FEWO Committee Report

NEED FOR FEDERAL LEADERSHIP TO REFORM INDIGENOUS WOMEN’S TREATMENT IN CANADA’S JUSTICE AND CORRECTIONAL SYSTEMS

A Supplementary Report submitted by the

New Democratic Party of Canada to the Government of Canada

June 8, 2018

“Indigenous women end up in the deepest end of the system, and continue to be subject to some of the most restrictive levels of penal practices, such as maximum-security classifications, segregation, involuntary transfers, physical restraints, strip searches, lockdowns, use of force, dry cells, institutional charges, lack of medical attention, and also with higher rates of self-harm and suicide. When you end up in the deep end of the system...you often don't come out alive.”[1]

Racism, residential schools, the child welfare system, poverty, sexism, and unequal access to justice have resulted in over-representation of Indigenous women in Canada’s prisons.

Indigenous women make up 2% of Canada’s population, yet represent 38% of Canada’s female prison population. This grotesque imbalance is a condemnation of Canada’s justice system and jails.

• “Between 2001-2002 and 2011-2012, the incarcerated Indigenous population has increased by 37.3%, while incarcerated Indigenous women have increased by 109%.”[2]

Parliament was aware of the overrepresentation of Indigenous prisoners in the early 1990s, yet successive Liberal and Conservative governments have failed to act.

This year, NDP Critic for Women's Equality, Sheila Malcolmson (Nanaimo-Ladysmith) participated in the 62nd session of the UN Commission for Status of Women in New York where panelists reiterated years of calls on the Canadian government to heed international and court direction, and immediately reform treatment of Indigenous women in Canada’s justice and corrections systems.

We believe the Committee’s final recommendations do not reflect the cycle of injustice, poverty, physical, psychological and sexual violence that Indigenous women disproportionately experience, and the lack of appropriate housing, child care, mental health services, social support that can lead them into the criminal justice system and incarceration.

FAILURE TO FULFIL UNITED NATIONS COMMITMENTS AND THE TRUTH AND RECONCILIATION COMMISSION CALLS TO ACTION

Canada had recommendations from the United Nations Committee to End Discrimination Against Women, in 2016, yet when we asked every witness at committee: “Are your recommendations on Indigenous women in the justice system being addressed by this government?”, they all say no. Seventeen of the 94 calls to action in the Truth and Reconciliation Commission are specifically focused on Indigenous peoples' experience in the justice system. Again, witnesses at committee said there really has been no progress.

HISTORY OF ABUSE

On April 23, 2018, the UN Special Rapporteur on violence against women, in her first official visit to Canada, called out the government for its failure to prevent violence against Indigenous women and girls and lack of action to address their safety and well-being.

“Indigenous women face marginalization, exclusion and poverty because of institutional, systemic, multiple, intersecting forms of discrimination that has not been addressed adequately by the State.”[3]

• Indigenous women and girls continue to face crisis levels of violence in Canada
  • Sexual assault experienced by Indigenous women are more than three times those of non-Indigenous women
  • Indigenous women are seven times more likely to be murdered than non-Indigenous women
• The majority of incarcerated women have experienced physical and/or sexual abuse at some point in their lives.
  • In 2010, the Task Force on Federally Sentenced Women found that “85.7% of the women reported a history of physical abuse and 68.2% reported a history of sexual abuse”[4].
  • “women offenders with histories of abuse often display symptoms of psychological distress, have a diagnosis of post-traumatic stress disorder, and that roughly 75% of women with a serious mental illness are also addicted to substances”. [5]

Evidence:

• “You have a population that suffers from poverty, domestic violence, mental health issues, and displacement, and because of these issues we end up seeing these people in the justice system. They become incarcerated, they are placed in segregation, they aren't treated for their brain injuries or mental health issues, their families become separated, and they get pushed further into poverty and isolation. To put it bluntly, there is no healing, and there is no focus on prevention that I can see.”[6]
• “the basic problem [to end the cycle of violence] is the lack of available resources and funding.”[7]
• There is a “need the holistic supports that support all the abuse that has happened, the sexual violence and everything that a woman has lived.”[8]

The UN Special Rapporteur on Violence Against Women recommended that:

• “The Government should also 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, in particular the manner it implements Call to Action #30 of the Truth and Reconciliation Commission of Canada.”[9]

Recommendations:

• That the Government of Canada take leadership and coordinate federal, provincial, territorial, and municipal government responses to protect women and girls against violence, via a National Action Plan, to ensure equality of access to services across and within jurisdictions in policies, laws, and education, and to prevent and address violence against women and girls, and that the National Action plan be developed working in partnership with Indigenous peoples and communities.
• That the Government of Canada, in collaboration with provinces and territories and in partnership with Indigenous peoples and communities, lead national coordination of policing and the justice system to ensure equal access to protection and justice across the country for victims and survivors of violence against women and girls, including access to consistent services, policies and laws across and within jurisdictions.

PROSTITUTION, HUMAN TRAFFICKING AND THE SEX TRADE

That the Committee did not call witnesses on Indigenous women’s involvement in prostitution, human trafficking and the sex trade was an oversight and leaves a hole in the Committee’s review. The link between residential schools, intergenerational trauma, the child welfare system, prostitution and incarceration is important to understand, and we recommend further study.

PRESSURE TO PLEAD GUILTY, EVEN WHEN INNOCENT

The Committee’s final recommendations did not address why Indigenous women are overcharged and more likely to plead guilty to crimes they did not commit or committed in self-defence.

Evidence:

• “Indigenous people tend to be overcharged and plead guilty at higher rates than non-Indigenous people”[10].
• “Indigenous people are more likely—Indigenous women in particular—to plead guilty to manslaughter or even to second-degree murder to take the lowest possible sentence that they can get with the plea bargain, even when they have very valid, strong defences. It goes to lack of trust in the justice system. It goes to concerns about not wanting to put their kids on the stand in cases where it involves a spousal relationship and a homicide in that context. I've heard very many times from women who are incarcerated that they pleaded guilty because they didn't want to have their kids be witnesses in the trial. There are all kinds of reasons why mothers, women, have different pressures on them to plead guilty.”[11]
• “Every day innocent people – a disproportionate number of them First Nations, Inuit and Métis people – plead guilty to crimes they did not commit (and sometimes crimes that did not happen). […]Indigenous people […] may not understand what is happening to them or what their options are, even when they speak English fluently. […]It is sadly common for defence lawyers to start their often-too-brief client conversations with the deal available on a plea, before asking the client for their side of the story. These are just a few of the many ways Indigenous people and other vulnerable groups are pressured into pleading when innocent. Governments have long known about the dirty secret of plea bargaining and false guilty pleas.”[12]

Here is a powerful testimony describing the vicious cycle some Indigenous women can be trapped in:

• “Their history is that the father was abusive. They lived with a fairly abusive family. The mother drank quite a bit. The mother has cancer now, so they're at risk of losing their mother. Her sister drinks, and her partner was abusive as well. At some point, she had two of her children taken away, which escalated a lot of the drinking. One night, they were out drinking and possibly using drugs, and they got into a fight. What ended up happening.... She had a penknife on her and she—no, her friend was there with her, and the boyfriend got stabbed. She was arrested. She didn't want to talk to a lawyer, because she didn't want to have to think about and relive that night, so there's no chance of her looking at self-defence, provocation, or anything like that. She is going to spend the rest of her life in jail. She will be given a life sentence. It's a very quick trajectory, but this is very common.”[13]

WOMEN’S SHELTERS, CHILDCARE AND HOUSING

Evidence:

• Recent domestic violence shelter funding announcements are inadequate for Indigenous women, and don’t meet the long-standing need:
  • 70% of Inuit communities do not have access to a safe shelter: approximately 15 shelters now for the 53 Inuit communities across Inuit Nunangat
  • Only a network now of 41 shelters on reserve across Canada for 600 communities, yet new investment will only be for five new shelters over the next five years
• Indigenous women need:
  • “community-based prevention programs, healing circles, and women’s shelters”.[14]
  • “investing in safe and appropriate housing, stable employment, access to child care, mental health supports, access to justice in terms of legal supports, and community support services.”[15]
  • housing, which some communities lack completely.[16]
• “There is a significant lack of structure and no safety net for these women once they are released.”[17]

Recommendations:

• That the Government of Canada immediately take leadership by creating a national, universal childcare system that provides affordable and quality childcare to all families in Canada, including Indigenous families and women living both on and off reserve.
• That the Government of Canada immediately introduce legislation that recognizes housing as a basic human right and, through the National Housing Strategy, invest without delay in affordable housing, shelters and transition houses for Indigenous families and women living both on and off reserve to address the housing crisis.

FAILURE TO REPEAL MANDATORY MINIMUM SENTENCING

Mandatory minimums still exist in our country. The Liberal government promised to end them. It has not taken that power, and Indigenous women, because judges can no longer exercise their judicial discretion, are being forced to serve time for a crime they may well be an accessory to. It is putting their children into foster care, and this country is carrying on its tragic and destructive history of separating Indigenous parents from their children. New Democrats fail to see why this could not have been done on day one of the government's term in office.

Liberals claim that C-75 is “bold” criminal justice reform. Yet it fails entirely to reverse Harper’s regime of mandatory minimum sentences, despite their political promises and mandate letter commitments. Yet the Liberals have totally failed to address this key issue.

Evidence:

• “mandatory minimum sentences strip away what the sentencing judge is supposed to do and undermine the Criminal Code”[18]
• “mandatory minimum sentence prevents a conditional sentence from being put in.  What happens then is that the person goes to jail, and if they don't have someone to look after their kids, they will lose their kids. Even if the person gets their children back, they will have been removed from their families. That experience of being taken from your family and put into foster care is incredibly damaging.”[19]

We agree with the Committee’s recommendations to immediately table legislation to end mandatory minimums except for the most serious crimes; the NDP’s report reinforces why the Liberal government needs to respect their promises.

Jonathan Rudin, Program Director for the Aboriginal Legal Services said:

• “The first thing we urge the committee to recommend and to try at least to do is to have the current government bring in the legislation they have promised to bring in to restore to judges their discretion to sentence people without the burden of mandatory minimum sentences and the restrictions on conditional sentences.”[20]

In the absence of federal leadership, this month NDP MP Sheri Benson (Saskatoon West) and Senator Kim Pate both tabled legislation[21] to reverse the Conservatives’ harmful mandatory minimum sentencing. This answers Call to Action #32 of the Truth and Reconciliation Commission.

IMMEDIATELY END INDEFINITE SOLITARY CONFINEMENT AND STOP THE GOVERNMENT’S APPEAL OF THE COURT RULING

Evidence:

• Ivan Zinger, the Correctional Investigator of Canada said:
  • “I sincerely believe that in a women’s facility, you could de facto abolish [solitary confinement] altogether, if you used those secure units with the same sort of rigour in making it a last resort and using those secure units to separate, and not isolate, the few cases that you need to deal with for a short period of time.”[22]
• Dubravka Šimonović, United Nations Special Rapporteur on Violence against Women:
  • “I would like to call for an absolute ban on solitary confinement, segregation, intensive psychiatric care, medical observation and all other related forms of isolation of incarcerated young women and women with mental health issues.”[23]

It is shocking that instead of moving forward with reform, the Liberal government appealed the BC Supreme Court ruling against solitary confinement, choosing to spend taxpayers’ money fighting the BC Civil Liberties Association in court instead of implementing reforms to help Indigenous women in prison.

Mass incarceration of Indigenous women is shockingly inconsistent with the Canadian government’s repeated promises of support for Indigenous people and support for women. They need to correct course and act immediately. It’s time for Canada to help Indigenous offenders, women, and those with mental health issues. Canada should lead, not fight the court’s rulings against solitary confinement.

Recommendation:

• That the Government of Canada, through the Attorney General of Canada, immediately stop the appeal it launched against the January 2018 Supreme Court of British Columbia ruling to end indefinite solitary confinement in prisons across Canada, and recognize that the practice is unconstitutional and constitutes cruel and unusual punishment that leads to suffering and death for all prisoners, including Indigenous women in the federal prison system.

SECTION 81 (PROVISION OF CORRECTIONAL SERVICES BY INDIGENOUS COMMUNITIES) & 84 (RELEASED INTO AN INDIGENOUS COMMUNITY)

We believe the Committee’s final recommendations don’t reflect the imperative for Correctional Service Canada (CSC) to immediately fulfill the intent of the legislation of the Corrections and Conditional Release Act.

Evidence:

• “healing lodges (section 81) are only available to female inmates who have received a minimum-security classification, which is a small number of Indigenous women”[24]
• “section 81 and section 84 releases are chronically … underutilized in federal corrections.”[25]
• there is a lack of awareness or understanding among Indigenous communities of these legislative provisions, despite the fact that the legislation was introduced over 25 years ago.[26]
• Honourable Kim Pate, Senator said:
  • “I would encourage you to look at the legislation and what the legislators intended and recognize that part of the reason we haven't seen full implementation of those provisions, in my view, is that over the last couple of decades—it's 25 years since the legislation was introduced—very few [I]ndigenous communities have even known about those provisions, and if they did, they were told that they had to build institutions in order to implement them.”[27]
• “$220,000 spent annually could be given to Indigenous communities so that they can establish and manage healing lodges. These communities could use this money to help their members.”[28]

GOVERNMENT WORKING IN SILOS

The Committee’s report failed to acknowledge that Indigenous Affairs and Correctional Services Canada are not collaborating with one another. The NDP is disappointed that both the Minister of Crown-Indigenous Relations and Northern Affairs and Minister of Indigenous Services are failing in their mandate to “lead a whole-of-government approach” and “improve delivery that are holistic, community-based, and put the needs of the person first”

Evidence:

• “It’s going to require the people in this room, and your colleagues and counterparts in the House and the Senate, to work across ministries and across jurisdictions and, most importantly, to work with Indigenous women themselves.”[29]
• “Second, provide support and assistance wherever Indigenous women are. Services must find them: in their community or urban centre, at the police station, before a judge, in a remand centre, in a federal institution, and on release.”[30]

Recommendation:

• That the Minister of Crown-Indigenous Relations and Northern Affairs and Minister of Indigenous Services immediately address the gaps in “delivery of government services on a day-to-day basis” for Indigenous women in the federal prison system, “identify ways to improve delivery that are holistic, community-based, and put the needs of the person first” as called for in the Ministers’ mandate letter and commit to improve its collaboration with Correctional Services Canada.

MAKE CORRECTIONAL SERVICES CANADA TRULY WOMEN-CENTERED

The Committee’s final recommendations don’t reflect that witnesses[31] said correctional programs provided by Correctional Services Canada are not geared toward Indigenous women.

Even though CSC said that they had a “holistic, culturally responsive, women-centred program model”, this statement was refuted by a great number of witnesses.

Evidence:

• “A number of places where [CSC] haven't yet succeeded in” providing culturally appropriate services to Indigenous female offenders.[32]
• “there's been a real decline in the women-centric approach from the beginning of [the Fraser Valley Institution for Women] and the other women's prisons”[33]
• “[o]ver time, you see CSC's great resistance to any recommendations, dating back to the 1996 Arbour report[34]
• “having Correctional Service less involved and the aboriginal community more involved is something that must be explored, because it’s not working the way things currently are, and there’s been time to make it work.”[35]
• “Really what it requires is a major paradigm shift, one which Correctional Services Canada has frequently and demonstrably resisted.”[36]
• “CSC did not implement recommendations that could have led to a massive change in our ability to treat mental health in the community”[37]

GLADUE REPORT REFORM

We agree with the Committee’s recommendations on Gladue reports, but we think that the federal government needs to immediately lead national coordination to effectively monitor the implementation of a gender specific plan for Gladue reporting.

Evidence:

• “most of the time defence attorneys are not advising Métis women on what the purpose of a Gladue report is and how it will benefit them”[38]
• “If somebody is not visibly an Indigenous person, they will try to get away without doing any Gladue reports or engaging them in that process at all.”[39]
• “Despite the legal requirement that the Gladue factors or aboriginal social history be considered by sentencing courts, CSC, and the Parole Board, Indigenous people and especially Indigenous women are imprisoned more at higher rates of security and for longer portions of their sentences than other Canadians.”[40]
• “in our clients' experience, not very many of them have Gladue reports from when they were sentenced”[41]
• There are not enough Gladue writers, or Gladue writers that are properly trained, so women do not feel comfortable sharing their personal experiences, and that leads to incomplete sentencing[42]
• Native Women’s Association of Canada recommended a gender-specific plan for Gladue reporting (May 2015).

Recommendation:

• That the Government of Canada, in partnership with Indigenous peoples and communities, lead national coordination to effectively monitor the implementation of a gender specific plan for Gladue reporting.

Conclusion

“There is absolutely no question in my mind that Indigenous people have the answers to the problems that are assailing them in society. We absolutely need to put the power into their hands.”[43]

“[O]ur efforts as a country must be focused on getting Indigenous women prisoners out of prisons.”[44]

It’s time for Canada to help Indigenous offenders, women, and those with mental health issues. Canada should lead, not fight the court’s rulings against solitary confinement, and this government should lead in the reform of treatment of Indigenous women in Canada’s justice and corrections systems.

Respectfully submitted on behalf of the New Democratic Party, June 8, 2018