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.