We call upon the federal, provincial, and territorial governments to provide sufficient and stable funding to implement and evaluate community sanctions that will provide realistic alternatives to imprisonment for Aboriginal offenders and respond to the underlying causes of offending.
Indigenous Watchdog Status Update
|Current Status||March 31, 2021||IN PROGRESS|
|Previous Status||Dec. 31, 2020||IN PROGRESS|
Why “In Progress”?
Bill C-22 “An Act to amend the Criminal Code and the Controlled Drugs and Substances Act “was introduced on Feb. 18, 2021, to repeal the use of Mandatory Minimum sentences for 14 of 67 offences and increase the use of conditional sentencing orders (CSOs) in cases where an offender faces a term of less than two years imprisonment and does not pose a threat to public safety.
The federal government has extended funding for three specific programs:
- Indigenous Courtwork Program: Budget 2016 increased annual funding from $5.5M to $9.5M.
- Indigenous Justice Program: Budget 2017 allocated a permanent amount of $11M annually. (CBC Beyond94 reported historical budget amount that was flagged as insufficient to meet the needs,
- Indigenous Community Corrections Initiative: Budget 2017 allocated $10M over 5 years to Public Safety Canada
On May 17, 2019 the Public Prosecution Service of Canada’s National Committee on the Interaction of Indigenous Peoples with the Criminal Justice System announced they are reviewing the PPSC Deskbook to incorporate Truth and Reconciliation Commission recommendations. The PPSC Deskbook sets standards of conduct for federal prosecutors to ensure the objectivity, fairness, transparency, and consistency of prosecutions through a compilation of directives and guidelines.
One area of concern is Capacity Building Fund of the Aboriginal Justice Initiative is no longer accepting applications despite significant success of the program in reducing recidivism. Provinces/Territories are also implementing Restorative Justice programs.
Federal Budgets for Justice Programs
Indigenous Courtwork Program
Budget 2016 increased funding from 5.5M to $9.5M. This program provides funding to help provincial and territorial governments deliver Indigenous courtwork services. As part of these services, Indigenous community courtworkers assist Indigenous peoples involved in the criminal justice system by providing information and support as well as referrals to culturally relevant options, such as restorative justice and Indigenous community justice alternatives.
The Indigenous Justice Program
Budget 2017- received a permanent mandate with an ongoing investment of $11 million annually. The program supports alternatives to imprisonment for indigenous peoples, such as restorative justice programs and community-based justice programs rooted in the unique traditions and cultures of each community. These programs are developed and led by Indigenous communities and aim to address the needs of victims and offenders. In 2016 an evaluation of the Indigenous Justice Program found that Indigenous peoples who completed a community-based alternative through the program were significantly less likely to re-offend than those who did not.
Indigenous Community Corrections Initiative
In 2017, with Public ServiceCanada also received $10 million over five years. This program supports the development of community-based alternatives to incarceration as well as healing and rehabilitation for Indigenous offenders.
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.
Supreme Court “Gladue” decision (1999)
In its ground-breaking Gladue decision (1999), the Supreme Court of Canada recognized that there are mitigating social factors and historical circumstances that should be considered when sentencing Aboriginal offenders. Though the Service has integrated Gladue principles into policy as well as provided some training to staff members, there remains insufficient and uneven application of Gladue social history considerations in correctional decision-making. For example, it is not uncommon to find in an Aboriginal offender’s file a brief reference that Aboriginal social history was considered in a correctional decision that impacts retained security and liberty interests (e.g. security classification, penitentiary placement, transfer, segregation, internal discipline). However, there is often very little meaningful analysis with respect to how these considerations impacted, influenced, altered or mitigated the decision. Simply stating that Aboriginal social history was considered does not make it so nor does it ensure the due diligence expected by the policy requirement.
Supreme Court of Canada: Ewert v. Canada
June 13, 2018 – the Supreme Court of Canada released its decision in Ewert v. Canada, a case challenging the use of prisoner risk assessment tests that can be culturally biased against Indigenous prisoners. The Union of BC Indian Chiefs (UBCIC) and BC Civil Liberties Association (BCCLA) co-intervened to ask the Court to require, for the first time within prison walls, that decision-makers follow the Gladue framework by taking into account the unique circumstances of Indigenous people that come into contact with the criminal justice system.
In its decision today, the Supreme Court determined that Corrections Service Canada (CSC) breached its obligations when it continued to rely on risk assessment tools without ensuring their validity for Indigenous prisoners. The Court emphasized CSC’s responsibility to ensure that its policies, programs and practices respect cultural differences, and the needs of Indigenous people. The Court recognized the systemic discrimination experienced by Indigenous persons throughout all areas of Canada’s criminal justice system, and found that CSC has an obligation to advance substantive equality in correctional outcomes for Indigenous offenders. The Court determined that in order for the corrections system to operate fairly and effectively, the assumption that all offenders can be treated fairly by being treated the same way must be abandoned.
The psychological risk assessment tests at issue have serious impacts on how a prisoner is treated while incarcerated, as well as the timing of their release. A bad risk assessment rating can mean an Indigenous prisoner is less likely to get parole, access to programs, early or temporary release, and more likely to experience solitary confinement and a maximum-security setting.
Government Commitments to Restorative Justice
May 17, 2019 – The Public Prosecution Service of Canada (PPSC) Deskbook sets standards of conduct for federal prosecutors to ensure the objectivity, fairness, transparency, and consistency of prosecutions through a compilation of directives and guidelines.
The PPSC’s National Committee on the Interaction of Indigenous Peoples with the Criminal Justice System is reviewing the PPSC Deskbook to incorporate Truth and Reconciliation Commission recommendations. This is the first chapter to be updated.
The changes include the importance of considering:
- whether a prosecution is in the public interest and whether an alternative, such as a restorative justice program, would be more appropriate;
- the nature of the offence, especially when the accused is a member of an overrepresented population, such as Inuit, Métis, or First Nations;
- what the sentence will likely be and its relationship to the ongoing trauma of those affected by the residential school system and other historical factors; and
- significant circumstances affecting the accused, including those identified in R. v. Gladue and R. v.Ipeelee.
Nov. 18, 2020: Department of Justice Canada – In recognition of Restorative Justice Week (November 15-22) a total of 12 restorative justice projects are being supported through three programs: Justice Canada’s Indigenous Justice Program, Justice Partnership and Innovation Program and the Youth Justice Fund. Of the total funding, $5 million goes to research, awareness raising and education activities, including capacity-building training and pilot projects. In addition, over 40 Indigenous organizations have received additional support of approximately $500,000 in total to address the impacts of the COVID-19 pandemic on restorative justice initiatives in their communities.
Nov. 30, 2020 -These investments will help organizations support rehabilitation of individuals who are in conflict with the law by offering support and solutions, build resilience and a sense of dignity among those impacted by harm, and take into consideration the safety of the communities. The 2020 Fall Economic Statement included $49.3 million to support the implementation of Gladue Principles in the mainstream justice system and Indigenous-led responses, in order to help reduce the overrepresentation of Indigenous Peoples in the criminal justice and correctional systems
Mar. 30, 2021 – Beginning April 1, 2021, management of B.C.’s Gladue report program will transition from Legal Aid BC to the BC First Nations Justice Council. “This transition is another step toward implementing our Indigenous Justice Strategy, which was drafted by Indigenous people for Indigenous people,” said David Eby, Attorney General. The BCFNJC will work closely with impacted individuals and Gladue writers to prepare reports for use in sentencing, bail, appeals, long-term offender hearings, dangerous offender hearings and parole hearings. Some of the factors considered in Gladue reports include the impacts of colonization and the Indian Residential School program, discriminatory policies, systemic racism, displacement, addictions, violence and poverty.
Nov. 3 -4, 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.https://www.justicebc.ca/justice-summits/
Jan. 13, 2020:The province’s first Indigenous court was established in New Westminster in 2006, with the seventh 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: Duncan, Kamloops, Merritt, New Westminster, North Vancouver, Prince George
July 18, 2017 – $360K in grants have been awarded to 16 organizations across Alberta to support voluntary restorative justice programs. Restorative justice focuses on the rehabilitation of offenders through reconciliation with victims and the community. These programs are an alternative or supplement to any sentence and can be initiated at any time during the criminal justice process.
May 15, 2018 – The new Gladue Rights Research Database provides lawyers, researchers and others with instant access to the insights and conclusions of more than 500 academic works related to the history of settler colonialism in Saskatchewan. It also includes a large and growing body of oral history resources and key archival documents. The database which was officially launched in early May and was supported by the Law Foundation of Saskatchewan, is the product of a partnership between Legal Aid Saskatchewan, the Community-Engaged History Collaboratorium (U of S Department of History) and the U of S Humanities and Fine Arts Digital Research Centre.
July 9, 2019 – In what started May 2018 as a subscription-based online resource, the Gladue Rights Research Database now has open access through funding from the Law Society of Saskatchewan, Legal Aid Saskatchewan and the province’s Ministry of Corrections and Policing.
Mar. 9, 2018 – Criminal Justice System Modernization Strategy: One of the four strategies is to more effectively using restorative justice to hold less-serious offenders accountable to victims and address the root causes of their criminal behaviour outside the traditional criminal justice system. These approaches help repair the harm done to victims while advancing the mission of reconciliation with Indigenous peoples.
Mar. 2, 2020 – The Manitoba government is investing more than $2.8 million in restorative justice programs this year, an increase of $400,000 over the previous fiscal year. This increase includes additional investments of $50,000 with both Manitoba Métis Federation and Manitoba Keewatinowi Okimakanak. The province is providing a $35,000 grant for the City of Thompson to work with a consultant and develop a community safety and well-being strategy. The goal is to create a tool that identifies risks and social factors that contribute to crime and victimization, identify initiatives to address these factors and set measurable outcomes. To help improve timely access to justice in the north, the Manitoba government has launched Restorative Justice North in partnership with the Manitoba Metis Federation (MMF) and Manitoba Keewatinowi Okimakanak (MKO). This pilot project brings restorative justice partners together to assess and divert matters into appropriate programs and resolve them in a more timely way.
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.
January, 2017 – Ontario has 15 Gladue/Indigenous People’s courts. New guidelines for the establishment and scheduling of Ontario Court of Justice’s specialized criminal courts including courts dedicated to addressing the over-representation of Indigenous persons in the justice system, were introduced.
Aboriginal Legal Services prepares Gladue reports for 22 courts throughout Ontario
March 5, 2021 – As part of the government’s response to the Viens Commission, the MMIWG Inquiry and the Report on Racism, funding for 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);
Sept. 19, 2019 – Announced almost $2 million in funding over a two-year period to improve access to justice for the Inuit population to provide support for community members involved in the court process. The investments planned are as follows:
- $675,000 to be paid in 2019-2020 to correct the shortage of parajudicial advisors and upgrade services, in particular through closer cooperation with local organizations;
- $900,000 over two years to support community justice committees, which bring together community members to help resolve a range of disputes in ways that are consistent with Inuit values and traditions;
$250,000 over two years to develop a strategy for joint action by the various partners of Inuit communities, through the establishment of an interface between Nunavik organizations, government departments and bodies, and socio-judicial stakeholders working in the region.
Feb. 15, 2019 – Opening of a new community justice centre for Nunavik in the Inuit community of Inukjuak to provide legal information, support and referral services to the general public, free of charge, to complement the services offered by other resources. Makivik Corporation has established the Nunavik Community Justice Center to give Inuit in Nunavik access to relevant legal information. The mission of the centre will include informing and supporting the Nunavimmiut about their rights and responsibilities. We hope that the information and support services provided by the centre in the area of notarial law, along with the travelling legal clinics, will improve access to justice for the Nunavik population. Makivik Corporation continues its work to promote justice by and for Inuit.”
April 6, 2018 – A special court opened on the Wagmatcook First Nation in Victoria County, Cape Breton, that combines provincial court services, along with Aboriginal Wellness court and Gladue court. (CBC News)
Feb. 26, 2019 – Nova Scotia Crown attorneys are now guided by a new comprehensive policy “Fair Treatment of Indigenous Peoples in Criminal Prosecutions in Nova Scotia” when conducting criminal prosecutions involving Indigenous peoples in accordance with the established special legal and constitutional status of Indigenous peoples. The policy references:
- years of dislocation,
- lack of economic opportunity,
- forced family disruption through residential schooling and child welfare systems,
- lost culture, language and traditions.
It acknowledges this history has resulted in low incomes, high unemployment and a lack of opportunities and education for many Indigenous peoples. These circumstances, in turn, have given rise to a disproportionate rate of suicide, imprisonment and substance abuse among Indigenous peoples. It will help Nova Scotia be more effective in decreasing its rates of victimization, crime and incarceration among Indigenous peoples by conducting culturally competent prosecutions. ”Before finalizing the policy, the Public Prosecution Service consulted with several Mi’kmaw lawyers familiar with the criminal justice system.
June 10, 2020 – The Restorative Research, Innovation & Education Lab (RRIELab), located in the Schulich School of Law at Dalhousie University will be led by a fully funded chair held by Professor Jennifer Llewelyn, a distinguished global leader in restorative justice. The lab’s vision is to be a global centre of excellence that will accelerate the growth and development of a restorative approach to protect the health, safety and well-being of individuals and communities in Canada. The initial focus of the RRIELab will be on accelerating the growth and development of restorative justice as a key component to transform the justice system in Canada, as well as supporting the development of restorative cities around the world and responding to institutional abuses and failures.
Some of the ways the RRIELab will support justice transformation in communities, systems, institutions and organizations across Canada and beyond include:
- Strategic support for applying a Restorative Justice approach to diverse organizations
- Leading research in Restorative Justice to demonstrate tangible outcomes and impact
- Build capacity for growth and innovation in Restorative Justice
- Design education and training in Restorative Justice to build understanding
- Create a network of experts from around the world to collaborate and build knowledge
- Support collaboration across sectors in government, community and the research community
- Develop public education resources
Sept. 30, 2020 – Toronto Star – Premier Stephen McNeil apologized to Black and Indigenous Nova Scotians for systemic racism in the provincial justice system and said the government is committed to reform. McNeil said he putting together a restorative justice team composed of members of the Black and Indigenous communities, as well as members of government and the police, to work on ways to reform the justice system: policing, jail system, judiciary as well as “social issues underlying the criminalization of Black and Indigenous communities”.
Prince Edward Island
Feb. 12, 2018 – Five-year tripartite funding agreement with the Province of Prince Edward Island and the Mi’kmaq Confederacy of Prince Edward Island (MCPEI). This agreement, which will total $600,000, will fund the MCPEI’s Indigenous Justice Program and support community-based justice programming and projects such as justice circles, including accused, victims, families and the community. It also works to build capacity within the PEI Mi’kmaq community so that they can assume a greater role in the administration of justice, by providing ongoing education to justice system personnel and partners in order to increase their understanding of Indigenous justice issues. As well, where appropriate, the Program supports Indigenous persons caught in the criminal justice system in accessing culturally relevant, community-based justice alternatives.
Feb. 20, 2018 – Yukon is funding a $530,000 three-year pilot project to develop a Gladue Report Writing program for Indigenous offenders to formalize and standardize the process of writing Gladue reports for judges sentencing Indigenous offenders.
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. (CBC)
Mar. 28, 2019 – Launch of a new pilot project this week to help address issues of mental health, trauma and addictions in the territory’s justice system through a new therapeutic justice program pilot in Cambridge Bay on April 1. The Justice Department calls the new program “a holistic approach to justice that aligns with Inuit Qaujimajatuqangit principles:” “This program will provide culturally sensitive, community-based programming that supports a path to rehabilitation outside the correctional system to facilitate a successful reintegration into society,” said Nunavut’s minister of justice, Jeannie Ehaloak.
The new program is run by a team of three–a mental health consultant, a community counsellor and a therapeutic justice case specialist–who will work to assess clients and create wellness plans for them. Clients can also be referred to outside support, like family, friends and local elders. The Cambridge Bay–based pilot will run until 2020, with a $750,000 grant from Justice Canada. (Nunatsiaq News)
- Respecting others, relationships and caring for people.
- Fostering good spirit by being open, welcoming and inclusive.
- Serving and providing for family and/or community.
- Decision making through discussion and consensus.
- Development of skills through observation, mentoring, practice, and effort.
- Working together for a common cause.
- Being innovative and resourceful.
- Respect and care for the land, animals and the environment.
Canadian Bar Association
The Canadian Bar Association also endorses Call to Action 31
Official Federal Government Response: Sept. 5, 2019
The Government of Canada is undertaking a broad review of Canada’s criminal justice system to ensure that it is just, compassionate and fair and promotes a safe, peaceful and prosperous Canadian society. As part of this transformation, the Government of Canada is looking at how to better address the needs of Indigenous peoples who are disproportionately represented as both victims and offenders in the criminal justice system.
In 2016, the Government of Canada increased the annual funding for the Indigenous Courtwork Program from $5.5 million to $9.5 million. This program provides funding to help provincial and territorial governments deliver Indigenous courtwork services. As part of these services, Indigenous courtworkers assist Indigenous peoples involved in the criminal justice system by providing information and support as well as referrals to culturally relevant options, such as restorative justice and Indigenous community justice alternatives.
The Indigenous Justice Program received a permanent mandate with an ongoing investment of $11 million annually. The program supports alternatives to imprisonment for Indigenous peoples, such as restorative justice and community-based justice programs rooted in the unique traditions and cultures of each community. These programs are developed and led by Indigenous communities and aim to address the needs of victims and offenders. In 2016, an evaluation of the Indigenous Justice Program found that Indigenous peoples who completed a community-based alternative through the program were significantly less likely to re-offend than those who did not.
In 2017, the Indigenous Community Corrections Initiative with Public Safety Canada also received $10 million over 5 years. This program supports the development of community-based alternatives to incarceration, as well as the healing and rehabilitation of Indigenous offenders.