Proceedings of the Standing Senate Committee on
Human Rights
Issue No. 19 - Evidence - June 7, 2017
OTTAWA, Wednesday, June 7, 2017
The Standing Senate Committee on Human Rights met this day at 11:30 a.m. to study the issues relating to the human rights of prisoners in the correctional system.
Senator Jim Munson (Chair) in the chair.
[English]
The Chair: Good morning, senators and guests.
Before I have the senators introduce themselves, I want to make a special welcome to our two guests all the way from Australia. It says here in my notes that you're here as individuals. That doesn't mean every individual from Australia gets to sit at a Senate committee. We know a bit of your background and we'd like to learn more about that in a few moments.
We'll have the senators at this Human Rights Committee introduce themselves, starting with the deputy chair.
Senator Ataullahjan: Salma Ataullahjan from Ontario.
Senator Eaton: Nicole Eaton, Ontario.
Senator Fraser: Joan Fraser, Quebec.
Senator Andreychuk: Raynell Andreychuk, Saskatchewan.
Senator Pate: Kim Pate from Ontario.
Senator Bernard: Wanda Thomas Bernard from Nova Scotia. Welcome.
Senator Hartling: Nancy Hartling, New Brunswick.
The Chair: I'm Senator Jim Munson from Ontario. I live in Ontario, but where is my heart? New Brunswick. Somewhere along the line I'm going to get taken to task for that.
[Translation]
Today we are continuing our study on the issues relating to the human rights of prisoners in the correctional system.
[English]
For our first panel, we are fortunate that two experts from Australia are here to inform us on our study. Our study, of course, is the rights of prisoners within the Canadian corrections system.
For the edification of our two witnesses, we have had many hearings. I think you are aware that we've been on the road and inside the prison system. On our Senate website we have some details of what we've already observed.
With that, I'd like to welcome Senator Ratna Omidvar, another esteemed member of this committee.
We welcome Ms. Debbie Kilroy. I talked to your partner about issues but I didn't have a chance to say a formal hello. We also welcome Amanda George. You both have the floor. We'll certainly have questions. We have about an hour for this particular panel.
We welcome you to our Human Rights Committee.
Debbie Kilroy, as an individual: Thank you for the invitation to speak today. First of all, I would like to start by acknowledging traditional owners both here in unceded Algonquin territory and the Turrbal and Jagera nations where I reside and work in Brisbane, Australia.
I'd also like to knowledge the Goenpul people and land where I reside, where my home is. It stretches to Quandamooka Minjerribah, a country where my husband resides. My husband is here with me in the back. He's a traditional owner from Butchulla country, which is what White fellows call Fraser Island, a few hours north of Brisbane.
Thank you for the opportunity to give evidence to your study about the human rights of prisoners in Canada's federal prison system. I'd like to acknowledge Senator Pate and all other senators here today and thank them for the invitation to speak this morning.
Although I'm here in an individual capacity, I am the chief executive officer of Sisters Inside, an independent committee organization that exists to advocate for the human rights of women and girls in the criminal justice system. Sisters Inside was born out of a group of women who were in prison in the old Boggo Road Gaol back in Brisbane in the early 1990s. Sisters Inside started when I was released from prison in 1992. We went back into the prison to work with and for the women inside so they are released into the free world and not returned to prison. Our practice has always been grounded in the wisdom and identified needs of criminalized women. In short, there should be nothing about us, without us.
Sisters Inside is an organization that works toward prison abolition using decarceration strategies. I know I may not and probably won't see prison abolition in my lifetime, but we must aim to work toward the abolition of imprisonment to stop the never-ending violence against women. Today, I advocate for this committee and the Canadian Parliament to be world leaders in decarceration.
"Decarceration'' is a word that describes the strategies and processes that can be implemented to reduce the numbers of women, children and men in prisons. Decarceration strategies work toward the end of prisons and the end of surveillance and punishment as our main ways to solve social problems.
It is impossible to talk about criminalized women without confronting the overwhelming presence of structural and personal violence in our lives. Almost all women in prison have experienced multiple and intersecting violence, trauma and abuse, resulting in significant mental health issues, substance dependence, disability, homelessness and social marginalization.
Aboriginal and Torres Strait Island women and girls are the fastest growing prison population group across Australia, a clear legacy of violence of colonization. In 2016, First Nations women made up 36 per cent of the total number of women in Australian prisons. The imprisonment rate of First Nations women in Australia has increased by 248 per cent since 1991. Australia's First Nations people are the most incarcerated group in the world, and I understand that Canada is not far behind.
Prisons are inherently violent places. Residential care, locked mental health wards, immigration detention and other institutions where women are locked up are inherently violent places. Women and girls leave prisons, leave those places more traumatized than when we entered. At least 85 per cent of women in prison are survivors of sexual assault, and women continue to be sexually assaulted by the state through the practice of strip-searching.
In Queensland's largest women's prison, which is also the most overcrowded prison, the state sexually assaulted women 12,170 times in 2016. Women are sexually assaulted 3,376 times after personal family visits. The only contraband found that was recorded by corrections after visits were three cotton buds and a non-prison-issued singlet. What is the justification for continuing to sexually assault women after they spend time with their children and loved ones? Amanda will pick up on this in more detail when she talks.
The majority of women in prison are mothers of dependent children, especially First Nations women. Women often lose care of their children due to homelessness, poverty, family violence and imprisonment. Women who give birth in prison almost always lose their children directly to the state. Forced separation as a result of imprisonment traumatizes women and their children. Recognizing the failure of prisons to protect and promote human rights, I propose that Canada could implement three decarceration strategies to end violence in the prison system and reduce the numbers of women trapped in the revolving door of criminalization.
First, Canada could legislate to release mothers from prison. A 2012 Canadian study estimated that 20,000 children are separated from their mothers because of imprisonment each year. Children with parents in prison experience significant trauma and poor social outcomes. Releasing mothers from prison is not a new or radical idea. The Committee on the Rights of the Child clearly stated that the best interests of the child must be taken into account in sentencing decisions involving a child's primary caregiver.
Rule 64 of the United Nations Bangkok Rules states that non-custodial sentences should be preferred, where possible, for pregnant women and women with dependent children, especially for non-violent offences.
In 1994, Nelson Mandela signed a presidential act granting remission of sentences for all mothers of children under 12 years old who were in prison at that time for non-violent offences. The presidential act was upheld by Constitutional Court of South Africa in recognition of the special role and particularly the marginalized position of mothers in prison.
Review of Canada's pardons scheme could support the early release of mothers from prison. Rather than initiatives that bring babies and young children into prisons with their mothers, Canada could preference legislative changes that see mothers and their children supported to stay in the community together and remain connected within their actual community. This will stop the intergenerational criminalization and imprisonment of other family members, particularly their children as they grow older.
Second, Canada must fund equitable, universal and accessible services in the community to allow women to be released from prison and to prevent women from entering prison.
In Australia, we have seen repeated funding cuts to the social services system and increased surveillance of the poorest and most marginalized people in our community. The result of these policies is to make prisons the main institution for dealing with people who are poor and who have complex needs and trauma. Taking money away from individuals and essential services exacerbates social problems and entrenches women in cycles of homelessness, crisis and poverty.
According to the Parliamentary Budget Officer in Canada, it costs $348,000 a year to keep a woman in Canada's federal prisons. Imagine if, instead of spending money on prisons, it was given directly to the women to find stability in their communities, to find safe and affordable housing, to support their children, and to pursue education and training. Amanda will speak in more detail about our idea.
Support for women leaving prison could also be achieved through a guaranteed and universal minimum income. This is an issue that I strongly support and recommend the committee seriously considers.
Canadian legislation already has mechanisms to allow people in prison to be released into the community. In the Corrections and Conditional Release Act you have sections 29, 81 and 84. Section 29 allows a commission of the Correctional Service Canada to transfer people out of prison and to hospitals.
I urge Canada not to keep spending millions of dollars on corrections and propping up mental health inside prisons. That money must be spent in the community on an option for people who end up in the federal system to be released under section 29 to a hospital or mental health facility to get proper medical care.
Prisons do not provide proper medical care. Additionally, sections 81 and 48 of the CCRA allow for the conditional release from prison of First Nations prisoners to Aboriginal communities, as well as other people.
I refer to some research, wherein it was stated that particularly section 81 excluded nearly 90 per cent of Aboriginal prisoners from being released under this section. It must be reviewed. Further, section 84 was created to ensure communal ties with Aboriginal communities and the parole boards to enhance community integration of Aboriginal prisoners. However, the report notes that Correctional Service Canada has created a lengthy Spirit Matters process for Correctional Service Canada and the community, contrary to the legislative intent. I urge Canada to go back and look at the legislation and behind that legislation at the intent of those sections, which was to release prisoners into the community.
As a woman in prison in Australia, I benefited directly from early conditional release from prison to work, study and reunite with my children. I'm a strong advocate for initiatives that often direct support to women to reunite with their family and find stability in the free world.
The committee could consider what creative opportunities for early support and release are available on the basis of these existing mechanisms, sections 81 and 84, but the committee must also be cautious that initiatives are driven by the identified needs of women in prison and respond to the complexity of women's lives on re-entry. Funding cannot be allocated to the state for more supervision services. More correctional officers, probation officers or parole officers will not solve homelessness, poverty or violence against women.
Third, I encourage the committee to recommend the abolition of solitary confinement and all forms of segregation in Canadian prisons. These practices are a clear breach of human rights and in my view they amount to torture. In our work we see women who are most likely to be put in what we in Australia call detention units or safety units or maximum security units. Those women have complex mental health issues or disabilities.
This is not an accident. It is directly related to the lack of conflict resolution and transformative justice practices that see so many women with disability and mental health disorders in prison in the first place.
Like strip-searching, solidarity confinement is a form of unacknowledged and unnecessary institutional violence. It must end. The research evidence is clear that solidarity confinement has significant and serious consequences on peoples' mental health, especially those with pre-existing mental illness.
In 2013 in Queensland, Supreme Court Justice Applegarth recognized the harshness of solitary confinement and found that:
. . . each day of a lengthy period of solitary confinement of the respondent would equate to a week spent in normal prison conditions.
Unfortunately, this decision was made in the context of specific legislation and policy applying to members of "outlaw motorcycle gangs,'' so the practice of solidarity confinement continues in Queensland and across Australia.
The committee and the Canadian Parliament have a real opportunity to be world leaders in abolishing solidarity confinement. To protect and to promote the human rights of women in prison, I encourage the committee to start by thinking outside the bars. Many policymakers have tinkered at the edges of prison reform, and after decades of reform we are still seeing the same issues. Reform of a broken system will never work. I encourage the committee and Canadian Parliament to be world leaders in decarceration by implementing changes that put people at the heart of our social and legal systems and end our reliance on prisons. Women, girls and mothers do not belong in cages.
Thank you.
The Chair: Thank you, Ms. Kilroy. I used to be a reporter, like Senator Fraser, and we're only a quarter of the way through our study. I can see the headline now: "Think outside the bars.''
We did this one time on a report for autism, when a person who had Asperger syndrome said, "Folks, you're going to have to pay now or pay later; autism families are in crisis.''
We appreciate that. I think the record should show that Ms. Kilroy has four post-graduate degrees in social work, forensic mental health and law and was the first and only former prisoner to be admitted as a legal practitioner in Queensland, Australia.
Just before we go to Ms. George, welcome, Senator McPhedran and Senator Ngo, who have joined us.
Ms. George, you have the floor.
Amanda George, as an individual: Thank you, senators, for the opportunity for us to speak with you today and to share our thoughts on how Canada can certainly be an absolute leader in the western world in decarceration, reducing prison budgets and moving money into budgets for health care, education and economic security.
I'd like to acknowledge the Algonquin land that we meet on. I come from Wathaurong country in the south of Australia. I offer my apologies to the French-speaking persons in the room that I'm monolingual.
Australia and Canada have a very close shared history as a consequence of colonization and our public institutions share many things. However, whilst Canada has been a beacon in progressive prison policies, Australia has outstripped you in the incarceration of indigenous peoples in our country. This is a matter of great shame to us.
I am very happy to be able to speak with you today. It's very nice to be in a Senate committee with so many people who are not, as we say, "male, stale and pale.'' It's good to see a more representative group of persons in such an important political office. I was pleased to hear that you have had the opportunity to go on prison tours and actually feel what it's like to be inside a prison, although not as, obviously, prisoners.
It's really important for people who make decisions that affect the lives of women and men in prison and for people who make policies around strip-searches, solidarity confinement and segregation to actually be in those places and see what it looks like and feel what it looks like. I have been into prisons a lot but I always feel good when I walk out the door, because I can. Most of my work has been with women in prison who are separated from their children.
The thing that you wouldn't have had to undergo as a prison visitor but that many prison visitors do have to undergo, and which prisoners undergo all the time, are strip-searches. Perhaps you can imagine how it would be for you to go and visit your child in prison, or your child to have you visit, knowing that a strip-search involves removing all your clothing and standing naked in front of an officer with your arms out and your legs apart, opening your mouth for a visual inspection of your mouth, turning around, touching the ground and parting your buttocks for a visual inspection. These strip-searches happen whether you are 18 or 80 years of age, whether you've had a mastectomy, whether you are very scarred or whether you have many disabilities. These strip-searches go on and on and on.
What is their purpose? They have been around for a long, long time, but prisons have changed. There is much more visual surveillance of people in visits and of people going through into prisons. Strip-searches don't find contraband. All of the freedom of information requests we have done have indicated that.
In 2002 in Victoria, the state I'm from, there was an increasing consciousness given that many women in prison, and no doubt men in prison, experienced sexual abuse. There was a clear realization that they were undergoing sexual assaults. If it were in the community and you did that to somebody, it would be sexual assault. It's just that it occurs under the authority of the state that it's not called that, but that's really just mincing with words. They decided to reduce the number of strip-searches in the women's prison from 21,000 a year to 14,000. There were 200 women in the prison. They were being strip-searched all the time, but they had a one-third reduction in the number of strip-searches.
They set out all these measures to work out what impact it would have. Would it have an impact on the number of positive urine tests to drugs that women come back with? Would there be an increase in the amount of contraband found? Would there be any change in violence or self-harm in the prison?
Notwithstanding this one-third reduction in strip-searches, the pilot project showed that the same amount of contraband was found, which was four items. That contraband was the same. It's always pills, marijuana and sometimes razor blades. Most significantly, there was a 40 per cent reduction in the number of urine positives coming back. That means there was a reduction of strip-searches and people weren't using as many drugs in the prison.
Why would that be? You could surmise that's because people weren't as traumatized and people weren't self- medicating as much.
I came to Canada in 2004 and undertook a Churchill Fellowship. I visited all of the women's federal prisons, looking at what are called prisoner committees, which are committees of women who do things in the prison. They can advocate around issues or take issues up to management, so that individual women don't get tarred with the brush of troublemaker or whatever.
When I was at Truro prison, I was speaking with the deputy warden there who was also head of security. She said, "We have come to an agreement. All deputy wardens in women's prisons have decided that we must stop the use of routine strip-searches.'' They are the strip-searches you had before or after every visit and every time you go from one secure unit in the prison to another. "The only strip-searches we should have should be what we would call reasonable cause strip-searches,'' which is where there is a reasonable suspicion that a person has contraband.
This was Canada in 2004. These were the wardens of women's prisons who said that these strip-searches don't do anything positive. They interfere with our relationship with women inside. If we're to have any sort of reasonable relationship, strip-searches completely annul that. They don't find contraband and we don't need them anymore. What happened with that? Obviously corrective services here didn't agree with it, so there was no change, notwithstanding that people who are experts and people who work with people in prison all the time made that particular recommendation.
There's a very common thought these days that maybe we can use technology to do what physical strip-searches do. The machines that you would use cost one-quarter of a million dollars. Why, when we are desperate for money for education, desperate for decent health care in prisons and desperate for mental health support in prisons, why on earth spend a quarter of a million dollars on something that just is not necessary? It's because there is an industry in the production of equipment for prisons that is very powerful and is always putting new products out. Lots of governments like to buy that material and enter those contracts, rather than actually listening to the people who work in prisons and head up women's prisons who say, "We don't need these things.''
There are two things I wanted to speak to you about. Ms. Kilroy mentioned that Parliamentary Budget Office came up with a figure of $348,000 a year to keep 680 women in federal prison. You have the legislation which allows you to release Aboriginal women and to release people who have mental health issues. The legislation is there. It just needs to be interpreted according to the intention of the people who wrote the legislation. The documents clearly indicate what the intention was of a very thoughtful Parliament in making those provisions for release.
If you set yourselves a target of a 10 per cent reduction of the number of women in federal prison every year, that would be $23 million saved each year, $23 million that is available for things that really will make a difference to women's lives after prison and to women's lives before prison, because it is issues like lack of housing, histories of family violence and lack of access to mental health services that are actually the predictors of who is going to go to prison, apart from racism and marginalization.
If you set yourselves a target and if you have a body like the correctional investigator to actually monitor and report to Parliament every 12 months on how it is going, only one woman a week who would need to be released, 1.1 women or something, or 68 women a year, not a lot of women to actually think about programmatically about releasing into the community. The only caveat on this notion of reducing the number of women inside is that you must close the cells as well. It is a truism in corrections around the whole world that you will have as many prisoners as you have cells. You'll have more prisoners than you have cells, usually.
Any project to actually reduce the reliance of our communities on prisons must shut cells. You cannot allow cells to stay empty because that will not work, unless you start importing a few people from the United States. We wouldn't suggest that, which is what they are doing in other countries in Europe where they have empty cells. They are bringing in prisoners from other countries at cost and incarcerating them. That is not an industry I would urge you to get into at all.
By not actually releasing women, releasing indigenous people and releasing people with mental illness from prison, pursuant to that act you are so lucky to have, you are actually subverting the intention of Parliament, which results in a misdirection of highly contested public funding.
I'll lastly talk about the importance of what you could do with that $26 million. You could set up housing projects where women and men who have been released from prison could get apprenticeship work in construction. You could have construction in communities. In Australia, we have issues where people leave their communities in the country and move into the city because there is no housing. Creating housing is one of the most significant ways of reducing people going back to prison.
Research that the Australian Housing and Urban Research Institute did show that when people left prison, if they didn't move in the first nine months of prison or only moved once, they had a 78 per cent chance of staying out of prison. However, once they moved twice or more, that reduced to a 41 per cent chance of not going back to prison. Housing is the crux. Without housing, you can't get a job. Without housing, you can't get your children back. Without housing, life is hell. The best thing we can do for people is to provide safe, secure and supported housing.
I will finish there because you need the opportunity to ask questions.
The Chair: We appreciate that very much. We will have many questions.
Senator Eaton: Thank you to both of you for your compelling testimony. I don't know which one to address this question to because it is mostly about data. We very much have the same problems here with addiction, homelessness and mental health, obviously.
Do you have any data? When someone is incarcerated in Australia do they do any kind of diagnosis? In other words, you talked about incarceration, Ms. Kilroy. If someone were diagnosed with mental health or addiction issues or homelessness, do you have data on that? Do you profile people who are put into prison?
Ms. Kilroy: The state does but it is very narrow. We don't have details, for example, of how many children women have. We can't even get data that tell us how many women are pregnant over a 12-month period annually, let alone babies who have been born in prison. The data are narrow.
With regard to mental health we have a prison mental health service. Their service is funded, so they would say they don't have enough funds because the prison is overcrowded. However, they have 100 cases. For example, in Brisbane Women's Correctional Centre there are 262 cells, but there are nearly 400 women in that prison and they can only open 100 cases.
Senator Eaton: Can you request how many women are bipolar or how many women have psychotic breaks?
Ms. Kilroy: No.
Senator Eaton: They don't keep data which would be interesting. Wouldn't it be helpful to know?
Ms. Kilroy: There have been research studies undertaken with certain groups over a 12-month period. They interview, for example, Aboriginal women around their health issues and it becomes a Queensland Corrective Services health report or a Corrections Victoria health report. That is with women self-reporting.
To find out what a woman's diagnosis is, you need to get it from her directly because of privacy legislation. You would have to use FOI, Freedom of Information or rights to information legislation, as we call it at home, to access every woman's file to find out what the diagnoses were. It's not kept in an appropriate way and in an ongoing way. It is usually within the corrections health reports or if an academic, for example, gets access and ethical clearance to do a particular study around a particular group.
Senator Eaton: Do you think it would be helpful if there were hard data on addiction, who came in and was obviously addicted? One often hears about the lawmaking cases about so-and-so was addicted or she's psychotic and therefore cannot be incarcerated.
If these things are being overlooked or not being well defended in court and they are addicted or mentally ill, shouldn't we have data on that? Wouldn't that make a stronger case for not incarcerating so many women?
Ms. George: The corrective services in their own annual reports talk about the extraordinarily high number of women with mental health issues. It's a very live issue. Some 90 per cent of women have drug or alcohol addictions when they go in, and this has been the case for many years.
There are efforts to run programs inside prisons. However, prisons aren't a safe place for dealing with the issues that most women in prison have come from. By experiencing strip-search all the time and then going into sexual assault sessions there is a disconnect. You get strip-searched so you have to shut off. That is just what happens to women. That is exactly what happens when women are sexually abused: they have to shut off.
The prison perpetuates this way of being that it actually can't change. This is why we are talking about the absolute importance of those programs being in the community where women can appropriately heal.
Ms. Kilroy: To be clear, my response is particularly about specific mental illnesses or whether there is psychosis or schizophrenia or bipolar. That is not drilled down in corrections data. We know the high rates of women who come into prison with addictions because they tell them on entry through the induction process. Women may have had access to mental health services. However, a lot of women are ashamed to say they have mental health issues and within a few weeks the prison and others will observe that there are some illnesses, and they will come under the guise and usually be locked in isolation.
Senator Eaton: Which doesn't help.
Ms. Kilroy: Exactly. They have more extreme behaviours related to their mental health distress.
Senator McPhedran: Thank you both for making the time to come and thank you to our colleague Senator Pate for facilitating this.
My comment refers to the 20-year period that I think both of you referred to in your research beginning in 1991, if I recall. Is there a segment of time within that 20 years when there has been a surge of incarceration identified? If that is the case, could you give us more detail on that? What were the circumstances that in your opinion led to that? I am well known for asking multi-part questions, so that is part one.
Part two relates to the overall incarceral culture. Two things that I experienced on our recent tour of a number of corrective institutions prompt me to ask this question. I kept asking any of the management I could reach in the institution after institution how many of the managers started as guards, women and men. There was only one institution where the answer came back to me that one human resources executive for that institution did not start as a guard. She started as a social worker in the prison system. For all of the others, everyone that I questioned, anecdotally it came back that they all started as guards.
My question is about the state/guard culture and what you have observed in terms of resistance to reforms and how you might, if at all, fit that into what I think is well documented in any country where research has been done about the resistance to reform.
Ms. Kilroy: If it helps, I have the Australian Bureau of Statistics data here from 2001 to 2016 for indigenous women, non-indigenous women, indigenous men, non-indigenous men and the growth. When I glance at the data there hasn't been a spike. There has been a steady growth across the country. Then I have the data for the jurisdiction that I come from for the same groups of people. However, 2008 and 2009 weren't available. It is also quite steady.
For example, in 2001 there were 370 Aboriginal women in our prisons. Now there are 1,062. I am happy to give you a copy of that so you can see where the growth is. It is a steady growth. It keeps going up. Our projection at home is that they will continue to go up. The men are plateauing out but Aboriginal women are skyrocketing. They are the fastest section of people in our prison system. They are outstripping anyone else in relation to incarceration rates.
Senator McPhedran: I have quick clarification on that. I am hearing you say that regardless of the governments or ideology of the governments, you are still seeing a steady incline.
Ms. Kilroy: Yes.
Ms. George: On the ideology of governments, it is state governments and not provincial governments that control the promulgation of legislation around crime and parole. In Australia in the last 15 years elections have been law and order elections. Increasingly, it is about being tough on crime, more prisons, and let's get rid of parole. We have seen sentences get longer. We have seen judicial discretion get eaten away at. That necessarily means people are in prison longer, which necessarily means more cells.
Even this week in the federal government, which has nothing to do with prisons and law and order, our prime minister is calling for a review of parole around the country because an incident happened when a fellow who was on parole. The juicy electoral mileage that politicians get from coming out on law and order issues is central to some of the increases we are seeing in people in prison. The facts are that we have crime rates going down but we have prison numbers going up.
Senator Fraser: Oh, dear, that sounds so sadly familiar. You have painted a ripping and terrible picture. Apart from the pilot project to reduce strip-searching, are there any practical success stories out of your system that we can learn from?
I'm not in any way suggesting that you are painting an unjustifiably big picture, but surely no human institution is 100 per cent evil. Are there any practical things or little lessons you could give us about what works or seems to work?
Ms. George: What works is engagement by outside organizations, when people are in prison, to look toward their release, look toward the provision of housing and to look toward reunification with their children.
The wiggle room in an institution is very small, for the reasons that Senator McPhedran spoke about. There is resistance to reform and officers getting captured by the institution that they are part of and not having a life outside of prison or other prison officers. You all know what I am saying. It is about bringing people from prison out and supporting them to stay out.
Senator Fraser: Yes, that would be the key. Could you have maybe the same people carrying through during a prison term and still being there? Does that happen?
Ms. Kilroy: At our organization, Sisters Inside, that is what we do. All our service provision is working with women in the courts and advocating there for them so that they don't get sentenced to a term of imprisonment and if so, that the sentence is the lowest term a judicial officer could possibly give them with all of the mitigation that's before them.
If they are in prison, we provide support immediately through our staff, to our sexual assault counselors, to Aboriginal support workers, and to our mothers and children program. We are ensuring that the violence perpetrated against them is being addressed. Although it is being addressed through a violent institution, it is a type of support the women appreciate. It has a lot of credibility because women self-refer to us. Our lists are long all the time of the women we see in support.
If children in the mothers and children program are with their families, we can transport the children to prison for visits. That is negotiated through the prison system. It is important to keep those connections between mother and child. We do the visits. We bring the children for play groups. If they are in the care of the state, what we call the Department of Child Safety, which is the child protection authority, we will negotiate and advocate for the mother and pick up the child, if the child is in care, to bring the child to visits while mom is in prison.
Then, when they are released, we provide intensive support day in and day out for a couple of months because that is the hardest time. Usually women are excited when they are released and believe they can do it themselves, but because we are walking with them the whole time after about two weeks things start falling apart because of the institutionalization. We need to be there to support them, with their own volition that they want to engage with us.
In those processes while they are in prison we are advocating for housing for them so they have somewhere stable when released. We are advocating with their family members, their children and the state to get access to the children either immediately or go through a court process to get the children back into mother's care. We do all that work alongside her. That can't be done by corrections.
We don't agree that programs should be run in prison, like ours or any other program, for that matter, by corrections. The mandate of corrections is good order and security of the prison. That is their mantra at home. That is fine. Let them do that. They can turn the key and close the door. However, for support inside, if we want prisons in our community, they must be open, accountable and transparent.
Let the educators in. Let the NGOs in. Let the anti-violence workers in. Let the activists in to provide the support as they would have in the community so they don't lose that connection. They may have never had that connection and need that connection so they don't fall over and repeat, fall into old haunts or whatever it is, or go back to using substances.
Ms. George: Homelessness.
Ms. Kilroy: Yes, 90 per cent of the women released are walking out with a garbage bag and are homeless. Homelessness is an issue. It is also the front end, how we stop people from going back into prison. Poverty is a huge issue. Canada has the resources just like Australia to ensure no one is homeless and living in poverty. You have the power, I believe in the Senate, to agitate for that.
I was here a few years ago now, and just being back here in the last few days and walking around Ottawa I have been seeing more homeless people on the street now than I had ever seen before. I was actually quite shocked. My husband, who has never been here before, was actually quite shocked at the visibility of homeless people in the capital. It is quite confronting and it is very sad, because Canada presents itself as the human rights leader in the world. Yet we are walking, block after block, with a homeless person nearly on every corner asking for some money just to be able to buy something to eat.
There are resources, like Amanda and I talked about, in sections 81 and 84. Use those sections to get women out and set a target of 10 per cent. That is only 68 women a year, and in 10 years you will have no women in prison if all those cells are closed. What will happen is that you will then start focusing on community intervention, not prison as the default institution for all the social issues in this country.
The Chair: Thank you very much for that. We will agitate. We would like to do that.
Ms. Kilroy: Thank you. I will be watching.
The Chair: I spent my whole life doing that.
Senator Bernard: Thank you both for your testimony and the passion you bring to these issues. I appreciate the fact that you have highlighted and continually highlight those root causes that we want to and need to tackle.
I would like to follow up on the question around your pilot study to decrease routine strip-searches. You may have mentioned this and maybe I missed it, but what happened after the pilot?
Ms. Kilroy: That is Amanda's jurisdiction in Victoria.
Ms. George: They went back to the old ways, except they introduced what is called a dignified strip-search, which, instead of standing completely naked, you have clothing on the top and the bottom. That is what changed. They still have the same number of strip-searches.
Senator Bernard: When they went back to the old way of doing things, did the numbers increase again?
Ms. George: They didn't do any research around that.
Senator Bernard: So we don't know.
Ms. George: It was a fabulous pilot that was about the resistance to reform. The prison officers didn't like it, and that is all I could say, really.
Senator Bernard: During the pilot, was there any research that looked at how reasonable cause was being utilized? I am wondering if reasonable cause was determined by the guards on duty. Were issues like unconscious or conscious bias, especially against the more marginalized prisoners, revealed? Did that study look at any of those issues as well?
Ms. George: No. They said that because prison officers weren't engaged in doing strip-searches all the time, there were more prison officers around seeing what was actually happening in the prison. Perhaps one reason why there was less violence is that there was more dynamic security. People were around and not in their little cubicle.
This pilot was initiated by Corrections Victoria. They did the research and we had to get it under freedom of information. They didn't tell the world about it. It's hard to know why they didn't tell the world about it, because it was a great initiative.
Senator Bernard: Let me make sure I have this right. You are saying Corrections Victoria initiated the pilot and conducted it. From the results that you had to find through freedom of information, clearly there were positive outcomes but nothing has happened to use those outcomes.
Ms. George: Except to have a dignified strip-search. The reduction in routine strip-searching did not continue.
Senator Hartling: Thank you for being here, Ms. Kilroy and Ms. George. Recently we went on the prison study. It was very revealing and it left me thinking a lot about these issues.
You are absolutely right that having food, clothing and shelter should be a human right. That would certainly do a lot of prevention work. Canada seems to have the resources but we're not there yet.
Ms. Kilroy, I am interested in the education program. One of the things we learned in the women's prisons we went to was that women didn't have access to getting any education, or had very little access. In one of the prisons they are teaching them how to make men's underwear. This was a bit shocking because in the male prison they were learning welding, which is a marketable skill. I don't know where they would use the skill in making men's underwear.
You have done a great job in getting your education. Good for you. With your experience in education what is happening in Australia? We still have prisons, and hopefully one day we won't, but what kind of education programs are available?
Ms. Kilroy: When I was in prison, the policy of the government of the day was about education, education, education. It has shifted now because it is about jobs, jobs, jobs; employment, employment, employment. For example, north of the jurisdiction that I come from, at Townsville Women's Correctional Centre, predominantly where all the Aboriginal communities are in North Queensland, about 80 per cent to 85 per cent of the women in that prison are the Aboriginal and Torres Strait Islander women and nearly 90 per cent of them cannot read or write.
They are my age. We actually lock up 17-year-olds in Queensland as adults in our system. They could be 17, 20, 50 or 80 years old, but they cannot read and write, which is an horrific indictment on how our country and education system have failed those women. We lobby all the time about education, that women must have education. However, the prison doesn't have education as such.
Because of the overcrowding programs are limited. In that prison in North Queensland they hardly have any programs at all. At one stage last year they had nothing. We were the only organization that was going in and that was ad hoc. It's only this year we have been funded more substantially to have an office in North Queensland to support the women.
Women need education, literacy and numeracy. Those women that can undertake, for example, tertiary education, there are only about 10 women in our maximum security prison that are allowed to do so. If you are capable of entering university to study, you should be supported inside the prison to do that. Prison officers don't like any of us studying. They feel threatened. They will turn your lights off. They will find a way to breach you or to punish you for some behaviour so that you can't study, or they will make you stay somewhere late so you can't get to computers, et cetera.
It is a block. Prison officers put up all those blocks, but education must be funded, not only before anyone is criminalized. All children should have access to education, but definitely it must be a priority, not employment.
The women in our prisons tear up rags. They will not get any employment. It's a lie. They get paid $2.34 a day to tear up rags or work in any other industry, whereas the men are paid more in men's prison and learning skills that will get them jobs when they are in the free world. Men get into labouring jobs very easily. It is about the patriarchal world we live in. Men make mistakes but if women are criminalized in prison we are bad or mad. We are labelled and ostracized and no one wants to take a chance on giving us a job, whether it's labour or whatever it is. Those work skills that prisons offer won't allow any gainful employment for women on release. It would be very rare.
One of the young Aboriginal woman, now on our management committee, went to prison when she was 17. Spent seven years working in the industry. She was putting furniture together. She became the manager of the production in the prison. When she was released, she went to that business and asked for a job. She said she has all these skills and they said, "No, we don't employ people with criminal histories.''
It's slave labour that's happening in these prisons. It's capitalism. These companies are using people in prison to work for $2 or $3 a day for their merchandise, their materials or whatever you like to call it to sell out in the free world. We see that all the time. Education must be the priority policy, not employment, because we know that women won't get any type of employment when they are released.
Ms. George: Very quickly, the research I spoke to you about around housing and not reoffending, as a sideline of that research there were five people who were doing full-time education of the people who were in prison in that cohort, and none of those five people went back to prison.
Full-time education is one of those great pathways that you can participate in and have some dignity around, rather than training and putting widgets in holes.
Ms. Kilroy: Those of us who do get educated in prison do go back to prison but not in the way that prison officers would like us to. We do so as advocates.
Senator Omidvar: Thank you so much for being with us today. It's really quite fortunate for us to have you both talk to us in person.
One of you, and please forgive me because I forget who, said that engagement with community is the key. With Sisters Inside, Ms. Kilroy, you obviously do that to great effect. Can you describe, though, the institutional arrangements you have with the prison authorities of the federal government that facilitate or not your engagement with prisoners inside?
Ms. Kilroy: Access to prisons?
Senator Omidvar: Yes. Is that legislated, or is that just ad hoc approaches? What would you like to see?
Ms. Kilroy: It's discretionary. If I could explain Australian prison systems, we don't have federal prisons. Our prisons are in our states and territories. If anyone is sentenced for a federal offence, they go into what you call your provincial prisons or jails. Women in our prisons will be there on remand. They will be there serving one week, or they will be serving life imprisonment. There's the whole spectrum.
Our access is based on discretion of correctional services in the jurisdiction that we're in. A quick sort of timeline of Sisters Inside: When I was released, we came back into the prison. We met with the women and we started the organization. Our staff had really good access. We negotiated with the general manager or the warden our access to provide services and support to women.
On June 17, 2004, we launched a human rights complaint against the Queensland government in regard to women in prisons in our jurisdiction. When we lodged that complaint, we were immediately banned from prisons. We ended up renegotiating some of our programs back in, because we have a lot of credibility not only in the prison system but in the community, with both right-wingers and left-wingers, if you like, conservatives and non-conservatives. We get a lot of support because we've been around so long. We had that credibility in our jurisdiction so we could renegotiate some programs back in.
About 10 months later I was personally banned from all prisons in Queensland. Someone had written a biography of my life and they took offence that I had asked some women lifers to look after one of the women who came into prison who was the chief magistrate. A judicial officer, a judge, was sentenced to a term of imprisonment. I asked the women on our committee to make sure she's all right, because she's another woman like you and me. They did that. Because that was in my book they took offence. They said if I could ask women not to be violent, I could then ask them to be violent, which I've never done in my life.
Staff was going in but I was then banned for six years. That's okay. That allowed me to finish my law degree and get admitted. Then they had to let me in, because under that legislation I'm a lawyer and they must let me in.
When we had a Conservative government in a couple of years ago, a number of our programs were defunded overnight because they took offence to our advocacy. That's the thing: Programs come and go. Programs aren't going to change women's lives in the scheme of things if we don't have housing, health care, et cetera, in our communities. However, we have a Labour government in now, and we have open access again.
It's always at discretion, not in legislation. That's how it is across the country.
Senator Omidvar: If engagement is the key, as you've said, would it not be preferential to have it embedded in legislation?
Ms. Kilroy: Absolutely, yes.
Senator Omidvar: Are you advocating for this?
Ms. Kilroy: We would advocate, yes, to allow NGOs and advocates inside the prison. I know that case did have wonderful resources about human rights and teaching women in prison. We modelled the same resource in our jurisdiction and it was banned. We weren't allowed to give it to the women inside so that they knew what the human rights were and what the steps were to raise grievances. It was banned. It was not allowed in at all. We have thousands of books still gathering dust. Absolutely, it must be embedded in legislation.
Ms. George: To comment on the community engagement, the other good thing about having outside organizations going in and doing work with women and men inside. It's more people going into the prison. The more people who go into the prison, the more they know what's going on in the prison.
It also means that when people get out they're working with a worker who they don't have to explain everything to, because that worker has been into the prison and knows what it's like in there. It's a much safer way of re-entering society when you have somebody who has walked with you for a while inside. Going to somebody who is a new graduate social worker who knows nothing about anything, you can't properly engage because you had been through a very special experience.
Senator Pate: Thank you very much, both of you, for being here and coming all the way from Australia.
I'm going to pick on what Senator Omidvar just raised. It actually is in the legislation here. Section 77 requires that corrections consult with women's groups and section 80 requires that there be consultation or involvement of indigenous groups.
What you're talking about, though, is something more entrenched that would actually be an obligation. Basically, it says they should engage in those areas. I thank you for those recommendations.
Ms. Kilroy: I think the language should be "must,'' not "should.''
The Chair: We have heard incredible testimony this morning that will be extremely helpful to our study. We appreciate your coming here. We have to go there to understand what's going on as well.
We are to have observations out in the fall, but some people have called this a sweeping, landmark study that we're doing. We want to take our time with it. We want to get it right. We see governments moving. I think they're moving because we're making our work quite public. Even that is helpful to push this engine along.
Ms. Kilroy and Ms. George, thank you so much for being here.
We're continuing our study dealing with the human rights of prisoners in the corrections system. We have a particular focus on indigenous women. We've heard compelling testimony of a similar fate taking place in Australia from two previous witnesses. It's just not right. We've been in a number of prisons, and we have seen first-hand what is going on.
For our second panel, we have Mr. Stuart Wuttke, General Counsel, the Assembly of First Nations. Welcome to our committee. You have the floor. Senators will be anxious to ask you some questions over the next 45 minutes to an hour.
I neglected to mention that Senator Martin is here. Welcome, senator. Mr. Wuttke, please go ahead.
Stuart Wuttke, General Counsel, Assembly of First Nations: Good afternoon, everyone. On behalf of the national chief, the executive committee and organization, I would like to thank you for inviting the Assembly of First Nations to make submissions to you on this important study, especially with respect to the human rights of indigenous prisoners in the corrections system. I've been with the Assembly of First Nations for about 13 years. I have been a lawyer for just over 20 years at this point.
I'd also like to begin by acknowledging that we're on Algonquin unceded territory.
We have a prepared statement, which I'll read. We also have a written submission. Unfortunately, it's not translated yet. I'll provide this to the clerk, and hopefully a translated copy can be provided to the committee at the earliest opportunity.
At the outset, the Assembly of First Nations would like to state that we recognize First Nations citizens are being incarcerated at an ever-increasing rate, given longer jail sentences and subject to harsher punishment in Canadian prisons. First Nations citizens account for only 2.6 per cent of the total Canadian population. However, the Office of the Correctional Investigator of Canada reported that as of January 2016, the number of indigenous people in Canadian penitentiaries has reached 25 per cent of the total inmate population. For federally sentenced indigenous women, the representation rate now exceeds 35 per cent of the in-custody women population.
The root causes and the disproportionate number of First Nations citizens in the correctional system are many and well documented. The Supreme Court of Canada stated in 1999 in the decision R. v. Gladue that:
The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It also arises from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders.
Almost 20 years have passed since the highest court in Canada acknowledged these systemic causes of overrepresentation of indigenous peoples in prison, and yet the numbers continue to steadily increase over time.
Recently, a young First Nation's man, Adam Capay, was held over 1,500 days in solitary confinement. Mr. Capay has been held without trial for 52 months, and he has been in solitary confinement for over four years. The plight of Mr. Capay came to light after Renu Mandhane, Chief Commissioner of the Ontario Human Rights Commission, visited a Thunder Bay jail. When she requested a visit with the isolated inmate, jail officials led her down the stairway to a basement unit with 24-hour light. She stated that it appeared deserted except for Mr. Capay, who was in a cell surrounded by Plexiglas and illuminated by 24-hour light. Mr. Capay now suffers from speech and memory problems and has several scars from self-wounds as a result of his prolonged isolated confinement.
The Ontario Human Rights Commission noted that:
According to the United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) and the United Nations Special Rapporteur on Torture, both prolonged and indefinite periods of segregation can amount to "torture or other cruel, inhuman or degrading treatment or punishment'', and should be prohibited. Prolonged segregation is defined as any period of segregation in excess of 15 days.
One must ask what would have happened if the chief commissioner hadn't visited the Thunder Bay jail and stumbled upon Mr. Capay. Would he still be there today? Sadly but unsurprisingly, the answer is likely "yes,'' as we know that indigenous offenders are far more likely to die in prison than any other population. Who knows how many other Aboriginal offenders are being held in similar or worse conditions as Mr. Capay?
Last week the news reported the case of Beatrice Hunter, an indigenous woman and grandmother from Labrador who was charged in connection with the ongoing indigenous rights protests of the Muskrat Falls dam site. Ms. Hunter is currently in custody away from her family and is being held in a men's penitentiary in St. John's. Many advocacy groups are calling her a political prisoner. This is happening right now in Canada, the same country which claims moral superiority when it comes to human rights.
Just this week the news also reported the case of Angela Cardinal, a victim of a brutal sexual assault who was imprisoned by the courts for fear she might not testify in her own preliminary hearing against the accused. Ms. Cardinal, who miraculously survived the attack in which she was stabbed repeatedly and sexually assaulted, was ordered by the court to be shackled and jailed in the same confines as her accused attacker. This is how the legal system in Canada treats First Nations citizens who are victims of crime.
The lack of human rights afforded to First Nations offenders doesn't begin with the correctional institution. This is something we recognize. I have already alluded to the many systemic root causes of overrepresentation of indigenous peoples in prisons and I have noted the AFN has also prepared written submissions to the standing committee that provide an overview of the many deficiencies in the criminal legal system, which also contributes to the violation of the human rights of First Nations offenders.
With respect to the correctional system, the Office of the Correctional Investigator has extensively documented the fact that administrative segregation is significantly overused. Segregation is the most austere and depriving form of incarceration the state can legally administer in Canada.
Indigenous offenders are more likely to be placed in segregation, accounting for 31 per cent of the cases. Once in isolation, they spend 16 per cent more time there. They account for 45 per cent of all self-harm incidents. Nine in 10 Aboriginal or indigenous offenders are held to the expiry of their sentence versus two-thirds of the non-indigenous inmate population. They are more likely to be restrained in prison, to be involved in use of force incidents, to receive institutional charges and to die in prison.
Furthermore, on September 18, 2015, the Federal Court released its decision in Ewert v. Canada and found that psychological risk assessment scales used by Correctional Service Canada are unreliable for use with indigenous peoples as they fail to respond to their unique needs, lack scientific evidence and are susceptible to cultural bias. Correctional Service Canada regularly uses these scales to assess risk of violence, as well as psychopathic personality disorder, among both indigenous and non-indigenous offenders. The scores of these tests and case management analyses of overall offender risk rating are then used to make significant liberty decisions, for example, security ratings, access to temporary absences and penitentiary placement.
Justice Phelan of the Federal Court stated that he intended to issue a final order prohibiting Correctional Service Canada from using the assessment scales for Mr. Ewert and order Correctional Service Canada to conduct research to confirm the reliability of its assessment scales with respect to adult indigenous offenders.
International and Canadian human rights laws, including the Canadian Charter of Rights and Freedoms, provide for standards which state that all individuals have the right to be treated fairly and humanely and not to be subject to cruel or unusual punishment. The Office of the Correctional Investigator has stated that the long-term failure to comply with human rights provisions hinders the rehabilitation of offenders and decreases public safety.
The rate of indigenous people entering the correctional system in Canada is at all-time high. The extreme disproportionate numbers of First Nations citizens in federal prisons who are subject to cruel and often degrading punishment similar to that of Adam Capay violates both domestic and human rights standards. Canada's treatment of First Nations and indigenous offenders in the correctional system has been heavily criticized by its own independent oversight bodies, and yet consecutive governments have failed to take action on this issue.
In conclusion, it is the view of the Assembly of First Nations that a more thorough examination of Canada's treatment of First Nations people in the criminal legal system is required, just not on corrections. It will enable a fuller discussion about certain realities, such as the measures required to address the disproportionate incarceration rates of First Nations peoples. It will also enable a thorough examination of the full extent of drug crimes, effects of diversion programming for youth, benefits of programming to address recidivism and address the situation for women. Restorative justice programs have real benefits for First Nations offenders and the AFN encourages both the government and Parliament to continue to enhance existing programs and measures directed at First Nations offenders.
Canada cannot continue to hold itself as an international flag bearer for human rights and at the same time refuse to deal with systemic issues such as racism, poverty, child welfare and apprehensions and lack of education when it leads to overwhelming numbers of First Nations people in prison. If Canada is truly committed to reconciliation with First Nations, as it stated when it committed to implementing the Truth and Reconciliation Commission recommendations, it must first acknowledge that the legal and correctional systems within the country are deeply entrenched with long- standing discriminatory attitudes toward First Nations, and it must take substantive measures to stem the tide of incarceration of First Nations citizens.
The Chair: Thank you so much, Mr. Wuttke. We were at a healing lodge north of Montreal recently. If anything, after being at Millhaven, Joyceville and Collins Bay, the environment where indigenous people, and I wouldn't even use the word "prisoners,'' have been in the prison system where they are now seemed to be a healthy, healing place.
Do you know at what ratio people go to these healing lodges as opposed to the 25 per cent inside the prison system? Are there choices there? It seems from what was happening there, from what we have seen and were shown, that there were no gates. There was no razor wire. It was in a small village. They are there for years, but their families come and go. It seems such a positive environment if you have to face that sort of scene.
Mr. Wuttke: We note that healing lodges are very helpful in helping First Nations individuals deal with the various issues that they have.
We don't have any statistics per se, but what we have is more anecdotal information. For instance, we receive correspondence from First Nations offenders who often describe their inability to access these programs because there are some discretionary measures with respect to people being able to access the programs. For instance, they have to be on good behaviour. They can't have any incidents for a number of months. For some of these offenders, it becomes a very difficult threshold for them to attain that type of standard to be eligible for access to these programs.
We've also heard from a number of elders who were running some of these programs some of their criticisms with respect to not being able to reach out to everybody. There's even different treatment. For instance, if a psychiatrist is used in a prison setting, they are provided remuneration for their services. When it comes to a lot of First Nations elders providing services to offenders, they're given a very low honorarium for their time. They're not treated as healers, such as medical professionals. It became somewhat more prohibitive for them to spend more time and offer these services to First Nations offenders where they felt they were being treated much differently, as far as access to various offenders was concerned and compared to medical professionals such as psychiatrists.
Senator Andreychuk: I apologize. I had to be at another meeting before coming here. I hope you haven't covered this point.
I want to follow up on the healing lodges. Recently, some information has come to my attention that some of the victims of criminal offences state that they haven't been approached and haven't been part of giving their opinion as to whether the perpetrators' best rehabilitation would be in a healing lodge. Part of it comes in smaller communities, when the violence may have been between two First Nations people.
Has this been addressed by your assembly? Is it known to you, or is it isolated incidents that we're hearing about?
Mr. Wuttke: It brings up a larger question as far as how appropriate the current Canadian criminal justice system is to Aboriginal peoples. In more of our traditional systems, you had the collective to address any conflicts between individuals or groups. There was a collective effort to address these and bring people to a place where there was reconciliation or good relations between the two people.
We find the current criminal justice system removes the victim from the equation. The victim reports a crime. They may or may not want to press charges. Charges are pressed, and it becomes the state that acts for the victim in many of these cases. That in itself leads to a number of issues with respect to what is in the best interest of the community itself between the victim and the offender.
Other issues have come up with respect to the long-term effects of residential schools, the Sixties Scoop and now child welfare policies with respect to removal of First Nations children from their families and how that creates some physiological changes in the child's mind which makes them more susceptible to crime or victimization. These deal with childhood trauma. Unless programs are put in place to heal these children being placed in these systems, you may continue to find that the problems persist in the future.
They have done a number of psychological assessments and psychiatric studies with respect to Romanian children that had AIDS and were put into orphanages. They took measurements of their brains and saw the differences between normal children and children placed in trauma situations at a young age. There are significant physiological impacts to the young mind. That will need to be addressed in dealing with some of the current issues faced by First Nations communities.
Senator Ataullahjan: I apologize also for having to do something else. As I am listening to the testimony, I had an article sent to me from the June 5 edition of Maclean's entitled "The Canada most people don't see.'' It talks about the unemployment rate being worse than Sudan, the infant mortality rate being worse than Russia, and the injustices appalling. It talks about a couple of cases, one being about Angela Cardinal and what happened in Edmonton.
What can we do? Do you think some form of culture or sensitivity training is available to the corrections staff? Would having something like that help in developing an understanding between incarcerated people and corrections staff? What kind of culture-relevant programs would be good to put into place?
Mr. Wuttke: You bring up an interesting question. We read that article as well. It points to long-stemming discriminatory practices.
With respect to training itself, we have come across cultural sensitivity training a number of times, whether it is for police officers, recently judges and lawyers, or other people in the criminal justice system. You can offer that, but the evidence is pointing out that even though people take these courses and this training, it may have a short-term impact. Eventually people go back to their old habits. Some of the underlying prejudices and biases in various individuals in the criminal justice system are inherent in some of their training, for instance.
When I went to law school I was told, "Don't take any courses like Aboriginal people in the law or women in the law or anything that says in the law because no respectable law firm will want to hire you if you take those types of courses.'' Fortunately that attitude has changed over the last number of years.
When you look at the treatment of Aboriginal offenders right from the start, criminologists talk about the crime funnel where at the very beginning when a crime is committed a huge number of crimes committed against persons. Only a certain percentage of those are actually reported to police. The police only charge so many people. Crown prosecutors exercise their discretion. In the end, you have a small amount of people compared to the whole that are charged and convicted.
When you look at that percentage and see who is convicted in the end, a large majority is First Nations people. There are issues of police using various tactics such as overcharging First Nations people, charging them with more serious offences. All of that leads to potential plea bargains. It may not be fair. It may not be an accurate description or assessment of the crime that took place.
When I was practising criminal law early on, one of the low-hanging fruits for defence lawyers, if someone was convicted of breaking and entering or stealing stuff, was having them plead guilty to unlawful entry. It still is a criminal offence and they are still pleading to a criminal offence, which may lead to unwanted outcomes later on in life, but it's really that type of scenario. If they were charged with unlawful entry to begin with and only that, it would definitely level the playing field for Aboriginal offenders.
I grew up in northern Manitoba. What I saw growing up, for instance when it came to physical assaults between non-native people and First Nations people, was First Nations people were always charged with an offence while the non-native combatants were not charged as well. In the North we grew up knowing that some people can operate with impunity and do whatever they want; another segment of society could not.
It is those types of attitudes when it comes to the police, the Crown prosecutors and even some of the judges. Some programs with respect to culture training will not cut it. You need more First Nations people involved in the system and perhaps more First Nations oversight into some of these programs.
When you look at the Parole Board of Canada, I think there was evidence provided to this committee that there were something like 65 members of the Parole Board and only 6 of them were indigenous. If 25 per cent of the population, is First Nations men and 35 per cent are women, why don't we have more of a corresponding ratio for Parole Board members who are actually cognizant of the realities in First Nations communities? Culture training is one aspect that can be done, but I think more needs to be done.
Senator Ataullahjan: You are talking about changing a mindset. You say that the guards who are given that training revert to the old ways after a period of time.
How do we change the mindset? I thought it was through education and the learning process, but if they are getting that training and it doesn't seem to help, in that after a while they go back to the old ways of thinking, what are we to do?
Having more people in the corrections system would be one way, but we have to be representative of Canada. How do we change the mindset of people who are not from First Nations or Aboriginal backgrounds?
Mr. Wuttke: It is difficult. Obviously they have some time in First Nations communities. The RCMP, for instance, has people posted in northern communities early in their careers and then they move down. Changing the mindset is definitely a difficult task. We always have hope for future generations. We do see incremental changes over time in younger populations. Obviously, with older people it is more difficult to change some of their perceptions.
Even though some of the actors in the criminal justice system are aware of some of the overarching problems, even those reported by the Truth and Reconciliation Commission, you still see these types of abuses happening such as that of Ms. Cardinal.
How can we put it lightly? How do you change someone who doesn't value the human rights of First Nations people or even humanity as much as others? How do you change a mindset? I really don't know how you can change that. If someone has such little value for indigenous people as a person, how does one change your attitude to have more respect for that person? It is definitely a difficult question.
Senator Fraser: Thank you very much for being here. As a follow up, as a former journalist I would say it may be helpful to focus not so much on changing peoples' inner thoughts as on changing their behaviour, naming and shaming can make a difference, which brings me to the matter of solitary confinement and the terrible case of Mr. Capay and many others. The Globe and Mail reported yesterday that the federal and provincial correctional services are working to devise a new policy on solitary confinement. Heaven knows we need new policies on solitary confinement.
To your knowledge, has the AFN or any other indigenous organization been consulted about what might work and what is doomed to failure?
Mr. Wuttke: To my knowledge, the AFN has not been approached in that work.
I agree with your point about naming and shaming. If you have readily available statistics on, for instance, Crown prosecutors, their preferences, how they address native offenders versus non-native offenders, what their recommendations are for bail and that type of thing, it might point out some of the problems.
Your point about changing behaviours may not be the answer. That is partially true. When you look at human rights itself and human rights legislation, human rights have changed a lot of things as far as people not being able to access services, not because it changed the attitudes or thoughts of people but because it made certain acts illegal or prohibited. If there are legislative changes that can address the overincarceration rates of First Nations individuals and they become law, perhaps through legislation you may see positive movement in this area.
Senator Fraser: This is a loaded question, but would you have any faith that Correctional Service Canada, acting on its own, would come up with truly appropriate policies for solitary confinement?
Mr. Wuttke: As an organization, the Assembly of First Nations would fall back to some of the overarching principles and standards in human rights law, such as the United Nations Declaration on the Rights of Indigenous Peoples. It talks about there being consultation for any legislation or programs that deal with Aboriginal or indigenous people. If Correctional Service Canada is engaging in a process to amend their rules, their regulations or their processes, there should be some measure of consultation with indigenous communities and the First Nations leadership. That should be a minimal standard.
Senator Martin: It's nice to see you again. I think I saw you last at the Standing Senate Committee on Aboriginal Peoples. Thank you for your presentation and the good work you do.
I have questions focused on the role of the AFN in perhaps assisting some of the regional advocacy groups or organizations like Sisters Inside, which is an Australian organization. We heard from witnesses from Saskatchewan, non-profit advocacy groups that work with inmates to help them within as well as to transition into society.
I am wondering about the role that AFN plays in supporting advocacy groups. There is the system and there is a lot that needs to happen within the system in terms of addressing the needs of people in prison, as well as helping them transition out of prison.
Would you talk about AFN's proactive, facilitating or supporting role that you play with some of the regional advocacy groups that are very specific to indigenous people?
Mr. Wuttke: Sure. The AFN itself, as you are aware, is a national advocacy organization. We have regional offices.
In general, we don't interfere in local affairs unless we are asked to do so by First Nations groups or other groups. When we get requests to assist organizations, we offer assistance. In many cases we get calls from First Nations individuals and offenders, some of them in correctional institutions. At times, we advocate on their behalf to federal officials and the ministers responsible for those areas.
As far as a more coordinated approach, we haven't been involved in hands-on meetings with all of the various service providers across Canada. A lot of these are regionally based, and we rely on our regional offices for some of that coordination. Where we are asked, we provide assistance.
Senator Martin: Your regional offices would work with the advocacy groups. Would that also involve support with funding? The programs seem to be quite effective, from what we have heard.
I am curious as to what types of support you would give to some of your regional groups that are working to support inmates.
Mr. Wuttke: I can point to a diversion program in Winnipeg where the Southern Chiefs' Organization and the Aboriginal Council of Winnipeg, along with Community Corrections of Manitoba Justice developed a diversion program for Aboriginal adult offenders in Winnipeg. The First Nations organizations partnered together and created this new body to provide an option instead of going through the formal court process. They offered diversion programs for First Nations individuals. The program was very successful.
That type of activity does happen. Does it happen enough? Probably not. We could probably do more. When it comes to many First Nations programs there is a significant funding need. Many of these programs are provided shoestring budgets. They do good work. They work well with justice officials, offenders and even victims sometimes, but it is limited.
In many cases when it comes to some of these local projects you would need, even to access them, to take responsibility for your crime. You need to plead guilty, first of all. Then you are given some type of conditional release if you complete the program. Perhaps there are better ways of doing that, instead of forcing people to plead guilty.
When it comes to people being released back into the communities, we would note that not every First Nations or indigenous offenders get out at one-third of their sentence. More likely they have to serve two-thirds of their sentence before we are granted parole. In some cases, it's even beyond that. Again, more can be done to assist First Nations offenders.
Senator Martin: Looking at the rates of incarceration of indigenous men and women it is very concerning and quite tragic. We know we need to look at what we can do to reduce those numbers.
Has the AFN looked at this as one of your priority issues? Is there is a way to coordinate and look at how to support these advocacy groups? They are on the ground and doing the kind of bridging, counselling and all sorts of other advocacy work for the inmates. It seems to be an important priority, so I wanted to know if this is something that is being discussed at the national level and that it would trickle down to the regional levels.
Mr. Wuttke: Yes, First Nations involvement in the criminal justice system is a priority. There are other priorities such as housing, child welfare and education. The national chief has issued five priority areas as part of his mandate.
This is one of the areas we're working on, but as far as a more coordinated approach, we haven't received funding. We are actually getting funding this year for the first time from Public Safety Canada to do some work. Generally, when it comes to justice programs, the Assembly of First Nations hasn't received funding from anyone other than maybe some policing money. That is about it.
When it comes to our ability to be involved in this area and provide meaningful engagement with regional organizations, we really don't have the funding for that. Whatever we do is within our means.
Senator Pate: Thank you for joining us and for all of your organization's work.
The witnesses just before you spoke about the importance of sections 81 and 84 and the issue of section 80 came up as well in the questions. This is not a test. Those are the provisions of the legislation which basically indicate that the Minister of Public Safety can contract directly with First Nations organizations, not necessarily just on reserve but on reserve or organizations.
What kind of information has been received by your office and/or by your members with respect to this kind of information? If information has been received, has there been anything about the reality of fiduciary obligations the government also has?
Mr. Wuttke: There hasn't been a lot of information passed to our office on sections 81 and 84. We do note with respect to some of the programs being offered that there is not enough money for programs. There are always shortfalls with respect to section 81 and providing enough room, facilities or beds in a facility for Aboriginal offenders.
When you look at the overall budget that Correctional Service Canada provides for these types of activities, with the First Nations population being hugely incarcerated, I don't think 25 per cent of the budget overall for these programs goes to First Nations organizations. I think it is something less. Perhaps that is something that can be addressed to ensure there is more parity so that there are enough facilities and programs out there for First Nations to offer these programs.
In addition, the usual issues with respect to who is eligible for these programs and the type of characteristics required to be eligible also need to be addressed.
Senator Pate: Thank you very much for that point. Part of the eligibility is determined as policy. Would it be your opinion that the policy has been unduly limited by the legislation? That has certainly been the information we have heard from other witnesses.
Mr. Wuttke: It falls back to the amount of discretion allowed for various individuals. When I look at the legislation itself, it states that offenders are released unless there are reasonable grounds to believe that "the offender is likely to commit an offence causing serious harm, or death.''
When you apply that type of discretion to individuals who have a bias, knowingly or not, and when you look at non-native offenders and whether they are likely to reoffend, the cultural aspects and bias come into play. When it comes to Aboriginal offenders, there is always the feeling that they will probably commit another crime, therefore, let's use this discretion to deny them early or conditional releases.
Whether or not the legislation and the policy are prohibitive, it really boils down to who the offender is and the biases inherent in the people making decisions. You can have the best policy or you can have the worst policy. In many cases the fate of First Nations offenders will not be hanging in the balance. They will more likely be declined, as they currently are.
Senator Pate: To clarify, the legislation does allow for any level, but the communities have to know they can apply to have someone come. It's not all at the discretion of correctional authorities, but the policy actually limits it much more significantly. It sounds as though communities don't even know they can apply at this stage. Would that be accurate?
Mr. Wuttke: I think that would be a fair statement, yes.
Senator Omidvar: We have heard a bit about the uptake of the Gladue reports in sentencing. Can you comment on the way they are used? Are you satisfied with their use by judges or others in the system? Do you have any observations or recommendations for us?
Mr. Wuttke: The use of the Gladue report and the seriousness of the Gladue reports in assisting courts in crafting remedies and sentences have improved since the decision in Ipeelee.
However, we note that for some people Gladue reports are seen as a formality. There are issues. We have heard anecdotal information about people using the Gladue reports. Some people have suggested they are more like form- filling. You meet with a client and you check off a number of boxes. It is not an in-depth analysis with the actual offender in identifying them as an individual so that it can be presented to the court.
That being said, there are some people and organizations that use Gladue reports and do a good job in laying out the framework of the person's history, their lives and how they ended up in conflict with the law. Again, how that is used by Crown prosecutors and how that is received by judges is a question of how well certain individuals react to them. Again, information points to some judges looking at it and using it and others that don't.
When I was practising law early on, we had a couple of sentencing circles to assist the court in coming up with an appropriate sentence in line with what the community and the victim of the crime wanted. I figured at that stage in my career that the recommendations provided by the community and the individuals participating in the sentencing circle would be applied by the judge, but in many cases they weren't. The judges went ahead and listened to everyone and imposed a decision they felt was appropriate. Many times, even though the community didn't want an incarceration sentence, that was ultimately what was handed down by the courts.
The Chair: We have come to the end of questions.
You just alluded to decarceration. I wanted to raise very briefly what we heard from our witnesses from Australia on the idea of pregnant women and mothers being in prison at all.
Does the AFN have a viewpoint on that in terms of housing, the ability not to have to go to that limit, respecting the human right and dignity of women, and another alternative besides going behind bars?
Mr. Wuttke: There are always alternatives. When you look at statistics for First Nations or indigenous women, they are quite alarming. For instance, a recent report came out about the number of homicide victims and the overrepresentation of First Nations women who are victims or murdered in Canada. I think it was over 25 per cent, 30 per cent or something like that. When you look at the rate of incarceration, again First Nations women make up 35 per cent of those.
You have a segment of society that is vulnerable and disadvantaged making up the highest number of people being murdered in Canada and the highest segment of a population that is being incarcerated. There is something seriously wrong with that, as far as the Assembly of First Nations is concerned.
When it comes to First Nations women, there are definitely alternatives rather than throwing them in jail, especially if they are pregnant and have families. There are alternatives that should be considered. Jail in general is an unnatural institution for many First Nations people.
When you look at the circumstances of First Nations offenders, both male and female, you are dealing with people with a different background. You have people who were forced into residential schools or institutionalized at a very young age. They came out of those institutions and they have their own children who are put in residential schools or apprehended in the Sixties Scoop and shipped out.
For the ones who did survive they currently have the child welfare system, the federal system itself where funding is provided. It provides a perverse incentive where it encourages apprehension as opposed to keeping the child in the home. You have a makeup of society where that is their background.
How do you help somebody who was abused in residential schools as a child and has gone through their adult life being marginalized and abused, hated by various groups, and not provided economic opportunities because of who they are? They live in poverty and have bad housing. In the end, when they get in conflict with the law, all of that is used against them to say that they're a good candidate for jail because their lives have no hope.
There is something clearly wrong with that picture. I think that narrative needs to change. We have to start addressing some of these issues early on to correct that type of behaviour.
The actors in the correctional institution, the judges, the parole boards and others — need to recognize something more has to be done. There has to be more innovation as far as what we do with First Nations women, especially when they are in conflict with the law, to ensure that they are at some point treated with some dignity in their life.
When you live a life with no dignity, when you are the most marginalized people and when First Nations women are murdered at high and alarming rates, it shows various perpetrators that if they target a First Nations woman, nothing is going to happen. There is something fundamentally wrong with that. We need to do more as a society to help First Nations women come out of that narrative and to bring meaningful purpose, security and comfort to their lives. That is a challenge for governments, for industry and for society as a whole. We need to begin working on that sooner rather than later.
Senator Pate: I have a supplementary question, and I apologize for not thinking of it until just now. Based on your response, it seems obvious in terms of the Truth and Reconciliation Commission recommendations made with respect to justice, particularly the 30 about reducing the number of people in prison, has your organization been consulted by the government about how to implement, in particular, the ones that relate to imprisonment and overincarceration of indigenous peoples?
Mr. Wuttke: We are just beginning that work. The federal government has advised us that they are very interested in implementing at least all of the federal heads of power recommendations they can address. Those are some of the recommendations we'll be working on with the federal government.
That work hasn't really started yet. We are just in the initial stages of developing joint activity work plans for that type of activity to continue or to start. I imagine it will be a year or two before we're actually heavily involved in that work.
The Chair: Thank you very much, Mr. Wuttke, for being with us today. You've added a lot to our study. We appreciate it very much.
(The committee adjourned.)