Justice Committee on April 14th, 2016

[The Chair, Liberal, Anthony Housefather]

Good morning, ladies and gentlemen. Welcome to this meeting of the Standing Committee on Justice and Human Rights.

I very much appreciate our witnesses coming to speak to us today about the court challenges program. Today we're welcoming the Congress of Aboriginal Peoples, which I understand is in the process of rebranding itself as the Indigenous Peoples’ Assembly of Canada. We have here Jerry Peltier, the senior adviser; and Kim Beaudin, the president of the Aboriginal Affairs Coalition of Saskatchewan. I'd like to thank both of you gentlemen for coming.

I'm going to turn the floor over to you to make your presentation.

[Kim Beaudin, President, Aboriginal Affairs Coalition of Saskatchewan]

Mr. Chairman and members of the committee, good morning. Thank you for inviting me to appear before you today.

I first want to acknowledge the Algonquin people on whose traditional ancestral homelands we are assembled here today.

My name is Kim Beaudin. I'm a status Indian from Alberta.

I want to add a little bit to this. My original reserve is number 132. It was known as the Michel band and Callihoo reserve. We are the only reserve in Canada to be expunged by the federal government, in 1958. There's quite a bit of history there.

I'm also the president of the Aboriginal Affairs Coalition of Saskatchewan. I've been there for the past seven years. We're a regional affiliate of the Congress of Aboriginal Peoples.

I also do outreach work with STR8 UP. It's a program for ex-gang members. It's the only program of its kind in Canada. When it comes to a grassroots perspective, I'm definitely into that mode.

I was also a justice of the peace for the Province of Saskatchewan for five years. I worked within the criminal justice system. I got quite a bit of experience from that.

I'm here with Jerry Peltier, former grand chief of Oka Mohawk community, a Mohawk nation territory in Quebec. He's the senior adviser to our National Chief Dwight Dorey. As you know, Dwight Dorey couldn't be here today as a result of the Supreme Court ruling that's coming down this morning, a very important ruling for Métis and non-status Indians.

Let me tell you a little bit about our organization.

The Congress of Aboriginal Peoples is one of the five national indigenous organizations recognized by the federal government in Canada and by the provincial and territorial governments, as well as the the international community.

For over 40 years, since 1971, CAP, formerly known as the Native Council of Canada, has, as a national indigenous representative organization, represented the interests of Métis, off-reserve status Indians, and non-status indigenous people living in urban, rural, remote, and isolated areas throughout Canada, including the Inuit of southern Labrador. We represent more than 70% of indigenous peoples across Canada.

The congress works closely with the provincial and territorial organizations, known as PTOs, and other indigenous organizations and advocates on their behalf on a national level. Each PTO is a provincially or territorially incorporated organization. Affiliates provide research and advocacy support to their members and carry out a wide range of programs and services for their constituents.

The board of directors is composed of the national chief, the vice-chief of CAP, our elected leaders of the PTOs, and the national youth representative of the Congress of Aboriginal Peoples, the National Youth Council.

The national chief and vice-chief are elected every four years at the annual general assembly by delegates chosen from each of the affiliate organizations, the national executive, and a youth representative from each of the provincial affiliates. Delegates at these assemblies discuss issues and proposals and develop policy platforms related to off-reserve indigenous peoples.

Recently we rebranded ourselves as the Indigenous Peoples’ Assembly of Canada, known as IPAC, because we found the word “indigenous” to be more inclusive, and it resonates with today's international standard.

Today we are here to discuss the importance of access to justice and human rights for indigenous peoples and representative organizations.

I must say that I was encouraged by the Prime Minister's words in his mandate letter to the ministers. He said:

No relationship is more important to me and to Canada than the one with Indigenous Peoples. It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership.

To the Minister of Justice and Attorney General of Canada, the Prime Minister said:

In particular, I expect you to work with your colleagues and through established legislative, regulatory, and Cabinet processes to deliver on your top priorities:

You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes [or]...other initiatives to reduce the rate of incarceration amongst Indigenous Canadians....

Work with the Minister of Public Safety and Emergency Preparedness and the Minister of Indigenous and Northern Affairs to address gaps in services to Aboriginal people and those with mental illness throughout the criminal justice system...[and]

Support the Minister of Canadian Heritage to restore a modern Court Challenges Program.

I must caution that, traditionally, indigenous aboriginal peoples in Canada have identified themselves as specific nations, such as Mi'kmaq, Maliseet, Mohawk, Ojibway, Seneca, Chipewyan, Carrier, Dakota, Nootka and onward, as one of the 60 or so indigenous nations of Canada. This is a definition of nation to nation geared toward band councils and Indian Act bands and chiefs. There are some issues with this definition.

As you are aware, the United Nations Declaration on the Rights of Indigenous Peoples is a most comprehensive international human rights document, which addresses indigenous economic, social, cultural, and political rights and outlines minimal standards of dignity, survival, and well-being of indigenous peoples.

Governments must use the declaration in combination with consultation of indigenous peoples as a basis for reviewing and reforming laws and policies, to ensure that all indigenous peoples' rights are upheld without discrimination.

I am not sure how many of you are aware of a Macleans magazine headline reading, "You'll Never Get Out". The article said:

Canada’s crime rate just hit a 45-year low. It’s been dropping for years—down by half since peaking in 1991. Bizarrely, the country recently cleared another benchmark, when the number of people incarcerated hit an all-time high.

If you dig a little further into the data, an even more concerning picture emerges. While admissions of while adults to Canadian prisons declined through the last decade, indigenous incarceration rates were surging, up 112% for aboriginal women. Already 26% of the women and 25% of the men sentenced to provincial and territorial custody in Canada are indigenous, a group that makes up just 4% of the national population. Add in the federal prisons and indigenous inmates account for 22% of the total incarcerated population.

We need to change this. The justice system must be reviewed.

[Jerry Peltier, Senior Advisor, Congress of Aboriginal Peoples]

But in order for us to address access to the justice system and in order to help us to help our regional affiliates and our front line workers, we need funding, we need human resources capacity. We need these dollars in order to have the expertise to do our job and do it right.

Now I'd like to turn my attention to the Daniels case and the court challenges program. We have been at the forefront of this issue, which matters to most off-reserve indigenous issues, for many years, too often in courts stating our case.

IPAC knows all too well all about navigating the costly and complicated court system. In 1999 CAP entered into the 17-year battle, Daniels v. Canada. The government continues to try to have the case thrown out of the court. For that reason, the court ordered costs, and IPAC was able to proceed with the case.

The Daniels case is about fairness and equity. We believe that the government should not have the authority to arbitrarily choose who is indigenous and who is not. In short, the Daniels case is about obtaining a declaration stating that the Métis and non-status Indians be recognized as Indians under subsection 91(24) of the Constitution Acts, 1867 to 1982, and as such are owed a fiduciary duty and have a right to be consulted and negotiated with.

After 17 years of waiting, we finally will get a verdict today. We hope that the Supreme Court will rule in CAP's favour to protect our rights as indigenous peoples.

The Daniels case provides evidence of the value of the reinstatement of the court challenges program. It is clear that the Métis and non-status Indians have suffered the indignity of discrimination for far too long. It is integral that the court challenges program in its reinstated form remain open, fair, and just. It must operate beyond the letter of the law and more in the spirit of the law.

It should be clear now how important the court challenges program is and how important it is that it operate with distance from the Department of Justice, so that the program is impartial in both theory and in practice. It is critical that indigenous peoples be able to challenge the government when they feel that their constitutional rights have been infringed upon. Financial restraint should not be used as a barrier to justice.

There is a value to supporting access to justice. It will clearly impact the future of Canada's democracy and indigenous peoples.

On that note, my friends, we look forward to answering your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you so much. I very much appreciate it.

To explain to you what will happen now, you're going to receive questions from the different members of the committee. We'll start with six minutes of questions from the Conservatives, then you'll have six minutes of questions from the Liberals, six minutes from the NDP, and six minutes again from the Liberals. Then we'll see what time we have left at that point.

I'll now turn it over to Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chair, and thank you to Mr. Beaudin and Mr. Peltier for coming this morning to make their presentation. I understand that today is a very important day for you.

I want to ask a question about one of the issues you've raised in your report here. You talked about the incarceration rates. First of all, you say that the crime rate has hit an all time low—a 45-year low—and it's actually down by half since 1991. Then you say that the admissions of white adults to Canadian prisons has declined, but indigenous incarcerations have been going up. You actually used the word “surging”. For me there's a disconnect. It would seem that if the crime rates are going down we're on the right track to something, but you're indicating that the system needs to be changed. Help me understand what I'm missing.

[Kim Beaudin]

I can give you quite a bit of experience from my role as a justice of the peace in Saskatchewan. For example, Saskatchewan spends $600 million a year on justice, and the Canadian government spends $660 million. Those are huge numbers when you look at a small province like Saskatchewan spending that kind of money.

What I found is that the biggest issue is administrative justice. What I mean by that is, for example, the number of conditions that are put on people, particularly aboriginal people, who make up the largest majority in Saskatchewan, unfortunately. Those conditions are set up to fail. I mean, two jump out right away. Take the example of drinking. What they do in the court process is to attach 30 days to a condition. The court will add that condition, and then what happens with somebody who has a drinking problem, which we know is a disease or a health issue, is that there's a definite expectation that they're going to fail. That's a huge one.

The other issue is that a lot of our people have mental health issues and they, unfortunately, go through the system as well. Again, they're set up to fail with respect to those conditions that are put on. When I was working in the justice field there, you'd see upwards of 25 conditions put on somebody. A lot of times they would just sign on to get out. It's costing us millions and millions of dollars as taxpayers, when we could address that issue. There are certain ways we could do it. We just need to roll up our sleeves and get to work.

I believe that we could save millions and millions of dollars. I'm concerned, for example, that Saskatchewan could hit a billion dollars in spending on justice within the next few years, and that's a lot of money.

[Ted Falk, Conservative, Provencher, MB]

I guess my question wasn't quite answered. I was simply wondering what the connection is with lower crime rates. You're saying that has to change, although I think all of our desire is to have crime rates decreased. If it means that incarceration rates are going up, I think we're probably meeting part of the objective of what we want to do. Ideally, we'd like to see incarceration rates go down as well at the same time.

I'm going to change my question a little bit. You've referenced the Daniels case, the decision on which the Supreme Court will issue today. Can you tell me specifically how the court challenges program was involved in that case?

[Jerry Peltier]

When the challenge was first made, there weren't any funds available for us, so we had no choice but to use the court challenges program to pay for our legal counsel. In midstream that funding was cut-off and we had to go to court. It was the Federal Court that said this case was too important and that the government must pay the costs. So that's how the funding was reinstated. For us and other Canadians who need the support when their rights are violated, they need this kind of financial assistance.

[Ted Falk, Conservative, Provencher, MB]

Is it the court challenges program funding that has been funding the case after that as well—

[Jerry Peltier]

That's right.

[Ted Falk, Conservative, Provencher, MB]

—or is it funding from a different source?

[Jerry Peltier]

No, just the court challenges program.

[Ted Falk, Conservative, Provencher, MB]

Has your group used the court challenges program for any other constitutional challenges?

[Jerry Peltier]

Not at this point in time.

[Ted Falk, Conservative, Provencher, MB]

You've indicated a bit about how the court challenges program has benefited you. If that program is supposed to be reinitiated, are there any specific changes when they revamp the program that you'd like to see implemented?

[Jerry Peltier]

Yes, we'd like to see the program less controlled by the government, so we don't run into the same problem in midstream when a minister or the Prime Minister can cut it off. It has to be administered through a body...we don't know, and we don't have that solution. We know what we went through, and we want to make sure it doesn't happen again to anyone.

There is also a deconsultation process that's going on right now. We heard there was a press release that was sent to our office. It's an online consultation process. That's fine, but I think if the government is going to use the word “consultation”, we also need to have a face-to-face meeting with those people who are reviewing the court challenges program.

[The Chair, Liberal, Anthony Housefather]

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair, and thank you, gentlemen, for appearing before us today and giving us your submissions.

I want to build on what Mr. Falk was talking about. Indigenous peoples have brought forward important perspectives in discussions about human rights, including interdependence between implementing their rights to self-determination and full enjoyment of individual human rights. This is reflected in the United Nations Declaration on the Rights of Indigenous Peoples, in particular, articles 1 and 2. This understanding of the interdependence of all human rights also reflects broader international human rights principles applying to all peoples.

In respect of the court challenges program, it's clear there's much work to be done here. Focusing particularly on the court challenges program, could you expand on how you think the court challenges program could be expanded, if you think it should, or enhanced to better support the requirements that you see of it. Also, you spoke of an independent program. How might you see this proceeding in a more independent manner from the government?

[Jerry Peltier]

We are reviewing the program right now and the way it's being implemented. That's why we will participate in this online consultation process, but we need to go further into it and take a look at some of the pitfalls our people have had, not only at the national level, but across Canada when they try to utilize the court challenges program.

There are still not enough resources put into the program. In our case, our legal counsel had to accept a drop in fees in order to use the court challenges program. I can't give you an answer at this point. We are working on that. We're willing to provide details of what kind of changes we would like to see once we do our consultation process with our people at the grassroots level.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

At the risk of putting you on the spot, if there was one recommendation you could ask us to make on how we go forward on this, would you be prepared to suggest such a thing?

[Jerry Peltier]

One of the ones we're looking at is to have this legislated in a different way, like an independent body, to make sure the court challenges program is not controlled by a minister or Prime Minister. I don't know what those mechanics are. We're looking at it, but that's one of the recommendations we'd like to see.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Do you have any idea how to build independence and impartiality into that process?

[Jerry Peltier]

That's the kind of consultation process we've got to deal with first with our indigenous legal counsels, because they have much to offer in this field. We're not legal experts, so we're going to have to consult with them first.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you. Those are my questions.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.