A flawed Compass: a human Rights Analysis of the Roadmap to Strengthening Public Safety

The Appropriate Remedial Response

Given the characterization of the over representation of Aboriginal prisoners as a “crisis” and a “staggering injustice” and the extensive analysis of the issue by the Royal Commission on Aboriginal Peoples, the Supreme Court and the Correctional Investigator, it was reasonable to expect that the Panel, as part of a transformative roadmap, would have given this issue the highest profile and its recommendations the highest priority. Regrettably the Panel’s summary of the nature of the problem demonstrates no appreciation of national urgency or the need for extraordinary efforts to redress the problems that are within the Service’s mandate. In considering that redress it is important to recognize that the Correctional Service cannot, any more than the courts, resolve all the contemporary legacies of a colonial history. The Supreme Court specifically addressed the limitations on criminal justice agencies in Gladue.

It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system.  What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada.  Sentencing judges are among those decision makers who have the power to influence the treatment of aboriginal offenders in the justice system.  They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.³²⁵

The Supreme Court went on to provide a framework of analysis for the sentencing judge:

How are sentencing judges to play their remedial role?  The words of s. 718.2(e) [Criminal Code] instruct the sentencing judge to pay particular attention to the circumstances of aboriginal offenders, with the implication that those circumstances are significantly different from those of non aboriginal offenders.  The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass a wide range of unique circumstances, including, most particularly: 

(A)  The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and 

(B)  The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.³²⁶

The Supreme Court placed particular emphasis on restorative justice which is now recognized as part of the purposes of sentencing in the Criminal Code, because “most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice”³²⁷.

Parallelling the role of the sentencing court, those who administer our prison system have an obligation in implementing their rehabilitative mandate to take into account the unique systemic and background factors that have brought Aboriginal peoples to prison and to recognize correctional responses that take into account traditional Aboriginal conceptions and processes of justice. In this regard it is not sufficiently well-known that a decade before the Supreme Court's judgment in Gladue the Correctional Service of Canada became the first criminal justice agency to take seriously the claims of Aboriginal offenders that Aboriginal pathways to healing, what was to become known as the “Red Road,” were an integral part of their rehabilitation and reintegration. In 1983, members of the Native Brotherhood at Kent Institution went on a hunger strike, maintaining that they had the right to practise their spirituality, including participation in spiritual and healing ceremonies, and that this was both an existing Aboriginal right under section 35 of the Constitution Act, 1982 and a right of freedom of religion protected by the Canadian Charter of Rights and Freedoms. Beyond these arguments, they maintained that practising culturally relevant ceremonies directed to healing was more appropriate in their journey towards rehabilitation and reintegration into the community than programs that lacked Aboriginal cultural or spiritual content.

In the years that followed, the Red Road and Aboriginal spirituality became increasingly powerful influences in the lives of many Aboriginal prisoners, who discovered, often for the first time, a sense of identity, self-worth and community. Because the path must be taught by those who have special knowledge and who are respected for their spiritual strength and wisdom, the practice of Aboriginal spirituality requires that prisoners communicate with Elders drawn from outside the prison. Some prisoners, by virtue of prior training or the training they undergo in prison, are able to lead certain ceremonies and provide spiritual counselling to other prisoners. There has developed, therefore, a continuum in which those who are more experienced in spiritual ways are able to help those less experienced. From this a sense of community emerges, based not on the common element of criminality or membership in a gang but rather on the search for spiritual truth. In place of the alienation that prison typically engenders, Aboriginal prisoners are able to experience a sense of belonging and sharing in a set of indigenous values. Aboriginal spirituality therefore provides prisoners with constructive links not only to each other but with Aboriginal people outside of prison and with their collective heritage. Charting a path along the Red Road is seen by many Aboriginal people, both inside and outside the prison, as an important element in dealing with problems of alcohol and drug dependency, violence, and other forms of anti-social behaviour.³²⁸

The Corrections and Conditional Release Act contains provisions which require the Correctional Service of Canada to "provide programs designed particularly to address the needs of Aboriginal offenders" (section 80). The Act also authorizes the Solicitor General to enter into agreements with Aboriginal communities to provide correctional services to Aboriginal offenders (section 81); it mandates the establishment of a National Aboriginal Advisory Committee and permits the creation of regional and local advisory committees to advise CSC on the provision of correctional services to Aboriginal offenders (section 82). Section 83 provides that:

(1) For greater certainty, Aboriginal spirituality and Aboriginal spiritual leaders and elders have the same status as other religions and other religious leaders.

(2) The service shall take all reasonable steps to make available to Aboriginal inmates the services of an Aboriginal spiritual leader or elder.

Since the passage of the CCRA CSC, to its great credit has developed, in consultation with Aboriginal communities and organizations, an impressive array of culturally sensitive Aboriginal programs to address the issues of violence, sexual abuse and substance abuse that incorporate Aboriginal values and processes that are facilitated by Aboriginal elders and professionals. There are now in the correctional landscape a number of minimum-security institutions referred to as healing lodges or healing villages where Aboriginal-centred ceremonies and programs are given a prominent place in the life of the institution, and where the local Aboriginal communities have a distinct presence and role.³²⁹ There are also seven funded Pathways Healing Units at medium-security penitentiaries where prisoners who demonstrate a commitment to the healing journey can seek some respite from the politics and pressures of the mainline.

The Panel recognized the significance of these healing-based correctional programs:

According to evaluation information, Aboriginal offenders are more likely to engage in and complete programs that are relevant to their life experiences and needs. Research has identified the need for healing-based programs designed for and preferably delivered by Aboriginal people. This premise has formed the basis for partnerships with Aboriginal organizations to develop and pilot seven national Aboriginal correctional programs. Their content reflects not only the requirements of CSC but also the teachings of the Elders. It is essential to engage Elders in delivering these correctional programs to ensure they integrate traditional teachings that are appropriate for the diverse needs of Aboriginal offenders. CSC should examine its program framework to ensure there is a reasonable balance between correctional and healing interventions. Although a continuing emphasis must be placed on programs addressing violent behaviour, particularly family violence, and on those that address the management of alcohol and drug abuse, CSC must also identify what resources are required to enhance employability and employment initiatives for Aboriginal offenders.³³⁰

The Panel in reviewing CSC’s strategic plan provides this summary and commentary:

A Continuum of Care Model, adopted by CSC in 2003, provides the framework to integrate traditional Aboriginal approaches to healing within the CSC policy framework. The Strategic Plan for Aboriginal Corrections (2006-11) responds to the needs and aspirations of Aboriginal people within the CCRA. It is based on the following strategic priority: “to enhance capacities to provide effective interventions for First Nations, Métis and Inuit offenders.” National Aboriginal organizations have expressed their support for the plan. However, the Panel was told that the lack of resources has restricted its full implementation… The Panel is of the view that the issues and challenges regarding the Inuit are well understood by CSC. Progress on a “Northern Strategy” is not for lack of analysis, but rather action.³³¹ …

CSC is at a critical juncture in developing the infrastructure (both physical and interventions and services) necessary to move forward with its strategic plan. CSC must continue to be responsive to disparities between Aboriginal and non-Aboriginal Canadians in the context of initiatives to be undertaken by governments and Aboriginal organizations. Creating the conditions for success requires a more seamless approach with all stakeholders, while respecting the aspirations of Aboriginal people, the jurisdictional mandates of governments, and the needs of Aboriginal offenders and their communities.

There is an urgent need for broader implementation of Aboriginal-specific interventions, and significant investment is needed over the next five years. It should be noted that not all Aboriginal offenders will choose to follow a traditional healing path—some will choose to participate in mainstream correctional interventions. Others, particularly those associated with gangs, may resist any type of involvement, requiring concerted efforts to motivate them to change. CSC must ensure that the implementation of the Continuum of Care model takes these options into consideration, focuses on addressing the needs of Aboriginal offenders and their communities, and is fully integrated with CSC’s priorities.

As expressed to the Panel by Donna Duvall of the Canadian Human Rights Commission:

“It is positive that the Service in its 2007–2008 RPP [Report on Plans and Priorities] recognized the unique background and needs of First Nations on reserve, First Nations off reserve, Métis and Inuit offenders. However, this needs to be translated into concrete action, one of which is ensuring that all Aboriginal offenders have access to cultural practices and ceremonies, such as the use of sweat lodges and smudging.”

There is increasingly less capacity to meet the needs of Aboriginal offenders because of the growing numbers of Aboriginal offenders. A critical issue for CSC is maintaining these initiatives through appropriate measures and adequate funding.³³²

There is a clear theme that emerges from the passages that we have bolded. That theme is the substantial disconnect between strategic planning and its implementation. It is this disconnect that gives rise to the realities described by the Correctional Investigator in his Annual Report and submission to the Panel; the over representation of Aboriginal offenders, particularly Aboriginal women, in maximum security, which means prisoners often serve their sentences far away from their family and the valuable support of other community members, friends and supports such as Elders; the absence of Aboriginal programming in maximum-security institutions limiting their ability to be transferred to lower security institutions; the underrepresentation of Aboriginal offenders in minimum-security institutions that contributes to their being released later in their sentences than other prisoners; longer periods of incarceration and more statutory releases for Aboriginal offenders contribute to less time in the community for programming and supportive intervention than for non-Aboriginal offenders; the proportion of Aboriginal offenders under community supervision is significantly smaller than the proportion of non-Aboriginal offenders serving their sentences on conditional release; Aboriginal offenders continue to be over-represented as a proportion of offenders referred for detention and ultimately detained compared to the other offender groups; parole is more likely to be revoked for Aboriginal offenders than non-Aboriginal offenders and Aboriginal offenders are re-admitted to federal custody more frequently than non-Aboriginal offenders, repeating the cycle of inequitable treatment.

It is here that the Panel’s failure to properly review the evidence of overrepresentation becomes so important. Had the Panel done so and had it acknowledged that this state of affairs had been described and condemned by the Supreme Court as a “staggering injustice”, and had it recognized that the root causes of this injustice have deep cultural, social and economic roots arising from our colonial history, how could it in all good conscience have concluded that “The Panel recommends that employment be the first priority in supporting Aboriginal offenders in returning to the community”. As we have discussed earlier in our response in the chapter on employment, there is no question that finding a job is a vital element for community reintegration and personal development. We have also pointed out the enormous difficulties facing a correctional service in implementing an effective employment strategy. It is particularly difficult for Aboriginal prisoners given that the communities to which many of them will be returning already suffer from some of the highest unemployment figures in the country. But this aside, the evidence is clear that the reasons why Aboriginal peoples are overrepresented in prison and underrepresented on conditional release cannot be explained by the simplistic notion that they are unemployed. That employment would be the Panel's first priority is explained not by a careful consideration of the evidence of injustice but by the Panel’s faith that employment, coupled with restricting prisoners to basic rights and toughening up prison regimes, is the correctional wave of the future.

Nor could the Panel in good conscience have contented itself with simply recommending that “CSC make resources available to respond to the specific needs of Aboriginal offender populations, such as further investment in correctional programming tailored specifically to their needs.” This is hardly the clarion call necessary to respond to a national crisis. In the absence of anything more, the recommendation has to compete with the many other recommendations that also call for further resources that may and indeed been given much higher priority. Consider the investment that has now been committed as a result of the Roadmap for the hiring of many more security intelligence officers and the deployment of more ionscan machines and drug dogs to tackle the problem of drugs in the institutions. Drugs in institutions are a serious problem but do not constitute a national crisis of staggering injustice.

Had the Panel taken seriously the importance of restorative justice principles to the reintegration of Aboriginal offenders, how could it give the green light to CSC to ramp up security measures and place further burdens and injustice on community visitors in ways quite antithetical to the healing journey? Further, had the Panel given the necessary restitutional attention to overrepresentation and that Aboriginal prisoners are released later in their sentences than other prisoners, how in good conscience could it recommend the elimination of statutory release without any concern that it would almost certainly mean that Aboriginal offenders will serve even more time. It is surely little comfort that more of their non-Aboriginal peers will share the fate of extended imprisonment.

It is not too harsh a judgment to conclude that the Panel’s recommendations, in the context of the systemic causes of Aboriginal overrepresentation and in conjunction for the other criminal justice initiatives of the Government (including restricting the availability of conditional sentences and the expansion of mandatory minimum sentences) provide an unintended roadmap for incarcerating even more Aboriginal offenders for even longer periods of time.

As we have described, the Correctional Investigator has done his utmost, through his Annual Reports, to bring to the attention of both the correctional establishment and Parliament the continuing injustice facing Aboriginal prisoners. Had the Panel given this issue greater priority it might have invigorated the Government and CSC to pay as much attention and devote as many resource dollars to redressing this problem as it has poured into anti-drug initiatives. Instead of the necessary invigoration we can see from the latest 2007-8 Annual Report of the Correctional Investigator that there is a lamentable lack of action:

In past OCI annual reports, this Office recommended that the Correctional Service appoint a deputy commissioner specifically responsible for Aboriginal corrections to ensure that the Correctional Service incorporates Aboriginal concerns into all of its operational and policy decisions at the senior level. This recommendation has not been accepted. The Correctional Service instead expanded the role and responsibilities of the Senior Deputy Commissioner (SDC) by adding the Aboriginal portfolio to his duties. Three years later, there is little evidence that this change has had the desired result. On the contrary, the gap in outcomes between Aboriginal and other offenders continues to grow.

The Corrections and Conditional Release Act stipulates that the Correctional Service shall establish a National Aboriginal Advisory Committee to advise the Correctional Service on the provision of correctional services to Aboriginal offenders. The National Aboriginal Advisory Committee has not met since June 2004. In response to my last annual report, the Correctional Service indicated that "work to select new members for the National Aboriginal Advisory Committee is underway"]. A year later, this Office has yet to be informed of the re-establishment of this legally required committee.³³³

We continue to be concerned that the Correctional Service does not have the necessary data collection systems in place to monitor and evaluate its progress in the area of Aboriginal corrections. We have for years recommended that the Correctional Service publicly issue detailed quarterly reports analyzing key correctional outcomes for Aboriginal offenders, including transfers, segregation, discipline, temporary absences and work releases, detention referrals, delayed parole reviews, and suspensions and revocations of conditional releases. The Correctional Service indicated in its Strategic Plan for Aboriginal Corrections that it would develop and implement an integrated monitoring system for assessing the impact of policy and operational changes on Aboriginal offenders by March 2007. This date has long passed, and there is no evidence of improved data collection or analysis. In fact, we have been advised that the Correctional Service will now produce only basic internal annual reports on Aboriginal offenders, as it claims trends are not significantly changing over time. Key correctional outcomes must be the subject of close and regular monitoring to evaluate progress on the implementation of the Strategic Plan for Aboriginal Corrections.

In response to my last annual report, the Correctional Service stated that it uses the Departmental Performance Report (DPR) to "...report on progress toward the goals of the National Action Plan on Aboriginal Offenders"[66]. Unfortunately, the latest CSC DPR, for 2006/07, does not report on key correctional outcomes that are of concern to this Office... Therefore, parliamentarians and Canadians have no way of evaluating the Correctional Service's progress, or lack thereof, in this priority area of concern. The lack of openness and the refusal to engage in full reporting on this critical file remain a serious concern to this Office.³³⁴

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