Status of Women Committee on Dec. 12th, 2017

[The Chair, Conservative, Karen Vecchio]

Good morning, everybody. We're going to begin today's meeting as we continue to study indigenous women in the federal justice and correctional systems.

Today we have a few substitutions. I'd like to welcome Kelly Block, but it looks like the rest of the group is as usual.

We're going to have two panels. We're going to start with Rajwant Mangat, from the West Coast Women's Legal Education and Action Fund, and Jennifer Metcalfe, from Prisoners' Legal Services.

We are going to start via video conference with Jennifer Metcalfe, who is from the West Coast Prison Justice Society.

You have seven minutes.

Go right ahead.

[Jennifer Metcalfe, Executive Director, West Coast Prison Justice Society/Prisoners' Legal Services]

Thank you very much for this opportunity to appear before this committee. Thank you for initiating this study on indigenous women in the federal justice and correctional systems. I am the executive director of Prisoners' Legal Services, which is the only full legal aid clinic for prisoners in Canada.

We provide legal services to federal and provincial prisoners in British Columbia on issues that affect their liberty rights as well as some health care and human rights Issues. In the past year, we have assisted prisoners with 2,462 legal issues.

In preparing for today, I attended our legal aid clinic at the Fraser Valley Institution for Women with some indigenous women in the maximum and medium security unit. On the day I visited, all the women in maximum security were indigenous. They told me that the design of the units meant there were too few women to interact with. The max unit holds approximately six women on each of two sides, which makes them feel isolated and leads to conflict. One prisoner said that officers looked at them as if they were in a zoo and they weren't treated like human beings.

The max units are behind glass walls with the officers on the other side of the glass. Prisoners commented that the officers do not interact with them except for security purposes. Indigenous women in both maximum and medium security talked about a lack of trust between indigenous prisoners and staff. They felt there was a lot of racism and discrimination against them by officers. One woman said they build relationships with each other and are accused of being in a game when they're not. They separate people who had bonded and supported each other.

They also felt that staff do not really apply aboriginal social history and that Gladue factors are often used against them in their security classification. The women I spoke with thought there were not enough indigenous programs at FVI, especially in the maximum security units. There's only one elder who is stretched too thin. They feel it isn't possible to deal with their trauma and abuse at FVI and the problems just open up wounds and make it more difficult to function in a security-driven environment. That isn't healing, one woman said. Many indigenous women stay in prison until their statutory release dates and feel set up to fail in the community without enough support or healing.

They said they need more one-on-one trauma and abuse counselling with mental health professionals from the outside. One woman said they need more indigenous-run healing lodges. She said the Okimaw Ohci Healing Lodge in Saskatchewan is great. She said that 60% of the staff are aboriginal and they understand what it's like to be on reserve. She said people who work here at FVI aren't sensitive to that and tell us to get over it.

Many of the women I spoke with talked about needing more access to their kids and families and connections with their homes and bands. Many talked about not having enough money to even make a phone call home. They talked about the barriers to having visits with family members if they have criminal records and not being approved for temporary absences home because it's too far. The women also felt they had too few opportunities for job skills training or for education beyond grade 12. I hope this committee will seek the voices of indigenous women prisoners during the course of this study.

The overrepresentation of indigenous prisoners, and most significantly women indigenous prisoners, is in large part a result of the multi-generational trauma Canada inflicted on indigenous people over 100 years of residential schools. With the Truth and Reconciliation Commission's report, Canada has finally acknowledged the genocide we committed against indigenous people by forcibly taking children away from families to remote locations and subjecting them to programs designed to destroy their pride and self-respect. Canada is also responsible for taking land and resources from first nations and then denying sufficient resources for indigenous communities to be able to provide for themselves.

The overrepresentation of indigenous people in prison is a continuation of the genocidal practice of residential schools. It continues to separate parents from their children, and it fails to create an environment of trust and respect where healing might be possible. Many children of incarcerated indigenous mothers will be placed in foster care. An indigenous woman parolee in the 1990 report “Creating Choices”asked how they can be healed by those who symbolize the worst experiences of their past.

“Creating Choices” also notes that the indigenous people consulted by the task force on federally sentenced women stressed that the concept of punishment is alien to the aboriginal culture. The focus on restoration of harm and finding direction through teachings and spirituality in traditional culture is diametrically different from the punitive models of western culture.

Despite the legal requirement that the Gladue factors or aboriginal social history be considered by sentencing courts, CSC, and the Parole Board, indigenous people and especially indigenous women are imprisoned more at higher rates of security and for longer portions of their sentences than other Canadians.

CSC is required by section 18 of the corrections and conditional release regulations to classify prisoners according to minimum, medium, or maximum security according to three criteria, which are escape risk, risk to public safety, and the degree of supervision and control required within the penitentiary. This third factor is known as the institutional adjustment rating within CSC.

Of course, indigenous women tend to have high institutional adjustment rates, given that their imprisonment by Canada is an extension of the genocidal policies of residential schools. It would be next to impossible to have a low rating for institutional adjustment in a security-driven prison environment that perpetuates violence and does not achieve the foundation of trust and respect that is necessary for healing.

It is significant that all of the women who have been declared dangerous offenders in Canada are indigenous, and their designation is generally based on violent offences that have happened since they were imprisoned, not in the community. It is also significant that very few indigenous women achieve minimum security, which would allow them to access the only aboriginal healing lodge for women in Canada.

Trauma affects mental health and behaviour. Classifying prisoners to higher levels of security based on institutional adjustment problems results in prisoners who have suffered high rates of personal and intergenerational trauma being denied the support that they need to heal. The test for security classification should be amended to ensure that prisoners who have experienced trauma or have high mental health needs have more access to resources that would facilitate healing, such as mental health services and a non-punitive, culturally appropriate environment. In our clients' experiences, aboriginal social history is included in CSC's risk assessments as lip service and appears to have no impact on security classification decisions other than as a factor that increases security risk.

Prisoners' Legal Services calls on government to engage with first nations and indigenous organizations so that they may achieve self-determination in the administration of criminal justice. The federal Government of Canada should ensure that first nations and indigenous organizations have the resources to provide wraparound community services so that indigenous women have the support to heal from trauma and avoid contact with the criminal justice system; to administer indigenous courts based on restorative justice to ensure that there are community alternatives to incarceration at sentencing; and to be able to provide healing lodges by and for indigenous people under section 81 of the Corrections and Conditional Release Act, regardless of security level, so that no indigenous woman should be required to set foot in a federal prison again.

There should be funding and support to ensure that there are community resources to allow indigenous prisoners to be released to indigenous communities on parole or statutory release under section 84 of the CCRA, and they should be resourced to ensure support is there for indigenous women and men after the end of their sentences.

Canada should never again participate in the separation of indigenous families and communities and in the violence that is inherent in its imprisonment of indigenous women and men in federal prisons.

Thank you.

[The Chair, Conservative, Karen Vecchio]

Excellent. Thank you very much.

We allowed you to go a little over time. It was supposed to be seven minutes, but you had such great information, we thought we'd just let it happen.

Is it Raji Mangat?

[Raji Mangat, Director of Litigation, West Coast Women's Legal Education and Action Fund]

That's right.

[The Chair, Conservative, Karen Vecchio]

You have seven minutes, but of course we have a little flexibility today.

[Raji Mangat]

I'm going to try very hard to stay within the seven minutes.

[The Chair, Conservative, Karen Vecchio]

If you go longer, it's okay.

[Raji Mangat]

Thanks.

Madam Chair, honourable members of the committee, thank you for inviting me to participate in this study. Following on Ms. Metcalfe's remarks, my focus today is on a few big-picture considerations that I hope will help frame your approach to the study.

Meaningful systems-level change for indigenous women affected by or engaged with the criminal justice system cannot be achieved through criminal justice or corrections interventions alone. We are well beyond a situation where some tweaks or some reforms at the margins will suffice to turn the tide of the staggering overrepresentation of indigenous women within these systems.

You may have already heard from the Correctional Service of Canada that they are making improvements to how they're documenting aboriginal social history in the offender management system, or about how they're looking to more effective hiring and retention practices for elders and indigenous correctional staff. To be sure, those are good things, and we encourage those efforts, but those types of efforts are not going to be enough. We have to broaden our perspective of the systems and actors involved in indigenous women's criminalization and incarceration.

CSC itself acknowledges that indigenous women are coming into its custody with distinct and different needs due to unique and complex pathways to the criminal justice system; that there are present, prior, and intergenerational experiences of abuse and trauma; and that indigenous women experience far greater economic and social insecurity than members of society at large. We've seen numerous studies, reports, and commissions that have mapped out why this is, why indigenous communities have been historically disadvantaged and remain disadvantaged today. However, I think now we're starting to talk about how we can meet those needs, not only while indigenous women are within the prison system but, more importantly, how we can meet those needs before they get there.

To answer that “how” question, I think we need to think about investing in safe and appropriate housing, stable employment, access to child care, mental health supports, access to justice in terms of legal supports, and community support services. It's going to require the people in this room, and your colleagues and counterparts in the House and the Senate, to work across ministries and across jurisdictions and, most importantly, to work with indigenous women themselves.

I echo Ms. Metcalfe's call that, if you're not planning to already, you try to go out to some of the women's prisons, particularly the Edmonton Institution for Women and the Regional Psychiatric Centre in Saskatoon, and speak with women while they're incarcerated, and those who have been recently released.

We need to think about how we can ensure stable, sustainable funding for community supports. We can only deal with the outcome or the reaction when individuals are in prison, but we need to be looking at what's happening, the pathways they're taking to get there, and what interventions we can do across the spectrum to address that at the outset.

The connection between indigenous women's imprisonment and child protection comes to mind immediately, and Ms. Metcalfe spoke about this as well. Are we adequately supporting indigenous women to parent? Are we adequately supporting indigenous kinship carers? We're not, frankly. We're not adequately supporting indigenous women and their families and communities.

In B.C., we see this all the time at West Coast LEAF. Child protection services are putting more resources into fostering children outside of those communities rather than within the relationships that exist in family units. I think that happens partly out of a misunderstanding of those kinship bonds, but I think it's also some racist and harmful views about what proper parenting looks like in our society. We can't ignore that reality.

We in this room are all too aware that removing indigenous children from their families and communities and putting them into institutional settings causes intergenerational harms. We've seen that already. We had the Truth and Reconciliation Commission. We have numerous studies and reports. We know that this is not going to end with that person alone; it's going to have future detrimental effects.

At the very least, I think we also have to do no harm to the indigenous women already engaged in our criminal justice and correctional systems. We're failing at this in ways that have devastating downstream effects not only for those indigenous women, but as I said earlier, for generations to come, for their children, for their families. How do we do no harm? It's easy to say, “Do no harm”, but how do we do that?

Well, I think it really comes from a fundamental and radical shift in how we think about incarcerated indigenous women. We have to stop thinking about them as bundles of risk or as behaviours to manage. We have to think about them as human beings with this complex history that comes with them. They have multi-faceted, individualized needs. We can't try cookie-cutter pan-indigenous approaches to addressing those needs.

How do we understand that indigenous women and their communities are themselves agents of change, that they're the ones with the greatest stake in this outcome? This past summer my organization intervened at the B.C. Supreme Court in a charter challenge to administrative segregation in federal prisons. I don't know how much the committee may have heard about administrative segregation, but we can speak about that later.

Why I raise it now is that I think it's important for you to understand that, even as many of the aboriginal programs that CSC officials might have already described to you or that you might have heard about were in place, the annual segregation placements for indigenous women were still trending upward. It's not because there's a lack of understanding that indigenous women have different needs. It's not because CSC has a lack of caring or concern for their outcomes. I think it's that we have this fundamentally flawed risk-and-security-centric approach to the business of corrections. That impacts all prisoners, but it particularly has a harmful impact for indigenous women and women experiencing mental health concerns.

As in society, in prison, behavioural expectations are gendered and they're culturally situated. This idea of institutional adjustment that Ms. Metcalfe talked about is used as a reference for how someone will get along in the correctional environment. The focus is on how willing and able those prisoners are to adapt and to comply. But indigenous women who are coming into the system with, perhaps, a distrust of authority because of their prior experiences then come to be seen in that environment as unco-operative, unmanageable, risky, challenging. That then exacerbates this cycle, where they're rated at a higher security level and their access to the kinds of programs that they probably desperately need to break that cycle becomes compromised by their security status.

I think I'm probably towards the end of my time.

[The Chair, Conservative, Karen Vecchio]

Yes.

[Raji Mangat]

Maybe I'll just quickly say that I like to think that I look too young to be so cynical, but I don't expect that corrections is going to volunteer to change. Any positive change that we've seen that's happened behind prison walls has really come because people outside have noticed and we've cared.

My final recommendation would be for the committee to seriously think about what kind of oversight mechanism might be appropriate.

I have much more to say, but I'll stop there.

[The Chair, Conservative, Karen Vecchio]

Thank you so much for your dialogue.

We're going to our rounds of questions, and we're going to start off with Sean Fraser for seven minutes.

[Sean Fraser, Liberal, Central Nova, NS]

Perfect. Thanks very much.

I'll start with Ms. Metcalfe, but before I do, I want to say that I appreciate the perspectives you both brought in talking about the holistic approach we need to take, and not just one or two pieces to the justice system. I will start, with a few more specific pieces in the justice system, with Ms. Metcalfe.

You confirmed testimony we'd heard from other witnesses about the disproportionate representation of indigenous women in maximum security facilities. One of the suggestions we heard—I forget which organization the gentleman was with, and you alluded to this as well—was that we consider how we can introduce the use of Gladue reports to the considerations around what is an appropriate level of security for an indigenous person, not necessarily just an indigenous woman. Can you walk us through the mechanics of how we could actually accomplish that at the federal level? Do we have a role in helping to put that information before the decision-makers on the appropriate level of security?

[Jennifer Metcalfe]

Sure. I know, in our clients' experience, not very many of them have Gladue reports from when they were sentenced. At one time we were talking with Legal Services Society about getting Gladue reports for people who had already been sentenced, but it was so restricted in its funding for them that we thought it would probably be a better use of limited funding to have Gladue reports for people at sentencing that can carry through their sentences. There are a lot of people who have already been sentenced and also people who aren't getting them at sentencing. I think there should be a lot more legal aid funding for Gladue reports.

[Sean Fraser, Liberal, Central Nova, NS]

Can I jump in, just on that specific issue? We heard the same witness I mentioned before suggest that there be some kind of a federal cost share specifically for Gladue reports. He mentioned that his organization was predominantly funded by legal aid, which the federal government does contribute to and is bumped up somewhat. I'm sure you would say more would be very, very helpful.

Is there a way we can target this? Shouldn't we be targeting legal aid funding specifically to Gladue reports for indigenous offenders or is that just an equally pressing need of the legal aid system across the board?

[Jennifer Metcalfe]

Yes, I think there's a lot of need for increased funding to legal aid, especially for prisoners. Our organization, as I mentioned, is the only legal aid clinic for prisoners in Canada. There are a couple of student clinics, but we're the only full legal aid clinic for prisoners in Canada. We're in a unique position to be able to take such a high volume of calls and speak to so many prisoners every day, so we can identify the systemic issues and help to focus on those and address those systemically.

[Sean Fraser, Liberal, Central Nova, NS]

I have another theme I want to explore, but I'm just conscious of the limited time we have.

You discussed the possibility of alternatives to incarceration, specifically, restorative justice or community sentencing. First of all, is there evidence that demonstrates this leads to positive social outcomes like lower levels of recidivism, lower rates of people serving their complete sentence, or whatever the positive outcomes might be? If the answer is yes—I presume it is—how can we at the federal level encourage these alternatives to traditional incarceration for indigenous women offenders?

[Jennifer Metcalfe]

I believe the answer is yes. My role at Prisoners' Legal Services is helping people once they've been incarcerated, so I don't have too much experience at the court level. I think the role the federal government can play, in general, is in working with first nations for self-determination and self-governance on issues around justice and just making sure that the resources are there at every level, to avoid people getting into the justice system at the outset and to provide support. Not only during the sentence, but after we're in expiry, a lot of people are sort of dumped into the community, back where they started with no resources, and it's harder for them to get jobs. So, we need more wraparound services.

[Sean Fraser, Liberal, Central Nova, NS]

That's a great segue, if I can just transfer my questions to Ms. Mangat.

You mentioned the wraparound services. In particular, there's one that jumped out at me as community legal support services. I have some experience with organizations in the non-profit sector that did sort of legal health checkups. At certain parts of your life they offer free advice if you're buying a home, if you're getting married or divorced, or whatever it might be.

Are there programs out there today that deal with the issue of access to justice for indigenous women, the kinds of legal support that you're talking about? What do they look like, and how can the federal government support their expansion?

[Raji Mangat]

There aren't many that are specifically directed at indigenous women. I think that indigenous women's organizations are always struggling. It's sort of a question of whether you put out the fire or fireproof your house. I think we're often putting out the fires for the organizations that are working at this non-profit community level.

I think that the legal health checkups—I've heard of that in Ontario; I'm not familiar with anything like that in British Columbia. I do know there are so many ways in which people's interaction with the legal system happens well before they maybe have offended or are going to be sentenced. I think the supports we can put in place that are specific to indigenous people and their kind of cultural reality at the outset are good. I think the federal government is really well positioned to do this, because you have jurisdiction over indigenous peoples, generally, and over the criminal law system. I know I'm talking about things like housing and employment that fall within provincial jurisdiction, but I think they're really issues of shared jurisdiction. I think the federal government can support these. Maybe you need to earmark funds through social transfer. Maybe there needs to be some way in which we can have a uniform experience across the country. It really matters where you're indigenous, even within Ontario, what part of Ontario you're in.

[Sean Fraser, Liberal, Central Nova, NS]

We have 30 seconds to go.

You've described some of the stereotypes we have that are perpetuated in the prison system, where we essentially make the social problems worse when we don't let people heal in their communities. If we release people prematurely without having those community supports, are we setting those people up for failure?

[Raji Mangat]

I think we're setting people up for failure right now. Are we setting people up for more failure? It's hard to say, but we're putting people out at warrant expiry who've had no transition to community.

I think the indigenous communities obviously are wanting people back in their community, but many people who are indigenous do not live on reserve. They go back to urban centres. What supports are we putting in place there? We can't just assume a uniform experience for indigenous people.

[Sean Fraser, Liberal, Central Nova, NS]

Thank you very much. That's my time.

[The Chair, Conservative, Karen Vecchio]

We're now going to turn to Martin Shields for his seven minutes.

[Martin Shields, Conservative, Bow River, AB]

Thank you, Madam Chair.

Witnesses, I very much appreciate your being here today, and also your positions that you're explaining to us. What we were just finishing up on with my colleague is where I want to go, in a sense.

I'll start with you, Ms. Metcalfe. I know that you're working on the west coast, but in terms of the position of approximately 700 different indigenous groups in our country, are you suggesting a uniform approach or is there differentiation that we would find in the processes that we might be looking at?

[Jennifer Metcalfe]

I think that's a really good point. It's really important that indigenous services for prisoners be tailored to something that is relevant to their particular first nation. That's why the centralized system that was criticized in terms of creating choices, the P4W, still exists: because there are so few centres for women.

What I'm envisioning would be self-determination negotiations with individual first nations to look at providing better services in those communities, mostly to avoid people getting involved in the criminal justice system, but also to help them with their healing and to deal with those issues.