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 StatusJan. 10, 2022STALLED
Previous StatusDec. 5, 2021STALLED

Why “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 18.1% whereas the non-Indigenous incarcerated population has declined over the same period by 28.3%. The numbers are even more troubling for Indigenous women, who now account for almost 50% of the women inmate population in Canada. (Dr. Ivan Zinger. Dec. 17, 2021)

In his Jan. 2020 comments (see below), 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.

The Capacity Building Fund of the Aboriginal Justice Program has not been accepting applications for a number of years 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

Indigenous People in Federal Custody Surpasses 30%

Office of Correctional Investigator. Dec. 17 2021
Government Actions to reduce the overrepresentation of Indigenous People
Federal

$55.5M/5 yrs ($11.1/yr) for Indigenous Justice Program to help reduce overrepresentation of indigenous people in the criminal justice and corrections systems.

To address the over-representation of Indigenous peoples in the criminal justice and corrections systems and help previously incarcerated Indigenous Peoples heal, rehabilitate and find good jobs,” 

Oct. 16, 2017 – CISION – $10M over 5 years for Indigenous Community Corrections Initiative (ICCI) to help previously incarcerated Indigenous Peoples heal, rehabilitate and find good jobs through community-based and culturally relevant projects, with a focus on alternatives to incarceration and on reintegration supports. Eligible projects could include counselling, treatment for addictions, mental health treatment, job training, literacy, and skills development.

Jan. 2021 -The January 2021 mandate letter to the Minister of Justice and Attorney-General of Canada David Lametti states as a priority to “introduce legislation and make investments that take action to address systemic inequities in the criminal justice system, including to promote enhanced use of pre- and post-charge diversion and to better enable courts to impose sentences appropriate to the circumstances of individual cases. First Reading of Bill Feb. 18, 2021 – Bill C-22 “An Act to amend the Criminal Code and the Controlled Drugs and Substances Act”.  The Bill would repeal mandatory minimum penalties for all drug offences and some firearm offences, expand the use of conditional sentences, such as house arrest, for a variety of criminal offenses; and encourage police and prosecutors to keep drug possession cases out of the courts (Toronto Star, Feb. 19, 2021). Died in parliaManet

British Columbia

Nov. 2-3, 2018 11th Justice Summit: Indigenous II. Planned in partnership with representatives from the B.C. Aboriginal Justice Council and the Métis Nation British Columbia, the event invited Indigenous leaders and community experts, as well as justice and public safety leaders, to discuss Indigenous peoples’ experiences with B.C.’s justice system and how the system can be improved. Participants discussed the importance of increasing the use of the Supreme Court of Canada’s decision in the Gladue case, supporting community-led justice solutions and building the capacity of Indigenous communities in ways that support self-determination. After the 11th summit, three recommendations were identified that reflect the most widely supported ideas that arose during the two days of dialogue. These recommendations offer a framework for continued discussion on how to reshape the justice system in ways that work for Indigenous peoples.

Jan. 13, 2020 – The province’s first Indigenous court was established in New Westminster in 2006, with the seventh iteration scheduled to begin sitting monthly at the Williams Lake courthouse in May. An Indigenous court is a sentencing court — it does not conduct trials, but it provides an Indigenous perspective, based on a holistic and restorative approach, to sentencing individuals who have acknowledged responsibility for their criminal offences. Local Indigenous elders and knowledge keepers who have completed a program of orientation give advice on a healing plan, which may then be incorporated as part of a fit sentence for the individual who has pleaded guilty. Courts are located at New Westminster, Duncan, Kamloops, North Vancouver, Merritt and Prince George.

March 6, 2020 – The BC First Nations Justice Council (BCFNJC) and the Province endorsed and signed a new First Nations Justice Strategy. The BCFNJC’s action is supported by resolutions from the BC Assembly of First Nations, the Union of BC Indian Chiefs and the First Nations Summit. The First Nations Justice Strategy sets a path for the partners involved in the strategy and the criminal justice system to work together to:

  • reduce the number of First Nations people who become involved with the criminal justice system;
  • improve the experience of those who do;
  • increase the number of First Nations people working within the justice system; and
  • support First Nations to restore their Indigenous justice systems and structures.

Strategy highlights include:

  • a two-path approach that transforms the existing criminal justice system and builds the path toward restoring First Nations laws and justice systems;
  • establishing a network of 15 regional First Nations Justice Centres around the province;
  • developing a systemic approach to implementing the Gladue decision;
  • establishing a presumption of diversion to divert First Nations people from the court system, wherever possible;
  • improving cultural competency in the justice system;
  • establishing roles for Elders and Knowledge Keepers within the justice system; and
  • increasing community justice programming in each First Nations community.

Oct. 5, 2021: Government of BC – The Virtual Indigenous Justice Centre (VIJC) is a partnership between the Province and the BC First Nations Justice Council (BCFNJC). The centre will provide a range of assistance and supports to Indigenous peoples, including First Nations, Inuit and Métis, who are otherwise not eligible and/or cannot access legal aid, including:

  • providing legal advice and representation to Indigenous clients in rural and remote communities for family and criminal court cases who would not otherwise have access to support, or for clients in other legal proceedings which could reasonably lead to imprisonment or a child becoming in need of protection;
  • working with the court, where appropriate, to divert legal matters from the formal court system to less intrusive measures, such as alternative dispute resolution processes, mediation and restorative justice processes, in consultation with officers of the court and local protocols;
  • helping Indigenous peoples access the legal, social, housing, transportation and health and wellness supports to positively and adequately address the challenges many people face in dealing with the current mainstream justice system.
Alberta

July 18, 2017 – $360K support for restorative justice initiatives in communities across the province focuses on the rehabilitation of offenders through reconciliation with victims and the community.

June 8, 2020: CTV News (Calgary) -Minister of Justice and Solicitor General Doug Schweitzer we will expedite the government’s current work to modernize the Police Act. This will ensure we have the governance framework and policies in place so Albertans are confident that our police are accountable to the communities they protect. Policing only works when citizens feel assured that law enforcement is going to treat them reasonably and fairly. “At the earliest opportunity, we will be meeting with the chiefs of police, First Nations, minority community leaders, and other stakeholders to work collaboratively to accelerate this effort. June 21, 2021 – The Commission’s Indigenous Human Rights Strategy (Strategy) will guide the Commission’s practices and initiatives to reduce barriers Indigenous peoples face when seeking to enforce their human rights under the Alberta Human Rights Act.

The overarching goals of this strategy are:

  • To help address and reduce systemic racism against Indigenous peoples in health, education, child welfare, housing, justice (including policing and corrections) and other social systems.
  • To meaningfully collaborate with Indigenous communities throughout Alberta to address the racism and discrimination Indigenous people encounter in their day-to-day lives.
  • To build capacity and knowledge within and across the Commission to ensure we can serve Indigenous individuals and communities with respect. This must address the accessibility of our processes, relevance of our educational materials, and our awareness of the lived experiences of Indigenous Peoples, in all their diversity.
  • To strengthen and expand Commission’s relationships with Indigenous communities and organizations.
Saskatchewan

July 8, 2019 – In what started May 2018 as a subscription-based online resource, the Gladue Rights Research Database now has open access through $18,000 funding from the Law Society of Saskatchewan, Legal Aid Saskatchewan and the province’s Ministry of Corrections and Policing.

Manitoba

March 6, 2019 – $689,160 over 3 years through Indigenous Justice Program

Honourable David Lametti, Minister of Justice and Attorney General of Canada and the Southern Chiefs’ Organization (SCO) met to discuss the SCO’s First Nations Justice Strategy Program and justice priorities in their communities. SCO’s First Nations Justice Strategy Program uses a restorative justice model that reflects Indigenous legal traditions, promotes safer communities, and helps to reduce the rate of overrepresentation of Indigenous people in the criminal justice system. SCO’s program also helps offenders take accountability for their actions, improves victim outcomes, and provides opportunities for healing and reintegration. Restorative justice programs take various forms, occur at all stages of the criminal justice system and enable Indigenous communities to utilize Indigenous legal traditions that contribute to a peaceful, safe Canadian society.

April 8, 2021 – Investments in restorative justice initiatives for First Nations and Métis communities

June 18, 2021: The Manitoba government has established an Indigenous Elders Advisory Council to provide guidance in addressing the overrepresentation of Indigenous people in the criminal justice system, Justice Minister Cameron Friesen announced today. The eight-member Indigenous Elders Advisory Council, chaired by Manitoba Justice, meets on a monthly basis and is guided by a Terms of Reference with a mandate that seeks to guide and enhance the work of the department with the Indigenous community through meaningful, respectful involvement and innovative solutions.

Ontario

Jan. 2017 – Under the auspices of the Criminal Lawyers’ Association (CLA), a series of educational workshops (Jan-June 2017) organized by Shaunna Kelly, Hicks Adams LLP aims to demystify aboriginal justice issues to boost awareness and understanding of Gladue Court.

Oct. 30, 2017 – Ontario unveiled a new bail directive to reduce barriers faced by Indigenous and racialized communities at the bail stage, ensure low-risk and vulnerable individuals have access to the appropriate supports for safe releases, and speed up the bail process.

April 26, 2018 – Community Justice Centres move justice out of the traditional courtroom and into a community setting to help connect individuals with holistic supports that address the root causes of crime. They are justice hubs that bring together services – for example justice, health, Indigenous, mental health and addictions, housing, and social services – to respond to the unique needs of the communities they serve. The first three will be in Kenora, London and Toronto with Timmins and Sioux Lookout as other possibilities in the future.

Funding over three years:

  • 2017/18: $5.6M
  • 2019/20: $4.6M
  • 2020/21: $3.7M

May 3. 2018 – The Correctional Services and Reintegration Act, 2018 was passed today and will result in improved conditions, increased transparency, and will apply a consistent and evidence-based approach to rehabilitation and reintegration to better prepare those in custody for a successful and well-supported return to their communities. Specific to the Indigenous population:

  • Ensuring incarcerated individuals have access to appropriate health care services, including treatment of disease or injury, health promotion, disease prevention, dental care, vision care, hearing care, mental health and addictions care, and traditional First Nation, Inuit, or Métis healing and medicines.

Sept. 19, 2019 – Better supporting rehabilitation and reintegration through individualized assessments completed for every admission. As part of an evidence-based approach to incarceration, case management plans will be tailored to address the unique needs of inmates to guide their rehabilitation. Enhanced culturally-responsive programming will be implemented to meet the diverse and unique needs of Indigenous individuals and other over-represented groups to achieve successful reintegration.

Québec

Mar. 5, 2021 – As part of the government’s response to the Viens Commission, the MMIWG Inquiry and the Report on Racism, $5.5M funding for the improvement and deployment of interpreter services in Indigenous languages

  • Development of agreements with Indigenous organizations for the training, accreditation and hiring of interpreters in Indigenous languages in the context of justice-related activities.

Mar. 5, 2021 -In response to the Viens Commission, the MMIWG Inquiry and ZERO TOLERANCE, the government of Québec announced an investment of $19.2M in the following areas:

  • Hiring additional Indigenous workers responsible for providing crime victims assistance services ($7.7 million):
    • These workers will be deployed in the CAVAC network and in Indigenous organizations that have established victim assistance services, or that wish to do so.
  • An increased deployment of courtworker services for Indigenous people ($6 million):
    • Adjustment of the compensation for courtworkers already employed ($1 million);
    • Increased funding for the operation of Indigenous organizations responsible for providing courtworker services ($2.5 million);
    • Hiring of new courtworkers from within the community for First Nations and Inuit ($2.5 million);
  • Improvement and deployment of interpreter services in Indigenous languages ($5.5  million):
    • Development of agreements with Indigenous organizations for the training, accreditation and hiring of interpreters in Indigenous languages in the context of justice-related activities.

June 7, 2021 – Announced measures to support justice in Aboriginal and urban communities. In response to the Viens Commission’s recommendations, the Québec government wishes to further develop Aboriginal community justice and combat the over-representation of this population in the justice system. The investment covers:

  • the establishment of new urban community justice initiatives to satisfy the needs of the First Nations and the Inuit ($4.0 million);
  • support for new initiatives and strengthening of existing community justice initiatives in First Nations and Inuit communities (justice committee) ($7.2 million);
  • enhancement of the remuneration of Gladue writers under contract, the availability of “Gladue letters,” and support to hire additional Gladue writers in Aboriginal organizations ($2.9 million).
Nova Scotia

Sept. 29, 2020CTV News – Nova Scotia Premier Stephen McNeil apologized Tuesday to Black and Indigenous Nova Scotians for systemic racism in the province’s justice system, and said the government is committed to reform. McNeil said he is putting together a restorative justice team composed of members of Black and Indigenous communities, as well as members of government and the police, to work on ways to reform the justice system. He said the restorative justice team will look beyond policing. It will analyze the jail system, the judiciary and other aspects of the justice system, he said, adding it will also consider the social issues underlying the criminalization of Black and Indigenous communities.

Yukon

Sept. 18, 2017 – Highlighted the importance of continuing to work together with Yukon First Nations and partners health, education and housing to reduce the over-representation of Indigenous people in justice system and build safer, healthier, stronger communities.

Feb. 20, 2018 – Yukon is funding $530,000 on 3-year pilot project to formalize and standardize the process of writing Gladue reports for judges sentencing Indigenous offenders. “This is really about getting the best possible information about any individual offender before the court, for consideration in determining what’s an appropriate sentence, and what the variety of that sentence might be — restorative options, rehabilitative options, those kind of things,” said Justice Minister Tracy-Anne McPhee.

Mar. 6, 2019 – Representatives from the Council of Yukon First Nations (CYFN) and the Yukon Legal Services Society say it’s still too early to tell what difference the pilot program is making, but it’s provided a structured way to get necessary information before Yukon courts. Roster of 3 writers trained, 37 reports written for Indigenous offenders since pilot launch

Aug. 29, 2019 – The Council of Yukon First Nations has begun to administer the Gladue Report Writing Pilot Project, taking over from the Yukon Legal Services Society, a non-profit organization also known as Legal Aid. The transfer took place August 1, officially putting the project into the hands of Yukon First Nations.

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.”

https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx

https://indigenouswatchdog.org/wp-content/uploads/2020/02/Indigenous-Incarceration-rates-2014-15-and-2017-18-2.xlsx

Indigenous Justice Programs to Reduce Overrepresentation of Indigenous People

The Indigenous Justice Program supports Indigenous community-based justice programs that offer alternatives to mainstream justice processes in appropriate circumstances. Across Canada, participants of Indigenous Justice Program-funded programs were 43% less likely to re-offend after one year and 37% less likely to re-offend after eight years in comparison to non-participants.

In November 2018, federal, provincial and territorial Justice and Public Safety Ministers agreed to increase the use of restorative justice processes by a minimum target of 5% per jurisdiction, where possible, over the next 3 years.

Community-Based Justice Fund

Supports community-based justice programs in partnership with Indigenous communities. Programs are cost-shared with provincial and territorial governments and designed to reflect the culture and values of the communities in which they are situated. The IJP currently funds 197 community-based programs that serve over 750 communities.

Capacity Building Fund

The objectives of the Capacity-Building Fund are:

  • to support the training and/or developmental needs of Indigenous communities that currently do not have community-based justice programs;
  • to supplement the on-going training needs of current community-based justice programs where the cost-shared budget does not adequately meet these needs, including supporting evaluation activities, data collection, sharing of best practices and useful models;
  • to support activities targeted at improved community reporting in IJP communities and the development of data management systems;
  • to support the development of new justice programs, paying particular attention to:
  • the current geographic/regional imbalance in programming;
  • the commitment to develop new programs in the under-represented program models, such as dispute resolution for civil and family/child welfare; and,
  • to support one-time or annual events and initiatives (as opposed to on-going projects and programs) that build bridges, trust and partnerships between the mainstream justice system and Indigenous communities.

The Department of Justice is NOT currently accepting applications for the Capacity Building Fund.

“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. 

Conclusions:

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.

https://macdonaldlaurier.ca/files/pdf/MLI_JusticeReportCard_Final_web2.pdf

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.

https://www.cba.org/CMSPages/GetFile.aspx?guid=73c612c4-41d6-4a39-b2a6-db9e72b7100d

Annual Reports of the Office of the Correctional Investigator: 2015 – 2019

Incarceration Rates for Indigenous People:   2015 = 24.4%     2016 = 25%        2017 = 26.4%

Recommendations
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:

  1. increase the number of Section 81 agreements to include community accommodation options for the care and custody of medium security inmates;
  2. address discrepancies in funding arrangements between CSC and Aboriginal-managed Healing Lodge facilities, and;
  3. maximize community interest and engagement in release planning for Indigenous offenders at the earliest opportunity.

http://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20162017-eng.aspx – s5

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:

  1. Eliminate the over-representation of Aboriginal people and youth in custody over the next decade.
  2. Implement community sanctions that will provide realistic alternatives to imprisonment for Aboriginal offenders and respond to the underlying causes of offending.
  3. Eliminate barriers to the creation of additional Aboriginal healing lodges within the federal correctional system.
  4. Enact statutory exemptions from mandatory minimum sentences of imprisonment for offenders affected by Fetal Alcohol Spectrum Disorder (FASD).
  5. Reduce the rate of criminal victimization of Aboriginal people.

The Correctional Services Investigator recommendations include the following specific to Indigenous populations:

  1. 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.
  2. 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.
  3. 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.’
  4. 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.

http://www.oci-bec.gc.ca/cnt/rpt/pdf/annrpt/annrpt20172018-eng.pdf

Office of the Correctional Investigator Annual Report 2019-20

I recognize that many of the causes of Indigenous over-representation reside in factors beyond the criminal justice system. However, when I issued the statement, I noted that consistently poorer correctional outcomes for Indigenous offenders (e.g.)

  • more likely to be placed or classified as maximum security
  • more likely to be involved in use of force and self-injury incidents,
  • less likely to be granted conditional release

suggests that federal corrections makes its own contribution to the problem of over-representation. For example, a recent national recidivism study shows that Indigenous people reoffend or are returned to custody at much higher levels, as high as 65% for Indigenous men in the Prairie region within five years of release. A higher rate of readmission to custody (revocations or reoffending) suggests shortcomings in the system’s capacity to prepare and assist Indigenous offenders to live a law- abiding life after release from custody.

In the coming year, my Office will be launching a series of in-depth investigations examining
a selection of programs and services in CSC’s Indigenous Continuum of Care. The Office’s review of Indigenous Corrections will also include a deeper probe of the over-involvement of Indigenous offenders in use of force incidents including comparative data and findings on the causes, frequency, type and severity of force used. Preliminary and previous work in this area (e.g. An Investigation of the Treatment and Management of Chronic Self-Injury among Federally Sentenced Women, September 2013) suggests that specific attention needs to be paid to the circumstances and social histories of Indigenous women, particularly those who present with serious mental health issues, as they appear to be vastly over-represented in use of force incidents among federally sentenced women.

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:

  1. Increasing the number of Section 81 and 84 agreements and the ability of Indigenous inmates to access Healing Lodges.
  2. 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.
  3. Increasing access and availability of culturally-relevant correctional programming for Indigenous peoples.
  4. 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.
  5. Improving and increasing engagement with Indigenous communities to provide reintegration services for Indigenous offenders being released back to the community.
  6. Increasing the availability of appropriate and relevant employment and educational programming and training that is informed by labour market needs.
  7. Improving screening, assessment and diagnosis of mental health issues, specifically Fetal Alcohol Spectrum Disorder.
  8. Providing trauma-informed therapeutic approaches to programming and interventions, particularly for Indigenous women.
  9. Facilitating access to appropriate identification and health cards to all Indigenous offenders prior to their release.
  10. 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.

CSC Response

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 Response

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.