Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 36 - Evidence - April 30, 2013

OTTAWA, Tuesday, April 30, 2013

The Standing Senate Committee on Aboriginal Peoples met this day, at 9:30 a.m., to examine and report on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and on other matters generally relating to the Aboriginal Peoples of Canada.

Senator Vernon White (Chair) in the chair.


The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples on CPAC or on the Web. I am Senator Vern White from Ontario, and I am chair of the committee.

The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. In considering what studies the committee might like to undertake, from time to time we invite individuals, organizations and departments to give us an overview of issues of concern within their mandate. Today, we will hear testimony from the Office of the Correctional Investigator of Canada. Last month that office tabled a report in Parliament that the committee is very interested in hearing about. The report is entitled Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act.

Before hearing from our witnesses, I would like to take this opportunity to ask members of the committee who are present this morning to introduce themselves.

Senator Lovelace Nicholas: Senator Lovelace Nicholas from New Brunswick.

Senator Munson: Jim Munson, originally from New Brunswick, an Ontario senator.


Senator Demers: Jacques Demers from the province of Quebec.


Senator Raine: Nancy Greene Raine from British Columbia.

Senator Tannas: Scott Tannas from Alberta.

Senator Patterson: Dennis Patterson from Nunavut.

The Chair: Colleagues, please help me in welcoming the Office of the Correctional Investigator of Canada, represented by Howard Sapers, Correctional Investigator; and Marie-France Kingsley, Director of Investigations. Mr. Sapers, we look forward to your presentation.

Howard Sapers, Correctional Investigator, Office of the Correctional Investigator of Canada: Thank you. I appreciate the warm welcome and the opportunity to be here. Good morning, committee members.

We have some prepared remarks, and I believe an advance copy has been shared with you. I would like to go through those quickly, and we will leave the bulk of our time for your questions.

In my capacity as the Correctional Investigator of Canada, it is always a pleasure to be asked to appear before this committee and, in fact, any Senate committee, in comparison sometimes to that other place. In the interests of time, we will keep our remarks short, so that we will have an opportunity to have an exchange on the issues raised and answer your questions about our perspective on matters pertaining to federal Aboriginal corrections.

Today, I am joined by the Director of Investigations for my office, Marie-France Kingsley. Ms. Kingsley will speak to the role of my office as an ombudsman, and then she will reference some of the information and trends on federal corrections as they pertain to Aboriginal offenders.

I will then discuss in more detail the special report to Parliament entitled Spirit Matters, which was tabled on March 7 of this year.

As you know, the overrepresentation of Aboriginal men and women entangled in Canada's criminal justice system is not new. The social, cultural, historical and economic factors that give rise to Aboriginal incarceration rates that are several times higher than national rates have been extensively documented. These rates manifest from the lingering effects of residential schools and the creation of reserves. From the first contact onward, the dominant metaphors of this contact have been assimilation, dispossession and displacement of Aboriginal peoples.

I will now turn it over to Ms. Kingsley and then continue with my remarks.


Marie-France Kingsley, Director of Investigations, Office of the Correctional Investigator of Canada: Thank you, Mr. Chair. The Office of the Correctional Investigator serves as an ombudsman for federally sentenced offenders. The office's mandate provides for independent monitoring and oversight of federal corrections. On an annual basis, the office receives approximately 6,000 offender complaints. In 2011-12, investigators spent about 370 days in federal penitentiaries and interviewed more than 1,600 offenders. In last fiscal year, the office received 18,000 contacts on its toll-free number and conducted over 800 uses of force reviews.

The factors that give rise to Aboriginal over-representation in the prison system have been recognized by the Supreme Court of Canada in the R. v. Gladue (1999) decision and more recently in R. v. Ipeelee (2012) decision. They include: effects of the residential school system; experience in the child welfare or adoption system; effects of the dislocation and dispossession of Aboriginal people; family or community history of suicide, substance abuse and/or victimization; loss of, or struggle with, cultural/spiritual identity; level or lack of formal education; poverty and poor living conditions; exposure to/membership in Aboriginal street gangs.

Today, 23 per cent of the federal incarcerated population is Aboriginal. In 2000-01, Aboriginal inmates accounted for 17 per cent of the federal inmate population. The Office of the Correctional Investigator estimates that Aboriginal adults are incarcerated at a rate that is 10 times the national average. These rates are increasing.

Since 2005-06, there has been a 43 per cent increase in the Aboriginal inmate population, compared to just a 5.6 per cent increase in non-Aboriginal inmates. There are now over 3,500 Aboriginal offenders inside federal prisons.

Correctional outcomes are far worse for federal Aboriginal offenders than for non-Aboriginal offenders. For example, Aboriginal offenders are much more likely to serve their entire federal sentence behind bars than their non- Aboriginal counterparts. In 2011-12, Aboriginal offenders accounted for 45.1 per cent of all cases held to warrant expiry despite comprising 22 per cent of the inmate population.

In fact, the majority of First Nations, Metis and Inuit offenders gain release from a federal prison by statute, at the two-thirds point of their sentence, not through parole.

Aboriginal offenders receive a much lower proportion of full and day parole releases than might be expected based on their representation rates within the inmate population. Although conditional release grant rates are low for all inmates, they are worse for Aboriginal men and women.

Aboriginal offenders accounted for 45 per cent of all self-injury incidents in federal prisons. Eight of the 12 most prolific self-harming offenders in federal prisons last fiscal year were Aboriginal — four of them were Aboriginal women.

Aboriginal offenders are over-represented in segregation and maximum security institutions. They are classified as higher risk and higher need in categories such as employment, community reintegration, substance abuse and family supports. These realities unfortunately define Aboriginal corrections in Canada and they defy easy solutions.

Finally, the numbers for Aboriginal women are the most worrisome. Aboriginal women are the fastest growing sub- population in federal corrections today. The number of Aboriginal women in federal custody has virtually doubled in the 10 year period between 2002 and 2012.


Mr. Sapers: Committee members, this is the context within which my special report to Parliament on Aboriginal corrections was released. Spirit Matters represents my office's assessment of how Aboriginal-specific provisions of the Corrections and Conditional Release Act, the law that governs federal corrections, has been applied since those provisions came into force over 20 years ago in 1992.

In particular, the report examined the use of sections 81 and 84 of the law. Section 81 allows the minister to enter into agreements with Aboriginal communities to transfer care and custody of Aboriginal offenders who would otherwise be held in a CSC facility. Section 84 provides for Aboriginal community involvement in release planning of an Aboriginal offender returning to their community.

The legislation also provides for a national Aboriginal advisory committee and makes it clear that Aboriginal elders and spirituality have the same status as other religions and religious leaders. When enacted in 1992 by the federal government, Aboriginal-specific provisions of the CCRA were part of a series of remedial measures to stem the tide of overrepresentation of Aboriginal people in corrections, in part driven by the Royal Commission on Aboriginal Peoples in 1995. The reforms included the introduction of new sentencing principles in 1996 and culminated in the aforementioned landmark Supreme Court of Canada decision in R. v. Gladue in 1999.

These sections of the law govern correctional practice and treatment of Aboriginal offenders under federal sentence. They do not imply or give rise to "preferential treatment." Aboriginal-specific provisions of the correctional law give expression to the notion that in order for our system to be fair, individual differences must be acknowledged. Equality does not mean treating everyone exactly the same; it means recognizing disadvantage and disparities in both opportunity and outcome and trying to remediate them.

What did we find 20 years after the CCRA was enacted by Parliament? We found limited use of sections 81 and 84 legislative provisions to transfer care and custody, services and programs to Aboriginal communities.

In fact, only four section 81 agreements have been concluded with Aboriginal communities since 1992. These four agreements account for only 68 section 81 beds across Canada. This is equal to capacity for just 2 per cent of the 3,500 Aboriginal inmates in custody. There are no section 81 agreements in British Columbia, Ontario, Atlantic Canada or in the North.

Although one existing agreement has been expanded, there have been no new section 81 agreements signed since 2001, despite more than a 40 per cent increase in Aboriginal incarceration numbers. Three of four section 81 facilities are on reserve land, yet most Aboriginal offenders are released to an urban setting. There were no section 81 beds for Aboriginal women until September 2011.

We also found important disparities between Correctional Service of Canada run healing lodges and those section 81 facilities operated by Aboriginal communities. We found no permanent funding arrangements were in place for the section 81 facilities. The Aboriginal community-operated facilities operate on substantially lower budgets. There are significant salary and benefit disparities for staff and heavy reporting, financial, insurance and operational burdens faced by the section 81 facilities.

With respect to section 84, we found implementation to be underutilized, overly complex, bureaucratic, unevenly applied and not well understood either within or outside the Correctional Service of Canada. Out of a workforce of approximately 19,000, Correctional Service of Canada has only 12 Aboriginal community development officers to help facilitate section 84 releases. The number of section 84 releases dropped by more than 50 per cent over the last five years. Fewer than 100 offenders benefited from a section 84 release last year.

Other key findings of Spirit Matters include: restricted eligibility criteria effectively exclude most Aboriginal offenders from section 81 consideration; limited understanding of Aboriginal peoples, cultures and approaches to healing within federal corrections; inadequate and uneven application of Gladue social history considerations in correctional decision-making; funding and contractual limitations are impeding the work of elders inside federal institutions; and inadequate response to the urban realities and demographics of Aboriginal Canadians.

To address these findings, Spirit Matters makes 10 recommendations. Amongst them, number one is to appoint a deputy commissioner for Aboriginal corrections to ensure adequate focus and accountability. Two, negotiate permanent, realistic and at parity funding levels for existing and future healing lodges and significantly increase the number of bed spaces where the need exists. Three, expand Correctional Service of Canada staff training initiatives about Aboriginal people, history, culture and spiritualty to include training in the application of the Gladue principles. Four, resolve workload, payment and standard of service issues faced by elders to ensure they are equal partners in the delivery of programs and services within CSC. Five, reduce the amount of red tape and accelerate the process for section 84 releases.

I appreciate that the challenges facing the Correctional Service of Canada with respect to disproportionate rates of Aboriginal representation fall largely outside its jurisdiction and require a whole-of-government approach in addressing, amongst other things, education, employment, housing, and health care. However, there are some things that the Correctional Service can and must do to narrow the gap in disparities and outcomes for federally sentenced Aboriginal offenders.

The Correctional Service's initial response to my report, Spirit Matters, has been disappointing. All of the report's recommendations were either rejected or used to endorse the status quo. In my assessment, there is nothing new in the service's response that will arrest, much less narrow, the gap in correctional outcome and disparities that contribute to rising incarceration rates for Canada's Aboriginal people.

The purpose of my report was modest. It investigated whether the Correctional Service is doing all it can and should to make sure the will of Parliament is respected in regard to appropriate consequences and treatment for Aboriginal offenders. I found some serious and troubling gaps between the law and practice. Stronger leadership and improved implementation of mandated Aboriginal initiatives are required to address the growing problem of Aboriginal overrepresentation in Canada's prisons.

I would be pleased to discuss these findings, the recommendations of Spirit Matters and any other issues related to the treatment of Aboriginal offenders in federal corrections. Once again, thank you for the opportunity to appear this morning.

The Chair: I wanted to advise that we now have Senator Seth and Senator Sibbeston, who have joined us, from Ontario and Northwest Territories.

Senator Munson: Mr. Sapers, one can have a long preamble but I do not have one in my first question. How did it come to this? Why was this allowed to happen in thesociety that we live in today?

Mr. Sapers: Senator, I wish I had a short and direct answer. The questions about the why have many answers. Certainly the Royal Commission on Aboriginal Peoples identified a number of historical and cultural factors. It is impossible to overestimate the impact residential schools and displacement had on generations of Aboriginal Canadians. Even otherwise benign policies on things like zero tolerance and placement of police in schools in urban and inner city environments have had significant and differential impacts. We have had inadequate review in terms of policy impacts as they land on different parts of our population. All of this together has resulted in an accelerating increase in the number of Aboriginal Canadians that come into conflict with the law and end up in our federal penitentiaries.

There is no indication that that growth in incarceration rates is slowing. It is clear that criminal justice fixes will only address a small part of the problem. As I mentioned, many of the issues fall outside of corrections but even the criminal justice system.

Senator Munson: You talked about troubling gaps between the law and practice in ignoring the will of Parliament. I have just a couple of matter-of-fact questions based on your report and findings. Contractual limitations impeding the work of elders inside the institutions, how many Aboriginal elders are currently working in the federal penitentiary system? I think you may have said a number. Has the number kept pace with the increase in the number of incarcerated Aboriginal Canadians?

I know there will be many questions, so I will throw one in here as well along with that one, and it has to do with Aboriginal representation. In 2008 former Senator Bob Peterson raised concerns about representation on the national parole board. I would be curious to know how many First Nations, Metis and Inuit persons are currently members of that board. Does the number, in your view, adequately reflect the proportion of incarcerated Aboriginal Canadians? Would improved representation on the national parole board produce better outcomes for First Nations, Metis and Inuit persons in federal penitentiaries? They are two separate questions but they come to the heart of the matter, I think.

Mr. Sapers: Thank you, senator. I will get the numbers for you of elders employed directly and under contract. Aboriginal elders are involved in institutions as well as in the community. The largest category complaint that we received from elders is that there are impediments to them being directly involved in healing initiatives with Aboriginal inmates just because of bureaucratic limitations. I do not have the absolute number at hand: I will get it to you and provide it to the clerk of the committee.

The number of Aboriginal elders and the contracts for Aboriginal elder participation has not kept pace with the growth in the Aboriginal count behind bars. My jurisdiction does not include the Parole Board of Canada, but I will also undertake to get that information or at least have someone from the Parole Board of Canada, who has that information, provide an answer to the clerk.

Senator Munson: You talked about section 81 and allowing the minister to enter into agreements with Aboriginal communities to transfer care and custody. You spoke about that, but it is hard to believe there are no new facilities, I understand since 2001, despite this 43 per cent increase, nothing, zero. That is terrible.

I think you are being very polite when you said it was "disappointing," but it is more than disappointing. It is almost like wilful neglect. In your view, is this due primarily to the lack of what governments would call resources or a lack of commitment to providing services to Aboriginal Canadians in federal penitentiaries?

Mr. Sapers: There has been an expansion of one of the agreements, as I said, in 2011 to provide for some beds in urban Edmonton for Aboriginal women. That is the only change in the agreements. The 68 beds that were put into place beginning in 1999 have not increased. There were a number of very robust discussions under way in the late 1990s and early 2000s with a number of Aboriginal communities. Those discussions resulted in no new contracts.

There are certainly capacity issues within the Correctional Service of Canada. I do not believe, however, that they are fiscal resource issues. At the same time, the Correctional Service of Canada opened up and began operating its own healing lodges. That is where we see the point of disparity in terms of the resource base, salary levels, et cetera.

I have had discussions with Aboriginal communities literally across the country over the last year, and I can assure the committee there is interest on the part of Aboriginal communities to enter into section 81 agreements. However, there is a lot of frustration about the previous process and a lot of anxiety about entering into agreements that they see may not be balanced and fair.

Senator Lovelace Nicholas: Thank you for being here today. Is the correctional funding the same for Aboriginal and non-Aboriginal inmates: for example, for food?

Mr. Sapers: The Correctional Service of Canada and Public Safety Canada publish estimated annual average costs for offenders based on gender and based on security category, and they do not make any distinction based on race or culture for those numbers.

The numbers that we looked at were the dollars spent to fund a healing lodge bed operated by an Aboriginal community under a section 81 agreement or to fund a healing lodge bed operated by the Correctional Service of Canada. We found a huge gap, as much as a 40 per cent difference in the amount per bed to support that service and that program.

The section 81 facilities are underfunded in comparison to what CSC spends to run their own facilities to provide an equivalent service.

Senator Lovelace Nicholas: What are the factors, in your opinion, that increase federally incarcerated Aboriginal women? Why are more women than men in prisons?

Mr. Sapers: It is a very complicated question. Again, I am sorry, I will give you only a partial answer. We have seen an increase in women being incarcerated internationally. In most western jurisdictions, the incarceration rate for women is growing.

In Canada, it has been a startling growth, 93 per cent in 10 years, so almost a doubling in the incarceration rate for Aboriginal women. There are many reasons for this. Some of those reasons have to do with other policy changes. We know that women have different trajectories into conflict with the law. We know that women who are in federal custody overwhelmingly have personal histories of significant trauma, sexual/physical abuse and addiction.

The growth, again, seems to be very directly related to the circumstances that those women are in, the degree to which they come into conflict with the law and the nature of the policy changes that have ended up with incarceration being a more frequent consequence of that conflict with the law.

Senator Lovelace Nicholas: What kind of policy changes are you referring to?

Mr. Sapers: There have been changes that, for example, have removed or restricted conditional release, so the abolition of accelerated parole review has had an impact. There have been policy changes that have created more mandatory minimum penalties. That has had an impact on incarceration. The nature of the criminal activity of women involved in either the sex trade or with illegal substances has also had an impact and has affected women incarceration rates.

Senator Lovelace Nicholas: If you think there is a solution, what do you think it would be?

Mr. Sapers: Please keep in mind that I live in a very special and narrow world, and that very special and narrow world is the operation of federal penitentiaries and places of custody and ensuring that they are operated in compliance with the legal and policy framework that has been set out.

Let me repeat that I honestly believe that most of the solutions fall outside of that special world that I live in, but there are things that the Correctional Service of Canada can do. For example, the hiring of more Aboriginal community development liaison officers would be a start. There are some 44 minimum, medium and multi-security level institutions. At a minimum there should be one attached to every one of those institutions. Working to move resources out of institutions and into the community, which was contemplated when Parliament passed the CCRA and included section 81, and working hard to move those resources into appropriate contracted services, would be a start. Changing the governance and leadership structure within the Correctional Service of Canada by appointing a single senior leader that sits around their management table to be accountable for progress on this file would make a difference. Within that narrow world of federal corrections, there are some things that I believe would help.

Senator Demers: Senator Lovelace Nicholas asked two questions that I was going to ask. Not because I was going to ask them, but they were good questions nonetheless. I want to give her credit.

I am a father of three daughters and two granddaughters. I am not saying that young boys and men should not be protected. My daughters have done very well; they are married. I have always found that younger women are more vulnerable and so much easier to attack. Who protects those young girls? It starts somewhere at the age of 13, 14 or 15 with taking drugs, incest, being raped. Young men deserve help, too. Do not get me wrong; I also have a son.

Who protects those young girls? Where do we build the fence around these young kids — I will say girls — to protect them and give them direction and a way of life? As Senator Lovelace Nicholas said, it is one out of three girls, one out of five guys, and 34 per cent women. I just have a hard time with that. Hopefully you can provide more details regarding that.

Mr. Sapers: Thank you, senator. Your questions really strike to the heart of the matter. Just a few weeks ago, I attended a national forum in Edmonton that was co-hosted by the Assembly of First Nations and the National Aboriginal Women's Commission to look at the development of a national agenda, a national strategy for ending violence against women and girls. Some very positive and hopeful discussions took place during that forum; more than that, there was a very emotional outpouring of need. This is, in fact, a matter that needs focused national attention. Communities across the country have to come to terms with their issues.

There is no shortage of evidence about the need and about the vulnerability of children. You mentioned specifically the vulnerability of young women, and we have seen some horrific examples of when those vulnerabilities have been exploited by people who are intent on doing harm.

Senator, if the outcome of this discussion is that it gives support to the development of that national strategy and it helps accelerate that agenda for dealing with violence against women and girls, I think that would be a great outcome. However, again, I want to say that when we set about in the role of being the ombudsman in federal corrections to look at the CCRA, our focus was really on whether or not the Correctional Service of Canada was doing everything it could and should do. I realize that is a very narrow part of the discussion.

Senator Demers: I note your concern and I really like that. Thank you very much.

The Chair: If I may, I will jump in now. I see the list is growing, and if I do not jump in, I may not get a chance.

I want to thank both of you again for being here. I have to say that I was challenged, having you appear here, that our focus would be at the wrong end of this river. I know, Mr. Sapers, that you and I have had this discussion. Even when I look at the violent crime severity index, which is a good indicator of the types of crimes we are seeing from specific regions in this country — Nunavut, Northwest Territories and Yukon are, I think one, two and three, with the highest violent crime severity index, and then it is Saskatchewan and Manitoba — I probably should not be surprised as well that that is where we see a lot of the Aboriginal offenders coming from, percentage-wise, per capita.

I know you are focused on the Correctional Service of Canada, but I have to drive you back upriver, if you do not mind.

Last week I was in Manitoba talking to some of the Aboriginal leaders in First Nations communities there, and they talked about the things that are happening in the communities that they believe are feeding the correctional or federal facilities in this country. Knowing that you are talking to people along the timeline from what is happening in the community all the way to what is happening in corrections, what do you see as our biggest challenge? I know you talked about education and early intervention, et cetera. What do you see as our biggest challenge in the communities to reduce the number of people we are seeing in jail, if you had to pick one for Canadians to focus on?

Mr. Sapers: Senator, thank you for that, and thank you for giving me the opportunity to go beyond my mandate in addressing your questions. I will think back to my time of living and working in Alberta and in Edmonton and the work that I did on the Safe Communities strategy in those days. You cannot disentangle poverty, housing, education, employment and addiction from conflict with the law. If there is going to be positive movement at the downstream end of the system, when we open up the doors to our prisons and jails, it must be at that level of community support and community capacity.

Certainly dealing with stable housing is a huge issue in urban environments. Dealing with poverty and educational opportunities are huge drivers. I do not believe these insights are unique, special or new. I think that collectively we know all of that. By the time a crime is committed, it is far too late for those kinds of interventions. At that point, the police have a job to do, the courts have a job to do and prisons have a job to do. That brings us back to my mandate.

I can tell you that section 84, which allows for Aboriginal community participation, release planning and supervision of federally sentenced offenders, is a good idea. It makes sense on so many levels for communities who have participated. They feel safe and empowered by it. Offenders who have gone through the process feel supported by it. In a community that you are familiar with, Nunavut, I can tell you that last year, 49 Inuit offenders were told about their eligibility for section 84 release. Of those 49, three quarters of them, 35, indicated they wanted to be involved in that section 84 process. However, that year, there was not a single section 84 release. Even though the service did what they were supposed to do in terms of informing Inuit offenders returning to the North that they were eligible, and three quarters of them wanted to participate, none of them did.

Again, I come back to the capacity and the willingness of the Correctional Service of Canada to actually implement those sections of the law in the way that Parliament intended them to be implemented.

Senator Patterson: Thank you to the witnesses. Mr. Sapers, you have been in this office I believe almost 10 years?

Mr. Sapers: Since April Fool's Day of 2004.

Senator Patterson: We commend you for that. In 2009, your office released a report, Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections, about halfway through your present term. Were the findings in that report consistent with what you found in Spirit Matters? Were there any recommendations from that 2009 report that were implemented, or to what extent, please?

Mr. Sapers: The findings are absolutely consistent. The report you refer to, Good Intentions, was a piece we contracted for in order to have an external view of how CSC was doing on a whole range of commitments, including the development of its Strategic Plan for Aboriginal Corrections and its framework. It is a different view in terms of its performance reporting. Also, many of the gaps that we see repeating in Spirit Matters were identified in that 2009 piece.

My recollection at the time, in 2009, was that we simply reiterated our one key recommendation that a deputy commissioner for Aboriginal corrections be appointed. The Correctional Service Canada is headed by a commissioner. The executive committee consists of a number of assistant, associate and regional deputy commissioners. There are associate commissioners and deputy commissioners responsible for women's corrections, human resources, health care, et cetera; however, there is no senior leader specifically responsible for Aboriginal corrections.

The senior deputy commissioner, the number two person at that executive table, has Aboriginal corrections as part of his or her portfolio. It is a major and significant part of the portfolio, but it cannot get the focused and singular attention we believe it deserves if it is only part of a mandate.

Senator Patterson: Thank you. I guess you are saying there is a senior management team in the Correctional Service Canada. You described an executive committee and deputy and assistant commissioners. I also understand the department has said something about cost and increased bureaucracy in replying to your recommendation.

Surely if the corrections system wanted to focus on this neglected issue, they could take one of the existing senior executive positions. I would like to ask you if there is more than one deputy commissioner, but obviously there is quite a management team; maybe you could outline just how many there are. Surely the solution would be to take one of those senior managers and say, "This is your focus." Would that be a solution, rather than creating a new position, which is what the response seems to suggest would be necessary?

Mr. Sapers: Senator, thank you. I am perplexed by the response that it would create too much bureaucracy and there would be too much cost. Currently there is a director general in charge of Aboriginal corrections, who reports to the senior deputy commissioner, who sits at the executive committee table and reports to the Commissioner of Corrections. Much of the bureaucracy, if you want to talk about it that way, and much of the structure is already in place. There is already an Aboriginal directorate with program people and a small management team that deals with these initiatives.

What there is not is a consistent person sitting at the senior management table — the executive committee table — who, at every meeting, is raising that as an agenda item. When we reviewed the executive committee minutes for the last 20 meetings, we did not find a single use of the word "Aboriginal" anywhere.

The model that you suggested is the one that CSC has adopted. They have given the senior deputy commissioner the Aboriginal file as part of her mandate. She takes it seriously, but it is only a part of what is a huge mandate.

We are not naive enough to think that simply creating a new title with a new position and adding another piece of the bureaucracy will solve these problems. We are saying that the issue deserves and merits focused leadership and attention, and someone whose sole focus is moving forward on this agenda — not just a piece of someone's job.

As far as adding additional costs, I really do not know how much it would cost to roll up another chair to the meeting table, because that is really what we are talking about. The rest of the structure largely exists.

Senator Patterson: Thank you. I have one more question, but I can wait.

Senator Sibbeston: There is so much that can be said. I spent a bit of my time earlier in my life as a lawyer working in a Native community, and I played a role in the justice system defending Aboriginal people that were before the courts. It was a very trying job trying to explain and bring to light all of the factors and so forth that may have been responsible for a person committing an offence — explaining them to a judge, a prosecutor or the police who are all of a different culture. It was a real task.

Part of the problem is that Aboriginal people are different; it is a different society and culture. Criminal laws, of course, as made in Parliament here are made for all of Canada and generally made for the cities where most people live. We have laws that are made and are applicable to urban, mass Canadians, and there is an attempt to apply them in the rural and northern communities, and with Native people. That is the problem.

I find that in government, the justice system is the most difficult to change and the most entrenched against change. That is part of the problem. They are very resilient, well established and entrenched, so it is hard to make changes within them.

In addition, when you talk about Native people, many Aboriginal people have spent many years in residential schools, and jails are like residential schools. Therefore, many Native people are comfortable and can function in that setting much better than they do out in the world where they have to make their own decisions. That explains a little bit why there are a lot of Native people in jail. I think some people even like it in there; it is simple in that you get fed and so forth.

It is interesting, when I used to defend people, occasionally when someone was found guilty and went to jail, I would not see him for a few months or a year. I would then always ask them when they come back, "How was it?" People always say, "Not bad." This is in the Northwest Territories where the jails are a lot better than in the South. There are a lot of social programs that help them. They invariably come back a little fatter, too. That is the situation.

However, it is so difficult. You paint a very dismal picture and you wonder when this will ever change.

Aboriginal people are generally struggling. Most of their energy goes towards improving their community lives, businesses and other social things. There is not much tolerance or patience for people who get into trouble in Native society. That is part of the problem. I think the solution is always Native people trying to work with government to find programs and find ways to deal with them.

As I said, on the Native side, most of the energy goes into surviving and dealing with other programs.

I do not know what my question is. It is more of an educational process and trying to explain my experience.

Would you agree that while we can look to government to do something, invariably it is the Native peoples themselves who have to do some of the work? They have to come to government with program suggestions and try to help their brothers who are in jail.

Mr. Sapers: Senator, there are certainly some positive examples of Aboriginal communities that have worked in partnership with either provincial governments or the federal Crown to do exactly that. The section 81 healing lodges that exist, I think, speak to that potential.

Aboriginal communities are different in terms of their size, geographic location, population base and resource base. I do not think there is a one-size-fits-all kind of solution, but a willingness on the part of the federal Crown to work with those Aboriginal communities in recognizing their differences and their needs is a starting point.

In corrections, in the absence of other kinds of programs and opportunities, we have seen that incarceration becomes a default. I think it is very true and sad that some Canadians find living conditions in a prison better than in their communities. Not only is that a shame, but it is a terrible expense.

Senator Sibbeston: I have one last question. Can I get a response from you? The federal government has recently passed laws having minimum sentences. Is it your feeling that this will make it so that more Aboriginal people will end up in jail because the court does not have discretion as to sentencing and putting people in jail?

Mr. Sapers: Senator, this is something that I think a generation of academics will reflect on and we will see all kinds of work trying to answer that question scientifically. I can give you my impression. In the last half a dozen years, we have seen a 9 or 10 per cent increase in the federal incarcerated population overall. At the same time, we have seen a number of significant policy changes, mandatory minimums, some new ones included. We have also seen the rate of Aboriginal incarceration grow to where it is now 23 per cent of the population.

In a very straight line and in a very superficial kind of analysis, as the carceral population grows, the portion of the population that is Aboriginal seems to be growing faster. There is some kind of interaction effect, but I could not draw a straight line for you today and say that this specific policy caused that specific outcome.

The Chair: Thank you very much, Mr. Sapers.

Senator Raine: Thank you for being here and giving us such good information. I have some questions that are perhaps my own curiosity, but I would like to hear from you on them.

First, there are two different kinds of healing centres. One is run by the CSC and a few by communities, which do not seem to want to take on the chore because there does not seem to be consistent funding for them. Does the CSC want to run Aboriginal healing centres or would they like to have that done by the communities?

Mr. Sapers: My impression is that the Correctional Service of Canada entered into the operation of healing lodges with the idea in mind that control and operation would eventually be turned over to the Aboriginal communities where they operate. That is my understanding.

There are four CSC-run healing lodges right now and four section 81 healing lodges. Any of the four operated by CSC could be devolved to Aboriginal communities, but there is even a hesitation on the part of some of those communities now because they are mindful, aware of what has happened where the other healing lodges operate. They are mindful of the disparity in funding and financial support, for example. They are mindful of the challenges, even things as simple as gaining insurance for the Aboriginal communities. These are significant operational challenges.

While CSC may have entered into operating the lodges with the idea that they be turned over, that is not happening.

There are some other interesting differences as well. The occupancy rate — the utilization of beds in the CSC- operated healing lodges — is much higher on average. On average, over 85 per cent of the CSC-operated beds are used. When you compare that to the beds operated under section 81, around 70 per cent of the beds are used.

If a healing lodge is funded in part on a per diem bed usage rate, think about the challenge that is to operate. You have a structure, you must hire staff, pay for your insurance. You do all the things you have to do to operate beds in a facility, but you may be getting paid on a usage rate. Therefore, if you do not have 80 to 90 per cent occupancy, you do not really have the funding stream needed to properly support the operation. CSC controls who gets placed where. The fact that there is a higher utilization in their own beds than there is in the contracted beds tells you something about how those management decisions are being made. I am not faulting that. If I was managing CSC's budget, I might say, "I will use the one I am already paying for instead of the one that is at an additional cost." However, how do you enter into a reasonable agreement with the community?

I am sorry, senator. This is a long-winded answer, but you asked me a complicated question. Remember that it was the Correctional Service of Canada's policy decision, not prescribed in law, to only place minimum security rated offenders in the contracted section 81 beds. Keep in mind that only about 10 per cent of federally sentenced Aboriginal offenders — 10 to 12 per cent at any given time — are rated at minimum security. Upwards of 90 per cent of the population is excluded by that decision of even being eligible for transfer to a section 81 facility. That was not the original intent when the law was passed in 1992.

Senator Raine: It was a policy decision?

Mr. Sapers: It was a decision of the Correctional Service of Canada. That is not part of a law.

Senator Raine: Obviously, your statistics show that Aboriginal people who are incarcerated tend to serve the full time, not get parole or get into some of these facilities where they can get the healing they need. How do we get the Correctional Service to look at their policy? It should be done on who has the hope of being healed and surely not what they did to get where they are, but who has it within themselves that want to be healed.

Mr. Sapers: The way that the Correctional Service of Canada makes its decisions around reintegration potential, security classification, et cetera, raises some questions around how culturally appropriate those screening and decision- making tools are. It starts there.

If you have a screening tool that results in one group of offenders being rated as having lower reintegration potential, higher risk of reoffending, needing to be housed at higher security, and then you have a policy that excludes that exact same group from an opportunity to participate in a program that was developed specifically to meet those cultural needs that were considered to have put them at more risk of being in conflict of the law, if you follow the circular logic, you are setting yourself up for the kinds of outcomes we are seeing.

Aboriginal offenders fare worst on just about every measure of correctional outcome we look at. They are released later in sentence, they spend more time at higher security levels. If they are released, they are typically suspended, paroled or revoked more frequently.

If you look at some of the research on outcomes of offenders who have gone through healing lodges, healing lodge offenders returned to prison at a slightly higher rate than non-healing lodge offenders, but they were also put into those situations later in their sentence and rated at much higher risk. It is not really a fair comparison.

It seems that in the one study that was done in 2001, I believe it was, 19 per cent of the offenders who came out of healing lodges and returned to custody were in custody not for new crimes, but for technical violations of their release, for things like perhaps breaking a curfew or not residing in a specific geographic area or some other violation of the terms of their release, as opposed to a Criminal Code offence. That is nearly one in five of the returns: 19 per cent.

We have a number of policy issues that we have to unpack if you really want to get to the question that you asked which was, as I understand it, how to find those who really want to engage in a healing process and how to provide the opportunities to them. There is a whole series of policies that we have to go through to get to specific answers to that question.

Senator Raine: That clarifies a little bit, but it begs more questions. One of the questions I already had written down was, is there a plan in the CSC to introduce cultural awareness training to more of their staff?

When you look at the number of staff that you have and the number of people who actually are working with a knowledgeable background in terms of Aboriginal issues, it is really bizarre. If 20 per cent of your population is Aboriginal and there are only 12 people, maybe you can explain how that works. Why is there not cultural awareness training for all staff?

Mr. Sapers: Senator, a couple of things, and here I want to be really clear, because I do not want to be unfair to the Correctional Service of Canada. They have many Metis, Inuit and First Nations staff, many more than the 12 Aboriginal community development liaison officers. They are represented by both men and women and throughout their structure.

The Correctional Service of Canada, particularly in the last 15 years, has made tremendous strides in developing Aboriginal-specific and culturally appropriate programming and screening tools. Things are, believe it or not, better today than they have been. The participation of elders, the availability of Aboriginal spiritualty, sweat lodges, access to ceremony, circle hearings, elder-assisted hearings for the parole board, all of these things have happened, and increasingly so, over the last decade or more. I do not want to leave the impression that CSC is blind to these issues or has done nothing. That would be unfair and untrue.

There is training available for staff throughout the system. The problem is the training is not ongoing. There are not enough opportunities for refresher courses. The training does not seem to address some of the specific issues about decision-making against the Gladue principles. They are not well understood, either at the management level or at the line-staff level in terms of how the life history considerations that Gladue speaks to are to be taken into account when making decisions about placement and programming.

The good news is that the Correctional Service of Canada has made progress. There are some positive things happening and there is training. The bad news is that there is not enough of the training, it does not have the right emphasis, it does not happen with the right frequency and it seems to have some important gaps in the curriculum.

Senator Seth: I really apologize for arriving late, and I probably missed some. It seems very interesting, what I am learning here. It seems we have been talking here and paying large focus on what to do and how to deal with this overrepresentation of Aboriginal people in correctional facilities, which really is an important and disturbing issue.

However, I would like to know, has the CSC, the Correctional Service of Canada, done much to implement preventive measures? In First Nations communities, for example, are there services that help to identify and target some of the problems faced within these communities so that crimes committed by Aboriginal people could be prevented?

Mr. Sapers: The Correctional Service of Canada, as you know, has a mandate to administer sentences. They have a more limited opportunity, in terms of primary preventive initiatives. From what sometimes is referred to as a tertiary perspective, or what happens at the point when someone has received a sentence, that is where the Correctional Service of Canada has an opportunity to shine. That is where the development of Aboriginal-specific programs can have an impact.

We know that evidence-based correctional interventions, delivered by the appropriate people at the appropriate time and matched to the needs of individual offenders, have good outcomes. If you look at the Aboriginal Offender Substance Abuse Program that was developed by the Correctional Service of Canada, the evaluations show that it reduces recidivism. In terms of tertiary prevention or returning to crime, that kind of culturally appropriate program, properly delivered at the right time in a sentence, seems to reduce recidivism.

We know the same thing from the research that was done on the Tupiq program, which was developed specifically to deal with Inuit sex offenders. The evaluation shows that that program, when properly delivered by the appropriate people at the appropriate point in the sentence, reduces recidivism. This is the way that corrections can prevent crime. However, if your question was about the front end of the system, then that is not the mandate of the Correctional Service of Canada. The Correctional Service of Canada is not involved in primary prevention. They have a restorative justice directorate. As I say, they develop and deliver correctional programs, and these interventions are available to all offenders regardless of race, gender or culture, through their correctional plans.

However, the ones that have been developed specifically to deal with Aboriginal offenders, that have been evaluated, do show that if they meet the criteria set up when the programs were developed, and when properly delivered, have the right impact.

Senator Seth: Have any studies been conducted to suggest a cost saving in preventive measures versus prison time? Are there any studies, let us say, of the healing lodge that show it is part of something that is more prevention where they can be given effective messages and things like this? Have any studies been done that show we can do some preventive measures in comparison to staying in prison, which is expensive. Is there any difference?

Mr. Sapers: I can tell you a couple of things about that. I am not aware of a specific value-for-money or cost-benefit study that has been done on a healing lodge. I do not know if one exists: I have not seen one.

I can tell you a couple of things about what we know about money. CSC says it costs about $110,000 a year, on average, to keep a male medium security offender in custody, and it costs less than $30,000 a year to supervise that same offender in the community on parole. If the risk can be managed in the community through appropriate supervision, you can save money by simply moving the person into an appropriate community support as opposed to keeping them incarcerated. That is one cost comparison.

There are lots of these studies out there — Canadian and American primarily, although there are others — that show that early intervention and prevention initiatives have anywhere between a 4:1 and a 7:1 cost savings, the literature shows. In other words, for every dollar you spend on early intervention and prevention in a community, you will save $4 to $7 downstream in other social and criminal justice system costs. There are lots of studies out there that demonstrate that kind of ratio.

Senator Munson: Mr. Chair, this is very troubling testimony this morning. I am wondering, for the record: Have we had the minister or people in senior positions at Correctional Service of Canada before us on this issue?

The Chair: No. This is for us more exploratory, looking at different issues. This is not a study we are doing; it is more exploratory.

Senator Munson: Perhaps it should be, because there are so many questions that should be answered by the minister.

The Chair: I am sure your representative on the steering committee can bring that forward. It will be a great discussion.

Senator Munson: It would be, because there is some responsibility here.

In preparing for your testimony his morning, I was looking at some of the statistical evidence. I took a look at some of the material online from CSC. It cited statistics that appeared, in my opinion, alarmingly out of date, in some cases a decade or more.

Tracking the progress of services for Aboriginal offenders from year to year, at least from the public's perception, is difficult to ascertain. Some of this goes back 10 years. What is your take on monitoring and statistical analysis conducted by CSC on services offered, success and failure rates of the programs, and action plans, specifically for Aboriginal incarceration in this country? In your view, do they adequately track and record the trends on special demographics of incarcerated Aboriginal Canadians and CSC programs for them? I see that some of them on elders go back to 1994 to 1999. How up to date are we here? Statistics do not lie.

Mr. Sapers: The Correctional Service of Canada does an increasingly better job of accounting, if I can put it that way, so we know more about who it is that is inside. We have a better picture of the profile, of the demographics of our carceral population. There has been a lot of effort in the last few years, for example, on increasing the ability of the service to screen for mental health needs and do better computerized assessment on that.

We also have a pretty good process in place in the Correctional Service of Canada in terms of evaluating what are known as criminogenic factors, or establishing the basis for a correctional plan, so that addresses a number of issues that are specific to the individual offender, regardless of their heritage: their needs in regard to relationships, employment, addiction or substance abuse, et cetera.

Where CSC has a more difficult time is in analyzing all of that information that it collects and making sense of it in terms of informing management decisions and then evaluating some of the very good work they do on a consistent and ongoing basis to ensure that the program interventions, et cetera, are doing what they are supposed to do.

CSC has a small research unit, a small evaluation unit, a small internal audit operation and a performance assurance unit. Collectively, these elements feed information to the management table, but by necessity it is selective. It is driven by priorities and it varies over time. It also reflects, of course, their capacity. The Correctional Service of Canada has faced some significant challenges — huge growth and a huge capital program — at the same time as significant budget cuts. They have their challenges. It comes as no surprise that some of the statistics you would see online will be dated.

Ms. Kingsley: I do not know if you are aware, but twice a year, CSC's Aboriginal Initiatives Directorate publishes a number of statistics on progress made in the midst of a strategic plan on Aboriginal correctional services. They have numbers on population profile, section 81 and 84 programs, conditional release and revocation. I know that is available online, and I believe the last numbers are for 2011-12.

Senator Munson: Big Brother is always listening in Ottawa, and I am sure there are bureaucrats and ministers — maybe not the ministers so much, who are very busy — listening to your testimony this morning. We sit as a committee that hopefully, in some small way, tries to make a difference in the lives of people we represent on this committee. Of all your recommendations — since someone is listening and taking notes on this and should be paying attention to what I find painfully troubling testimony about what is happening in our prisons and the lack of Aboriginal representation from the elders on the parole board, those kinds of people, the liaison, the business you talked about in communities, one for one and 44 institutions — which one stands out for you that we can hopefully represent, through our opposition and government members, to senior bureaucrats and the minister?

Mr. Sapers: Thank you, senator. In my opening comments, I pointed to a small constellation of five issues that I think have urgent and priority status. I hesitate to say that there is just one that would be any kind of a magic bullet here. Certainly we have made a point of repeating our recommendation for several years now for the need to appoint a deputy commissioner for Aboriginal issues; however, that, in and of itself, is not enough. Some of the training, funding and capacity issues that we speak to in Spirit Matters need to be addressed at exactly the same time; otherwise we would just have a figurehead, and I do not think we need that.

The five issues I addressed in my opening comments — the deputy commissioner, the at-parity funding, the training initiatives, the workload and other barriers and obstacles faced by elders, and the amount of just confusion and red tape around section 84 — those need to happen in concert and we believe collectively would make a big difference.

Senator Patterson: Mr. Sapers, I understand there are eight healing lodges, four CSC and four Aboriginal operated. Could you outline, please, where they are, and perhaps if you know which culture they reflect?

Mr. Sapers: Sure. I can certainly answer the first part easily. I will reference first page 23 of the Spirit Matters report, where there is a table that shows the CSC-operated healing lodges. The Okimaw Ohci Healing Lodge, the Willow Cree Healing Lodge, the Pê Sâkâstêw Centre healing lodge and Kwìkwèxwelhp Healing Village are operated by the Correctional Service of Canada. Those lodges operate under section 81.

Senator Patterson: Could you give the geographic location, please?

Mr. Sapers: Sure. The Okimaw Ohci Healing Lodge is in Saskatchewan; the Pê Sâkâstêw Centre is in Alberta; Kwìkwèxwelhp Healing Village is in the Fraser Valley of British Columbia; and Willow Cree Healing Centre is in Saskatchewan. Those are operated by Correctional Service Canada.

There is a spiritual healing lodge operated under section 81 in Prince Albert; the Ochichakkosipi First Nation Healing Lodge is in the Prairies; the Stan Daniels Healing Centre is in downtown Edmonton; and the Waseskun Healing Centre is in Quebec.

Senator Patterson: Thank you. It seems just astonishing to me that you have the four CSC-operated lodges — and I am sure they are probably different sizes — that are spending $21.5 million on four of their own institutions. The other four, the Aboriginal-operated lodges, are getting $4.8 million — roughly a quarter of the cost.

I was compelled by what you said about the 44 Nunavut inmates, who I am sure were all Inuit, who were eligible for Aboriginal healing lodge release. There is a significant difference, culturally, between Indian, Dene, Metis and the Inuit. There is a different language, economy and history. I am not surprised and I am even not sure that the Inuit inmates would have fit in a First Nations healing lodge. With all respect to those lodges, but sweetgrass and sweat lodges would not work in that it is igloos and not sweat lodges for the Inuit; they do not have resonance.

Would you have any recommendations about how you change the funding support for Aboriginal-run healing lodges? They just do not have the money to attract or train the workers. How could that be fixed?

Mr. Sapers: Let me answer the second question first and then go back to your first point. We recommend in the report that at-parity funding be established. If the Correctional Service Canada establishes that it costs a certain amount per year to operate a healing lodge bed, then that amount of money should be made available to an Aboriginal community to operate that bed. It is clear that their own structures are better resourced than those operated by Aboriginal communities under section 81.

We are also talking about a reallocation of resources, so we are not talking about new money. I do not believe that the Correctional Service Canada needs new funding for this. These are people under sentence to a CSC facility in any case. We are talking about transferring where their custody takes place. We actually think it can be done in a more cost-efficient way in the community through section 81. Section 81, by the way, does not require large-scale facilities; it is possible to have section 81 beds established in small and remote communities, supervised by communities, so you do not need to think of it as a bricks-and-mortar kind of a response.

Let me be clear that we are not talking about millions of new dollars coming into CSC to do this; we are talking about implementing the plan as it was envisaged 20 years ago. In large measure, the resources are in place.

When you talk about the North and the differences in Aboriginal communities across the country, you raise profoundly important matters. There are no healing lodges in the North. Earlier I gave testimony about the lack of section 84 participation, at least in Nunavut. We do not have any opportunities for section 81 beds in Labrador, northern Quebec, Northwest Territories or in Nunavut. There are some unique challenges to providing those kinds of opportunities in the North, but they can be overcome.

Currently, there are 30 Inuit offenders from Nunavut who are serving their custody in the Northwest Territories. There are 40 who are provincially sentenced or who are serving sentences of less than two years; there are 40 Inuit offenders from Nunavut shipped off to Ontario correctional centres to serve their sentences away from their home communities. Most important for our discussion this morning, there are 85 federally sentenced Inuit offenders from Nunavut who are serving their sentence in Correctional Service Canada facilities, primarily the Fenbrook Institution in Ontario.

Nunavut Corrections operates a primary facility in Iqaluit called the Baffin Correctional Centre, which, depending on which point in its history you want to look at, had a design capacity for either 48 or 50, or up to 66. I think today's count is slightly under 100 in that facility. It is shamefully overcrowded. It is literally falling apart and bursting at the seams.

Nunavut has identified the replacement of this facility as a priority. Granted, that is a territorial matter, not a federal one. However, to give you some idea, their own estimates are that they will need 300 in-custody beds by 2027, and that is just to deal with those who are receiving sentences of less than two years. If the trends continue, the number of federally sentenced Inuit from Nunavut will increase apace.

Before both orders of government commit massive funds to building more traditional custodial capacity, we think it would be very important to explore opportunities to take advantage of things like section 81 in the CCRA and to see whether there can be some other options. It is probably not just one choice, because what might make sense in Labrador might not be exactly appropriate for Nunavut.

There are some big issues in the North. Over 20 years, CSC has not been able to provide this kind of opportunity in Northern Canada.

The Chair: I have a supplemental question, if I may, Mr. Sapers. I visited the facility in Iqaluit, as you know. In fact, I have been back and forth to that facility for 20 years. It has gone from a temporary facility to a permanent facility, and to a permanent facility that is embarrassing to see in this country. I think you would probably agree with that term. The gymnasium there now is temporary bedding with mats on the floor, for example.

There are 202 federal Inuit prisoners as of last fall outside of Nunavut; it is my understanding that they are somewhere else in the country.

Has there been any dialogue about looking at a demographic facility for incarcerated Inuit rather than a geographic provincial, territorial or federal facility? Is there is any consideration of one joint facility that would look at the Inuit population and the cultural, linguistic, different challenges that the Inuit face — perhaps a little bit exclusive of their crime or what they have been sentenced for — that you know of? You talk about options. Is this one of the options?

Mr. Sapers: In fact, there have been discussions about such a pan-Arctic facility that would not be rooted in political geography, but rooted in culture. There has also been discussion about the need to maintain small local responses. Somewhere between those two end points is probably where we are going to end up.

In the conversations I have been privy to and in the material I have reviewed, I think everyone agrees that the status quo is not appropriate — simply shipping people south, taking people far away from home communities, support. For some of these folks, the difference between where they come from and where they have been sent to is worse than night and day. The status quo is not appropriate, but I do not think there is consensus on the matter you raise specifically. I think that is probably the best way to put it. It could be that a combination of approaches would work. You would have to get together with a number of governments to build a pan-Arctic capacity.

In the meantime, I know, for example, that the Nunavut government is planning on going ahead with replacing Baffin Correctional. The option of a combination of responses, for example, having section 81 agreements in northern Quebec and small section 81 agreements in place in Nunavut and Labrador, may be the way to start. It could be that operationally we need to think of it in terms of a cultural response, but organizationally it could still happen. Section 81 contemplates agreements with communities, not with governments. You could still have those individual agreements in place with specific communities, but it could be part of a cultural strategy that would be appropriate to the North.

I think it is fair to say that the major focus I have heard in my conversations with northern Canadians many times is simply, "Bring our people home." If they are going to heal and deal with their conflict with the law, they need to do that at home. That seems to be the one thing that is consistent.

The Chair: Ms. Kingsley, I think about a decade ago there was a report on victim-offender reconciliation or a restorative justice done by corrections on the recidivism rates by offenders. Victim-offender reconciliation is extremely difficult, to follow up on Mr. Sapers' comments, if distance is your biggest challenge.

Do you know of any follow-up work that has been done since 2002 or 2003 on victim offender reconciliation and if so, has it been successful? If there has not, I will ask someone else.

Ms. Kingsley: Unfortunately, I am not aware. I wish I were from Justice Canada as I answer this question but —

The Chair: Correctional Services Canada did the report. He was the leader of CSC in 2003.

Mr. Sapers: It seems to me the National Crime Prevention Centre may have done something. We will undertake to make that inquiry with the Parole Board of Canada as well as with Aboriginal elders and we will get that information to the clerk.

The Chair: I believe your department did a review of Baffin Correctional Centre on behalf of the Nunavut government. Has that report been released?

Mr. Sapers: No. At the invitation of the local director, we did a review. It has been completed. It has been provided to the head of corrections for the territory, but it would be up to them to decide what to do with it.

The Chair: Thank you very much.

Senator Tannas: Thank you. I have a couple of questions. Mr. Sapers, I heard from you that the existing healing lodges, both those run under section 81 and by the CSC, are not operating at full capacity. I also heard you say that while there may be flaws in some of the statistics and the way in which they were gathered, there was not any evidence of the effectiveness of this, although I certainly concur that the concerns you have would be my concerns. On the face of it, we have those two things.

How much of the difficulty that you have expressed here is really around the fact that the senior leadership at CSC does not believe that this is effective? Could you comment on that?

Mr. Sapers: I will comment on that. I will not put words in their mouths. I will say that there is a commitment on the part of the Correctional Service of Canada to provide culturally appropriate programming. They commit to that in their Report on Plans and Priorities. They account for that in their departmental policy reports. It is part of their framework for Aboriginal corrections and their published strategy.

The evaluation research that I spoke to is equivocal. I have never heard anyone from the Correctional Service of Canada use that equivocal outcome as an excuse or reason for not doing what the law contemplates they should be doing. I have heard people question the evidence and have heard people say, in times of fiscal restraint, "We have to make sure that every dollar we spend gets the maximum return, so where is the evidence that this works as opposed to that?"

Senator, a little secret that I will share with just you, just between us —

The Chair: It will not leave this room.

Mr. Sapers: — there is a lot of what we do in corrections that, strictly speaking, I would not say is tested by the evidence. Teasing out exactly what works and how and why it works is very difficult in this endeavour. There is consensus that culturally appropriate interventions are good. There is consensus that for incarceration to have any positive benefit, it has to be geared towards release. The point of putting someone in prison is not to make them a good inmate. The point is to prepare them for release in the community. If you take those two fundamental things and put them together, it leads you to some conclusions about individual responses based to individual needs, which is what Correctional Service of Canada does when it develops correctional plans for individual offenders. Part of that must address their culture, particularly since we are informed by things like the Royal Commission on Aboriginal Peoples that one of the reasons we see this overrepresentation are historical, economic and social factors. We have to address that in the administration of the sentence.

That is a long way around addressing your question about the evaluation and outcomes. In short, no, I have never heard anyone from CSC use the research as an excuse not to do it. I have heard people question correctional effectiveness writ large, trying to figure out what works.

Senator Tannas: I have one other question. We have heard a lot about the disproportionate growth of Aboriginal offenders. Can you talk a little bit about FASD and what proportion of this growth you are seeing and what particular programs you have witnessed and their potential effectiveness?

Mr. Sapers: We are just beginning to get a handle on how fetal alcohol spectrum disorder affects carceral populations, and various estimates have been done by various researchers. What we know in the Correctional Service of Canada when we screen at intake for people's mental health needs, over a third of offenders are screened as needing additional psychiatric or psychological follow-up. That under counts those people dealing with brain injury, traumatic brain injury and brain injury resulting from things like FASD, so we do not have a complete picture.

People experienced in working with these prison populations will tell you that they are dealing with a population that is overwhelmingly fetal-alcohol affected. That has impact on their ability to comply with the rigours of carceral life, such as following rules and taking instruction, et cetera. It has a big impact, and I do not think we understand it fully.

Senator Lovelace Nicholas: Is there not a section 81 or CSC facility in New Brunswick?

Mr. Sapers: There are no section 81 facilities in Atlantic Canada.

Senator Lovelace Nicholas: Why is that?

An Hon. Senator: I have the same question.

Mr. Sapers: I do, too, senator.

Senator Lovelace Nicholas: Who would be more likely to be incarcerated, a First Nations person living in an urban setting or someone living in a First Nations community?

Mr. Sapers: I am sorry, I do not have an answer. I am not even sure that this census information can help us, just because of mobility issues.

The Chair: We have heard about the higher incarceration rates among Aboriginals, and even if you are not the likely candidate for this question, you are in front of me. If we have the same number of people investigated, charged and entering into a court system, are Aboriginals more likely to be convicted and sentenced to federal prison time versus non-Aboriginal?

Mr. Sapers: The only answer that I can give you is my quick reading of a report that was released very recently, authored by former Justice Iacobucci, on the experience of Aboriginal Canadians in the Ontario justice system. He found evidence of systemic discrimination that resulted in higher convictions, more guilty pleas, and raised issues around jury trials as well and the ability to be truly judged by a jury of your peers in terms of jury composition.

His report is the latest in a string of reports over many years that have identified issues related to systemic discrimination that has resulted in differential outcomes in our justice system for Aboriginal Canadians when compared to non-Aboriginal Canadians.

My conclusion from all of that is there is a whole host of factors. I had a police executive in a prairie city in Canada explain to me the challenge that they have. The good news is they were putting police resource officers in schools to assist in a number of areas. The bad news is that that, in combination with zero tolerance policies in the school related to certain activities, resulted in more Aboriginal youth in schools being charged with offences. That then begins that whole process of those young people coming into conflict with the law and having those records, that stigma, et cetera.

The challenge expressed to me by this police leader was, "How do we do our job?' If the job is defined by enforcing the law based on a zero tolerance policy by the school board, what is the role of a resource officer and how does that translate into what is going on in this particular city's urban core?

The Chair: Seeing no other questions, I want to thank both of you for being here today. It was an excellent presentation. It is a difficult topic for some of us, but it was a great dialogue and I appreciate the time that you both took. Thank you very much.

(The committee adjourned.)

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