Evidence of meeting #88 for Status of Women in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was parole.
A recording is available from Parliament.
Conservative
The Chair Conservative Karen Vecchio
Good afternoon, everybody, and welcome to the 88th meeting of the Standing Committee on the Status of Women.
Today's meeting is in public, just as a reminder. Today, we're going to continue our study of indigenous women in the federal justice and correctional systems.
We are pleased to be joined, via video conference from Kingston, by Kathy Ferreira, who is the director at Queen's Prison Law Clinic.
I'm going to pass it over for one moment to Ms. Damoff, who would like to introduce some folks.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Thank you very much, Chair.
I have the privilege of having two students from Brock University with us today. They're part of Women in House at Brock. There's Melanie and Jen who are joining us, and they've been through the public safety committee this morning, and now they're quite excited to be sitting at the status of women committee this afternoon. I just wanted to extend a warm welcome.
Conservative
The Chair Conservative Karen Vecchio
Welcome. I hope you enjoy today's session.
Ms. Ferreira, you have the floor for seven to nine minutes.
Kathryn Ferreira Director, Queen's Prison Law Clinic
Thank you.
The Queen's Prison Law Clinic is a not-for-profit corporation funded by Legal Aid Ontario to assist federally incarcerated prisoners. Given our geographical location, the clinic assists male prisoners in the eight federal penitentiaries in the Kingston area. We used to provide services to women prisoners at P4W, Prison for Women, and the Isabel McNeil House, when those were open. The Office of the Correctional Investigator and the Canadian Association of Elizabeth Fry Societies have done much to shine a light on the plight of female prisoners, particularly indigenous prisoners, and I draw from their reports and findings.
Senator Kim Pate is a community member on our board of directors. As the committee is aware, she is an expert on issues related to women in prison, including indigenous women prisoners.
In terms of the committee's look at indigenous women's access to and treatment in the justice system, the ongoing over-incarceration of aboriginal peoples, and in particular indigenous women, is a form of systemic discrimination within the Canadian criminal justice system and is part of the colonial legacy in Canada. The violence experienced by indigenous children in residential schools continues in a cycle of intergenerational trauma.
The federal government continued with the cultural genocide of aboriginal peoples through the child welfare system. Too many children were removed from their homes and placed in non-indigenous care, often without the consent or knowledge of their families. I am referring, of course, to the sixties scoop. The ongoing forced separation of indigenous children from their families is now referred to as the “millennium scoop”, and approximately 48% of all children in state care today are indigenous.
The average annual income of an indigenous woman is 19.3% below the low-income cut-off. The employment rate for indigenous women is only 38% on the reserve and 51% off the reserve. Approximately 36% of indigenous women live in poverty. Poverty and inadequate housing contribute to systemic racism, dislocation, and violence against indigenous women.
The rate of physical and sexual violence against indigenous women is two and a half times higher than the rate against non-indigenous women. The lives of indigenous women and girls are devalued. The same discriminatory attitudes that exacerbate the crisis of missing and murdered women also contribute to the criminalization and incarceration of indigenous women. Indigenous women are more likely to experience police discrimination, including racial profiling and over-policing, than either non-indigenous women or indigenous men.
In terms of incarceration rates and penalties imposed on indigenous women, non-violent property and drug offences represent the majority of crimes for which women are convicted. The serious violent crimes for which women are convicted must be appropriately contextualized. Overwhelmingly, the actions of women in these contexts are defensive or otherwise reactive to violence that's directed at them, their children, or a third party. Eighty-five per cent of federally sentenced women have a history of physical abuse, while 68% have a history of sexual abuse. This rate increases to 91% for indigenous women.
Two-thirds of federally sentenced women are mothers and have primary child care responsibilities. Separation from their children, and the inability to deal with problems surrounding the separation, are major anxieties for women in prison.
Between 2007 and 2016, while the overall federal prison population increased by less than 5%, the indigenous prison population increased by 39%. For the last three decades there has been an increase every single year in the federal incarceration rate for indigenous people. Indigenous people make up less than 5% of the Canadian population, and yet 37.6% of the federal women inmate population is indigenous.
Women in prison, and in particular indigenous women, are the fastest-growing population in Canadian corrections. In the 10-year period between 2007-08 to 2016-17, the number of indigenous women inmates grew 60%. These are astonishing numbers, as the committee is aware.
In terms of the treatment of indigenous women within the federal corrections system, they are more likely to be in max. The custody rating scale, which is a tool used by Correctional Service Canada to assess initial security, fails to identify, reflect, or accommodate the needs, capacities, and circumstances of women and/or racialized groups. As a result, indigenous women are given unnecessarily high security classifications. Indigenous women represent 37% of all women behind bars, but they make up 50% of the maximum security population, and they present with unique, culturally based needs. Women who are overclassified as maximum security are isolated in segregated living units, called secure units, and are not eligible to participate in work release programs, community release programs, or other supportive programming designed to enhance their chances of community integration.
The Office of the Correctional Investigator also found a general absence of meaningful employment for women on these units.
Women with mental health issues are more likely to be placed in maximum security because of institutional adjustment issues, not because of public safety.
Also, anyone serving time for murder is automatically placed in maximum security for a minimum of two years, even in cases of overwhelming evidence that they were responding to violence and are unlikely to be a risk to anyone else.
Half of the women who received life sentences between 2005 and 2015 were indigenous.
Women in maximum security, as opposed to men in maximum security, are also subject to an illegal level classification, a further classification within maximum security that further restricts their movements within the secure unit.
Women in federal penitentiaries are also released later in their sentence, and they're more likely to be returned to prison due to suspension or revocation of their parole. Indigenous women are more likely than non-indigenous women to be denied parole, and to have served a longer portion of their sentence in custody once they are granted parole. They're also more likely to have their parole revoked for technical reasons.
The Auditor General's report, “Preparing Indigenous Offenders for Release”, tabled in Parliament November 29, 2016, independently corroborates many areas of concern that were identified by the Office of the Correctional Investigator. In 2015-16, most indigenous prisoners were released from custody at their statutory release date, which is two-thirds of their sentence. It is important to note this is a legislated release, not a form of parole. Of those who are released on statutory release, 79% were released into the community directly from maximum or medium security institutions, without benefit of a graduated and structured return to the community. Parole grant rates were much lower for indigenous than non-indigenous offenders, and only 12% of indigenous prisoners actually had their cases prepared for a parole hearing once they were eligible.
In terms of the committee looking for recommendations on how to improve the indigenous woman's experience within the federal justice and correctional systems, I would urge the committee to not focus on improving services in the prison or building more healing lodge-style prisons; rather, the focus should be on the negotiation of individualized community-based and directed section 29, section 81, and section 84 agreements for individual indigenous women. These are releases that are pursuant to the governing legislation, the Corrections and Conditional Release Act.
As the Office of the Correctional Investigator notes, section 81 and section 84 releases are chronically underfunded and underutilized in federal corrections. Section 81 allows for indigenous communities to oversee the care and custody of indigenous prisoners who would otherwise be in a federal prison. Section 84 allows an aboriginal community to propose a plan for an interested and consenting aboriginal parolee's release and reintegration into the community. The manner in which CSC has developed policies for these releases has frustrated the legislative intent and has a particularly negative impact on indigenous women.
Resources should be provided to indigenous communities to sponsor women into their communities, rural or urban, on or off the reserve. There have been increased numbers of section 84 agreements on paper, but most are the halfway houses versus the individualized contracts with indigenous communities. This would allow for greater aboriginal control over matters that affect them.
Importantly, women with serious mental health needs should get the treatment that they require and that the legislation envisions, not in a prison, but in a section 29 transfer to a hospital to access provincial mental health services. CSC, Correctional Service of Canada, is unable to manage these cases because their apparent security concerns will always trump treatment.
The Office of the Correctional Investigator's 2016 annual report contained a review of complex cases in the secure unit, the maximum security unit. That office recommended that specialized complex case funding should not be used as an alternative to seeking placement in an external treatment facility.
Conservative
The Chair Conservative Karen Vecchio
Thank you very much.
I'm going to cut you off now, if you don't mind. I recognize that you have multiple pages still, and we do have some information here as well. We're going to pass it over for questioning so that each member gets an opportunity.
We're going to start with a former member Karen Ludwig for seven minutes.
Liberal
Karen Ludwig Liberal New Brunswick Southwest, NB
Thank you, Madam Chair.
Thank you, Ms. Ferreira, for your excellent presentation. I tried to take as many notes as I could, but you had so much great information that I think I'm going to have to go back and read the transcript.
First, in terms of the trends you recognized in your presentation, is the trend of the high levels of indigenous women being incarcerated fairly consistent across the country and in all regions of Canada? Are there particular areas per capita that would be higher?
Director, Queen's Prison Law Clinic
I'm not familiar with how that is spread out across Canada.
I don't have that information, I'm sorry.
Liberal
Karen Ludwig Liberal New Brunswick Southwest, NB
I represent a riding in eastern Canada, and I was just wondering if there was any difference, for example, between the east, the west, or the north on that.
You also mentioned, Ms. Ferreira, cultural-based needs. Would you please expand on that?
Director, Queen's Prison Law Clinic
The Correctional Service of Canada makes an attempt to understand the social history of aboriginal prisoners when making any decisions respecting aboriginal prisoners. I think it's an issue that they try to consider factors, but then they're unclear how those factors should impact their decision-making. For example, before placing a prisoner in segregation, they are supposed to consider cultural factors and social history, and they do. They at least make a cursory attempt to do that, but it is my position—and my position is particularly with respect to my experience with male aboriginal prisoners—that it fails to have any impact on their final decision.
Understanding what those factors are, for example, what home life they're coming from, what sort of intergenerational trauma they have experienced, their economic experience, any family member involved with the residential school system, any impact with respect to the child welfare system, their employment history and their economic history, whether they were on or off the reserve, what sort of dislocation they have experienced, what sort of violence they have experienced.... All of these factors play a role in terms of the indigenous person we have in front of us. The system is struggling to deal with it appropriately, clearly, given the numbers.
Liberal
Karen Ludwig Liberal New Brunswick Southwest, NB
You also mentioned police discrimination. This committee, in the past year, has studied mandatory training for judges. I'm wondering if you could elaborate or recommend.... Is there a need for mandatory training for federal jurisdictions, for example, the RCMP, regarding more tolerance or more understanding of indigenous women?
Director, Queen's Prison Law Clinic
Obviously, more understanding and more awareness is always important. In general, my position would be that having the aboriginal communities have more control over the care and custody of their own people would foster a respect from policing, and from the criminal justice system in general, that is surely lacking based on the numbers that we're seeing. Too many women are being placed in prisons instead of having alternative possibilities considered. Once in prison, too many women are being kept in secure confinement, and not being released on parole. It's a societal problem, and I think it really does begin with the communities themselves having that care and custody back and having the level of autonomy that all parties involved in the criminal justice system would have to respect.
Liberal
Karen Ludwig Liberal New Brunswick Southwest, NB
This is very much a macro question. When we look at our federal departments and ministries and decisions that are made regarding policies, what is the impact that you see or that you can explain regarding colonialism and the fact that so very few people who are making some really important decisions historically have been indigenous people?
Director, Queen's Prison Law Clinic
If I understand the question correctly, I think certainly that the aboriginal people being left out of decision-making that has directly affected them, the place where they live, how they're going to earn their income, what laws they answer to.... Theirs has been a history of violence, I think is a good way to describe it, and dislocation and systemic racism that continue. There's a tendency to think that it is improving, but the numbers that we are looking at tell us that it is not improving. Again, particularly my experience is with the Correctional Service Canada once the person is in prison. The way things currently are, once in prison, we continue to struggle and they continue to struggle. Despite the Corrections and Conditional Release Act being in place for several decades now and having those sections, like section 81-type transfers, where the care and custody can be given back to the aboriginal community, and section 84, where a parole release can be facilitated for an aboriginal person, which is in mandatory language, those aren't being acted on.
Liberal
Karen Ludwig Liberal New Brunswick Southwest, NB
If I could just ask about the Parole Board of Canada, as well, do you have any figures or any kind of percentage of how many people who sit on parole boards and make the decisions upon the releases and recommendations actually have an indigenous background?
Director, Queen's Prison Law Clinic
I don't actually have that figure. In my experience, from doing this work intensively since 2003, I am aware that there was one member who was aboriginal in the Ontario region. That may not be the sum total. It's possible. I think there have been some new appointments to the parole board, and I think they are trying to have that cultural awareness that they need. Maybe we're going to see some improvements.
Conservative
The Chair Conservative Karen Vecchio
We're going to now move over to Stephanie Kusie for seven minutes.
Conservative
Stephanie Kusie Conservative Calgary Midnapore, AB
Thank you, Madam Chair.
I think a theme that we are consistently seeing here is that of self-government and self-determination for indigenous people. Self-determination is a Conservative principle, so I'd just like to start by saying that.
Kathryn, something that really strikes me is how you mentioned that among those who had committed violent crimes, it was often in self-defence. In your opinion, should this, and how could this, be recognized and compensated for in sentencing?
Director, Queen's Prison Law Clinic
My experience, if I can just be clear with the committee again, is primarily after the person has been sentenced. I would say to the committee that it's all about risk once the person has been sentenced and when the parole board is deciding on release, if we're talking about release or a section 81-type release back to the care and custody of the aboriginal community.
If the violence is because of a reaction to violence, either to the person herself or to their child or to a third party, it becomes very contextual. It is not a risk to society in general; it is a very specific type of risk in a specific type of context. There's a lot of healing that could go on in terms of that back in the aboriginal community. Murder is a very serious offence, obviously, but the context needs to be considered for every person, both at the time of sentencing and once in the federal system. It's incredibly important to consider.
Conservative
Stephanie Kusie Conservative Calgary Midnapore, AB
I agree. I think about what I would do to defend my family and my children. I would do just about anything.
You mentioned that sections 81 and 84 should be further used. I'm wondering how this compares to the healing lodges, which you suggested moving away from. Can you see a model whereby we transfer the healing lodges to the indigenous communities, or they create their own healing lodges, or do you advocate for the complete abolition of them? We have heard a lot of testimony that speaks to the positive use of these healing lodges. Perhaps in your opinion they're a transition, an intermediary between the historical incarceration system and rehabilitation, if you will, within the society.
What sort of transition do you see happening between the healing lodges, sections 81 and 84? Is there a place for the healing lodges within sections 81 and 84? Perhaps you could make mention of the potential evolution of rehabilitation for these offenders.
Director, Queen's Prison Law Clinic
My concern would be that while clearly a healing lodge is better than a person being in prison, often there is still a great deal of CSC control over these places, as well as rules and restrictions, and they become very defined by the Correctional Service. Based on the number of years that we have had these provisions in place, I would say they don't go far enough. There aren't enough of those. They've had time to make those sections of the legislation available, and they haven't done a good job with that. Just in terms of where I see it going, again, I think having Correctional Service less involved and the aboriginal community more involved is something that must be explored, because it's not working the way things currently are, and there's been time to make it work.
Conservative
Stephanie Kusie Conservative Calgary Midnapore, AB
I always feel there is the risk of appropriation, which we're hearing about so much in our society and in our culture at this time, but given the significant changes that are going on internally in indigenous culture at this time, in terms of reconciliation and dealing with the outcomes of the residential schools—we as Conservatives always look for prevention, but again I believe this goes back to how for indigenous individuals it must be intrinsic, and it must be through self-determination—what, in your opinion, is the role of government in this process? Do we have a role, and if so, how can we assist and walk alongside them as they go through these incredible times of healing and transformation?
Director, Queen's Prison Law Clinic
I think the government obviously has to play a role, but perhaps it's a matter that could be helped by judicial oversight in terms of reducing these numbers, having these mechanisms come to fruition, and having the autonomy go back to the aboriginal communities. I do see a role for judicial oversight to make sure that these things are happening.
Justice Arbour spoke about a remedial option for prisoners where conditions of confinement amount to correctional interference in their lawful sanction and renders their sentence in need of remediation. This is particularly true for indigenous—
Conservative
The Chair Conservative Karen Vecchio
Kathryn, I'm going to have to cut you off because we have more questions coming from around the floor. We're going to take the document that you prepared and sent to the clerk and have it translated, and we'll make sure it is distributed to all of the members.
All the opening statements with all that great information will be given out to all of the members.
I'm going to pass this on to Sheila Malcolmson for seven minutes.
NDP
Sheila Malcolmson NDP Nanaimo—Ladysmith, BC
Thank you, Chair, and thank you to the Queen's Prison Law Clinic for your work. It's good to have your testimony today.
This committee received a referral on a bill about sexual assault training for judges. I was really happy that the NDP was able to get the committee's support to amend the bill to include in the development of training for judges a mandatory requirement to have women's groups consulted, those that have on-the-ground experience, and to have survivors of sexual assault consulted. Some really high-profile and terrible examples suggested that the bench needed more training in this area.
We had one particular quote from Nneka MacGregor, who is the executive director of the Women's Centre for Social Justice. She said that we “must include the voices of those individuals who have lived” through the justice system “because it's [their] experience that's actually going to change the perception and the understanding”.
This bill is stuck in the Senate right now, so it hasn't actually been implemented. Can you talk a bit about the importance of those voices on the ground to influence how judges understand their responsibility and do their work, and then to have that training influence their sentencing?