Again, thank you for the invitation to be here.
I don't want to spend too much time talking about Aboriginal Legal Services, but I do need to say that our spirit name is Gaa kinagwii waabamaa debwewin, which in Anishinaabemowin means “All those who seek the truth”.
We have often appeared as an intervenor at the Supreme Court of Canada and before committees of the Senate and the House.
As you know, aboriginal people are grossly overrepresented in the prison system. In the context of this bill, we have to recognize that aboriginal people are also overrepresented in administrative segregation. The correctional investigator reported that the percentage of segregated aboriginal inmates increased by 31% between 2005 and 2015, and that is compared to a growth of 1.9% for non-aboriginal inmates. Aboriginal offenders have consistently had the longest average stay in segregation of any group.
As was recently stated by the Supreme Court of Canada in Ewert, the reasons for aboriginal overrepresentation in prison do not lie with the inmates, but with the system they are living in. The Supreme Court said that discrimination experienced by indigenous persons extends to the prison system.
We want to focus our submissions today on three issues: the structured intervention units, the failure of the legislation to require the consideration of Gladue factors and the need for independent oversight, and finally the issue of community reintegration.
In our submission, as many other people have said, we have said that the creation of structured intervention units runs the risk of repeating the same harms that are acknowledged to be created with solitary confinement. The bill fails to meaningfully address the underlying reasons that inmates are placed in SIU. The focus on inmates' safety and institutional security in the bill fails to address the finding of the correctional investigator that many inmates who are placed in administrative segregation are primarily at risk to themselves because they are suicidal, engage in other self-injurious behaviour or pose challenges to management because they have mental health or cognitive limitations.
Instead of addressing the mental health needs of inmates, this legislation only guarantees a minimum of four hours outside the cell each day. Clearly, more significant reforms are needed to truly address the underlying reasons people are placed in segregation. Reforms, such as those proposed in the jury recommendations in the Ashley Smith inquest, would ensure that, rather than warehousing inmates with cognitive disabilities or mental health issues and those who are emotionally distraught, CSC would be required to provide appropriate assessment and treatment.
We echo NWAC's submissions about the crucial importance for aboriginal inmates of access to appropriate cultural and spiritual advisers.
Second, in this bill, proposed subsection 37.3(1) ensures the head of an institution reviews the situation of an inmate in SIU on a regular basis, but that protection was also provided for in the previous regulations. Those protections have failed to protect inmates from long periods of time in solitary.
The proposed legislation offers no change to the discretion an institution has had to continue to approve continuous segregation. What is glaringly absent from the proposed legislation is any recognition that the deprivation of an aboriginal person's liberty occasioned by placing them in solitary confinement requires the consideration of the Gladue factors. While CSC has repeatedly stated that the Gladue principles inform their actions, there is nothing in Bill C-83 that actually puts that into practice. The gap between rhetoric and reality in this regard has been remarked upon a number of times by courts that have said that, despite CSC saying that they apply Gladue principles, they simply don't.
Given the inability of CSC to incorporate Gladue principles into its work, and specifically with regard to solitary, it would be naive to think that simply adding those words to the legislation would change anything.
That's why it's so important that there be an independent oversight officer position created that would allow for actual meaningful use of Gladue. This recommendation came from the correctional investigator in 2014-15. That should be adopted and the present legislation should be amended to allow for this position. If that were to occur, we think the wording that Gladue principles would apply to the decisions of that person would actually have some meaning.
To wrap up, our last point is on community reintegration. We're very concerned about the change to the wording on who can participate in an inmate's return to an aboriginal community. This is outside of the admin's say, but it's part of the legislation. The amended legislation deals with who can work to take inmates in under sections 81, 84, or 84.1.
Under the current act, the law says that this can be done by an aboriginal community and that “aboriginal community means a first nation, tribal council, band, community organization or other group with a predominantly aboriginal leadership”.
In this bill, it's proposed that the term “Indigenous governing body” be used, which means “a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.”
We're very concerned about this. We have no sense of what it means to be “authorized”, and the addition of the link to section 35 certainly will disqualify many urban aboriginal communities from participating in the reintegration of their members. As you know, over half of the indigenous community in Canada lives in urban communities, and urban communities want to provide resources to those people who are being released from prison. We have an organization in Toronto, the Thunder Woman Healing Lodge, that is actively working to do this and would be denied this opportunity under this legislation.
We support the definition in an amendment that has been provided by NWAC, which would essentially take the definition in the current legislation, update the language and provide a better definition for what it means to be “predominantly” led by indigenous people. That, we suggest, is a change that would restore us to where we are instead of moving us back.
Meegwetch.