Increasing Over-representation of Indigenous Women in Canadian Prisons

Inquiry—Debate Concluded

May 29, 2018

The Honourable Senator Kim Pate :

Honourable senators, the overrepresentation of Indigenous peoples in prisons, particularly Indigenous women, is rooted in the historical and systemic discrimination that is our racist and sexist legacy of colonialization. The atrocities of residential schools, the forced, state-sanctioned removal of Indigenous infants and children, the so-called Sixties Scoop and ongoing discrimination and discriminatory treatment continue to cause unimaginable grief and intergenerational trauma.

I sincerely thank Senator Andreychuk for astutely pointing out the need for early intervention and prevention in order to address many of these issues before we end up with children in those states, before we end up with children who are marginalized, victimized, criminalized and institutionalized.

Today I will close the inquiry that I launched nearly 18 months ago as my first speech in this place. I would like to thank all honourable colleagues whose expertise and perspectives have enriched this inquiry. There should be no question why the Correctional Investigator has referred to the topic of this inquiry as one of the most pressing human rights issues in Canada.

In her speech, and in response to this inquiry, Senator Jaffer indicated, and rightly so, that we cannot point to just one reason for the overrepresentation of Indigenous women in the prison system. It is a set of distinct social disadvantages such as race, poverty, lack of education, gender inequality, loss of identity, victimization, and abuse.

Senator Dyck reminded us that Indigenous women are more likely to have faced violence and inequality than non-Indigenous women. She linked these statistics and the violent victimization to the horrific realities of missing and murdered Indigenous women and girls. Indigenous women are three times more likely to be made missing and four times more likely to be the victims of homicide than non-Indigenous women.

Senator Bernard urged us to understand overrepresentation of Indigenous women in prisons as a form of colonial violence. We must recognize in the experiences of Indigenous and other racialized women, most of whom end up in prison as a result of their attempts to negotiate poverty and lack of community supports, the same intersection of sexism and racism that makes them more likely to be missing and murdered. We must recognize that children lose their mothers when women are incarcerated. We must recognize the effect this has on individual children but also on the future well-being of communities.

Last month, the UN Special Rapporteur on violence against women, Ms. Dubravka Šimonović, visited Canada. So alarmed was she by the numbers of Indigenous women in prisons, she issued a statement calling on the government to “. . . take concrete steps to eliminate the overrepresentation of Indigenous Peoples in custody over the upcoming decade and to issue detailed annual reports that monitor and evaluate progress in doing so . . .,” emphasizing in particular the need to strongly consider alternatives to detention.

Reflecting on the calls to action we have heard from our colleagues, I want to emphasize three key ways forward toward eliminating the overrepresentation of Indigenous women in prison.

Senator McCallum reflected on the prison system’s failure to provide culturally appropriate programs and adequate health services to Indigenous women inside.

She said:

It is time we facilitate these transfers out of prisons and into Indigenous communities for appropriate healing and rehabilitation.

I could not agree more.

Sections 81 and 84 of the Corrections and Conditional Release Act provide for mechanisms to allow Indigenous women to serve their sentences and be paroled, respectively, to Indigenous communities. Yet, since the introduction of these provisions in 1992, overrepresentation of Indigenous women has only increased. From 2003 to 2013, the rate of Indigenous women in prison increased by 86 per cent, and it is continuing to climb. Today, more than one in three women in federal prisons is Indigenous. As Senator Lankin pointed out, these sections are woefully underused and underfunded by the Correctional Service of Canada.

Corrections policy further limits the use of sections 81 and 84 through policies that frustrate the legislative intent of the provisions and subvert what Parliament intended when it enacted these two sections. Senator McCallum also made the astute observation that bureaucratic policy should not be permitted to continue to bar Indigenous peoples in prison from using these statutory provisions.

Senator Dupuis was equally correct in challenging us to ask why the general rule is not the development of agreements between corrections and Indigenous communities where Indigenous prisoners can benefit from culturally appropriate programming and support in Indigenous communities. We must find ways to support and breathe life into sections 81 and 84 to ensure that they fulfill the objectives of our predecessors and this government, and help to reduce the numbers of Indigenous people in prison.

Not only are Indigenous women overrepresented in prison, they face additional discrimination within prison walls. As Senator Omidvar referenced, Indigenous women are more likely to have a higher security classification, to have force used against them, to be segregated and to be denied parole.

Senator Runciman referenced another marginalized group in Canadian prisons, those with mental health issues. More than half of women in prison are identified as having mental health issues. Senator Runciman pointed out that the correctional uses of force, restraints and segregation both generate and exacerbate mental health issues. Prisons are not hospitals. I support his call for the implementation of the Ashley Smith inquest recommendations, particularly that those with mental health issues be treated by and in health-administered mental health services, not federal penitentiaries.

Following her Commission of Inquiry into certain events at the Prison for Women in Kingston in 1996, former Supreme Court Justice Louise Arbour noted that in prisons, “The Rule of Law is absent, although rules are everywhere.”

The Correctional Service of Canada imposes all sorts of policies and rules to manage and control prisons and prisoners, yet there remains no meaningful independent oversight of CSC. Even when decisions to charge, shackle, pepper spray, isolate, transfer or otherwise further restrict prisoners amount to making sentences harsher than the ones originally ordered by judges, prisoners have no entitlement to seek a sentence review. We need, and prisoners deserve, judicial oversight of corrections, especially when correctional authorities interfere with the integrity of sentences by rendering them more punitive.

Holding decision-makers within prisons accountable is necessary in order to reaffirm the importance of the rule of law within prisons and prevent abuses of discretion and systemic discrimination that mean Indigenous women too often stay in prison beyond release dates and in harsh and inhumane conditions.

Section 718.2(e) of the Criminal Code directs that all available sanctions other than imprisonment should be considered, where reasonable, and specifically calls for consideration of the circumstances of Indigenous peoples. As Senator Boniface articulated, the intent of legislators was to address the over-representation of Indigenous peoples in prison, a problem that was already well recognized 22 years ago when this provision was introduced.

Mandatory minimum sentences, which require a person to serve a pre-determined minimum penalty for applicable offences, limit judges’ abilities to apply section 718.2(e). They prevent judges from weighing the circumstances and context of offences, personal characteristics and concerns such as mental health or cognitive impairments, systemic background factors and appropriate sentencing alternatives.

The Supreme Court of Canada and the British Columbia and Ontario Courts of Appeal have all found mandatory minimum sentences for certain offences to be grossly disproportionate and unconstitutional.

Mandatory minimum sentences also distort the criminal justice process by encouraging plea bargaining to avoid penalties perceived as too severe to risk going to court to defend one’s rights.

In the 1990s, the Government of Canada commissioned Justice Lynn Ratushny to review the cases of women who had used lethal force against abusive partners. She was to determine how and why women ended up in prison despite evidence that they acted in self-defence.

After reviewing 98 cases, she concluded that a major impediment to them receiving a fair trial, and even to her review process, was the existence of mandatory minimum life sentences for murder.

A woman charged with first or second degree murder for using lethal force to repel an abusive partner faces the prospect of a mandatory sentence of imprisonment for life. Despite the context of such actions as reactive, often defensive, most Crown prosecutors, instead of recognizing that women may be defending themselves, their children or others and withdrawing the charges, will more often offer women the opportunity to plead guilty to manslaughter in exchange for a non-life sentence.

If a woman used a weapon as part of her defensive actions, she may still face a mandatory minimum sentence, but she is likely to accept the deal rather than risk facing the prospect of life in prison or the possibility that her children may be forced to testify at trial.

In her book Defending Battered Women on Trial, Professor Elizabeth Sheehy echoes the findings of Justice Ratushny. Professor Sheehy found that most women in Canada who were victims of domestic abuse and killed their abusers pleaded guilty to manslaughter. This was even more likely for Indigenous women, where 25 of the 37 women whose cases she studied entered guilty pleas despite evidence that they acted defensively.

Senator Sinclair reminded us that during his work with the Truth and Reconciliation Commission, residential school survivors throughout Canada often described being criminalized later in life for behaviour clearly linked to the trauma and abuse they experienced in the schools.

The TRC calls to action, based on survivors’ testimony, call for an end to the over-representation of Indigenous peoples in prisons by the year 2025.

The calls to action also strongly link this over-representation to mandatory minimum sentences, and consequently number 32 calls on the federal government to amend the Criminal Code to allow trial judges to depart from mandatory minimum sentences.

Mandatory minimum penalties disadvantage Indigenous peoples by preventing judges from considering the effects of past trauma and systemic racism when determining appropriate sentences. They also take away from judges the ability to consider the appropriateness of sentences that would offer Indigenous women alternative approaches and could provide meaningful opportunities to rebuild their lives and contribute to their communities.

In its 2015 election platform, the Government of Canada committed to implementing the TRC calls to action. The time to act is now.

To reiterate, more than one-in-three women in the federal correctional system is Indigenous. This statistic tells us we must support Indigenous communities with resources to pursue collective interests and goals and support individuals with the sorts of interventions Senator Andreychuk spoke to today, but also including aspects such as guaranteed liveable incomes, supportive housing, education and health care. It tells us we must prevent unjust criminalization of Indigenous women, stop discriminatory over-representation of Indigenous women in prisons and ensure that criminal records do not prevent them from being integral members of the community.

Honourable colleagues, the justice that Indigenous women deserve is not the kind that Canada’s criminal justice system generally offers them. We can and we must do better. To this end, and in the names of D and of L and of T and of R and S, for whom I just made submissions again last night for conditional release, and for far too many others who have survived sometimes unimaginable discrimination, inequality and injustices as well as those who have not, I look forward to working with you to remedy these desperate situations.

Consistent with the observations of the Legal and Constitutional Affairs Committee that one way to alleviate the challenges posed by mandatory minimum sentence-related court delays is to allow courts the discretion on a case-by-case basis to shorten or not impose mandatory minimum penalties. I ask that you assist and join me to promote Bill S-251, which I tabled earlier today, to help us along this path.

Thank you. Meegwetch.


Kim Pate