We call upon federal, provincial, and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade, and to issue detailed annual reports that monitor and evaluate progress in doing so.
Indigenous Watchdog Status Update
|Current Status||Sept. 5, 2021||STALLED|
|Previous Status||June 14, 2021||STALLED|
There is no national strategy to monitor and report on progress in eliminating the overrepresentation of Indigenous people in custody. Incarceration rates for Indigenous people – who only comprise 5% of the Canadian population – continue to rise. In fact, since April 2010 the Indigenous inmate population has increased by 43.4% whereas the non-Indigenous incarcerated population has declined over the same period by 13.7%. The numbers are even more troubling for Indigenous women, who now account for 42% of the women inmate population in Canada.
Dr. Zinger concluded: “It is not acceptable that Indigenous people in this country experience incarceration rates that are six to seven times higher than the national average. The Correctional Investigator drew attention to the fact that federal corrections seems impervious to change and unresponsive to the needs, histories and social realities behind high rates of Indigenous offending. Toronto Star
Most Aboriginal inmates self-identify as First Nations (68%), followed by Métis (26.5%) and Inuit (5.5%).
Jan. 12, 2021. A class-action lawsuit filed in federal court challenges the Custody Rating Scale over systemic bias in its security classifications. “CSC’s ongoing use of [the Custody Rating Scale] on Indigenous inmates must be recognized as the product of deliberate and conscious race-based discriminatory treatment of Indigenous inmates that resulted in and continues to result in, longer and harsher prison sentences for indigenous people, especially Indigenous women,” the statement of claim reads in part.Capacity Building Fund of Aboriginal Justice Program is no longer accepting applications despite significant success of the program in reducing recidivism. Government also acknowledges impacts of systemic issues outside of justice system that also need to be addressed. Multiple initiatives at both the federal and provincial/territory levels.
Significant Deletions from Federal Government Response
- Deleted “under the jurisdiction of provinces and territories” and replaced with “in coordination with provinces and territories”
- Deleted “we are also collaborating with Statistics Canada” to measure Indigenous overrepresentation in the criminal justice system
Current State of Incarceration of Indigenous People
Indigenous People in Federal Custody Surpasses 30%
Office of the Correctional Investigator
Jan. 21, 2020 – (Toronto Star) The same urgent calls to action are raised in the final reports of the Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG), as well as two recent parliamentary committee studies on Indigenous peoples in the criminal justice system. These bodies have called upon the federal government to implement measures recommended by the Office including:
- Transfer resources and responsibility to Indigenous groups and communities for the care, custody and supervision of Indigenous offenders.
- Appoint a Deputy Commissioner for Indigenous Corrections.
- Increase access and availability of culturally relevant correctional programming.
- Clarify and enhance the role of Indigenous elders.
- Improve engagement with Indigenous communities and enhance their capacity to provide reintegration services.
- Enhance access to screening, diagnosis and treatment of Indigenous offenders affected by Fetal Alcohol Spectrum Disorder.
- Develop assessment and classification tools responsive to the needs and realities of Indigenous people caught up in the criminal justice system.
As Dr. Zinger concluded: “It is not acceptable that Indigenous people in this country experience incarceration rates that are six to seven times higher than the national average. Bold and urgent action is required to address one of Canada’s most persistent and pressing human rights issues.”
“Report Card on the Criminal Justice System # 2”: MacDonald-Laurier Institute, March 2018
Disproportionately high levels of Indigenous incarceration relative to the population are a problem in every jurisdiction in Canada, but are particularly acute in Alberta, British Columbia, Ontario, Saskatchewan, and Manitoba.
There is a clear need for regular and ongoing monitoring of the performance of the criminal justice system in Canada to ensure transparency and accountability of this essential aspect of our governance. Further- more, monitoring enables provinces to evaluate their progress on key aspects of the justice system and to benchmark their performance vis a vis other jurisdictions in Canada.
We were encouraged in 2017 to learn that the federal Department of Justice has taken steps towards im- plementing our recommendation for a regular criminal justice report card by starting consultations on developing a performance framework for evaluating and monitoring the criminal justice system.
Some vital data on our criminal justice system is presently lacking and must be captured, including the following:
- More frequent data collection, ideally annually, from Statistics Canada on victims of crime (e.g., referral rates for victim services and criminal victimization data); the views of Canadians on how well the police, courts, and criminal justice system are performing; and the cost of public safety per capita;
- Many important aspects of our criminal justice system are not currently being monitored national- ly, but should be. For example, Statistics Canada should report annually on the number of criminal cases stayed due to unreasonable delay, recidivism rates, and the proportion of Indigenous offend- ers who are incarcerated;
- The territories should be included in all criminal justice data. Presently, there is no data collected by Statistics Canada for the Yukon, Northwest Territories, or Nunavut on public perceptions of the police, justice system, or courts; and
- All provinces and territories should annually report the number of Indigenous people who are incarcerated, including new custodial admissions. Lack of reporting has been problematic for Alberta.
A well-functioning, fair, and just criminal justice system is vital to Canadians. It is crucial that better data, performance monitoring, and accountability become not only accepted, but expected, as part of our crim- inal justice system. We hope that by once again bringing some focused attention to the major strengths and shortcomings of the criminal justice system in each province and territory that necessary reforms will be introduced to improve public safety, support for victims, better management of costs and resources, greater efficiency, and provide greater fairness and access to justice.
Canadian Bar Association
Responding to the TRC Calls to Action March 2016
The Canadian Bar Association (CBA) recognizes the serious problem of overrepresentation of Indigenous Canadians in custody and the need to provide alternatives to incarceration, as well as culturally relevant programs for those who are incarcerated. In August 2015, the CBA called for a commitment from all levels of government to address this issue. Indigenous peoples cannot be lumped into a single collective category. There is tremendous diversity within the First Nations, Métis and Inuit communities. Failing to recognize the uniqueness of diverse groups from Cree to Ojibway to Gwich’in, for example, and their respective cultural expressions of justice, healing and reconciliation, undermines attempts at rehabilitation, undermines attempts at rehabilitation and reintegration of offenders from these groups.
Amendments to the criminal code in 1996 called for alternative sentences to be made available for Indigenous offenders. The legislative framework to encourage partnerships between Correctional Service of Canada and Indigenous communities already exist s in the Correctional and Conditional Release Act, but those provisions remain neglected and underused.
The CBA endorses calls to action 30, 35, 36, 37, 38, 55(v) and 55(vii), which aim specifically to address the overrepresentation of youth and adult Indigenous offenders and to provide culturally specific justice options for Indigenous Canadians. To call to Action 36, we would include reference to parenting and other courses to help Indigenous litigants deal with these same issues in a family context.
In August 2015, the CBA condemned the debilitating and tragic effects of solitary confinement. According to the Office of the Correctional Investigator, solitary confinement impacts Indigenous offenders especially harshly.
Annual Reports of the Office of the Correctional Investigator: 2015 – 2019
Incarceration Rates for Indigenous People: 2015 = 24.4% 2016 = 25% 2017 = 26.4%
Between 2007 and 2016, while the over-all 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 peoples. Today, while Indigenous people make up less than 5% of the Canadian population, as a group they comprise 26.4% of the total federal inmate population. 37.6% of the federal women inmate population is Indigenous. I cannot help but think that the over-incarceration of First Nations, Métis and Inuit people in corrections is among the most pressing social justice and human rights issues in Canada today.
Office of the Correctional Investigator Annual Report 2014 – 2015
As of March 2015, Aboriginal inmates represented 24.4% of the total federal custody population while comprising just 4.3% of the Canadian population. In the ten-year period between March 2005 and March 2015, the Aboriginal inmate population increased by more than 50% compared to a 10% overall population growth during the same period. As a group, Aboriginal people accounted for half of the total growth in the federal inmate population over this time period. The situation is even more distressing for federally sentenced Aboriginal women. Over the last ten years, the number of Aboriginal women inmates doubled. At the end of the reporting period, 35.5% of incarcerated women were of Aboriginal ancestry I recommend that CSC publicly release its study of the impact of Aboriginal social history (Gladue factors) on case management and its influence on correctional decision outcomes for Aboriginal offenders. This study should be accompanied by a Management Action Plan.
Office of the Correctional Investigator Annual Report 2015 – 2016
In January 2016, the Office reported that the federal correctional system reached a sad milestone – 25% of the inmate population in federal penitentiaries is now comprised of Indigenous people. That percentage rises to more than 35% for federally incarcerated women. Over the last decade, the Prairie Region (Manitoba, Saskatchewan, Alberta, and the North West Territories) has led growth in the incarcerated population in federal corrections. It is now the largest of CSC’s regions, both in geographical size and offender population. It also has the largest concentration of the Aboriginal inmate population in federal corrections. Today, 47% of the inmates in the Prairies are Indigenous. Some institutions in the Prairie Provinces can be considered “Indigenous prisons:”
- I again recommend that CSC appoint a Deputy Commissioner for Indigenous Corrections.
- I recommend that the Service develop new culturally appropriate and gender specific assessment tools, founded on Gladue principles, to be used with male and female Indigenous offenders.
- I recommend that CSC’s National Aboriginal Advisory Council (NAAC) review gaps and barriers to increased participation of Elders in federal corrections and publicly release its recommendations by the end of the fiscal year.
Office of the Correctional Investigator Annual Report 2016 – 2017
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. Today, while Indigenous people make up less than 5% of the Canadian population, as a group they comprise 26.4% of the total federal inmate population. 37.6% of the federal women inmate population is Indigenous. I cannot help but think that the over-incarceration of First Nations, Métis and Inuit people in corrections is among the most pressing social justice and human rights issues in Canada today.
I recommend that CSC review its community release strategy for Indigenous offenders with a view to:
- increase the number of Section 81 agreements to include community accommodation options for the care and custody of medium security inmates;
- address discrepancies in funding arrangements between CSC and Aboriginal-managed Healing Lodge facilities, and;
- maximize community interest and engagement in release planning for Indigenous offenders at the earliest opportunity.
Office of the Correctional Investigator Annual Report 2017 – 2018
It has been nearly three years since the Truth and Reconciliation Commission (TRC) issued its final report Honouring the Truth, Reconciling for the Future (December 18, 2015), to which the Government of Canada committed to implementing all of the recommendations. Little practical progress has been made on the TRC’s ‘Calls to Action’ impacting federal corrections:
- Eliminate the over-representation of Aboriginal people and youth in custody over the next decade.
- Implement community sanctions that will provide realistic alternatives to imprisonment for Aboriginal offenders and respond to the underlying causes of offending.
- Eliminate barriers to the creation of additional Aboriginal healing lodges within the federal correctional system.
- Enact statutory exemptions from mandatory minimum sentences of imprisonment for offenders affected by Fetal Alcohol Spectrum Disorder (FASD).
- Reduce the rate of criminal victimization of Aboriginal people.
The Correctional Services Investigator recommendations include the following specific to Indigenous populations:
- I recommend that CSC creates and appoints a Deputy Commissioner level position for Indigenous Affairs to ensure that corporate attention and accountability remains focused on Indigenous issues in federal corrections.
- I recommend that CSC re-allocate very significant resources to negotiate new funding arrangements and agreements with appropriate partners and service providers to transfer care, custody and supervision of Indigenous people from prison to the community. This would include creation of new section 81 capacity in urban areas and section 84 placements in private residences. These new arrangements should return to the original vision of the Healing Lodges and include consultation with Elders.
- To honour the Truth and Reconciliation Commission’s ‘calls to action,’ I recommend that CSC spending, budget and resource allocation should better reflect the proportion of Indigenous people serving a federal sentence. Over the next decade, re-allocation of resources and delegation of control to Indigenous communities should be the stated goals of CSC’s contribution to reaching the TRC’s ‘calls to action.’
- I recommend that the CSC develop a National Gang and Dis-Affiliation Strategy and ensure sufficient resources are allocated for its implementation, inclusive of (core and cultural) programs, employment and services. Special attention should be paid to Indigenous-based street gangs. This strategy should:
- be responsive to the unique needs of young Indigenous men and women offenders, including education and meaningful vocational opportunities;
- ensure that non-gang affiliated young adult offenders are not placed where there are gang members who may attempt to recruit or intimidate them;
- facilitate opportunities (e.g. workshops, seminars, public speakers, etc.) where young adults can engage with their culture and/or spirituality, and age-specific activities;
- incorporate best practices and lessons learned from other jurisdictions and other public safety domains.
Office of the Correctional Investigator Annual Report 2018 – 2019
Feb. 18, 2020 – Annual report tabled in House of Commons. The following are ten key recommendations common between two parliamentary committees (the House of Commons Standing Committees on Public Safety and National Security [SECU] and Status of Women [FEWO]) as well as recommendations my Office has made, and continues to call on federal corrections to implement:
- Increasing the number of Section 81 and 84 agreements and the ability of Indigenous inmates to access Healing Lodges.
- Validating existing risk assessment and classification tools and/or developing new tools that are more relevant to the realities of Indigenous peoples in the correctional system.
- Increasing access and availability of culturally-relevant correctional programming for Indigenous peoples.
- Increasing the number of Indigenous staff and providing training on Gladue and Aboriginal Social History to all staff to increase cultural competence, as well as enhance the relevance and effectiveness of services for Indigenous inmates.
- Improving and increasing engagement with Indigenous communities to provide reintegration services for Indigenous offenders being released back to the community.
- Increasing the availability of appropriate and relevant employment and educational programming and training that is informed by labour market needs.
- Improving screening, assessment and diagnosis of mental health issues, specifically Fetal Alcohol Spectrum Disorder.
- Providing trauma-informed therapeutic approaches to programming and interventions, particularly for Indigenous women.
- Facilitating access to appropriate identification and health cards to all Indigenous offenders prior to their release.
- Appointing a deputy commissioner for Indigenous affairs within federal corrections.
Investigator Comments on CSC Response
Given the overall lack of details and commitments in the Government’s response to the above, it leaves me questioning how the Government (particularly, CSC as it relates to federal corrections) intends to address the specific recommendations made by the Committees. Furthermore, if the government intends to make good on the FEWO Committee’s recommendation of “eliminating the over-representation of Aboriginal people [and youth] in custody by 2025,” there will need to be coordinated and intentional strategies put in place. The focus needs to shift towards creating and utilizing alternatives to incarceration, increasing access to effective and culturally relevant services for incarcerated Indigenous inmates, and a considerable reallocation of resources to effective community reintegration efforts.
Incorporating Indigenous Specific Risk-factors
- I recommend that in 2019-2020, CSC should:
- publicly respond to how it intends to address the gaps identified in the Ewert v. Canada decision and ensure that more culturally-responsive indicators (i.e., Indigenous social history factors) of risk/need are incorporated into assessments of risk and need; and,
- acquire external, independent expertise to conduct empirical research to assess the validity and reliability of all existing risk assessment tools used by CSC to inform decision-making with Indigenous offenders.
For Indigenous offenders, CSC has developed an Aboriginal Social History (ASH) tool that provides guidance on how to consider ASH in case management practices, recommendations and decisions for Indigenous offenders.
As part of CSC’s Research Plan for 2019-2020, we will also be further considering the design of a case management assessment tool specifically for use with Indigenous offenders.
National Aboriginal Advisory Group
- I recommend that CSC, in consultation with the National Aboriginal Advisory Committee and the National Elders Working Group, implement an action plan with deliverables for clarifying the role of Elders and reducing Elder vulnerability within CSC and report publicly on these plans by the end of 2019-2020.
CSC has been addressing the topic of Elder vulnerability on an ongoing basis and in 2017 published Elder Vulnerability within CSC: A Summary of Discussions with Elders, Recommendations and Action Plans. https://www.csc-scc.gc.ca/aboriginal/002003-1012-en.shtml. CSC will continue to facilitate ongoing extensive collective discussions and consultations with the NEWG on improvements for CSC Elders and Elder vulnerability at the upcoming NAAC and NEWG meetings. Additionally, as part of CSC’s ongoing commitment to improving results for Indigenous offenders, Elder Orientation was developed in consultation with the NAAC and the NEWG, and was implemented across the regions as Elders commence their contract with CSC. The Elder Orientation is now integrated into the onboarding process for newly contracted Elders. The Orientation provides information on working within CSC, key expectations and avenues for support. The Elder Orientation was rolled out early in fiscal year 2018-19. All Elders currently under contract with CSC have received Elder Orientation.
Official Federal Government Response: Sept. 5, 2019
There are systematic issues in our criminal justice system that must be addressed. Too many Indigenous and marginalized people are caught in Canada’s criminal justice system, both as victims and as offenders. Indigenous adults represent 4.1% of the total Canadian adult population but 27% of adults in federal custody (fiscal year 2016 to 2017).
The current circumstances faced by Indigenous peoples in the criminal justice system are inseparable from the historic and contemporary impacts of colonialism and the denial of Indigenous rights.
By working with Indigenous peoples to recognize and implement their rights, the Government of Canada is helping build a future where the wellbeing of Indigenous youth increases and interactions with the criminal justice system decrease.
This work includes supporting Indigenous self-governments in developing their own systems of justice that fall in coordination with federal and provincial governments. As part of the broader work of rebuilding Indigenous Nations, ways to partner with Indigenous peoples on the recognition and implementation of their justice systems are being explored.
On June 21, 2019, Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts, received royal assent. Bill C-75, among other things, will make changes to the bail system to ensure unnecessary and onerous bail conditions are not imposed and improve the jury selection system to increase transparency and help insure our juries represents our nation’s diversity and enjoy the confidence of all Canadians.
Other initiatives are being undertaken to address the over-incarceration of indigenous Peoples, such as expanding the use of culturally relevant and effective processes within Indigenous communities, like restorative justice, and introducing a more transparent process for choosing federally appointed judges and establishing a more diverse judicial bench, so as to build confidence in our institutions.
Consultations with provinces and territories are taking place to develop more effective ways to measure the overrepresentation of Indigenous peoples at various stages in the criminal justice system. This will help better understand and address key issues related to overrepresentation.
The Government of Canada also invested in Indigenous community-based programs that support initiatives that have shown to reduce reoffending and address the root-causes of offending. Budget 2017 provided approximately $11 million in on-going funding for the Indigenous Justice Program, while Budget 2016 increased on-going funding for the Indigenous Courtwork Program by $4 million.
As tasked by the Federal Provincial Territorial (FPT) Ministers responsible for justice and public safety in November 2018, the FPT working group on Indigenous justice is working to establish a Pan-Canadian Strategy that accommodates jurisdictional and community differences. The Government of Canada is committed to ensuring that the criminal justice system keeps communities safe, respects victims and holds offenders to account.
As the Truth and Reconciliation Commission recognized, many of the ways to reduce the overrepresentation of Indigenous peoples will be found outside of the criminal justice system.
The work being undertaken in response to many other calls to action, such as those relating to housing, child welfare, health services and Fetal Alcohol Spectrum Disorder, will further contribute toward achieving Call to Action 30.
As such, close collaboration with Indigenous partners, provincial and territorial governments to align efforts, resources and data collection to address overrepresentation will continue.