives.

[Kim Pate]

There was some work done. It depends, often, on what's being looked at. At one point at the Prison for Women, I know that the Correctional Service of Canada looked at all diagnoses that would fit within the DSM-IV, for instance, or DSM-III, I think it was at the time. It was determined that depending on what definition you used, anywhere up to 90% to 99% of the women could have been identified as having mental health issues. If you talk about clinical depression, well, who wouldn't be depressed going into prison and leaving their children and all of those sorts of things?

[The Chair, Conservative, Bruce Stanton]

Thank you very much. That will have to end it.

We'll now move on to the next question and Mr. Duncan. We'll have time for two five-minute questions after that, and those will start with Mr. Russell.

Go ahead, Mr. Duncan, for seven minutes.