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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The Clothesline Project

Kate RexeKate Rexe is a mother, a writer, an advocate, and a seeker of social justice. She has worked for national non-profit organizations in research and policy development for the last decade and would one day like to change the world.

Clothesline project

 

On Sunday, May 27, I attended Ottawa’s Clothesline Project, a project aimed to break the silence about domestic violence in our communities. It was a gorgeous day to be outside, made even more beautiful by the public display of art, compassion, support, and strength of women and girls.

I saw many women and girls who were courageously displaying their own experiences. There were conversations about who we are as women, our vulnerabilities, but also our strengths. There were stories filled with pride and accomplishment, because we as women, sisters, mothers and daughters are often much stronger than we give ourselves and each other credit for. There were memories shared of loved ones who have been lost to violence, and optimism that tomorrow will be a better day.

I attended in part to support the many women I have worked with and grown to love and admire, but also to share my own story. This was this only the second time I’ve shared my experiences of violence in a public way. The first time was at a workshop sponsored by the Ontario Federation of Indian Friendship Centres called Kanawayhitowin, or “taking care of each other’s spirit”.

The workshop was for facilitators and those who work with Aboriginal women affected by violence. At the time I was the director of ‘Sisters In Spirit’, a research, education and policy initiative of the Native Women’s Association of Canada (NWAC) which worked to raise awareness and give strength to the families of nearly 600 missing and murdered Aboriginal women and girls. As the director, I spoke to a lot of families, worked with communities, and tried to be the best leader and advocate I could. I was humbled by the stories I heard and the courage I saw each time a family member came forward to speak about their experiences. At this workshop I realized that I didn’t need to hide my own experiences in order to be a strong advocate; in fact it is my experiences that make me who I am today and help me understand those who are struggling to escape violent experiences of their past. This is the lesson I will always carry with me, and yesterday I had the chance to share my experiences with the world, without fear of judgment, shame or weakness.

It was wonderful to see representatives from Families of Sisters In Spirit, also attending this event. Families of Sisters In Spirit is a grassroots organization that started up because the government of Canada decided they would no longer fund ‘Sisters In Spirit’. The families and women involved are amazing, not only because of all they have overcome, but because they have helped to create a movement for social change. Bridget Tolley and Sue Martin have lost loved ones to tragedy, but they continue to make a difference for other families who have lost a daughter, mother, sister, cousin, or friend. They are passionate advocates and they spend each day fighting for what they believe in and trying to make a difference for other families who have lost someone they love.

In 2010, NWAC released the last statistics related to missing and murdered Aboriginal women in Canada (the only source of this data was collected through ‘Sisters In Spirit’) and found that violence experienced by Aboriginal women and girls is not limited to domestic violence; in fact, of the data collected, Aboriginal women and girls were as likely to be killed by a stranger or an acquaintance as they were by an intimate partner. Statistics Canada also reports Aboriginal women’s experience of violence are unlike other women in Canada – Aboriginal women are three times more likely to experience violent victimization, both related to domestic violence, as well as by a stranger or an acquaintance.

Some people saw The Clothesline Project as a sad commentary of the way our society is blind to the violence, which is pervasive and runs deep. While I agree it is shameful that so many women, men, children and families are impacted by violence, I was proud to be there. I saw the caring spirit of community coming forward to say “you are not alone”. Too often I’ve felt alone in my experiences of violence. I felt like a victim. Today I am strong. I am a survivor and I will not hide who I am out of fear or shame. And for those who have not yet reached a place where they can speak out, I hope they will be encouraged by those who did yesterday and that they will know that they are not alone.

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.

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EMCP, Carleton University

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