THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, November 23, 2022
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:46 p.m. [ET] to examine the federal government’s constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Métis peoples and any other subject concerning Indigenous Peoples.
Senator Brian Francis (Chair) in the chair.
[English]
The Chair: Honourable senators, I would like to begin by acknowledging that we are gathered on the traditional unceded and unsurrendered territory of the Algonquin Anishinaabe people.
I am Mi’kmaq Senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the chair of the committee on Indigenous peoples. Before we begin our meeting, I would like to ask everyone in the room to please refrain from leaning in too close to the microphone or removing your earpiece when doing so. This will avoid any sound feedback that could negatively impact the committee staff in the room.
I would like to now ask committee members in attendance to introduce themselves by stating their name and province or territory.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Pate: Kim Pate, I live here on the shores of the Kitchissippi, the unceded and unsurrendered territory of Algonquin Anishinaabeg.
Senator Martin: Yonah Martin, British Columbia.
Senator Busson: Bev Busson, British Columbia.
Senator Tannas: Scott Tannas, Alberta.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia.
Senator Audette: Michèle Audette, Quebec.
The Chair: Thank you, senators. We will begin tonight by resuming our study into the federal implementation of the Cannabis Act as it relates to Indigenous people in Canada. We anticipate this to be the last meeting on this topic.
Today, we will hear from the following witnesses in the first panel: Drew Lafond, President, Indigenous Bar Association; and Jukeepa Hainnu, Vice-Chair, Ilisaqsivik Society Board of Directors, Ilisaqsivik Society. Mr. Lafond and Ms. Hainnu will each provide opening remarks of five minutes, which will be followed by a question and answer session of approximately five minutes per senator. Due to time constraints this evening, we ask that you keep your exchanges brief and precise. To avoid interrupting or cutting anyone off, I will hold up a sign when we have a minute left on allocated time.
Drew Lafond, President, Indigenous Bar Association: Thank you, senators. In the lead up to the legalization of cannabis in Canada, Standing Senate Committee on Indigenous Peoples issued a report dated May 2018. The report canvassed written testimony and written briefs relating to issues specific to the Indigenous community’s rising of what is now the Cannabis Act. One of the central topics covered in the report is Indigenous jurisdiction over cannabis, of note for today’s purposes, I would refer to the portion of the report which states:
The Committee strongly believes that under section 35 of the Constitution Act, 1982 Indigenous peoples have the inherent right of self-determination, including the appropriate law-making authority to make meaningful decisions that affect the lives of their people and communities, including regulating cannabis.
On behalf of the Indigenous Bar Association, I’m here to wholeheartedly agree with the committee’s assessment of Indigenous peoples inherent right and jurisdiction to regulate cannabis as reflected in the report just quoted. I am also here to urge this committee to now go further and push forward with the work required to see that Indigenous people’s inherent right and jurisdiction to regulate cannabis are recognized, operationalized and respected.
The need for change could be better understood by understanding the damage caused by the federal government’s inaction to do this work in the first instance. First the federal government’s decision to ignore Indigenous people’s inherent rights and jurisdiction in the Cannabis Act to regulate cannabis is caused considerable uncertainty.
Some First Nations have chosen a rely on section 35 in passing their own laws, regulating cannabis on reserve, and in doing so, they are exercising their inherent right and jurisdiction to regulate cannabis.
However, for many reasons, other Indigenous groups have chosen to stay clear of regulating cannabis all together, despite their inherent right and jurisdiction to do so. It’s a sorry state of affairs when Indigenous groups decline to exercise their inherent right and jurisdiction to regulate cannabis — jurisdiction that most seem to agree that they have — because the risks associated with exercising that jurisdiction are too great.
The federal government’s decision to ignore Indigenous peoples inherent right and jurisdiction to regulate cannabis have also caused damage to intergovernmental relationships. To explain this further, I refer to the first of the principles respecting the Government of Canada’s relationship with Indigenous peoples, published by the Department of Justice in 2018 which states:
The Government of Canada recognizes that all relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government.
The federal government’s actions on the cannabis file have to date been out of step with its own highly advertised policies pursuing nation-to-nation, government to government relationships with Indigenous peoples. To be blunt, it is troubling for Canada to hold itself out as a partner in nation-to-nation government to government relationships while at the same time leaving Indigenous governments out of the fold on the cannabis file, and forcing Indigenous governments resort to litigation to see their inherent right and jurisdiction to regulate cannabis recognized in law.
The federal government’s decision to ignore Indigenous peoples inherent right and jurisdiction to regulate cannabis have also caused damage in the practical day-to-day realities that decision has spawned. There are a number of ways in which Indigenous groups have entered the field of regulating cannabis where — to illustrate from the outset — they had and have very little support from provincial or federal governments. There is no funding available to Indigenous groups to support development of these laws like there is for other government initiatives, and there is no knowledge transfer capacity building program.
After cannabis is regulated by an Indigenous group, like a First Nation, enforcement can become difficult because First Nations often lack the tools to meaningfully enforce cannabis laws.
With respect to the solution, the Indigenous Bar Association submits that in addressing the aforementioned issues and more generally working to resolve the many complex questions relating to cannabis and its intersection with Indigenous governance, health, safety and economic development, the appropriate starting point is Indigenous self-determination and the related imperatives to Indigenous self-government and jurisdiction. From this starting point, the Indigenous Bar Association submits that the Cannabis Act and related legislative instruments should be amended to give proper recognition to Indigenous peoples inherent right and jurisdiction to regulate cannabis. Although section 140 of the Cannabis Act could be relied on to exempt Indigenous groups from the application of the Cannabis Act, that approach is fraught with legal uncertainty. It fails to adequately address all the issues we discussed today. The best solution is legislative change, even as the Supreme Court of Canada prepares to hear the Bill C-92 reference.
The Indigenous Bar Association submits that in conceptualizing the scope of amendments to the Cannabis Act and related legislative amendments that may be required as part of this initiative, due regard should be given to the United Nations Declaration on the Rights of Indigenous Peoples. Although we do not have time to visit all the UNDRIP articles that are relevant to the discussion, I would highlight articles 4, 23, 24, 31 and 34.
In closing as one of our members, Naiomi Metallic, recently wrote:
Crucially, a major effect of the UN Declaration will be to put Indigenous rights to self-determination, self-government and Indigenous laws at the forefront of discourse on Aboriginal rights.
The Chair: Thank you, Mr. Lafond. I’ll now invite Ms. Hainnu to give remarks.
Jukeepa Hainnu, Vice-Chair, Ilisaqsivik Society Board of Directors, Ilisaqsivik Society: [Another language spoken].
Good evening, my name is Jukeepa Hainnu and I am the Vice‑Chair and co-founder of the Ilisaqsivik Society in Clyde River, Nunavut. Thank you for the opportunity to present to you this evening on Ilisaqsivik and the important work we do on addictions and counselling in Nunavut.
We are a unique not-for-profit and registered charity governed and led by an Inuit volunteer community board of directors. We are one of the largest employers in Clyde River. Our programs are wide-ranging and often unprecedented: created and delivered by Inuit for Inuit, in Inuktitut.
This year we are celebrating 25 years. Ilisaqsivik began in 1997 out of a deep need to develop our own solutions. Ilisaqsivik means a place to recognize oneself and it stands true. Starting with the needs and possibilities of each Inuk, we have become the place where we can truly see ourselves, both as we are and as we can be. We are the beating heart of our community, doing whatever is needed and doing it in a way that works for Inuit, from building our town’s library to a school breakfast program to offering Inuktitut-language counselling and addiction programs, a heritage and research centre and creating a social enterprise. Our work does have a common thread — increasing well-being and personal potential of all Inuit.
Ilisaqsivik has three core pillars: 1. Health and Wellness Centre; 2. Ittaq Heritage and Research Centre; and 3. Tukumaaq Social Enterprise.
Ilisaqsivik’s main pillar is its Health and Wellness Centre. Ilisaqsivik offers Inuit-led culturally relevant community programs and counselling services in Inuktitut.
Community programs serve all life stages from prenatal to elders in Clyde River. Core programs run year-round such as the breakfast program, lunch program, community library, moms and tots, recreation programming, youth drop-in program, elder’s programming, land programs and a prenatal nutrition program.
The counselling programs are Ilisaqsivik offers training and crisis response services to residents of Clyde River and elsewhere in Nunavut. We have counsellors in Pond Inlet, Pangnirtung, Iqaluit and Igloolik while serving other communities remotely.
We have also developed and delivered Our Life’s Journey, an Inuit counsellor training program, for 15 years which trains Inuit to become certified counsellors and work in front-line mental health positions. Our counsellors support clients in a variety of addictions from alcohol, cannabis and gambling. We have just launched a 28 day on-the-land addiction treatment program to meet an acute need for addiction support and counselling by Inuit, in Inuktitut. We bring clients to Clyde River and have them at a camp we built on the coast for them to go through 28 days of healing and treatment. Most clients are seeking to break their addiction to alcohol and cannabis.
Ilisaqsivik is a critical lifeline for residents of Clyde River and beyond. We operate in a timeworn building which supports a large portion of the local population of every age. Our building is a decommissioned community health centre deemed unusable 20 years ago. It is aged beyond repair and requires a lot of maintenance and off-site storage to keep it operational. We outgrew the facility long ago and its limitations impede our development and potential. Our programs and services are at risk and there is no more room for expansion or growth. Often our two or three of our counsellors share office space which they have to leave when someone has a client. We desperately need more space in order to keep supporting our community and ensuring that Inuit have access to addictions support and counselling in Inuktitut delivered by Inuit.
Thank you for your time this evening.
The Chair: Thank you, Ms. Hainnu. I’ll open the floor for questions, and I’ll start off. Mr. Lafond, you mentioned that the Cannabis Act should be amended to recognize the Indigenous right of self-determination over cannabis-related activities. What specific amendments would you suggest?
Mr. Lafond: I know that there are provisions in the current — what was known as Bill C-92 that are under scrutiny and are currently being challenged and will be considered before the Supreme Court of Canada. I think without drawing too closely to the language in that specific act, we would look for a form of legislative amendment that recognized and allowed for the enforcement of Indigenous laws to the extent that they were related to the regulation of cannabis-related activities within reserve lands.
The Chair: Thank you for that.
Senator LaBoucane-Benson: Thank you for your testimony. It’s really helpful.
Mr. Lafond, I’m interested in what you were talking about, about capacity building, because I think that maybe what you were saying to us is that there is a section 35 right for every First Nation to self-determine and to regulate if they choose to do so, but there might be a hesitancy to get into that regulation game.
How would you suggest the government build capacity to regulate with First Nations? What kind of supports could be built so that First Nations could do that self-determination work?
Mr. Lafond: Thank you for the question, senator. I think the hesitancy to occupy the legislative space by First Nations governments that we have seen over the last four years is owing to a couple of different factors.
As I would echo before getting into the strictly operational or capacity-related items, the first, which sends a strong signal and one that would go a long way, would be the enactment of legislation that recognizes and provides a legislative basis for law enforcement authorities, such as the RCMP or city police, to enforce First Nations laws when they are passed. That doesn’t speak directly to a monetary support or a funding support for Indigenous groups, but for First Nations governments having the ability to have enforcement of their laws become a reality on reserve would be a game changer.
Senator LaBoucane-Benson: That’s really interesting. We just heard the same thing from the Land Management Board. They pass laws, they have land code, and the RCMP doesn’t enforce that code. So the idea that the RCMP needs to enforce First Nations laws is really important.
The other thing that I’m wondering about is, for example, in Bill C-92, the child welfare act, the idea was that there would be a centre of excellence established so that First Nations that had made their own child welfare law could help mentor other First Nations that were just starting that process of building their own law around child and family services. The same thing with land code. There is a resource centre that helps First Nations to do that work.
Do you think that a centre of excellence around cannabis regulation would be helpful so that First Nations aren’t burdened with the legal costs of trying to build that regulation for their First Nation?
Mr. Lafond: That is an excellent question. I think that points to one of the realities that I, as a practising lawyer, have encountered over the past four years. This relates back to one of the comments that I raised in my submission, which was that First Nations were often hesitant to exercise their inherent rights to enact and enforce cannabis laws within their own territories. It wasn’t for a lack of willingness to do so but for a lack of certainty.
I would say there was a lack of willingness to take on the risk that was associated with allowing cannabis-related activities to continue on their reserves, and that left, unfortunately, the baton in the hands of a lot of First Nations that were willing to take on that risk, and, in many cases, risked putting themselves in situations where they could incur criminal liability or, alternatively, incur sizable legal fees to try to establish their right or support their right.
Those First Nations incurred hundreds of thousands of dollars in legal fees, professional fees, and, in many cases, were just making it up as they went along. They had to confront many of the key questions regarding the exercise of their jurisdiction that a lot of the First Nations didn’t. Did they get reimbursed or was there recognition for that risk that they took, which ultimately brought me here today arguing on behalf of First Nations? Rarely, scarcely, if any.
So having a place such as a centre of excellence, for instance, where there is the ability to collect, analyze and synthesize data that could be made available to other First Nations governments when they do get in this realm, they will not be doing so with the blinders on. They don’t have to be myopic about things such as their own treaty territories, their own law enforcement authorities, their own provincial or municipal governments. They can start taking lessons from others across the country.
I don’t want to give the impression there isn’t a robust communication network happening between and among Indigenous peoples across Canada, but for those who are just getting into this industry or getting into this regulatory space, it really would be beneficial.
Senator Tannas: Thank you for being here. I want to ask Ms. Hainnu ask a couple of questions. First, I have to say thank you for the journey that you have made to come here. I was just looking on my phone where Clyde River was. It’s as if you have come from Europe. It’s that far. Thank you very much for making the trip.
I was here when we passed the law, and a number of elders came from a number of Inuit communities and basically begged us not to go through with it.
What is going on in Clyde River? How do people buy cannabis? Can they buy cannabis? How does it come into the community?
Ms. Hainnu: I think they order it. I’m not familiar with how they get it, but I think they order from a cannabis store.
Senator Tannas: It comes in by mail?
Ms. Hainnu: Yes.
Senator Tannas: There is no store? Is there a liquor store in Clyde River?
Ms. Hainnu: No. We have no bank. They are only 1,000 people.
Senator Tannas: How many beds are in your facility? How many people can you take in?
Ms. Hainnu: “Bed” meaning rooms?
Senator Tannas: Yes. Do you take people in overnight or is it just a day program?
Ms. Hainnu: It’s just a day program, but we also have evening programs that run youth drop-in and youth sports in the evening. We use the public school gym to facilitate that.
Senator Tannas: But no one is coming for 28 days and staying overnight in your facility?
Ms. Hainnu: The 28-day program, it can take in about 25 participants, but it’s outside of Clyde River, in a camp, and cabins are made. It’s not in the community; it’s outside the community. It’s almost like an on-the-land program.
Senator Tannas: The need that you have for a new building, is there a building in the community that could be bought or repurposed, remodeled, or would it have to be new construction in order to meet your needs?
Ms. Hainnu: It would have to be a new construction, because there are no available buildings at all. We’re very short of houses and buildings.
Senator Audette: Thank you, Mr. Lafond and Ms. Hainnu. I wasn’t there when the passionate debate or this discussion happened and it became a law, but we all come from a place where we know someone or we’re the person.
I’m from a beautiful community, my north — more south than your north — called Mani-Utenam, and Schefferville. When legislation like this comes, some of us will say “imposed,” because we didn’t have time to propose something that will help the majority or too many people who have mental health problems. We have a crisis on mental health and social problems, but knowing that it’s there. We also know that the government is putting in place a committee to study this or to see the impact. I believe in empowerment for our leadership: Métis, First Nations, Inuit.
How do we balance, Mr. Lafond, what you spoke about, the importance that we decide what is good for us when we also know there is a huge crisis? Cannabis can sometimes be part of it. Yes, there is an economy, but also on mental health, there are also numbers showing that it’s not helping. How do we make sure that we can support First Nations governments and knowing that this law exists?
I’m very concerned. There are so many people in Labrador and Goose Bay who no longer have a house or shelter. They are homeless. It’s across Canada. That legislation was supposed to help us, but it probably accelerated us to a roof. I know it’s a complicated question, even in French. Tell us that the leaders in our communities also have that concern when we talk about self‑government.
Mr. Lafond: Thank you for that question, senator. Without oversimplifying, my simple response is what is good for the goose is good for the gander, and I will explain that. The question that you posed, I don’t want to assume has any connotations of mistrust towards Indigenous governments or whether they have the best interests of their citizens in mind.
Senator Audette: I trust them.
Mr. Lafond: When I get into the discussion about making space, acknowledging the space or creating the space for Indigenous people to create and enforce their own laws and having that recognized federally, that has immense practical implications on the ground because it allows First Nations to start working collaboratively with federal and provincial governments as equals and as a regulatory and enforcement authority.
I don’t want to give the impression that the approach to regulating cannabis across Canada was uniform. When I speak about a lack of enforcement on reserve it goes both ways, not only the ability to enable or facilitate economic development or cannabis-related activities on reserve, but also to restrict them and place limits on the manner in which cannabis can be used within their territories. An important one would be that a lot of First Nations that — and I have to watch myself, I don’t speak on behalf of any particular First Nation. This is just learning through osmosis practising in the area for four years now that many First Nations really did want to restrict the use and proliferation of cannabis in their communities for medicinal purposes. It’s that sacred relationship with cannabis that they saw as being the basis for exercising their inherent jurisdiction over law making. Some of them didn’t want cannabis within their territories at all until they had enough data, analysis and medical support to be able to competently, in their view, legislate in that area.
Senator Audette: In a few words, what could this committee do to make sure we support our leadership? Because they are doing an investigation of this bill. What would you say or recommend to us?
Mr. Lafond: Further to my notes treat the First Nations as equal governing partners. If they enact a law that they view is in the best interests of their citizens and they think they are doing the right thing, there is no reason why that law should be treated on a less or more disadvantageous basis than any federal or provincial law. The law they passed is something that should govern their people and territories, and to the extent of any conflict between that law and provincial law, the First Nation law should prevail because it’s the First Nation government that knows their people best.
The Chair: Thank you, senator. Mr. Lafond, to follow up on the question by Senator Audette, would you agree that a percentage of the revenue from cannabis sales on and off reserve should be allocated to Indigenous peoples to help us increase access to mental health supports and other supports?
Mr. Lafond: Without question.
The Chair: With respect to the Quebec Court of Appeal ruling on Bill C-92, the court ruled specific sections of the act went beyond the scope of federal authority in terms of establishing the paramountcy of Indigenous laws over conflicting provincial laws. In your view, what effects may this have on amendments to recognize the Indigenous rights of self‑determination over cannabis-related activities?
Mr. Lafond: As you know, that decision was appealed to the Supreme Court of Canada and will be heard in the coming weeks. We are impatiently awaiting the outcome of the decision of the Supreme Court of Canada. How I would treat the analysis in this case would be, to the extent that any Indigenous law is adopted by the federal government, that law would have the force of federal law. There is no question in my mind, at least, of the ability of the federal government to referentially incorporate Indigenous laws and treat them as federal laws under its powers under section 91 (24) of the Constitution. I think that is the complete answer in that regard.
The question then becomes a paramountcy analysis. That Indigenous law, which has been recognized and adopted into the federal framework, then has the force and effect of federal law. I believe, and I hope I’m not speaking out of step in this regard, but what the Quebec Court of Appeal found was that it was a step beyond that. When the Quebec Court of Appeal essentially said that in the event of a conflict between a provincial law and an Indigenous law that had been incorporated into the federal framework, the Indigenous law would prevail to the extent of the conflict and that would be the end of the question. That is what the court had taken issue with when, ultimately, once that law becomes federal law and conflicts with the provincial law, there is an entire analysis taken under the paramountcy of laws test about which should prevail.
It’s our view that this doesn’t impact section 35. This is just a federalism analysis and a division of power analysis. Once an Indigenous law has been incorporated into a federal framework, to the extent that there is a conflict between that Indigenous law and provincial law, the law dictates that the federal law will prevail to the extent of the inconsistency or conflict. It’s a very technical question. There are a lot of issues associated with that analysis.
The Chair: Good answer. Thank you very much.
Senator Tannas: I may be about to reveal my towering ignorance here, but if an Indigenous community wishes to make their laws — and we’ve heard some testimony in the last little while on related and unrelated subjects to cannabis where they’ve put together bylaws and so on. But now who is going to enforce them? They don’t have their own police forces, so they’re looking to the RCMP.
I don’t understand, practically, how you would have an Indigenous law enforced by the RCMP. Enforced how? What do they do? Do they arrest the person? How do they charge them? What court do they go to? What punishment do they receive? Who decides all of that? It occurs to me that it makes sense that it has to be a whole thing. Some of the larger communities seem to have this a little easier because they have their own police and they have other means by which they can bring pressure on somebody to comply in addition to the police. It’s interesting to see some communities where they are just like — who could blame them? They pass a law. Well, what happens if somebody says no? Who are they going to call? How is all this going to work? It’s mind-boggling. There are some communities now that are moving this ahead and, as you have said, the road is fairly clear to go quite a long way.
In other areas, we have seen Indigenous institutions spring up, develop with the best of the best, the most advanced in many cases because they are larger and they have the resources, et cetera. Do you see anything in this area at any early stage of development in terms of an Indigenous-led institution? In my mind, all of the great institutions have been started by Indigenous people with a plan. What I am saying is the government didn’t invent them. They were invented by Indigenous communities for the betterment of themselves and other Indigenous communities. Are you seeing anything in this area that would give the practicality as it has done in other areas to this area that you are talking about?
Mr. Lafond: No, and there are reasons for that, senator. The reasons are a product of what I had just mentioned, which was that without federal recognition or federal incorporation of Indigenous laws into the federal framework — if I were to paint a picture, all of the provinces across Canada — and I think you are well aware, you probably heard a lot of testimony about this — are at various stages of their own journey in recognizing reconciliation and recognizing the inherent rights of Indigenous peoples across Canada. There is only one province to my knowledge that has actually enacted provincial legislation adopting the United Nations Declaration on the Rights of Indigenous People, and that is British Columbia. That’s just one example. It signals or is indicative of the mentality or philosophy towards the legitimacy of the laws of Indigenous peoples within their territories.
Some would prefer to see the enactment and enforcement of Indigenous laws and they’ll give deference to that, and that is reflected in provincial legislation. Again, B.C. is one example. Without that federal or provincial recognition, law enforcement authorities have taken a default position that federal and provincial laws prevail and they apply on reserve. To the extent there is non-compliance with federal or provincial law, an activity related to cannabis is unlawful. That has given rise to a lot of issues. One is that, to the extent that there are First Nations out there who have made investments in the development of a robust regulatory framework dealing with cannabis, their ability to do that has been limited. If you are a First Nation that wants to get involved in the cannabis business entirely outside of the law enforcement regime, you won’t be able to get a bank loan because banks won’t loan to businesses that are “unlicensed.” You won’t be able to get answer insurance policy on the property you’ve set up because it’s “unlicensed.” You won’t be able to get an annual audit done by an auditor and you won’t be able to produce financial statements in respect to a business or institution because the auditor won’t take a client where they believe the proceeds that are being generated by the business are proceeds of money laundering, terrorist financing, et cetera. So practically, your ability to build capacity and start expanding your institutions and knowledge base, which in many communities is robust but unspoken, is a problem, certainly.
The Chair: Thank you.
Senator Coyle: I want to ask a question of each of our witnesses, and I will ask them both right now and then you can answer them in turn.
Ms. Hainnu, thank you for being here and not just that, but for the work that you have been doing for so long. What an impressive community-based effort that you and your colleagues have been engaged in. It’s just phenomenal. The range of activities is wonderful. Clearly, you are dedicated to the community and providing a wonderful service.
Could you let us know, with your work with mental health and addictions, have you noticed much of a change since the Cannabis Act came into effect? What was the situation like in your community with any kind of substance abuse, and what does it look like since cannabis became legalized in Canada?
Mr. Lafond, I hear what you said, and I think we’re all well aware of the point about Indigenous governments being left out in the cold by the Government of Canada, that there needs to be recognition of the jurisdictional authority of those governments and that it has to be affixed in the act itself. I’ve heard you say that. A lot of the talk about the retailing of cannabis, but I’m curious about the bigger opportunities around cultivation. Have you had much look at that? Is there anything you want to say in particular about what it would take to release support and unleash the capacity of the cultivation and manufacturing side of things?
Ms. Hainnu: I think it has brought down the crime in the community because it’s not as expensive anymore, budget-wise. Financially, I think it really has supported less fortunate families. Also, I have seen more patients who have illnesses that are unbearable taking some cannabis and I’ve seen more good outcomes since it was legalized. There are fewer people who are not criminals anymore and are able to work. If they were criminalized due to selling, then they wouldn’t be able to work and support their families so that they were always disadvantaged in the harsh life that we already have.
Senator Coyle: So the stated intent of those sorts of benefits. You’re actually saying that they are bearing fruit in the community.
Ms. Hainnu: Yes.
Senator Coyle: Thank you.
Mr. Lafond: The legislative competence of the authority of Indigenous governing bodies or First Nations I don’t think is limited to that which is delegated to the province under the act, which is essentially retail and distribution. Cultivation, processing, retail, distribution, sale and possession, these are all aspects of cannabis-related activities that should properly fall within the jurisdiction or legislative competence of a First Nation.
Every single step that a First Nation takes to undertake a new legislative initiative will come with challenges. Obviously, challenges related to how they’re going to enforce that, how they will resource the regulation and how they will be able to operate in harmony with neighbouring jurisdictions.
You can’t, in my view, foreclose the opportunity of getting a First Nation to legislate full-seed-to-sale operations. The opportunity has to be there are for them to exercise it if they choose.
The Chair: Thank you both for making the long trip here and the important work you are doing for Indigenous people. Your testimony is greatly appreciated.
On this panel, we will hear from the Office of the Auditor General, Karen Hogan, Auditor General; and Glenn Wheeler, Principal.
Wela’lin, thank you, Ms. Hogan, for being here tonight. You will have approximately five minutes to make opening remarks, which will be followed by a question-and-answer session of approximately five minutes per senator.
Due to time constraints, I ask everyone to please keep your exchanges brief and precise. To avoid interrupting or cutting anyone off, I will hold this sign up with one minute left, so you have an idea when your time is almost up.
I’ll now invite Ms. Hogan to begin her opening remarks.
[Translation]
Karen Hogan, Auditor General of Canada, Office of the Auditor General of Canada: Thank you for this opportunity to discuss recent reports that we have presented to Parliament, as well as current and planned audits.
I would like to acknowledge that this hearing is taking place on the traditional unceded territory of the Algonquin Anishinaabe people. Joining me today is Glenn Wheeler, Principal, who has been auditing Indigenous issues for more than a decade.
My office has audited issues of importance to Indigenous peoples for decades, and we have repeatedly raised the disparity in outcomes for Canada’s Indigenous peoples. For example, since 2015 alone, we have reported on health services, land claim supports, the reintegration of offenders into the community, employment programs, safe drinking water and support to Indigenous communities during the COVID‑19 pandemic.
Just last week, we delivered to Parliament an audit report on emergency management in First Nations communities. Echoing our 2013 audit in this area, we concluded that Indigenous Services Canada had not provided these communities with the support they needed to manage emergencies such as floods and wildfires. These natural emergencies are happening more often and with greater intensity.
We found that the department’s actions were more reactive than preventative. Although First Nations communities had identified many infrastructure projects to mitigate the impact of emergencies, the department had a backlog of 112 projects that it had approved but not funded.
Indigenous Services Canada was spending 3.5 times more money on responding to and recovering from emergencies than on supporting communities to prepare for and mitigate impacts.
Despite our 2013 recommendation, the department still had not identified which First Nations communities most need support to increase their capacity to prepare for emergencies. Until the department shifts its focus to prevention and investing in infrastructure, communities are likely to continue experiencing greater effects from emergencies.
I would also like to draw the committee’s attention to two reports we presented in 2021. They focused on safe drinking water and health resources for First Nations communities during the COVID-19 pandemic.
Reliable access to safe drinking water is a necessity of life. Yet, in many of the more than 600 First Nations communities in Canada, this is an ongoing challenge. Finding a sustainable solution so that Indigenous peoples and communities across the country have reliable access to safe drinking water is an important part of advancing reconciliation.
In 2015, the federal government committed to eliminating all long-term drinking water advisories on public water systems in First Nations reserves by March 31, 2021.
[English]
Our audit was delivered as that deadline approached, six years after that commitment was made. We were disappointed to find that 60 of these long-term advisories remained in effect in 41 First Nations communities. Almost half of the advisories had been in effect for more than a decade. Some long-term advisories had been lifted as a result of interim measures, but the underlying deficiencies were unresolved, and long-term solutions were often years away.
We found that Indigenous Services Canada’s efforts had been constrained by an outdated policy and a 30-year-old funding formula for the operation and maintenance of public water systems. Until this formula is updated, it is unclear whether funding increases will be sufficient to meet the water infrastructure needs of First Nations communities.
In our other 2021 audit, we found that Indigenous Services Canada adapted quickly to respond to the additional health care needs of First Nations communities during the COVID‑19 pandemic. The department worked to expand access to both protective equipment and nurses and paramedics. On average, communities received shipments of equipment within 10 days of requesting it from the department. Although Indigenous Services Canada was unable to meet more than half of the requests for extra contract nurses and paramedics needed to respond to COVID-19, overall, the department’s support helped Indigenous communities and organizations respond to the pandemic.
Last week, I provided Parliament with a report on chronic homelessness. That audit showed that the government did not know whether efforts and investments made so far have improved housing outcomes for people and vulnerable groups experiencing homelessness or chronic homelessness. To me, this reinforces the importance of addressing the housing needs of all Canadians, including Indigenous peoples. We are in the early stages of planning an audit that will focus on the housing needs of First Nations, an area that we last examined in 2003.
My office is also the legislative auditor for Canada’s three northern territories. We report regularly to each legislative assembly. Our territorial audits often focus on programs that affect Indigenous peoples. For example, in 2021 and 2022, we examined corrections in Nunavut, addiction prevention and recovery services in the Northwest Territories, and housing and mental health services in Yukon. Next year, we will be presenting a report on the important topic of child and family services to the Legislative Assembly of Nunavut.
In 2011, at the end of her mandate as Auditor General of Canada, Sheila Fraser summed up her impression of the government’s actions after 10 years of audits and related recommendations on First Nations issues with the word “unacceptable.” Five years later, my predecessor, Michael Ferguson, used the words “beyond unacceptable.”
We are now into decades of audits of programs and government commitments that have repeatedly failed to effectively serve Canada’s Indigenous peoples. It is clear to me that strong words are not driving change. Concrete actions are needed to address these long-standing issues, and government needs to be held accountable.
My office will continue to audit these issues because they matter. We are currently working to identify areas where our audits will bring the greatest value for parliamentarians. We look forward to working with this committee today.
Senators, this concludes my opening remarks. We would be pleased to answer any questions the committee may have. Thank you.
The Chair: Thank you, Ms. Hogan. Just a reminder to everyone in the room to refrain from leaning in too close to the microphone or remove your earpiece. Before opening the floor to questions from senators, I would like to make a comment.
Ms. Hogan, you sent a letter to this committee on November 21 in response to the recommendation we made in a recent report asking your office to conduct a performance audit of the registration of individuals by ISC with a focus on the implementation of amendments made to the Indian Act since 1985. The letter notes that this topic is not included in your work plan for 2023 and 2024 so that you can:
. . . focus on issues you consider to be urgent and that may have a broader impact on a larger number of Indigenous peoples.
As an Indigenous person myself and a former chief, I want to make it clear that the ongoing discrimination in the registration provisions of the Indian Act has devastating consequences for countless First Nations, including cultural and social disconnection, denial of participation and political processes, the lack of access to essential services and supports and more.
Our committee remains troubled by the low number of registrations, especially since many people still don’t know they are newly eligible for status. We are further troubled by the long delays in processing of applications by the department and the complex, opaque and indecipherable process encountered by individuals.
I recognize your office has competing priorities to balance and sincerely appreciate all the work you have completed related to First Nations, Inuit and Métis people. However, I hope you and your colleagues can understand why ending the discrimination against thousands of First Nations women and descendants who have been deprived of their status and identities is a matter of urgent importance.
I also hope that perhaps you will reconsider conducting an independent audit to hold a relevant federal department accountable for issues that should have been addressed years ago, but have not. If you would like to make any comments, you’re welcome to.
Ms. Hogan: I thank the committee for its letter and its request for the audit. As I mentioned in my opening remarks, we have already identified that we wanted to look at housing of First Nations communities, and that is something we have already started to plan, which covers most of 2023. We are in the throes of finalizing our 2024 plan.
I hope that the committee’s work and your report on the registration system will drive some concrete change. We absolutely will keep our eye on it and consider it as we ponder what our next round of work will look like.
The Chair: I appreciate that answer. You know, I just want to say that I know housing is important as a former chief. It’s very important. But, if you don’t have your culture, you have nothing. To be denied status, you don’t have your culture. I would just like you to keep that in mind going forward.
Ms. Hogan: I will. I thank you very much for helping me understand the issue in more detail.
The Chair: Thank you.
Senator LaBoucane-Benson: Thank you very much for your work that you’re doing on behalf of all Canadians and for Indigenous people as well. We really appreciate it.
I was looking at your emergency preparedness report, and noted that the government has increased its spending of the $180 million over a three-year period, and while that is kind of in the right direction, I take it that it’s not sufficient at this point. I imagine that you have had a discussion with Indigenous Services Canada, and I’m wondering what kind of response you might have had and if you have had a chance to talk to the minister about this report.
Ms. Hogan: Are you referring to the report we just tabled last week on emergency management in First Nations?
Senator LaBoucane-Benson: Yes.
Ms. Hogan: I have had the opportunity to talk with the Deputy Minister in the department about the issue. They highlighted for me some of their concerns with their infrastructure budgeting, and it leads me to conclude that something different needs to be done going forward. The department receives a broad budget for infrastructure spending, but then within it, there are little programs that allocate. The program that is meant to support infrastructure spending to mitigate the impacts of natural disasters only gets $12 million a year. Based on that, the 112 projects that we have seen that have been approved and aren’t funded yet will likely take about 24 years to fund at that rate.
It was clear to me that a different approach is needed to help communities self-identify what their most critical infrastructure needs are. For some it might be water infrastructure, for others it might be mitigating the impacts of floods or forest fires. Right now, the way the programs are designed, communities need to apply and then wait in the queue. There might be a disincentive to even apply if they even have the capacity or the awareness. It’s clear that a more proactive approach is needed to help address these issues in a more timely way.
Senator LaBoucane-Benson: Thank you very much.
Senator Martin: Referring to the same report, it states that the department’s focus has been reactive rather than preventative, which has ended up costing the taxpayers three and a half times more money as a result. First Nations communities have identified 112 infrastructure projects, as you stated. I’m from the province of B.C. I’m wondering, can you elaborate on what types of infrastructure projects are backlogged in B.C.? What is at risk for First Nations communities if these projects remain unfunded by the government?
Ms. Hogan: I will ask Mr. Wheeler to provide more details about B.C. The one point I would make is that we talked about the financial implications of spending three-and-a-half times more on responding and recovering than on repairing and preventing. While there is a fiscal responsibility to be better prepared, the impact on communities and the people in those communities is even more important to be better prepared. With that, I’ll ask Mr. Wheeler to talk about B.C.
Glenn Wheeler, Principal, Office of the Auditor General of Canada: I think the situation in B.C. would be similar to that in other regions across the country. There are both structural and non-structural infrastructure projects that are required to be done.
An example of a structural project would be a dike or a dam in order to mitigate or prevent flooding. That’s an example of a structural-type project. Some of the non-structural projects are also very important. They include things like flood mapping and helping communities develop emergency plans to deal with specific hazards. There are two types, but the 112 we refer to are of the structural type. Those are ones that, were they in place, could hopefully prevent or reduce the impact of a lot of the natural disasters that First Nations face.
They are also important for another reason. We note in our report that for every dollar that is put into prevention-type programming infrastructure, you can save $6 in response and recovery funding. If there is a greater emphasis put on infrastructure to prevent or mitigate disasters, I think it’s going to allow for the government to be able to use more of that funding for areas where there is greater need.
Senator Martin: In Question Period in the House of Commons last week, Minister Hajdu was asked about the report, and in response, she touted the government spending record with respect to First Nations communities. In your view, has the government simply not invested enough, or are the shortfalls a matter of mismanagement?
Ms. Hogan: When it comes to emergency management, it really is a case of not investing enough upfront in prevention and preparedness. I think we often see, even in other reports — we saw it in our pandemic preparedness report — that it’s difficult over the years for governments to invest in things you don’t see. That’s exactly what preparedness is. But there is a real consequence to that. There is a monetary consequence, but also one on individuals.
When it comes to their budget, I do not believe it’s a question of mismanagement. I think it’s a question of limited resources and how Indigenous Services Canada has chosen to allocate it to different buckets of infrastructure needs. There is not enough to go around, but the bucket allocated to structural mitigation is very small.
Senator Martin: Thank you.
Senator Coyle: Thank you very much for all the work that you do and for your presentation to us here this evening. I would like to get a sense, given the back and forth with our chair at the beginning and the letter that you received from us, it just would be interesting for us to know a little bit more about how your priorities are chosen for your work plan. I realize it takes a lot of more planning and these things don’t just happen like that overnight. So it would be interesting for us to understand your process for the selection of priorities for your audits.
Ms. Hogan: It’s a very rigorous process, and we’re actually in the midst of adjusting it. For a very long time, we didn’t actually go out and really solicit feedback and input from parliamentarians. Since I’ve been appointed Auditor General, it was one of my priorities to connect with both the House and the Senate and understand what your concerns are.
I do think there is a lot of our relevance is grounded in us providing parliamentarians with work that you intend to use to study, and that you continue to hold government to account again. Otherwise it’s just work that sits on a shelf, and that is not value added to Canadians.
That being said, we start with departments. We have years and years of experience on certain files. As I mentioned, Mr. Wheeler has been auditing Indigenous matters for over a decade now. So we use some of our historical knowledge, the continuous engagement we have with deputy ministers. We have a portal on our website where Canadians can suggest topics for audit. We consider what committees raised to us, individual letters received from parliamentarians, and we put it all together. Then we also try to keep some room for flexibility to adjust because we set our audit schedule now for 2024, but we don’t want to be inflexible. As we have seen from the pandemic, the world keeps moving, and we need to adjust.
So it is about balancing out all of those competing priorities and really trying to find topics that will have the greatest impact for hopefully better outcomes for Canadians and a better Canada. It isn’t because topics aren’t worthy, but it’s just we have to somehow maybe incorporate them into other audits or move them to different time frames.
Senator Coyle: Thank you very much. That was helpful. I’m just curious about the Indigenous file, which is what we’re talking about here, do you ever get input from the Indigenous communities themselves in terms of priorities they see for audit.
Ms. Hogan: I feel bad that I didn’t include them. We absolutely do. Glenn would like to help you with understanding that better.
Mr. Wheeler: During the course of our audit planning, we do regularly consult with Indigenous groups and organizations across the country. It’s something we have taken very seriously as an office. I can recall as early as the 1990s, consulting with various leadership across the country.
So, we consult with folks from a long-term perspective in terms of the next number of audits we can recommend to the Auditor General, but also in our individual audits as we commence each audit, so we are commencing an audit on housing at the moment. We make a special point when we’re planning our audit work to speak to as many people across the country that are partners or stakeholders when it comes to the issue we are auditing in order to get a plurality of views and to better understand the issues. One of the key things we tried to do in each audit is we try to look at and get the views of people that are on the receiving end of programs. For us that is quite important especially given in this particular portfolio and the socio-economic disadvantages that our office has pointed out over the years.
So we really focus, if it’s education, what are the impacts on children, what are they getting and not getting? When it comes to housing, who needs housing, why are they getting it, why are they not getting it? How can it be done better? Just to reiterate, it is something we take quite seriously and consultation is a large part of what we do.
The Chair: Thank you.
Senator Pate: I thank you for being here and for all your work. I would like to fully endorse the position that was presented to you by Senator Francis at the beginning. As someone who is part of the Senate committee when we had to push for that and then also for trying to push again for accountability within the government over the past six years, I think it’s vitally important and I would underscore all of the issues that Senator Francis made.
I want to ask you something different, though. You have been doing, and so have your predecessors as you mentioned, been doing an admirable job of covering these issues off. In 2016, the report issued by the Auditor General about the importance of taking a proactive approach to lawsuits, in particular, and the fact that so much of the movement that has happened has been as a result of litigation, including that very issue we were speaking about in terms of membership and registration in the Indian Act.
Today, I noticed it was announced the government is, yet again, going back to court on the First Nations caring society case. I would like to hear again if you could reiterate and update the numbers from 2016, if you don’t have them today, if you can provide them to committee, on what the cost is of litigating these issues and then what the settlement costs have been.
You have done an excellent job in recent reports as well as that 2016 report outlining just how much more it is costing Canadian taxpayers, to both litigate and then have to compensate, when remedies are required.
Ms. Hogan: I don’t have those numbers off the top of my head. I do know, from our audit of the Public Accounts of Canada, that the contingent liabilities related to lawsuits often linked to Indigenous matters are rising and rise every year, but some of the questions of the cost is something my office wouldn’t have. It would be something that the government would be able to more readily provide to you.
I would actually have to ask them, so I could probably respond to some of those questions in writing to the committee, but I wouldn’t have the information, unless it’s readily identifiable in the Public Accounts of Canada to be able to respond to you. So we’ll do our best, and then maybe even suggest where you should go for the missing pieces.
Senator Pate: That would be much appreciated. Thank you very much.
[Translation]
Senator Audette: Thank you for reminding us — those of us who were in politics in those years, we all remember — what your colleague Ms. Fraser said loud and clear, so that we would know what was happening on a daily basis in our communities.
Of course, Mr. Ferguson, I also appreciate your candour.
I have two things to ask you. I’d like to know how we should go about studying the housing crisis issue in the communities. We talk about First Nations based on the letter we received. It’s always based on the people registered with the nation, the bank or the government. Yet, we know very well that the Indian Act disqualifies hundreds of thousands of people who are entitled to status. Perhaps you will see in your study what impact this has as well, because the real numbers will be missing from the data that will be sent to the government, for those who have not been recognized under the Indian Act are excluded. It’s a suggestion.
It would be good to also keep in mind that the issue of accountability affects me personally, it’s important, hence your role and mandate. We’re told that billions of dollars are allocated to the National Inquiry into Missing and Murdered Indigenous Women and Girls (NIMMIWG) to respond to calls for justice. We also want to know where the money went to respond to a national tragedy. To me, this is important. We are going to ask the minister these questions tomorrow: Indian status, the aftermath of NIMMIWG. I hope one day that will be part of your priorities as well in your key role: the money that is there.
It’s important to say — you may agree, I don’t know — that we don’t want Canadians and their taxes to support us. We deserve to have our governments and territories to have this economy and this way of paying for housing. We have to be a government. To be one, we need a land base.
These studies are going to be important in order to provide these nuances. In your opinion, is that possible on your end?
Ms. Hogan: You bring an angle that’s important to consider in our housing audit, to ensure that the pool where we start is consistent and complete. I really appreciate the suggestion, and I believe Mr. Wheeler agrees with me, it’s a very interesting angle. That’s why your request, I understand, from several members, is a sensitive and important issue for you.
So I will consider it a criterion during our audit. Thank you for the suggestion.
With respect to future audits, we have so many choices. We’re at the point where we have to ask ourselves how many audits we’re going to do on Indigenous issues, because we have to continue to look at them and keep up the pressure and the accountability. I really appreciate your suggestions, they will help inform our tough choices, because we always leave something on the table that we wish we had audited.
[English]
The Chair: Thank you for that, Senator Audette. It is important.
Senator Busson: My question goes back to your previous comments about safe drinking water and infrastructure generally. You talked about your two predecessors and the fact that one used the word “unacceptable,” and the next used the words “beyond unacceptable.” If I could précis what you describe, it is utterly unacceptable the way the government is moving forward with its spending and planning.
Apart from comments and encouragement that we might put into this report, could you comment on anything else that we could recommend to reinforce the urgency of this issue around infrastructure and the utter failure to put plans together over, literally, the last decades?
Ms. Hogan: As I was working on my opening remarks, I was trying to think of what word I could add, and, while you’ve suggested “utterly unacceptable,” I just decided there were no other words. I could have listed a ton of them, and I don’t think it would drive change. The number of harsh words you put doesn’t matter. It’s now really about the action that will happen behind them.
When it’s linked to the infrastructure issue, I have had discussions with Indigenous Services Canada about the new approach they are looking at, where communities will decide on their priorities for infrastructure. While that is great in principle, until you have changed the way of allocating it individually based on programs — I hate to call it “silos,” but that’s almost what it feels like — you’re not going to drive change.
If you wait for communities to self-identify or put up their hand, there are some concerns there. One, they may not be aware of funding that’s available; and two, they may be aware, but they lack the capacity to address the paperwork needed to gain access to it. They might also be discouraged by the fact that, as I mentioned in the Emergency Management report, it’s almost a quarter of a century before a program might get funded even though it has been approved.
It’s clear that something different needs to be done. I would encourage you to challenge Indigenous Services Canada to come to the table in partnership with communities, all of them. They do need to be more proactive to make sure every community is heard.
One of our concerns in that report was that Indigenous Services Canada hadn’t yet identified those most in need of more support to manage. A First Nation community should respond to an emergency first, and when they don’t have the capacity, then they should reach out for help. The department didn’t know who was most in need, so where they could target the limited investment.
It isn’t about an unlimited bucket of money. It is about targeting it to those most in need first and building capacity in communities to self-support each other afterward.
I think it’s about a different approach that I’m just not seeing yet because everything is staying siloed. I encourage you to drive change there.
The Chair: The time for this panel is complete. I wish to thank Ms. Hogan and Mr. Wheeler for joining us tonight.
In our last panel tonight, we will hear from Ivan Zinger, Correctional Investigator of Canada.
Wela’lin, thank you, Dr. Zinger, for being here tonight. You will have approximately five minutes to provide your opening remarks, which will be followed by a question-and-answer session of approximately five minutes per senator.
Due to time constraints, please keep your exchanges brief and precise. To avoid interrupting or cutting anyone off, I will hold up a sign when you have a minute left on your allocated time.
Dr. Zinger, I now invite you to provide your opening remarks.
Ivan Zinger, Correctional Investigator of Canada, Office of the Correctional Investigator: Thank you, members of the committee, for inviting me. It was very kind, and I’m happy to be here. I thought I would do something different today. I provided you a copy of a PowerPoint deck, and I will go through some of the slides and hopefully you can have a fulsome package of information.
On the second slide, I want to give you a bit of context about federal corrections. As you know, corrections, in general, around the world is a big business, and it certainly is when it comes to Correctional Service of Canada. Correctional Services of Canada has a very impressive budget of $2.9 billion to manages about 12,500 individuals who are incarcerated and about 9,000 who are on some form of parole or conditional release. It manages about 43 penitentiaries with 19,000 employees, and it has probably the highest ratio in the world between prisoners and staff, which is 1.2 prisoners per staff. That is unparalleled anywhere in the world, and it is something we should pay attention to. In fact, about 40% of penitentiaries have actually more correctional officers than prisoners, so it’s quite extraordinary. I have no problem whatsoever spending a great deal of money on priorities, and this should be a priority. But then you must expect, as a Canadian citizen, as a taxpayer and as the Correctional Investigator, a very good return on investment. I would expect outstanding correctional outcomes as well as best practices in every single area of CSC’s operation, and that’s just not the case.
There is also an extraordinary amount of empty cells right now in the system — 4,000 — which represents about eight empty penitentiaries. That also tells you about the management of them. Finally, the last point in terms of resources, the official number is about $126,000 per inmate per year. Unfortunately, if you actually do a bit of math, you can add an extra $100,000 to this, because the official numbers do not cover the overhead, like national headquarters or the five regional headquarters. That’s something to remember.
[Translation]
In terms of my role and mandate, the office was established in 1973 and I’m the ombudsman responsible for investigating complaints from inmates serving sentences of two years or more. I have tremendous investigative powers. All of this works, of course, if the agency subject to my external oversight supports my recommendations, and it can work very well. It doesn’t work as well if there’s a lack of consistency in the agency’s ability to support my recommendations. With respect to statistics — I’m on slide 4 of the document — we’re investigating almost 5,000 complaints. With a $5-million budget and about 40 staff members, we do over 1,000 use-of-force reviews, and we also investigate all deaths in facilities, for example.
[English]
Let me now talk about current and future priorities. Indigenous correction has always been something that has been a core priority for our office since 1973. We have made more than 70 recommendations directed to the Commissioner of Corrections and to the Minister of Public Safety and the Government of Canada.
My latest annual report, this one, was tabled on November 1, and it included part one of a two-part update on the progress made since the tabling of a special report called Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act. We are currently working on part two, and that will make up the bulk of our report for next year’s annual report.
I will finish by giving you a bit of a sense of the challenges faced by federal corrections. After 10 years, there has been marginal progress made on attempting to improve correctional outcomes. These are things that the correctional service has influence over. It doesn’t have influence over who comes into the penitentiary. Let me read them, because I want to make sure they are on the record.
There continues to be a disproportional overrepresentation in federal custody compared to society, we’re now at 32%, and it keeps climbing year after year. Certainly, for the last 30 years. Indigenous people are more likely to be involved in the use of force, overrepresented in maximum security institutions, overrepresented in structured intervention units — which are the new provisions for administrative segregation — more likely to be labelled gang members, more likely to self-injure, to attempt suicide and to commit suicide in the last fiscal year. Also, more are serving more time in custody than non-Indigenous people. There are higher recidivism rates and parole revocation. When we look at women, the situation is even more dire and the overrepresentation has now reached 50%. They are also overrepresented in maximum security units, which are tantamount to the old administrative segregation conditions of confinement. They are also under-represented, as we indicated in our annual report, in the mother-child report. I will leave it at that. Thank you.
The Chair: Thank you, Dr. Zinger. Before we open the floor to questions from senators, I wish to remind everyone to refrain from leaning too close to the microphone or remove your earpiece when you do. We will now open the floor to questions.
Senator Pate: Thank you, Dr. Zinger, for being here with us. I wanted to check one other stat that wasn’t in your report that I just saw from the ministerial advisory committee. Is it your understanding that 76% of the women in structured intervention units are Indigenous as well? I’m just adding to the statistics.
Mr. Zinger: Yes, I think it’s in that neighbourhood. Absolutely, they are grossly overrepresented.
Senator Pate: I noticed the next slides talk about sections 81 and 84. You and I are both, unfortunately or fortunately, old enough to have been around when the law was being studied by committees like this in the early 1990s. When the Corrections and Conditional Release Act was implemented, it was my understanding — and I would be interested in what yours was — that sections 81 and 84 were put in place to address what was then already seen as the crisis of the overincarceration of Indigenous people. At that time, they were about 10% of the prison population. The idea was that under section 81 First Nations governance and sovereignty would be recognized and individuals could serve the prison part of their sentence in the community under section 81 and the conditional release or parole part in the community under section 84.
Since then, Correctional Service of Canada has limited the policies and only made — well, section 84 is very limited, but both have only been made available to minimum security, even though that was not part of the legislative intent. Are you able to comment further on that, what you see in terms of the trends and the fact that the government will only fund initiatives that allow access for minimum security and some of the history of that in terms of the number of lodges like Buffalo Sage Wellness House? When it first opened, there were no Indigenous women eligible to go there because of the way the policy was set up by Correctional Service of Canada.
Mr. Zinger: You’re absolutely right. These provisions were enacted in 1992 by the Mulroney government and they were ground breaking provisions and everywhere around the world people were looking at Canada as a very progressive, very thoughtful government to try to address the overrepresentation which I believe was around 15% and now it is almost over 32%.
I will tell you that there was an awful lot of activity and hope that these provisions would be fully implemented by Correctional Service of Canada and initially, yes, Correctional Service of Canada actually spent a lot of time looking at recruiting different communities, and trying to invest in Indigenous communities that either did not have the capacity and could have the capacity or had some capacity and they initially created a fair amount of healing lodges some of which they managed themselves and some that were managed under those provisions of the act that allows the minister of public safety to enter into an agreement with those Indigenous communities or groups. But everything basically stalled around 2000. We documented the story in our Spirit Matters report and what happened at the time is Correctional Service of Canada decided to pull back all the funding and reinvest the funds, if you call that reinvestment, into institutional corrections and then they started funding those pathways units. So the focus was on community corrections and then as of 2000, it shifted to institutional corrections.
Since then, I have the numbers here, in the last 10 years only one new section 81 has been created. Section 81 is managed by Indigenous communities. At the time we wrote this report, they had a vacancy rate of about 50%, despite the fact there are very few beds to begin with and there is such demand because there are about 4,000 Indigenous men and women incarcerated at the federal level.
It’s a failure in implementation, a major failure and I have made recommendations specifically to that.
Now, I think I’ve made that recommendation about four years ago, that the service should allocate a significant segment of its budget to fund sections 81 and 84. I was finally asked by the media about what do you mean by significant? Given that $2.9 billion, I said let’s find a number, let’s start with $500 million and I did say over a period of 10 years to build that capacity. This could be done without any loss of jobs but simply through attrition and a commitment to empower Indigenous groups and communities to look after the care and custody of Indigenous people.
The Chair: Dr. Zinger you called for the creation of a deputy commissioner for Indigenous corrections within the Correctional Service of Canada. What would be the role of this proposed deputy commissioner and how has the federal government responded to this recommendation?
Mr. Zinger: Thank you, Mr. Chair. We’ve made that recommendation for over 12 years and finally it got picked up by several federal parliamentary committees that have repeated the need for a deputy commissioner to sit at the executive table of the Correctional Service of Canada. It was also picked up by the National Inquiry into the Missing and Murdered Indigenous Women and Girls and, finally, after lots of pressure, Correctional Service of Canada caved and decided to run a competition for that position. I was struck by the initial attempt. It was simply to recruit within Correctional Service of Canada. Somebody eventually decided that it should be posted outside. That was at least good, but we also noted that the position is at an equivalency of a director-general level, an EX3 in government and that position already existed before, so it seems to be simply a relabelling of an existing position. The position was called director-general, Indigenous initiative branch, but now I understand that that person would sit on the executive committee but I think it should have been at the level of an assistant deputy minister, an EX4 level to be fully empowered to have the same realm of influence as everyone else around that table.
The Chair: Thank you, Dr. Zinger.
Senator Coyle: Thank you very much, Dr. Zinger, for your presentation.
I was going to ask about the deputy commissioner, but I will go to one of your other calls for systemic reform. Call No. 7, where you talk about government-led initiatives such as the Indigenous Justice Strategy and the Federal Framework to Reduce Recidivism. Could you speak to us more about what those entail?
Mr. Zinger: Yes, I’ve made the last recommendation in this report towards the Minister of Justice to ensure that corrections is considered in that overall strategy.
My fear is that Justice will, because it’s a Justice-led initiative, primarily focus on things they know like bail reforms or Gladue courts or maybe conditional sentencing or something like that or alternatives to imprisonment.
But I think corrections has a significant role to play in that strategy and we did receive a positive response on the part of the Department of Justice. The Federal Framework to Reduce Recidivism, as you know, was a bill that became law, and I’m hoping that there is only — it’s almost at the infancy stage, at consultation, but I would like to see a big commitment to track recidivism rates, because those recidivism rates are awful. It’s only following a recommendation that we made about three years ago that corrections finally conducted a study, and the study showed that the recidivism rates are very high. You’re talking about 38% recidivism rate for violence and for Indigenous people it goes up to 60%. So we need to track this closely and have good data so we can readjust the service, and the Government of Canada can readjust its investments and its strategies if it doesn’t improve on those terrible rates that we have seen so far.
Senator LaBoucane-Benson: As you know, I spent a great deal of time in a healing lodge movement. I worked in and around Stan Daniels Healing Centre and Buffalo Sage Wellness House. To add to your story, in 1999 the deputy commissioner of corrections for the prairies said to the CEO of native counselling services of Alberta and I, that they had gotten the stats about the baby boom starting to be known in Canada among First Nations, Inuit and Métis people and that there was going to be this large new generation of Indigenous people coming. CSC’s response to that is they started planning to build more prisons. This in about 2000. This has been an ongoing motivation of Correctional Service of Canada.
To come to your point about bed counts. It’s true that we have healing lodges, a few more now, and not enough healing lodges that work on reintegration, on historic trauma healing and have some of the best reintegration rates across Canada. However, CSC will make sure that every single one of their beds are filled before they will fill a healing lodge bed. They will make sure that all of their staff are employed, but they will have contracts with healing lodges that are based on beds. You get paid for beds that are filled. But when you say that you notice that some of these healing lodges had 50% of their beds filled, it means a not‑for-profit is taking a hit and more than likely operating in a deficit because the beds are not filled, whereas CSC makes sure all their beds are filled.
Can you elaborate on the disadvantages the healing lodges have because of the funding formula? They don’t have a dynamic versus static funding. It’s something new to the healing lodge movement. What advice would you give to healing lodges to deal with this systemic bias — I would say maybe even racism in the system — in the way that healing lodges are treated?
Mr. Zinger: There are two sets of statistics that my office collected and that I have seen. The first one is quite troubling. We discovered in 2013, when we completed the Spirit Matters report, that for the same amount of work and expectations, healing lodges that were operated by Indigenous groups and funded by Correctional Service of Canada were paid at 62 cents per dollar, so that was a big discrepancy.
If you visit healing lodges, many of them, compared to the ones run by Correctional Service of Canada — and I was quite happy to be part of a story in the Globe and Mail on Stan Daniels, for example — are decrepit, and they need a big investment in their infrastructure. The ones operated by the service are a big step up in terms of the quality of their infrastructure, so that’s the first thing.
The second set of statistics does not support what you just said. We did look at vacancy rates, and there didn’t seem to be that much difference between the vacancy rates in healing lodges operated by the service and healing lodges operated under section 81.
But part of the problem is the tremendous vacancy rate in minimum security institutions run by the service. There is not much incentive to release those individuals into halfway houses or healing lodges, because they are going to run out of prisoners. I think that’s a story that needs to be further investigated. The pressure is to keep those minimum at the institution with at least some prisoners in there, because you have to justify the staffing levels that are extraordinarily high.
Again, the staffing levels in Canadian penitentiaries are probably the highest in the world, so we need to remember that.
Senator LaBoucane-Benson: Thank you for clarifying it. I meant getting people out of medium security to a healing lodge to reclassify them. They will keep them at medium security and won’t reclassify them to minimum security so that they can be transferred into a healing lodge.
Senator Pate: That goes exactly back to the point that we were talking about a little while ago. It’s CSC policy that people have to be minimum security to go to the healing lodge. When the first healing lodge for women was opened, the Okimaw Ohci healing lodge, the plan was for the reserve to take it over. You will probably remember that they put a segregation unit in it. They called it a “safe lodge,” but they put a segregation unit in it because it was supposed to take women at every security level. That evolved away very quickly and hasn’t happened.
I would like to talk about the security level issue. The overclassification is in this report again, and it’s in the Auditor General’s report, in particular, the overclassification of Indigenous people and Indigenous women.
Could you comment on the response the Correctional Service of Canada had when they briefly hired someone outside? They said — and I notice it’s coming up again in court cases — they hired Dr. Moira Law to look at the classification system in particular for women after the Human Rights Commission joined the correctional investigator, the Arbour commission and others and said that the classification system was discriminatory on the basis of race, sex and disability.
Could you comment on what Dr. Law recommended and the response of Correctional Services of Canada to it? Can you comment on where you see it contributing to where we are today in terms of the overincarceration and overclassification of Indigenous people, and Indigenous women in particular?
Mr. Zinger: The first point that you make is correct. There is nothing in the legislation under section 81 that suggests that a healing lodge can only be a minimum-security institution. That’s just the way that the service has interpreted it and attempted to implement it. As I mentioned to you, the implementation has been less than stellar since 1982, in my view.
With respect to risk assessment, because we’re talking about the tools that are used to classify or reclassify people, this has been a saga for over 20 years now. It was 20 years ago that observations first appeared that the tools used by the service were discriminatory, not valid and not reliable for certain groups, including Indigenous people, as well as women. The service has continuously used those for the last 20 years.
Our office has been saying it for well over a decade. I think we started documenting this 12 years ago. It was only after the Supreme Court of Canada’s judgment in Ewert v. Canada that the service was basically told, “You have to create new tools that are reliable and valid for those particular groups.”
The service still, to this day, hasn’t responded correctly. It now has a contract in place to develop such a tool, and it continues to rely on a tool, for example, the Custody Rating Scale, that discriminates against Indigenous people and overclassifies Indigenous people. The level of inertia and lack of responsiveness from the service on this file is extraordinary.
I’m aware of the work of Moira Law, which I think is very clever, and it’s something that the service should certainly consider, but it’s probably unwilling and not ready to implement such a thing. The idea here is that instead of looking at risk and trying to stack the cards against a person, you tell them, “You are going to come into a minimum security setting, and if your behaviour isn’t correct and you’re not responding correctly, then we will move you up the security classification,” as opposed to, “We have preconceived ideas. We’ll put you in the highest security, and then if you behave, we will cascade you down.”
The problem we have seen with that is, certainly, in secure units and women’s facilities, it is so obvious that some women are in crisis. They are in psychological distress; there are all sorts of issues they are dealing with. The more you want to control and restrict, the more they act out, and then the more they get into higher security or the newly called Structured Intervention Units, or SIUs.
I absolutely agree that there should be a presumption of minimum security and that people should be managed in those, and only if there are problems should you increase the security level.
This would certainly be more consistent with creating choice that now dates back to 1990 or something. So I agree with you there.
The Chair: Dr. Zinger, do you think there are any specific issues that we should be examining in the future?
Mr. Zinger: I’ve been with the office for 17 years, and I’ve been the head of this organization for the last six. I find it extraordinary that a department can continue to function with this level of funding and when it has had, for at least the last 7 years, very clear mandate letters to improve correctional outcomes, to reform itself so that it can provide safe and humane custody, and to ensure that it rehabilitates so that it can fulfill its public safety mandate.
I think this is a department that is in need of some sort of external program review. I can’t speak about any other department, but this is the one that I’ve been looking at, basically, since the beginning of my career more than 25 years ago. It could do much better with some deep-needed reforms and be the best it can be. I think we are so far away from that, that any suggestions that you can make to scrutinize this department and review from the ground up how it operates would be a useful exercise.
The Chair: Thank you, Dr. Zinger.
Senator Pate: It was about oversight too. You foresaw what I was going to ask.
Your office has made recommendations about changes to the Corrections and Conditional Release Act. You know that the Senate made amendments to Bill C-83 that were rejected by the House of Commons but have been reintroduced as a private member’s bill that the late Senator Josée Forest-Niesing and I were working on. It calls for judicial oversight in light of the sorts of recommendations you have been making.
Is there any other mechanism that you can see that could actually hold Correctional Services of Canada to account based on your experience with Corrections to date?
Mr. Zinger: Given the dismissive nature of the service towards — not just my recommendations but also mandate letters issued by the Prime Minister or the Minister of Public Safety — I think Canada would be best served — and not just with respect to Correctional Services of Canada, or CSC, but with respect to many other areas — to look at how the U.S. is financing lawsuits for civil rights violations.
In the U.S., they have a federal statute that basically says that if the court finds that any government has violated civil rights, reasonable legal fees would be paid. That has, basically, financed the American Civil Liberties Union to be in business in every single state in the U.S.
I think Canada would be best served if we could do some of that kind of reform, because, clearly, Legal Aid isn’t meeting the demand to ensure that cases are taken up and that judgments are effective change. If my office has an informal avenue or redress that isn’t working, then you have to look at the formal system, which is the court system, and it’s coming short on that, so maybe reforms there.
The Chair: The time for this panel is now complete. Thank you, Dr. Zinger, for your testimony.
(The committee adjourned.)