Evidence of meeting #9 for Indigenous and Northern Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was services.
A video is available from Parliament.
5:05 p.m.
Conservative
David Yurdiga Conservative Fort McMurray—Cold Lake, AB
No, it was about indigenous programs. Obviously when people are incarcerated, we want to somehow incorporate their culture and their traditional beliefs.
5:05 p.m.
Correctional Investigator of Canada, Office of the Correctional Investigator
Okay, so how is the aboriginal culture reflected in correctional programming?
5:05 p.m.
Correctional Investigator of Canada, Office of the Correctional Investigator
There are actually many ways. The Correctional Service of Canada has published a lot of good information on this, and I can tell you that things have gotten better over the years in recognizing the importance of bringing culturally specific programming and initiatives inside. There are institutional elders, community elders who come into the institutions. There are aboriginal liaison officers and program officers. There is the training we've already talked about. There are things called pathway units, which are units in which aboriginal offenders can reside, and they abide by a certain standard of conduct, and they participate in ceremonies. There are elder-assisted hearings, for example, operated by the Parole Board of Canada. There are ceremonial grounds on many institutions that allow for things like sweat lodges. There's a carving program for Inuit offenders at a particular institution in Ontario. So there are a number and a range of initiatives.
The question really is what all of that is leading to. Sadly, when it comes to the real litmus test of this business of corrections, it's the reintegration and return to the community and the success people have in the community. All of those measures, in spite of those initiatives and those programs, are trending in the wrong direction. Aboriginal offenders as compared to non-aboriginal offenders tend to spend longer in custody before release. When they are released, they're usually burdened with more conditions, such as residency requirements, for example, on statutory release. They're more frequently revoked or suspended on conditional release if they are released in the community. Clearly, something's not working. There's a disconnect between all of that activity and the outcome, which is safe and timely return to the community.
5:10 p.m.
Executive Director and General Counsel, Office of the Correctional Investigator
Just to perhaps complete Mr. Sapers' comments, it's important to note that the Corrections and Conditional Release Act has very specific provisions dealing with aboriginal people. There's a statutory requirement imposed upon the service to deliver programming that meets the needs of aboriginal people. There's a provision that deals specifically with providing religious and culturally sensitive provisions such as the elders. There's a requirement to establish an aboriginal advisory committee. Finally, there are two provisions that allow the Government of Canada to strike agreements with aboriginal communities for either the care or the custody or the supervision of aboriginal people in aboriginal communities. The problem becomes one of implementing those provisions, and I think that's where the biggest gap is, that those 1992 provisions haven't been fully implemented.
5:10 p.m.
Conservative
David Yurdiga Conservative Fort McMurray—Cold Lake, AB
Obviously, everybody wants more funding. In your view, what percentage are we lacking? Do you need double your budget? Where do we have to go? Obviously, we want more funding, but what's the number?
5:10 p.m.
Correctional Investigator of Canada, Office of the Correctional Investigator
I don't have a number. I would leave it to the Correctional Service of Canada to give you a number and tell you what the specific budget implications are. I can tell you that I don't believe that this is essentially a problem of budget. I think this is essentially a problem of focused leadership and attention on the issues.
5:10 p.m.
Liberal
5:10 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
It's good to see Mr. Sapers and Mr. Zinger again. As the NDP public safety critic and vice-chair of the public safety committee, I've had the privilege of hearing your testimony many times.
I'd like to start by thanking you for the work that you and your office have done to identify issues of special concern about the treatment of first nations people in our correctional system. Since you've been appointed, you've been particularly attentive to this problem. Your two special reports, which you mentioned, I really recommend to all the members, the 2013 report, “Spirit Matters” and also “Risky Business”.
What's important to me is that both of those highlight the social factors and historical context that underlie the relationship between first nations people and the justice system. Of course, that was recognized in the Gladue decision, and it's now a legal requirement that those circumstances be taken into account.
In your presentation, you mentioned the five recommendations of the Truth and Reconciliation Commission, and I guess I'd start by asking, how, other than by implementing the Gladue principles, you can accomplish these five recommendations. Is there any other alternative?
5:10 p.m.
Correctional Investigator of Canada, Office of the Correctional Investigator
Gladue and subsequent rulings by the Supreme Court, like Ipeelee, are absolutely essential to making progress.
The Correctional Service of Canada has a responsibility to use a Gladue lens in correctional decision-making. What we see, though, is that it happens a little haphazardly. One piece of research that the Correctional Service conducted for itself, I think indicated that in 98% of the case files they reviewed, there was attention paid aboriginal life history. Therefore, there was some documentation that the decision-makers had looked at the life history of the individual before them. That would suggest they had looked at that through a Gladue lens.
However, there was really no conclusion at all that their consideration of the aboriginal person's life history had translated into any kind of differential decision-making, or any mitigation. That's the problem. What the court perceived would be something that would lead to restraint in the imposition of a sentence or a lengthy period of incarceration or difficult conditions of incarceration has, in correctional practice, translated into just the opposite.
Certainly, there is a fear that those same factors don't mitigate and don't lead to restraint. In fact, they lead to just the opposite. Those factors lead to higher security classifications, longer times in custody, delays in release, etc.
5:15 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
We had a lot of discussion of culturally appropriate programming. You and I have discussed this before, that we really can't say, in terms of the profile of the population, that culturally appropriate programming is available. The amount of culturally appropriate programming simply does not match the number of first nations people in the system.
5:15 p.m.
Correctional Investigator of Canada, Office of the Correctional Investigator
The capacity doesn't match needs. That's absolutely true. As I say, there are many reasons why there are program delays and why people don't get in.
We haven't even talked about the complexity of individuals who are getting their sentences shortened, who then waive their hearings, or are encouraged to postpone their hearings for conditional release because they haven't been able to get into correctional programs. Their institutional parole officer, or their case management team, tell them, “You won't get our support for a positive recommendation because you haven't done X, Y, or Z.” However, the problem is that X, Y, and Z weren't available at the time they needed them to be available.
The complexity of factors that go into that can be overwhelming, and they can be overwhelming for the men and women who are trying to navigate their way through the system and get to safe and timely release.
5:15 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Another problem is that we usually focus on people in institutions when we talk about corrections, and forget that a lot of corrections takes place in the non-institutional context.
The Truth and Reconciliation Commission talks about the impact of mandatory minimum sentences. I wonder if you could say something about the impact of mandatory minimums in excluding first nations people from more culturally appropriate forms of corrections that would be in the community?
5:15 p.m.
Correctional Investigator of Canada, Office of the Correctional Investigator
The simplest thing to say about the effect of mandatory minimums is that they are the antithesis to the Gladue ruling. How can you instruct the court to use discretion and then impose a series of mandatory minimums that eliminate judicial discretion? They are fundamentally incompatible.
Therefore, when you have an overrepresentation of people who are in conflict with the law coming into contact with the police, coming into our court system, being dealt with by our crown, ending up in provincial jails, and then federal penitentiaries, that process only accelerates when you have mandatory minimums.
Then at the other end, because all of those things follow an individual into prison and have an impact on their release decisions, we're seeing more and more individuals being released at their statutory release date with a residency requirement. That overburdens community halfway houses. Those halfway houses are no longer available to people on day parole, because those beds are all being used by people on statutory release, which backs up the whole system. It also diminishes the opportunities for those community rehabilitation programs that the TRC would like to see operate. It diminishes the potential for those to work and have the capacity to deal with the men and women coming out.
5:15 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
We know that the Canadian Human Rights Tribunal stated categorically that Canada discriminates against first nations children when it comes to education and child protection. Given the younger age structure of the first nations population involved in the corrections system, could you comment a bit on the experience of those young first nations people in that system?
5:15 p.m.
Correctional Investigator of Canada, Office of the Correctional Investigator
I'm absolutely not expert on young offenders and youth offending. What I can tell you is that we know that crime more or less is a younger person's folly. A younger demographic tends to be more caught up in the criminal justice system. We also know that the average age of an aboriginal offender in a federal penitentiary is younger than the average age of a non-aboriginal offender in a federal penitentiary. That demographic in the general community tends to translate into the carceral population as well.
5:15 p.m.
Liberal
The Chair Liberal Andy Fillmore
Thank you both. We're out of time on that one.
I'll just pause and do some traffic-keeping for committee members.
The way the timing is going, I'd like to get through two more questioners, Matt DeCourcey and Cathy McLeod. Then we have a little bit of committee business to take care of. If you want to stay for the drafting instructions, we will be here till about 5:45 p.m. We're about 15 minutes late. I just wanted you to be prepared.
Let's pick it right back up again with Matt DeCourcey, please.
5:15 p.m.
Liberal
Matt DeCourcey Liberal Fredericton, NB
Mr. Chair, it was my understanding that Gary might ask the next question.
5:15 p.m.
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
Thank you to my colleague.
Mr. Sapers and Dr. Zinger, thank you very much for the very important information you're sharing with us.
On March 21 of this year, I had the opportunity to host an event for the International Day for the Elimination of Racial Discrimination. Kim Pate and Don Nicholls presented there. Kim Pate is with the Elizabeth Fry Society. She's worked extensively with the indigenous population. Don is in charge of the Cree Nation justice system. Their approaches seemed quite different, and their outcomes were quite different.
I'm wondering if you could maybe share your experience with respect to justice that is internal, in the sense of the Cree Nation, and how that compares with what we have in the overall criminal justice system.
I have a number of other questions as well, so perhaps you would keep your answers brief.
5:20 p.m.
Correctional Investigator of Canada, Office of the Correctional Investigator
Thank you. I wish there were a brief answer to that.
I don't want to mislead this committee in any way. My expertise is not on indigenous justice systems. I can tell you that we see hope and opportunity in more community involvement, more cultural involvement, more elder involvement, more spirituality, more opportunities for reconciliation, a more restorative approach, and more engagement of the broader community.
We know that the best chance for these folks, once they are enmeshed in the criminal justice system, is to get disentangled from it as quickly as possible, to be returned to the community as soon as safely possible, and to be given the supports they need in the community to avoid those same criminogenic issues they were facing at the time of their index offence. That's dealing with a whole host of variables.
We know that's also tied into things like safe and affordable housing and vocational training and employment opportunities and educational opportunities—all of those other things that are well beyond the mandate of a correctional investigator.
5:20 p.m.
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
I can appreciate that. I think one of the most frustrating things, when you talk about all this, is that we've been talking about this stuff for 25 years. I don't see much movement. If anything, it's getting worse. I think we need to look at some serious structural changes.
One of the things that maybe we can consider, and I'd like to get your input, is something like a sentencing court. If you're saying the current court system is not able to look at the important factors in sentencing, maybe once a conviction takes place the actual sentencing process can be removed into a special sentencing court that can look at specific issues with respect to the indigenous population.
5:20 p.m.
Correctional Investigator of Canada, Office of the Correctional Investigator
I think there's a whole range of tools and levers available to the architects and operators of the criminal justice system, starting with what happens with charging practice by crown counsel, police practice and how it's done, through to what happens with bail and remand. Bail reform is so important, as is having specialty courts that are really focused at diversion, whether they be mental health courts or community courts or Gladue courts, etc.
All of that is important, because all of that together should slow down the flow of people into penitentiaries. The Criminal Code of Canada already urges restraint in the use of incarceration. It's supposed to be the alternative to everything else. Sadly, we're seeing incarceration more and more being turned to as the first response and not the last response. That's contrary to the legal principles, really, that our system is founded upon.
5:20 p.m.
Liberal
Gary Anandasangaree Liberal Scarborough—Rouge Park, ON
I don't want to misquote you, but the outset of your statement today, you compared the indigenous prison population to those in the residential school system, or something to that effect. You mentioned parallels.
What do we need to do now, with a sense of urgency, to address the issues you've highlighted? To suggest that 25% of our federal prison population is indigenous...I think it's a staggering number. What do we need to do? What immediate steps does the new government need to take in order to address it in a very meaningful way that will actually have some results?
5:20 p.m.
Correctional Investigator of Canada, Office of the Correctional Investigator
I think the Prime Minister has made it clear in the mandate letters to ministers that this is going to be a priority of the Government of Canada. I think one of the ways that priority is being pursued is through the Truth and Reconciliation Commission. I certainly wouldn't presume to add to the work of now Senator Sinclair and that commission. I think that does spell the way forward, and I think Canadians have high expectations about this.
It's not going to be simple. Even in my little corner of that, which is federal corrections, and my bit of knowledge or insight into what I think may make federal corrections more appropriate for that population, there's still a lot of work to do.
Going back to things like the full implementation of sections 81 and 84 in the CCRA, looking at the role of the national aboriginal advisory committee that's mandated by law, and adding to the executive committee of the Correctional Service of Canada a deputy commissioner for aboriginal programs, I think those things, as bureaucratic as they may sound, are all going to be very, very important in the Correctional Service of Canada contributing its bit to that overall effort of the Government of Canada.