Aboriginal Incarceration in Canada a National Shame

Emile TherienEmile Therien retired after 18 years as President of the Canada Safety Council in July 2006. He is currently President of PIP – Progress Intelligently Planned, a small enterprise which promotes its services to the non-profit sector, small companies and governments. He is a widely respected spokesperson on public health and safety issues/concerns.


National Aboriginal Day, featuring activities in aboriginal communities across the country, is celebrated on June 21. But as we honour Aboriginal Canadians, we should always keep in mind a great injustice that continues to be perpetuated against them. Incarceration!

First Nations children are more likely to go to jail than to graduate from high school, according to Shawn Atleo, National Chief of the Assembly of First Nations.

In his 2009 annual report, Correctional Investigator Howard Sapers revealed that the rate for Aboriginal incarceration in 2008 was nine times the national average. Figures for 2007/2008 from Statistics Canada show that Aboriginal adults accounted for 22% of admissions to sentenced custody even though they represent only 3% of the population – and one in three federally sentenced women is Aboriginal.

In view of such a deplorable situation, one must ask why the federal government spends only 2% of its prison budget, which now exceeds $3 billion a year, on Aboriginal programs, while passing new crime legislation, Bill C-10, which will put more First Nations people in prison, where they will spend longer periods of time.

For the record, excluding the provincial system, there are over 14,000 federal offenders in custody and about 8,000 in the community on some form of conditional release. The Correctional Services of Canada (CSC) manages over 50 facilities, employs more than 20,000 people, up from 14,000 in 2005-2006, and has an annual budget of $3-billion, up from $1.6 billion in 2005-2006.

Back in 1999, the Supreme Court of Canada made a ruling in a case involving an Aboriginal defendant, a Mr. Gladue. The ruling called on judges, in sentencing Aboriginal people, to exercise discretion, to be sensitive to the historical plight of Canada’s first nations, and always to consider their heritage. The application of this ruling led to what has become known as Gladue Court for Aboriginal people, and the use of Gladue reports when sentencing offenders.

The overall response by the judiciary to that landmark ruling, as evident by the growing incarceration rate of Aboriginals, has been apathetic and sporadic. Its application varies from one extreme to the other, depending on jurisdiction. Of late, judges, in response to inadequate access to native sentencing, have been reducing prison sentences for serious crimes committed by Aboriginals.

In one case in Windsor, when Ontario Superior Court Justice Renée Pomerance sought a Gladue report, she was told the service was not available in that city. She was told Gladue service was only available in Toronto, Brantford-Hamilton, Waterloo-Wellington, Sarnia, London, and parts of Northern Ontario. She declared that compliance with the law should not depend on the jurisdiction where the case is being heard. The law “applies to offenders across Canada, wherever they may reside and wherever they may be sentenced,” she wrote.

Some jurisdictions across the country evidently considered the edict from the Supreme Court of Canada only to be a suggestion. But in March 2012, the Supreme Court reiterated it was a firm requirement. “Courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes higher unemployment, higher rates of substance abuse and suicide and, of course, higher levels of incarceration for Aboriginal Peoples,” Justice Louis LeBel wrote. “Failing to take these circumstances into account would violate the fundamental principle of sentencing.”

One expert, Jonathan Rudin, Program Director of Aboriginal Legal Services of Toronto, has argued the situation will lead to a standoff between the courts and the government. Is the Gladue Court yet another failed initiative, further evidence of systemic disrespect and contempt for the rights of native Canadians?

An independent report commissioned by the Correctional Investigator and released in the fall of 2009 examined the situation of aboriginal offenders under federal sentence and found it remains unacceptable. The Mann Report, authored by Michelle Mann, titled Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections, describes how correctional outcomes for Aboriginal offenders continue to lag significantly behind those of non-Aboriginal offenders on almost every indicator. It found that the federal correctional service is not doing all it can for Aboriginal offenders and their communities.

To address the problems identified in the Mann Report, and to ensure the legal mandate of the Correctional Service is met, the Correctional Investigator called for the appointment of a Deputy Commissioner for Aboriginal Corrections. This idea was dismissed outright by then Public Safety Minister Peter Van Loan.

In June 2008, Prime Minister Stephen Harper apologized to Canada’s First Nations for this country’s despicable role in the Indian residential schools, a racist program aimed at assimilation and even today blamed for the high rate of Aboriginal incarceration. His apology at the time seemed genuine.

The Harper government claims it is committed to a policy that makes Aboriginals full members of the national economy. Where are the details of this policy? And – of utmost importance – how does it address the crushing rate of incarceration?

– Emile Therien

Links of interest:

Pizzas, Street Parlours and Prisons

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Private Member’s Bills

The many changes to the Canadian Criminal Code legislated by C-10 have not satisfied this government’s hunger for more bills to get ‘tough on crime’,  restrict the rights of offenders, and curtail judicial discretion.

Since the beginning of this current Parliamentary session, 221 private member’s bills  have been introduced in the House.  While these bills cover a wide spectrum of public policy (such as setting standards for cancer screening and increasing public awareness of epilepsy), many of them are focused on crime.

For example, Bill C-394 will create a new criminal offence for recruiting young people into gangs. Another will levy $5,000 fines or jail terms of up to 10 years for wearing a mask or face paint at a riot.  Another will give federal prison officials more authority to dismiss inmate grievances by deeming them “vexatious” or “frivolous”.

Another private member’s bill, loudly applauded by the Conservative benches, will repeal Section 13 of the Canadian Human Rights Act and prevent rights claims based on hate speech from being brought before human rights commissions.

Former executive director of the John Howard Society, Graham Stewart, explains that rules prevent MPs from tabling bills which deal with economic policies. “So crime bills are one of the few areas that private members can propose legislation that will attract national attention. Now that mandatory minimum penalties are accepted by the government and the opposition as an acceptable solution to just about everything, they have become a simple way to respond to sensational incidents where an MP wants to be seen to be doing something in response to an incident in his/her riding.”

For example, Bill C-299, presented by Conservative MP David Wilks, would require mandatory five-year jail terms for kidnappers of minors. David Wilks is a former RCMP officer and mayor of the B.C. town where Kienan Hebert went missing last fall. The issue of kidnapping of minors has also been flooding the news with the recent trial of Michael Rafferty, who was found guilty of first-degree murder, abduction and sexual assault of 8-year-old Tori Stafford.

In response to Bill C-299, retired Supreme Court of Canada Justice John Major urged the Commons justice committee to refrain from further tying judges’ hands. He also warned the the Criminal Code is becoming too complicated as legislation is “patched” together with ad hoc amendments.

Nonetheless, private member’s bills such as C-299 are easy to draft and are almost a sure to gain public support, especially when Rafferty’s case is still so fresh in our minds.

Stewart fears that this type of reactionary legislation is precisely what led to rampant increases in sentences through mandatory minimum sentences in the US. “Someone would champion a new get tough penalty in the face of a sensational event and label anyone who objects as soft on crime,” he says. “Each would leapfrog the former to prove that they were tougher – apparently thought to be a good thing.”

“There are no brakes on this system of vengeance,” Stewart warns. “Private member’s bills are a very serious problem as punishment is turned into the currency of cheap political tricks.”

Impact of Bill C-10 on Aboriginal Peoples

The Senate Committee debating Bill C-10, the omnibus crime bill, heard today how this legislation will negatively impact Aboriginal Peoples.

Shawn Atleo

Shawn Atleo, AFN National Cheif (Mike Deal / Winnipeg Free Press).

Assembly of First Nations (AFN) National Chief Shawn A-in-chut Atleo  spoke via video conference from his community on the west coast of the Vancouver Island. He made it clear that the AFN is very concerned about the direction Bill C-10 is headed in and that this legislation will not make Aboriginal communities safer. Unfortunately his testimony was cut short due to technical problems, so AFN senior strategist, Roger Jones provided further details and fielded the Senators’ questions.

Jones told the Committee that the AFN searched high and low for elements within Bill C-10 that would improve the situation for Aboriginal Peoples – and couldn’t find anything.

He said the Omnibus Bill will compound the existing over-representation of Aboriginal people in the criminal justice system, such as through mandatory minimum sentences (mms) for drug offences and the removal of judicial discretionwith regard to such things as the Gladue principles.

References to the Gladue decision were frequent throughout AFN panel discussion. Gladue principles, based on a 1999 Supreme Court interpretation of Section 718.2 of the Criminal Code, provide that reasonable alternatives to imprisonment should be sought and particular attention should be given to the circumstances of Aboriginal offenders.

Senator Mobina Jaffer suggested that the Senate could recommend an exemption clause in Bill C-10 so as to preserve Gladue principles.

Senator Fraser questioned how often these principles are applied. (Not often enough, Jones replied.) Senator Lang challenged Jones as to why MMS for such reprehensible crimes as child sexual exploitation should have exceptions for Aboriginal offenders. Jones replied that nature of the crime should never negate the need to look at the offender’s circumstances.

In contrast to the AFN’s detailed concerns with the Omnibus Bill, University of British Colombia Law Professor, Benjamin Perrin, presented the Senate Committee with his strong support of “all” aspects of the bill, suggesting it balances criminal law by enhancing the accountability of offenders and increasing the rights of victims.

He argued that more people charged with cultivating marijuana should be imprisoned and that 89% of marijuana production comes from organized crime groups and the majority of what is produced is destined for the United States, fueling serious border problems. This argument relies on the assumptions of supply suppression and drug probation which have actually made drugs more available and cheaper, and have undermined the public health system.

Indeed, all criminal justice legislation relies on certain assumptions – such as incarceration as a tool of deterrence and segregation as punishment – but as the AFN repeatedly pointed out today, these assumptions and their outcomes have resulted in a sustained failure to address the systemic roots of crime or how the justice system continues to fail First Nations Peoples.

Final Parliamentary vote for Crime Bill

Leadnow.ca encouraged Canadians to not let our government rubber stamp Bill C-10.

On Monday, the Omnibus Crime Bill will go through third reading in the House of Commons. Once a Bill has been read three times, it’s sent to Senate for consideration. After being passed by the Senate, it will be presented to the Governor General for Royal Assent and becomes law.

Experts and advocates for both victims and offenders have all lined up in recent months to express their concerns to this costly bill that will see more people sent to prison for longer periods. Some provincial governments, Quebec in particular, have stated their opposition to this legislation that will see their correction costs balloon.

In light of widespread opposition, and piles of evidence showing its wrong-headedness, Conservatives have shut down debate on the Crime Bill – repeatedly using their majority to put limits on the length and depth of debate.

Given that they have majority in the House of Commons, it is unlikely that this Bill won’t sail through third reading and move on to the Senate. While those advocating for more humane, effective responses to crime will soon turn their efforts to addressing Senators (those unelected officials who, as far as I can tell, have absolutely no accountability to the public), it is not too late for one last public outcry of opposition to our Members of Parliament.

Today I called my local MP’s office to ask if he would be voting in opposition to the Bill. I already knew he would, but perhaps he would still find my phone call encouraging. I then called Rob Nicholson’s office – the Minister of Justice who tabled this Bill – to say, ‘for what it’s worth, I am against this Bill.’ The secretary politely thanked me and that was the end of our conversation. I also wrote to many of my contacts, encouraging them to make calls as well.

Despite my discouragement over the likely outcome of this bill, I have been encouraged by the groups who have publicly expressed their opposition. These include: Canadian Bar AssociationJohn Howard SocietyElizabeth Fry society,Assembly of First NationsNative Women’s AssociationLeadnowHarm Reduction NetworkCanadian Civil Liberties AssociationChurch Council on Justice and Corrections and United Church of Canada.

Kienan’s return: a positive crime story

Very encouraged to read a positive story relating to criminal justice. Lately I’ve been so caught up with the omnibus bill and all of its misguided legislation that it’s easy to get cynical and discouraged.

So it was nice to read a story about the parents of the little boy who was abducted in B.C. and see an example of compassion and meaningful encounters.In case you don’t know, last month a three-year old boy was abducted from his bed at home in Sparwood B.C. The parents made a public appeal for his return and to everyone’s astonishment, little Kienan was returned unharmed.The parents do not think he was harmed emotionally or physically.

The man accused of kidnapping Kienan was found not long after and is being held in prison until his trial.

What is so striking and encouraging about this story is not just the safe return of the boy, but also that his parents asked to meet with their son’s kidnapper and were allowed to do so.

Shortly after the man had been arrested, Kienan’s parents had a face to face conversation with him at the local RCMP station where they were able to ask the questions weighing on their mind and “talk it through”.

The father credits his strong Christian faith with his ability to meet with, and forgive, his son’s abductor.

This is a lovely story of compassion, but it is also a great illustration of how justice could become more meaningful for victims. Most victims of crime are plagued with questions, yet very few will have the chance to express these questions to the perpetrator of the crime and get some closure from that.

While certainly it would not be possible or advisable to have victim/offender encounters arranged following every arrest – the fact that in this case there was a positive encounter is encouraging. I commend the Herbert family for their courage, strength and compassion. And I commend their local RCMP office for seeing the value in the encounter and allowing it to happen.

“What does vengeance do,” Kienan’s father asked. “Anger feeds anger and hate feed hate.”

In so many way’s Kienan’s story is one of beautiful hope.

Omnibus Crime Bill Tabled in House of Commons

Rob Nicholson

Federal Justice MInister Rob Nicholson tabled the Omnibus Crime Bill on Sept 20, 2011 (Adrian Wyld/CP).

As expected, today the Conservative Justice Minster Rob Nicholson tabled the omnibus crime bill – a massive ‘tough on crime’ legislation package titled ‘Safe Streets and Communities Act’.

Unfortunately this 110-page bill will do little to create real safety for Canadians. Instead it will lead to massive spending, tax increases, over-crowded prisons, decreased judicial discretion and fewer rehabilitative services – none of which will make our communities safer.

The Conservatives were brought down after being found in contempt of Parliament for refusing to disclose the costs of their tough on crime bills. They somehow managed to come back to government with a majority – and are still continuing to refuse to disclose the costs.

Nicholson says that they are ready to pay the price to keep the streets safe. Well, it’s the taxpayers who are going to be paying for it – not just through increased taxes but through seeing money taken out of services like health care and education and sucked into massive prison complexes.

At a press conference in the Centre Block today, four groups – the John Howard Society, the Canadian Association of Elizabeth Fry Societies (CAEFS), theCanadian Civil Liberties Association and the Native Women’s Association, strongly spoke out against the bill.

Catherine Latimer, Executive Director of the John Howard Society, pointed to concerns about already over-crowded prisons potentially violating human rights as they become more packed. Kim Pate, CAEFS, proposed that an amendment be added to the bill stating that it cannot be enacted until all the provinces and territories have signed off on the costs that they will have to face in housing the increased number of prisoners this bill will create.

Opposition MPs are also demanding that costs be tabled and that the bill not be rammed through without due consideration and deliberation.

“We’re being encouraged to believe we need this for public safety,” said Kim Pate. “It’s a farce. If in fact it was true, then the U.S. would be the safest place in the world, the States would not be going bankrupt and they would not be retreating from this agenda.”

Canada’s crime rates steadily falling

crime reates

Police reported crime rates have fallen for 20 years (Statistics Canada)

The next time you hear a politician claiming that the reason we need to invest billions of dollars into building more prisons and warehousing more people within them, please bear in mind a recent report from Statistics Canada which shows that crime rates continued their long-term downward trend in 2010.

Crime rates have been falling steadily for the past 20 years. The majority of the decline last year was in property crimes like break-ins and car theft. Decreases were also reported in many offences such as homicide and serious assault. The index measuring the severity of crime also fell by 6% to its lowest point since 1998 when the index was first available.

Our national rate of homicide is 1.62 per 100,000. While it’s very hard to make international comparisons about homicide due to variances in reporting, categorizing, etc., as a rough point of comparison I would like to point out that homicide rates, according to Wikipedia, in some other countries of the world: Honduras, 77; El Salvador, 70; Colombia, 32; Brazil, 25; Mexico, 18; America, 5.

Some types of crime did increase last year, such as child pornography, sexual assault, criminal harassment and drug offences (about half of which were for pot possession). However, most crimes are non-violent (4 out of 5 offences). And almost 2/3 non-violent offences are minor (theft under $5,000, mischief and break-ins).

Also contrary to the fear rhetoric of politicians, Toronto has one of the lowest crime severity index reports of Canada’s cities (the lowest being Guelph, followed by Quebec, Toronto and Ottawa). And despite the image often portrayed of violent youth gangs holding our cities hostage, youth crime rates have declined by 7%. And yet the federal government is seeking to substantially harden the Youth Criminal Justice Act.

Despite this steady decline in crime rates, the Canadian prison population is expected to grow by 4,500 inmates by 2014 – not because crime rates are going to suddenly reverse their trend, but because the Conservatives are continually changing legislation so as to send more people to a jail for longer periods. Since 2006-07 when the Conservatives came to power, spending on Corrections has increased by 80%.

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