University of Alberta Faculty of Law Blog

Is it Reconciliation? New funding announced for Indigenous child welfare

(Image Credit: THE CANADIAN PRESS/Adrian Wyld)

Tansi Nîtôtemtik,

Indigenous child welfare has been a recurring topic on this blog as one of the areas of colonial law that most negatively impacts Indigenous people. For those of you reading for the first time, or just wishing to do a deep dive, links to our previous posts on Indigenous child welfare have been included at the end of today’s post.   

To quickly recap, the Act respecting First Nations, Inuit and Métis children, youth and families ( the “Act”) came into force this year.  You may have heard the Act referred to as Bill C-92 as it was known prior to its enactment. With more Indigenous children in care now than at the height of residential schools, this law was a groundbreaking step forward.^[1] It finally acknowledges the right of Indigenous groups to exercise jurisdiction over child welfare laws and operations.

A big criticism of this Act is the glaring omission of any funding provision to support the development of Indigenous-run child welfare systems.  This is a surprising omission given the TRC’s call for adequate and sustainable funding, as well as the Canadian Human Rights Tribunal’s repeated finding of systemic discrimination against Indigenous children through inequitable funding as compared to all other children in Canada.

New funding announced

On November 27^th, Prime Minister Trudeau announced $542 million in new funding for Indigenous child welfare.^[2]  This funding is intended to propel the co-implementation of the Act with Indigenous governing bodies, and assist in building capacity to establish Indigenous-run child welfare systems.^[3]  The news release indicates that this funding is in addition to $3 billion already invested in funding support since 2019, however we have not found any publicly announced funding totalling $3 billion.^[4] The proposals related to Indigenous child welfare in the 2019 budget included:

•       $1.2 billion over three years, beginning in 2019–20 to provide access to services for First Nation children.
•       $220 million over five years, beginning in 2019–20, to provide services to Inuit children as work continues with Inuit and other government partners to improve local capacity to deliver services.^[5]

Obviously this $542 million is welcome news, especially since it appears to be new funding (as opposed to re-allocated funding).  However, as with all funding, ascertaining the benefits conferred requires understanding who and what is eligible, and how to access that money. 

Breakdown of the new funding

The federal government’s commitment will provide $542 million in funding over five years, broken down as follows:

• $425 million over five years for capacity-building funding for Indigenous jurisdictions.
• Nearly $73 million over five years for coordination agreement discussions.
• Over $35 million for internal services.
• Nearly $10 million over two years for governance engagement mechanisms.^[6]

The Assembly of First Nations (AFN) has projected a funding requirement of $3.5 billion over 5 years in order for First Nations to effectively assume jurisdiction and operations of child welfare services.^[7] This funding estimate does not take into account the funding requirements of Inuit and Métis communities. Existing funding to Indigenous governing bodies, as we have repeatedly highlighted on this blog, is chronically deficient and could not support the transition.

What do we think?

Our first concern with funding for improved Indigenous delivered services, is that an organization must first be provincially delegated in order to receive funding.^[8]  The concept of self governing bodies being required to seek permission from the colonial government is odd, but nevertheless common in funding models.

Our second concern is the funding amount.  If Prime Minister Trudeau’s representation of an existing $3 billion in funding is correct, then this new funding adds enough to meet the AFN projected funding requirement, though again, this does not factor in funding needs of Inuit and Métis governing bodies. The actual funding amount allocated is difficult to ascertain as Canada has not released an official budget in the past two years, so we are forced to accept these announcements at face value for now.

The third concern Team ReconciliAction has with this funding announcement, is that there is no mechanism for distribution of the funds.  The AFN entered into a protocol agreement earlier this year that included bi-lateral meetings and a joint finance table. However Inuit and Métis governing bodies have not yet made any such agreement.^[9]  There are also many First Nations that are not represented by AFN, who would require funding for the implementation of the Act.  This highlights an ongoing problem with the way that Canada provides pan-Indigenous funding. Canada ignores the known fact that these are distinct nations with distinct laws and distinct needs, and uses distribution models that create conflict between Indigenous groups who are then forced to fight for the funds they require.

Overall, it is a positive that there is funding for the implementation of this Act, though it remains disappointing that it was omitted from the legislation.  Indigenous people are tired of being told to wait for things that Canada stripped away over 150 years ago, but the roll-out of this funding is just another “wait-and-see” at this time.

Links to previous posts on Indigenous Child Welfare

Part I: Sixties Scoop

Intergenerational Injustice & Indigenous Child Welfare

Ohpikihawasowin (the raising of children)

Moving Forward and Looking Back: Indigenous Children

In the Media: Spirit Bear Teddy Bear Tea Party & Book Launch

ILSA Speaker Series: Panel Discussion and the Aboriginal Justice Award

Systemic Barriers and Indigenous Children: Bill C-92

Systemic Barriers and Indigenous Children: Bill 22

Influential Indigenous Women: Dr. Cindy Blackstock

In the Media: The Canadian Human Rights Tribunal Orders Compensation for First Nations Children

The Role of the Indigenous Community in Child Development

Indigenous Mothering and the Impacts of the Child Welfare System

Misconceptions of 'Bad Parenting' and the Impacts on Child Apprehension

In the Media: Dr. Cindy Blackstock & Dr. Hadley Friedland on Bill C-92

"Decolonization" and Why it Matters in the Context of Child Welfare

De-colonizing Racine v Woods

An Overview of Bill C-92

An Overview of Bill 22

5 Years After TRC: Reducing Children in Care

5 Years After TRC: Reducing Children in Care Part 2

5 Years After TRC: A National Standard

5 Years after TRC: A National Standard (Part 2)

 

Maarsii to everyone who participated in our polls on social media telling us to write this post, stay tuned tomorrow for more TRC response evaluations!

Until Next Time, 

Team ReconciliAction

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¹ Olivia Stefanovich & John Paul Tasker, “Ottawa, AFN pen agreement to map out funding for First Nations child welfare overhaul”, (7 July 2020), online: CBC News <https://www.cbc.ca/news/politics/indigenous-child-welfare-c92-funding-1.5639885>.

² “More support to advance reform of services for Indigenous children and families”, (27 November 2020), online: Prime Minister of Canada <https://pm.gc.ca/en/news/news-releases/2020/11/27/more-support-advance-reform-services-indigenous-children-and-families>.

³ Ibid.

⁴ Ibid.

⁵ Department of Finance Government of Canada, “Budget 2019: Chapter 3”, (19 March 2019), online: <https://www.budget.gc.ca/2019/docs/plan/chap-03-en.html#Chapter-3---Advancing-Reconciliation>.

⁶ supra note 2.

⁷ Jorge Barrera & 2019, “First Nations need billions in funding to take over child welfare services, says AFN regional chief”, (3 December 2019), online: CBC News <https://www.cbc.ca/news/indigenous/afn-special-chiefs-assembly-1.5381566>.

⁸ Government of Canada; Indigenous and Northern Affairs Canada; Communications Branch, “First Nations Child and Family Services”, (3 November 2008), online: <https://www.sac-isc.gc.ca/eng/1100100035204/1533307858805>.

⁹ Indigenous Services Canada, “The Assembly Of First Nations and Canada Sign a Historic Protocol Agreement to Advance the Transfer Of Child And Family Services To First Nations”, (7 July 2020), online: gcnws <https://www.canada.ca/en/indigenous-services-canada/news/2020/07/the-assembly-of-first-nations-and-canada-sign-a-historic-protocol-agreement-to-advance-the-transfer-of-child-and-family-services-to-first-nations.html>.

TRC 5 Years Later: United Nations Declaration on the Rights of Indigenous Peoples

Tansi Nîtôtemtik,

The current state of the relationship between Indigenous people and the Canadian government is a result of many factors, including assimilation programs, the implementation of the Indian Act, and the Crown’s failure to uphold Treaty promises.^[1] The Crown saw the Treaties as a legal instrument through which Indigenous people surrendered lands, whereas some Indigenous groups perceived the Treaties as commitments by both sides to live peacefully together.^[2] Crown officials justified colonial sovereignty over Indigenous people through the Doctrine of Discovery and their racist beliefs of settler superiority.^[3] The Doctrine of Discovery is a self-serving law created by Europe to legitimize its assertions of power over Indigenous people. Canadian constitutional and legal doctrines were founded on these assumptions of sovereignty and superiority and continue to undercut the relationship between Indigenous people and the Canadian government today.^[4] Repairing the damaged relationship between Indigenous people and the Crown will require reshaping Canadian society socially, politically, and economically.^[5]

In its final report, the TRC expresses a need for a “new [Royal Proclamation] that reaffirms the long-standing, but often disregarded, commitments between Canada and Aboriginal peoples. The proclamation would include an official disavowal of the Doctrine of Discovery and commitment to the full implementation of the United Nations Declaration.” We first discussed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in our October 30th post. To recap, UNDRIP was adopted by the United Nations in 2007 to preserve the rights that “constitute the minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world.”^[6] UNDRIP also affirms that “all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust”.^[7] Nations can not fully implement UNDRIP without first disavowing historical doctrines and policies that underlie all present day legal and constitutional dealings with Indigenous people.

Canada officially adopted UNDRIP without qualification in 2016, however this adoption is purely aspirational. Unfortunately, UNDRIP is not a binding treaty or convention, and there are no consequences for nations that do not follow its provisions.^[8] State rejection of the Doctrine of Discovery and implementation of UNDRIP are both necessary steps to eliminate the presence of colonialism in Canada’s contemporary constitutional and legal doctrines.

Two Calls to Action speak specifically to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Calls 43 and 44 state:

43) We call upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.

44) We call upon the Government of Canada to develop a national action plan, strategies, and other concrete measures to achieve the goals of the United Nations Declaration on the Rights of Indigenous Peoples.^[9]

There have been some attempts to implement UNDRIP legislation by both Federal and Provincial governments. In 2016, former MP Roméo Saganash introduced Bill C-262 to Parliament.^[10] The Act aspired to  ensure that UNDRIP would be used by the judicial system to interpret and inform statutes, regulations and constitutional doctrine.^[11] Unfortunately the Bill did not pass the Senate prior to the 2019 federal election.

A federal environmental assessment law implemented in 2019 references UNDRIP.  Bill C-69 references the government’s commitment to implementing UNDRIP, and provides greater opportunities for Indigenous consultation and engagement.^[12] However, there does not appear to be room for Indigenous groups to unilaterally modify or stop projects, even if an unacceptable infringement of their rights will occur.^[13] This does not align with the UNDRIP provisions related to Indigenous self-government and autonomy.^[14] At most, this is a guarded change that leaves ultimate decision-making power with the Crown.

The current federal government is actively working to adopt UNDRIP into legislation. Unfortunately, leaked text of the new UNDRIP Bill has been criticized as being “unacceptably vague and noncommittal”.^[15] Rather than following an “action-oriented approach”, the new legislation would introduce “a broad and ill-defined set of promises and commitments” that would require interpretation by the courts.^[16] This does not meet the threshold of “concrete measures” laid out by the TRC.

On the provincial level, one government has successfully passed UNDRIP legislation: British Columbia. The Declaration on the Rights of Indigenous Peoples Act received Royal Assent on November 28, 2019.^[17] Relevant to Call 43, section 3 of the Act states:

In consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.^[18]

A current legal title claim will put this new Act to the test. In a case launched in 2017, the Nuchatlaht Nation claims legal title to territory on the north of Nootka Island, just off the west coast of Vancouver Island.^[19] The claim has not yet been heard  in court, however, representatives for the Nation have revealed that the provincial government has raised the defence of abandonment, meaning they are arguing that the Nation lost their territorial rights by not consistently occupying their lands.^[20] Jack Woodward, lawyer for the Nuchatlaht, says that substantial written records indicate that the Nuchatlaht were forced off their territory without compensation,^[21] which undermines the province’s argument that they voluntarily abandoned their territory. In addition, the province’s claim appears to be inconsistent with Article 8(2)(b) of the B.C. Act, which states:

States shall provide effective mechanisms for prevention of, and redress for:

(b) Any action which has the aim or effect of dispossessing [Indigenous people] of their lands, territories or resources^[22]

We will have to wait and see how the Nuchatlaht land claim plays out in court. Until then, it is up in the air whether British Columbia has truly implemented UNDRIP as their framework for reconciliation.

For Call 43, we assign a grade of “D-” in recognition of the federal government’s adoption of UNDRIP and B.C.’s adoption of UNDRIP legislation. The federal government receives an “F” for Call 44, as it has consistently failed to develop any concrete measures or action plans to implement UNDRIP in Canada. All levels of government need to put more effort into adopting and implementing UNDRIP as the framework for reconciliation.

Until Next Time, 

Team ReconciliAction

^[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 184 [TRC].

^[2] Ibid.

^[3] Ibid at 191.

^[4] Ibid.

^[5] Ibid at 184-185.

^[6] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, UN Doc A/61/295 (2007), art 43 [UNDRIP].

^[7] Ibid, annex.

^[8] TRC, supra note 1 at 86.

^[9] Ibid at 191.

^[10] Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, 1st Sess, 42nd Parl, 2016.

^[11] Ibid, cl 4.

^[12] Canada, “Key Amendments to Bill C-69” (Ottawa: Canada, July 31, 2018), infographic, https://www.canada. ca/content/dam/themes/environment/conservation/environmental-reviews/infographic-amendments-indigenous-en.png.

^[13]David V. Wright “Indigenous Engagement and Consideration in the Newly Proposed Impact Assessment Act: The Fog Persists” (27 February 2018), online: ABlawg, http://ablawg.ca/wp-content/uploads/2018/02/Blog_DVW_Indigenous_IAA.pdf.

^[14] UNDRIP, supra note 6, art 4.

^[15] Ken Coates & Heather Exner-Pirot, “Opinion: UNDRIP is not a threat to Canada; the implementing legislation is”, National Post (21 October 2020), online: https://nationalpost.com/opinion/opinion-undrip-is-not-a-threat-to-canada-the-implementing-legislation-is

^[16] Ibid.

^[17] Bill 41, Declaration on the Rights of Indigenous Peoples Act, 4th Sess, 41st Leg, British Columbia, 2019 (assented to 28 November 2019) [Bill 41].

^[18] Ibid, s 3.

^[19]Nuchatlaht, “Land Title Claim”, online: http://www.nuchatlaht.com/land-title-claim.html.

^[20] Judith Lavoie, “B.C. argues Nuchatlaht Nation ‘abandoned’ its territory. Lawyer reminds court ‘land was stolen’”, The Narwhal (25 November 2020), online:https://thenarwhal.ca/bc-nuchatlaht-title-case-undrip/.

^[21] Ibid.

^[22] Bill 41, supra note 16, art 8.

Call to Action #42: the Legal Definition of ‘Reconciliation’

 

Tansi Nîtôtemtik,

 

Call #42 addresses the underlying legal structures upon which the current justice system is built. It is broad and ambitious, and calls on each level of government to act in accordance with Treaty Rights, Constitutional documents, and International Legal Declarations.

 

It is as follows:

 

We call upon the federal, provincial, and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with the Treaty and Aboriginal rights of Aboriginal peoples, the Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in November 2012.^[1]

 

Our post tomorrow will address the United Nations Declaration on the Rights on Indigenous Peoples in further detail, a subject that Team ReconcilAction has referenced before in earlier posts, found here. A more detailed discussion on Treaty rights, interpretations and obligations will be held in the new year when we address the Calls to Action concerning Equity for Indigenous People in the Legal System.

 

Today, we wish to focus on section 35(1) of the Constitution Act, 1982, which is stated as follows:

 

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.^[2]

 

Section 35(1) has been called the ‘full box of rights’ approach to Aboriginal law, as it purports to “holds the promise that Indigenous nations will become partners in Confederation on the basis of a fair and just reconciliation between Indigenous peoples and the Crown.”^[3] We would suggest that this characterization is misleading, and that 35(1), as it is currently interpreted, is incapable of truly permitting sovereign Indigenous Justice systems to operate within Canada's constitutional framework.

 

While the purpose underlying Section 35(1) is 'reconciliation',^[4] the legal meaning and application of 'reconciliation' differs from the political and common use understanding. The use of 'reconciliation' in section 35(1) is grounded in a legal framework in which Indigenous people are subjects of the Crown; a relationship predicated on the unilateral assertion of crown sovereignty over Indigenous people and their lands.^[5]

 

 

This understanding of reconciliation is grounded in R v Sparrow, the first case in which section 35(1) was heard before the Supreme Court in 1990.^[6] Ronald Sparrow, a member of the Musqueam band, was arrested under the Fisheries Act for using a prohibited fishing net. He argued an Aboriginal right to do so – an existing practice of the Musqueam people.^[7]  In interpreting what rights section 35(1) affirmed, the Supreme Court first used the term ‘reconciled’ in the context of Aboriginal law. What the Court was seeking to reconcile in Sparrow was the Federal government's power over Indigenous people, with its duty to Indigenous people.^[8] 

 

Sparrow imported an understanding of section 35(1) constitutional rights that are grounded in the assertion of unilateral crown sovereignty over Indigenous People and their lands, consistent with other constitutional documents at the time, but by no means the only possible interpretation.^[9] While the legal language of 'reconciliation' since Sparrow has moved towards a more interests-based and future-looking conception, the assertion of Crown sovereignty continues to be central to interpretations and applications of section 35(1).^[10] 

 

 

It has been held by courts that this assertion of sovereignty is necessary for reconciliation under 35(1), that is, without a starting point of unquestioned and complete Crown sovereignty, there is nothing to reconcile.^[11] The starting point is the Crown holding control over Indigenous claimants, and section 35(1) permits Indigenous rights holders to demonstrate a narrow legal right  - often through litigation at great time expense. The Crown then retains the ability to 'justifiably infringe' any right that is successfully demonstrated.^[12]

 

In response to call to action 42, the Federal government has stated that “The Government of Canada is committed to a renewed nation-to-nation, government-to-government and Inuit-Crown relationship, based on the recognition of rights, respect, cooperation and partnership.”^[13] We would suggest that the language of ‘nation-to-nation’ or ‘government-to-government’ relationships are incompatible with the current Canadian constitutional framework and section 35(1). A commitment to a nation-to-nation relationship is a powerful statement that loses most, or all, of its meaning under the current framework of section 35(1) of the Constitution Act. We would suggest that a re-evaluation of Canada’s constitutional structure and Federal system would be necessary to truly invoke a 'nation-to-nation' relationship.

 

Until tomorrow,

 

Team ReconciliAction YEG

 

----- Want to hear more? -----

 

 

¹Canada, Truth and Reconciliation Commission, Honouring the Truth and Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015 at 181.

² Constitution Acr, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

³Department of Justice, “Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples,” (14 February 2018) online, <https://www.justice.gc.ca/eng/csj-sjc/principles-principes.html>.

⁴ R v Van der Peet, [1996] 2 SCR 507,1999 Canlii 216 (SCC) at 31. 

⁵Joshua Ben David Nichols, A Reconciliation Without Recollection? (Toronto: University of Toronto Press, 2020) at 38-45 [Nichols].

⁶ R v Sparrow, [1990] 1 SCR 1075, 70 DLR (4th) 385.

⁷ Ibid. 

⁸ Ibid. 

⁹ Nichols, at 39.

¹⁰See Generally Tsilhqot’in Nation v British Columbia, 2014 SCC 44; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53.

¹¹ R v DeSautel, 2017 BCSC 2389 at 72 citing Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73. 

¹² R v Sparrow.

¹³ Crown-Ingidionus Relations and Northern Affairs Canada, "Delivering on Truth and Reconciliation Commission Calls to Action" (05 September 2019). online: <https://www.rcaanc-cirnac.gc.ca/eng/1524502695174/1557513515931>. 

 

 

TRC Call to Action #41: Inquiry into Missing and Murdered Indigenous Women and Girls

 

41. We call upon the federal government, in consultation with Aboriginal organizations, to appoint a public inquiry into the causes of, and remedies for, the disproportionate victimization of Aboriginal women and girls. The inquiry’s mandate would include:

i. Investigation into missing and murdered Aboriginal women and girls

ii. Links to the intergenerational legacy of residential schools.

Tansi Nîtôtemtik,

There were various recommendations and a number of ways on how this Call to Action could be implemented, such as setting up campaigns online and within schools and universities, media coverage, but perhaps the most effective starting off point was a formal inquiry that included ample community involvement with the end goal of publishing findings to be implemented. 

In September 2016, the Government of Canada launched a national inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG). The establishment of a public inquiry "into the causes of, and remedies for, the disproportionate victimization of Aboriginal women and girls" from Call to Action 41  catalyzed the creation of the report.[1] The process of compiling the MMIWG report started off slow, but much was going on behind the scenes to make sure the right people were involved such as the Elder Advisors, or “Grandmothers,” who gathered in ceremony at a sweatlodge in Quebec, to ask themselves: what should the MMIWG  Inquiry look like, and what is the best way to do this work? The sweatlodge was part of the Missinak Community Home, a safe house in Quebec City co-founded by Elder Pénélope Guay, Commissioner Audette’s spiritual grandmother. As one witness,Pénélope, shares,

“We all got together there. And we came up with a plan, in our own way. We came up with a plan to see how the National Inquiry would proceed. For the Grandmothers [and Elders], for the Commissioners. What will our work be? That’s how it went. We decided on everything you see. Our role, our involvement. That was when we decided on how it would all be done.”[2]

To honour their work, the National Inquiry asked the National Inquiry Elders and Grandmothers to sit down with the Research team and to include their reflections of the journey in the Final Report as a way to honor their many contributions. . The Final MMIWG Report was released June 3, 2019, you can find a copy of the entire report, titled: “Reclaiming Power and Place” here: https://www.mmiwg-ffada.ca/final-report/ 

(Photo Credit: MMIWG website) 

After the release of the Final Report, chief commissioner Hon. Marion Buller implored all Canadians to read the report-- not just skim but actively read it all the way through, because of its importance. The 1,200-page report outlined what the commission described as” “an intergenerational Canadian genocide, revealing “persistent and deliberate human and Indigenous rights violations and abuses” as the cause of “staggering rates of violence” against Indigenous peoples, specifically women.[3]

Not surprisingly, the phrase garnering the most attention from the Report was “Canadian Genocide”,and rightfully so. It is an ugly, terrible phrase that best describes the ugliness of how the victimization of Indigenous women, girls and 2SLGBTQQIA (two-spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual) people who have been largely ignored with barely a side glance or acknowledgement from those who could do something to help. 

Although Justin Trudeau initially stopped short of saying the phrase after the Report, he did later use the word in Vancouver at a gender equality conference [4] which marked a change in existing attitudes towards MMIWG. While this acknowledgement is a start. Now law enforcement organizations across the country need to do their part in acknowledging and addressing the need to change a fundamentally systemic discrimination problem from within. In particular, the RCMP of which the Inquiry's report calls out 'long-standing indifference from the police'. [5]

 What has been done? 

The Report included over 200 Calls for Justice, and lately talks around implementing those Calls have been stalled since the release of the Final Report.This lack of implementation is concerning to say the least. The report was a very important first step, yet many more must be taken in order to truly address the horrors that Indigenous women and girls face on a daily basis. Let us hope this is not a stall, but rather a moment to breathe and assess how to best move forward as a society before implementing the recommended Calls for Justice outlined in the report. 

Until Next Time,

Team ReconciliACtion YEG

[1]Nicole Ireland, “Former TRC chair hopes missing, murdered Indigenous women inquiry hears testimony soon”, (Mar 21, 2017) online: CBC News /<www.cbc.ca/news/indigenous/truth-and-reconciliation-progress-mmiw-1.4033192>. 

[2] Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, Volume 1a, (June 2019) online (pdf): https://www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Final_Report_Vol_1a-1.pdf

[3] Jonathan Forani, “Key takeaways from the final MMIWG report” (June 3, 2019) online: CTV News <www.ctvnews.ca/politics/key-takeaways-from-the-final-mmiwg-report-1.4450095>. 

[4] Ibid

[5] Catharine Tunney, “RCMP will 'give careful consideration' to MMIWG recommendations, says commissioner” (June 3, 2019) online (pdf): <www.cbc.ca/news/politics/rcmp-mmiwg-reforms-1.5160206>.  

Criminal Victimization

Tansi Nîtôtemtik,

(image credit: Policy Options magazine, https://policyoptions.irpp.org/magazines/september-2018/what-can-we-learn-from-the-stanley-trial/)

Today we focus our assessment on Indigenous victims of crime. The victimization of Indigenous peoples in Canada began with historical colonial assimilation policy and continues today. The intergenerational trauma resulting from these policies continue to impact Indigenous people today. This trauma underlies much of the continued involvement of Indigenous offenders in the criminal justice system. 

The TRC made two specific Calls to Action regarding criminal victimization:

39. We call upon the federal government to develop a national plan to collect and publish data on the criminal victimization of Aboriginal people, including data related to homicide and family violence victimization
40. We call on all levels of government, in collaboration with Aboriginal people, to create adequately funded and accessible Aboriginal-specific victim programs and services with appropriate evaluation mechanisms.^[1]

Call to Action #39

Call to Action #39 recognizes the familiar trend of inadequate data collection specific to  Indigenous peoples. This lack of aggregate data is often used as an excuse for underfunding. Government-developed programming and interventions have historically focused on Indigenous peoples as offenders, but Indigenous peoples are overrepresented throughout the justice system meaning, in terms of incarceration and as victims of crime.  

Every five years, a survey of criminal victimization (General Social Survey (GSS) on Victimization) is undertaken by Statistics Canada to create a report and determine the trends of criminal victimization. The GSS is the main source of national data regarding criminal victimization, with some supplemental data from police and RCMP and special studies like the annual Statistics Canada Homicide Survey. ^[2]

Several issues have been identified with data collection regarding Indigenous victimization, including:

• A lack of data on the Indigenous experiences of criminal victimization, other than some data on violent crime and spousal violence.^[3]
• Between 2003 and 2013, the Indigenous identity of about half of homicide victims in the annual Homicide Survey was reported as unknown. ^[4]
• Over reliance on the self-reported GSS,  which does not document victims’ experiences in the justice system, uses inconsistent definitions of “Aboriginal” and is completed via  telephone or internet (since 2014). ^[5]

Some promising steps have been taken towards Call to Action #39. The 2014 Homicide Survey improved its data collection to include more complete information on Indigenous identity of victims, resulting in a classification of only 3% of victims as “unknown”.^[6] The sobering results of the Homicide Survey show that in 2019 Indigenous people (5% of the general population) accounted for 27% of homicide victims.^[7] While Canada needs to take serious action to address this tragic disparity, accurate statistics of homicide of Indigenous peoples is the first step to creating a plan. 

Further, the Canadian Association of Chiefs of Police and Statistics Canada committed to improve data collection by police and key organizations on crime statistics regarding Indigenous and ethno-cultural groups on July 15, 2020.^[8] However, his fairly recent development comes 5 years after the TRC and it remains to be seen whether this data will be collected in a useful form.

Call to Action #40 

National and provincial victims services programs provide personal and financial programs for the victims of crime. Call to Action #40 recognizes the need for programming that acknowledges the unique experiences of Indigenous victims of crime. For example, Indigenous victims may lack trust in the criminal justice system due to over 150 years of oppression by a system originally developed to eradicate and assimilate the first peoples of this land.

The use of specialized victims services groups during the MMIWG Inquiry emerged as a positive development towards Call to Action #40, however the focus of these groups on colonial institutions speaks to a need for more comprehensive, Indigenous-led initiatives.^[9]  

One example of positive change is the National Office for Victims’ (NOV) creation of publications for victims of crime in Indigenous languages, including Innu, Inuktitut, Mi’kmaq, Ojibway, Oji-cree, and Plains Cree.^[10] The mandate of the NOV (part of the Federal Department of Public Safety) is to develop information and policy that supports victims of crime.

(image credit: Northern Secwepemc te Qelmucw https://nstq.ca/aboriginal-victim-services-2/)

Final Thoughts

Call to Action #39 and #40 sparked some change, but the momentum needs to continue in the form of program funding and follow-up on the staggering statistics regarding Indigenous victimization. We are assigning the following grades:

• Call to Action #39: B
• Call to Action #40: B-

¹Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015)

²Department of Justice, “Indigenous overrepresentation in the criminal justice system” (May 2019) online (pdf): JustFacts <www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2019/may01.html>. 

3Ibid.

⁴Department of Justice, “Data Sources on Indigenous Victimization” (July 2017) online (pdf): JustFacts <www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2017/july02.html>

5Ibid (Face-to-face interviews are only done in the Territories)

6Ibid.

⁷Statistics Canada, “Homicide Statistics in Canada, 2019” (Oct 29,2020) online: <www150.statcan.gc.ca/n1/pub/11-627-m/11-627-m2020055-eng.htm>. 

⁸Statistics Canada. “Collection of data on Indigenous and ethno-cultural groups in Canada’s official police-reported crime statistics” (July 15, 2020) online:<www.statcan.gc.ca/eng/about/smr09/smr09_106>. 

⁹Katie Scrim & Naomi Giff-MacKinnon, “Specialized Victim Services for the Families of Missing and Murdered Aboriginal Women: An Overview of Scope, Reach and Impact” (Sep 13, 2018) online: <www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rd8-rr8/p5.html>. 

¹⁰ Public Safety Canada, “National Office for Victims” (Nov 20, 2020) online:   <www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/ntnl-ffc-vctms-en.aspx>.

5 Years After TRC: Youth Injustice

(Christie Belcourt, The Crow Taught Her. She Listened. via “Feature artist for April 2020: Christi Belcourt”, (19 April 2020), online: Alberta Native News <https://www.albertanativenews.com/feature-artist-for-april-2020-christi-belcourt/>.)

 

Tansi Nîtôtemtik,

Last week we discussed Canada’s response to TRC Call to Action #30, which addresses the over-incarceration of Indigenous people in Canada. Today we will evaluate Call to Action #38, which calls upon the “federal, provincial, territorial, and Indigenous governments to commit to eliminating the overrepresentation of Indigenous youth in custody over the next decade.”^[2]

 

Since the Youth Criminal Justice Act (YCJA) came into force in 2003, overall youth incarceration has been significantly reduced.^[3]  However, the population of incarcerated Indigenous youth has not been decreasing at the same rate, and the proportion of the incarcerated youth population that is Indigenous has been steadily increasing.^[4]  

 

As of 2018, the proportion of incarcerated Indigenous youth had risen to 43%, up from 26% in 2008.^[5] Both of these numbers are disgraceful given that Indigenous youth account for about 8% of the Canadian youth population.^[6]  But what else do these numbers tell us?

 

1. If the overall incarcerated youth population is decreasing, it's because fewer non-Indigenous youth are being imprisoned.  
2. Indigenous youth offenders are still consistently incarcerated for unlawful conduct.
3. Indigenous youth offenders are far more likely to be imprisoned than non-Indigenous youth offenders.

 

This over-incarceration of Indigenous youth has been linked to the similar overrepresentation in the child welfare system, and those affected have been dubbed “Crossover Kids”. A report analyzing this link was released this past April by the Manitoba Centre for Health Policy (MCHP).^[7]  In Manitoba, around 25% of children identify as Indigenous, yet Indigenous children and youth make up an unconscionable 90% of children in care and  80% of corrections admissions.^[8]  The report found a very high likelihood of overlap for Indigenous youth who were 24 times more likely to have experienced both systems, than non-Indigenous youth in the province.^[9]  In determining the reasons for this overlap, the report was careful to note that Indigeneity is NOT an indicator for criminality, but instead placed the blame squarely on Canada, citing: 

 

• Colonial assimilation policies and practices, such as residential schools and the Sixties Scoop; 
• Systemic racism in both Child and Family Services and the youth criminal justice system,  and 
• Structural violence and "chronic underfunding" of services to Indigenous communities which amount to a denial of basic human rights, or necessary resources.^[10]

 

So what is Canada doing to reduce incarceration of Indigenous youth since the TRC report called them to action in 2015?

 

An amendment to the YCJA came into force in December of 2019, which will work to reduce youth over-incarceration by: 

• encouraging the use of extrajudicial measures and judicial reviews as alternatives to laying charges for administration of justice offences; 
• limit the use of custodial sentences for administration of justice offences;
• require that circumstances of Indigenous accused and of accused from vulnerable populations are considered at bail, and
• ensure that the conditions imposed on youth at the bail stage or at sentencing are only those necessary to address the offending behaviour.^[11] 

 

On November 18th, the Government of Canada announced $5 million in funding that will be spread across eight organizations who do preventative and restorative justice work with Indigenous youth.^[12]

 

Whether these initiatives will have any impact on over-incarceration of Indigenous youth remains to be seen. Unfortunately, they do not address the systemic racism, systemic violence, over-representation in child welfare, and the chronic underfunding of Indigenous communities that are known factors in Indigenous youth offending. These new measures are the equivalent of putting a bandaid onto a severed artery. Without a sweeping reform in Canada’s approach to reconciliation, we are not likely to produce improved outcomes for Indigenous youth. Team ReconciliAction assigns Canada a Grade of ‘F’ on the response to Call to Action #38.   

Did we miss anything Canada is doing to fix the over-incarceration of Indigenous youth? Tell us in the comments!

 

Until Next Time, 

Team ReconciliAction

 

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¹  Patricia Monture-Angus, Thunder in my soul: a Mohawk woman speaks (Halifax, N.S: Fernwood Pub, 1995) at 59.

² Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 178.

³ Youth Criminal Justice Act, SC 2002, c 1 [YCJA]; Nicholas Bala, Peter J Carrington & Julian V Roberts, “Evaluating the Youth Criminal Justice Act after Five Years: A Qualified Success” (2009) 51:2 Can J Criminol & Crim Justice 131 at 139.

⁴ Nate Jackson, “Aboriginal Youth Overrepresentation in Canadian Correctional Services: Judicial and Non-Judicial Actors and Influence” (2015) Alta L Rev 927 at 928, 935.

⁵ Statistics Canada, Adult and youth correctional statistics in Canada, 2017/2018, by Jamil Malakieh, Catalogue no. 85-002-X (Ottawa: Statistics Canada, 2019) at 7.

⁶ Ibid. 

⁷ Marni Brownell et al, The Overlap Between the Child Welfare and Youth Criminal Justice Systems: Documenting “Cross-Over Kids” in Manitoba (Winnipeg, MB: Manitoba Centre for Health Policy, 2020).

⁸ Nicholas Frew, “Overlap between involvement in CFS care, Manitoba youth justice system ‘hard to deny’: co-author of new study”, (3 June 2020), online: CBC News <https://www.cbc.ca/news/canada/manitoba/study-children-youth-cfs-youth-criminal-justice-manitoba-1.5596165>.

⁹ Brownell et al, supra note 7 at 76.

¹⁰ Ibid at xviii.

¹¹ Canada, Department of Justice, Legislative background: an Act to Amend the Criminal Code, the Youth Criminal Justice Act and Other Acts and to Make Consequential Amendments to Other Acts (Bill C-75). (Ottawa: DOJ, 2018).

¹² Department of Justice Canada, “Government of Canada supports restorative justice initiatives across the country, including those supporting Indigenous communities and youth”, (18 November 2020), online: gcnws <https://www.canada.ca/en/department-justice/news/2020/11/government-of-canada-supports-restorative-justice-initiatives-across-the-country-including-those-supporting-indigenous-communities-and-youth.html>.

TRC 5 Years Later: Rehabilitation and Reintegration of Indigenous Offenders

Tansi Nîtôtemtik,

Over the last two weeks, we have sifted through the myriad of information on the TRC Calls to Action on Justice 25 through 35. We have covered the pattern of disproportionate imprisonment of Indigenous people historically and today. There are multiple, complex causes for this overrepresentation of Indigenous people in custody. One of the concerns is the lack of culturally appropriate rehabilitative programs that are tailored to the specific experiences of Indigenous people, including intergenerational trauma.^[1] 

 

The TRC found that Indigenous inmates who receive Indigenous culture and spirituality services are able to make “positive changes” that results in lower recidivism rates than Indigenous offenders who do not participate in such activities.^[2] Such programs are important while offenders are housed in correctional facilities and during the transitional phase of an offender’s release.^[3] Calls to Action 36 and 37 respond to this need and call on greater support for Indigenous people in custody and during their reintegration into the community.^[4]

 

TRC Call to Action 36

Call to Action 36 calls “upon the federal, provincial, and territorial governments to work with Aboriginal communities to provide culturally relevant services to inmates on issues such as substance abuse, family and domestic violence, and overcoming the experience of having been sexually abused.”^[5] 

 

On the national level, the federal government has increased funding to the Correctional Service of Canada (CSC). Beginning with the 2017 Budget, the government allocated $55.2 million over 5 years and $10.9 million per year ongoing to “engage Indigenous communities and organizations through contracts to provide addictions treatment, trauma counseling, gang disaffiliation and life skills support.”^[6] The 2017 Budget also allocated $10 million over 5 years to the Indigenous Community Corrections Initiative overseen by Public Safety Canada.^[7] This initiative supports the development of projects to provide alternatives to incarceration and community reintegration support for Indigenous offenders.^[8]

 

Provincial correctional facilities are designed for offenders serving sentences of two years less a day or who are awaiting trial.^[9] Unfortunately, these facilities do not provide many services tailored to Indigenous people.^[10] On the provincial level, British Columbia, Ontario, and Yukon have committed varying levels of support to meet Call 36.^[11] A collaboration between BC Corrections and the Justice Institute of British Columbia trains independent Aboriginal justice workers to deliver domestic violence programs, substance abuse programs, and approaches to restorative justice.^[12] In Ontario, the Correctional Services and Reintegration Act, 2018 made Elder and Spiritual Advisor services and traditional healing services available to all Indigenous inmates.^[13] 

 

There is a big gap in the culturally relevant Indigenous services provided at the provincial level. More provincial governments need to step up to support the safe and successful reintegration of Indigenous offenders into society. This will have a marked effect in decreasing recidivism of Indigenous offenders.

 

TRC Call to Action 37

The proportion of non-Indigenous offenders on parole is over 18% higher than Indigenous offenders (47% versus 28.8%), with the rate of technical revocations of parole being 2.5 times higher for Indigenous offenders than non-Indigenous offenders.^[14] There is a great need to increase the rate of provisional release, and decrease the rate of technical revocation for Indigenous offenders. Call 37 calls “upon the federal government to provide more supports for Aboriginal programming in halfway houses and parole services.”^[15]

 

Parole Services

Parole hearings would benefit from having similar background and contextual information about Indigenous offenders that the courts have through pre-sentencing reports.^[16]

 

The COVID-19 pandemic has had a negative impact on Elder-assisted parole hearings. According to the federal government, Elder-assisted hearings for Indigenous offenders are still being conducted at the discretion of individual Parole Board of Canada (PBC) regional offices,^[17] but a separate news report indicates 127 Elder-assisted hearings were cancelled by PBC as of May 17, 2020.^[18] At this time a remote option for Elder-assisted hearings is not available,^[19] causing Indigenous offenders to choose between proceeding without the cultural and spiritual support, or delaying their hearings and remaining incarcerated.

 

Halfway Houses

Upon being granted parole, offenders often reside in a residential correctional facility (i.e. a halfway house) in the early stages of parole.^[20] Unfortunately, few residential correctional facilities provide programming specifically for Indigenous offenders.^[21] The federal Budget 2017 allowed CSC to increase the number of Aboriginal Community Liaison Officers (ACLOs) in urban centers.^[22] ACLOs partner with Indigenous community agencies to provide “wrap-around services” such as access to Indigenous community services.^[23] ACLOs work with Elders to provide traditional and spiritual ceremonies and Indigenous cultural programs to Indigenous offenders upon their release.^[24] The goal is to provide support to Indigenous offenders to allow them to follow a traditional healing path and eventually reintegrate into their home communities.^[25] This federal budget increase is also intended to increase the use of the Corrections and Conditional Release Act section 84 release process, which outlines a protocol for Indigenous inmates who wish to be released into an Indigenous community.^[26]

 

On the provincial level, Ontario’s Correctional Services and Reintegration Act, 2018 will also better support the rehabilitation and reintegration of Indigenous offenders into society by requiring parole officers to provide individualized case management plans for all individuals under community supervision.^[27] In Quebec, the provincial government has certain treaty obligations to Inuit of Nunavik with regard to correctional services.^[28] This includes Inuit community reintegration officers, a Nunavik half-way house, substance abuse and life skills programs, and individualized schooling programs.^[29] Finally, B.C. Corrections also provides reintegration services through its Indigenous Justice Program.^[30] This is not an exhaustive list of the relevant provincial measures, but it shows that similar to Call 36, some provinces are doing more than others to support the rehabilitation and reintegration of Indigenous offenders.

 

Enhanced culturally relevant programming needs to be implemented by all levels of government in order to meet the diverse needs of Indigenous offenders and to achieve successful reintegration and reduced recidivism. Moving forward, CSC needs to continue to provide access to culturally relevant Indigenous programs, section 84 release planning, and reintegration options, with the support of Indigenous communities. Indigenous offenders would benefit from being provided the option of a remote Elder-assisted hearing for the duration of the pandemic. Even though this option may not be as comprehensive as an in-person hearing, Indigenous offenders should be given a choice.

Until Next Time, 

Team ReconciliAction

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¹Canada, Truth and Reconciliation Commission, Honouring the Truth and Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015 at 171 [TRC Report].

²Ibid at 176.

³Ibid at 176-177.

⁴Ibid.

⁵Ibid at 324.

⁶Crown-Indigenous Relations and Northern Affairs Canada, "Delivering on Truth and Reconciliation Commission Calls to Action" (05 September 2019) Online: https://www.rcaanc-cirnac.gc.ca/eng/1524502695174/1557513515931 [Delivering on Justice].

⁷Ibid.

⁸Ibid.

⁹Ibid at 176.

¹⁰Ibid.

¹¹ Indigenous Watchdog, “Call to Action # 36”, online: https://indigenouswatchdog.org/call-to-action-36/.

¹² British Columbia, “Corrections & Aboriginal Justice”, online: https://www2.gov.bc.ca/gov/content/justice/criminal-justice/corrections/reducing-reoffending/aboriginal-justice [BC Corrections].

¹³ Correctional Services Transformation Act, 2018 , SO 2018, c 6, ss 30(1), 31(1) [CSTA].

¹⁴ Canada, "The National Indigenous Plan”, online: https://www.csc-scc.gc.ca/002/003/002003-0008-en.shtml

¹⁵ TRC Report, supra note 1 at 324.

¹⁶Ibid at 177.

¹⁷Government of Canada, “COVID-19 and the Parole Board of Canada”, online: https://www.canada.ca/en/parole-board/services/coronavirus-covid-19.html#p3.

¹⁸Brett Forester, “Elder blasts ‘extremely racist’ parole board after assistance program put on hold”, APTN National News (27 May 2020), online: https://www.aptnnews.ca/national-news/elder-blasts-extremely-racist-parole-board-after-assistance-program-put-on-hold/.

¹⁹Ibid.

²⁰Ibid.

²¹Ibid.

²²Delivering on Justice, supra note 6.

²³Ibid.

²⁴Indigenous Watchdog, “Call to Action #37”, online: https://indigenouswatchdog.org/call-to-action-37/.

²⁵Ibid.

²⁶Corrections and Conditional Release Act, SC 1992, c 20, s 84.

²⁷CSTA, supra note 9, 2 154(1)(b).

²⁸Correctional Service Canada, “Aboriginal Corrections”, online: https://www.csc-scc.gc.ca/aboriginal/6-eng.shtml

²⁹Ibid.

³⁰BC Corrections, supra note 12.

Call to Action 35: Healing Lodges within the Federal Correctional System

Tansi Nîtôtemtik,

 

Our post today concerns one form of incarceration which has garnered considerable discussion and controversy since the Calls to Action were made: The implementation and operation of ‘Aboriginal healing lodges’.

 

 Call to Action 35 is as stated:

“We call upon the federal government to eliminate barriers to the creation of additional Aboriginal healing lodges within the federal correctional system.”^[1]

 

Healing lodges were first implemented by the Federal Government in 1995 in an attempt to address the disproportionate incarceration rates of Indigenous men and women through decreasing recidivism rates.^[2] The broad principles behind Healing lodges are to move the purpose of incarceration from a punitive model to one of rehabilitation. Healing lodges implement ‘culturally-specific programming’ that are intended to address underlying individual factors that led to incarceration.^[3]  

Okima Ochi Healing Lodge - Corrections Canada

 

There are currently ten healing lodges operating across Canada, with one additional planned facility announced in 2019. ^[4] There are two ways in which healing lodges are operated. Four are run directly through Corrections Services Canada, while the other six are operated by Indigenous communities or partner organizations, under the oversight of Corrections Canada.^[5]

 

While data that has been made available has suggested that healing lodges do work to reduce recidivism,^[6] a prison by any other name is still a prison.^[7] Implementing initiatives like healing lodges allow policymakers to distract from the deeper issues behind incarceration, many that have been outlined by this blog this week. While healing lodges do provide a “kinder, gentler narrative of reform,” they can act to obscure the dialogue from a deeper, systematic review.^[8] Healing lodges, while a welcomed alternative to the harsh realities of formal incarceration, do not combat the criminalization of poverty, over-policing and destructive colonial policies that created the social conditions which lead to incarceration. The increase of Indigenous offenders has far out-paced the availability of healing lodges.

 

Since the implementation of healing lodges, Corrections Canada has exerted increased control over not only who staffs these lodges, but who is admitted, and how they operate.^[9] This has lead to a mounting criticism from founding organizers who initially advocated for their creation.^[10] While Healing lodges do offer cultural programming, this is limited to the geographical and financial restraints which are unable to reflect the diversity among Indigenous nations.  For healing lodges which are community-operated, the loss of autonomy over who is admitted creates controversy when high profile non-Indigenous offenders have been transferred to healing lodges.^[11]  This has caused considerable dialogue in media and political spheres, sparking discussions on criminal law reform discussions that miss the nuance required for these discussions to be productive.^[12]

 

Recidivism data by institution is rarely made available, so it is difficult to assess with certainty the effectiveness of healing lodges. However, it appears that increased programming and holistic approaches to incarceration do lead to decreased recidivism rates.^[13] Since the Calls to Action, the Federal government has not done much to improve the availability of healing lodges, or worked to maximize this opportunity. One additional lodge has been announced for women in Scarborough, adding 24-beds, and some minor legislative changes were made to funding models.^[14] Healing Lodges, when run through communities without stifling oversight from Corrections Canada, can be a powerful tool to combat the disproportionate outcomes of the justice system. We have not seen a marked improvement since the Calls to Action were made.

 

Until Tomorrow,

 

Team ReconciliAction YEG

 

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¹Canada, Truth and Reconciliation Commission, Honouring the Truth and Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015 at 176.

²Correctional Service Canada, “History of Healing Lodges” (05 September 2019), online: < https://www.csc-scc.gc.ca/002/003/002003-2001-en.shtml>.

³Ibid.

⁴Ibid. 

⁵Ibid. 

⁶ Leticia Gutierrez et al, “Culturally Relevant Programming Versus the Status Quo: A Meta-analytic Review of the Effectiveness of Treatment of Indigenous Offenders” (2018) 60: 3 Can J Crim

⁷Maya Schenwar & Victoria Law, Prison by Any Other Name (New York: The New Press, 2020).

⁸ Ibid.

⁹ Abigail BImman, “’ There’s Nothing Left there’: A Founder of Canada’s First Healing Lodge Says CSC Dismantled Vision” Global News (14 January 2019) online: < https://globalnews.ca/news/4836380/founder-canada-first-healing-lodge-csc-vision/>.

¹⁰Ibid.

¹¹Office of the Correctional Investigator, “Spirit Matters: Aboriginal People and the Corrections And Conditional Release Act” (22 October 2012), online: https://www.oci-bec.gc.ca/cnt/rpt/oth-aut/oth-aut20121022-eng.aspx.

¹² Peter Zimonjic, “Scheer to force Commons vote on transfer of Tori Stafford’s killer to healing lodge” CBC News (28 Septmber 2018), online: < https://www.cbc.ca/news/politics/andrew-scheer-stafford-commons-motion-1.4843311>.

¹³ Leticia Gutierrez et al, "The Prediction of Recidivism with Aboriginal Offenders: A Theoretically Informed Meta-Analysis" (2013) 55:1 Can J Corr 55.

¹⁴ Crown-Ingidionus Relations and Northern Affairs Canada, "Delivering on Truth and Reconciliation Commission Calls to Action" (05 September 2019).

TRC Call to Action #33 & 34 - FASD, Justice and Reconciliation

Tansi Nîtôtemtik,

The TRC’S Call to Action 33 & 34 call on national, provincial and territorial governments to address and prevent Fetal Alcohol Spectrum Disorder (FASD) and make changes to the criminal justice system to improve outcomes for offenders with FASD.

    33.     We call upon the federal, provincial, and territorial governments to recognize as a high priority the need to                   address and prevent Fetal Alcohol Spectrum Disorder (FASD), and to develop, in collaboration with Aboriginal people, FASD preventive programs that can be delivered in a culturally appropriate manner.

    34.     We call upon the governments of Canada, the provinces, and territories to undertake reforms to the criminal  justice system to better address the needs of offenders with Fetal Alcohol Spectrum Disorder (FASD), including:[1]
i. Providing increased community resources and powers for courts to ensure that FASD is properly diagnosed, and that appropriate community supports are in place for those with FASD. ii. Enacting statutory exemptions from mandatory minimum sentences of imprisonment for offenders affected by FASD. iii. Providing community, correctional, and parole resources to maximize the ability of people with FASD to live in the community. iv. Adopting appropriate evaluation mechanisms to measure the effectiveness of such programs and ensure community safety.

First Nations peoples are often stereotyped, misjudged and experience extreme prejudice as a result of governmental policies such as the Indian Residential School System (IRS) which caused severe trauma both directly and indirectly. Intergenerational trauma has impacted Aboriginal people in ways that continue to be revealed. For example, alcohol, and other substance abuse and dependency have  often been used as a coping mechanisms to deal with intergenerational trauma. 

Fetal Alcohol Spectrum Disorder (FASD) is a diagnostic term encompassing several conditions that can occur in a person whose mother drank during pregnancy. Resulting  complications can arise in cognitive functioning, social and emotional development, and behaviour. FASD is a lifelong condition, with no cure.[2] Those with FASD have a harder time understanding right from wrong and often find themselves streamlined into the criminal justice system, as seen in our Monday’s post. This reality is especially true for Indigenous peoples. 

FASD prevention requires informed research that translates knowledge into meaningful, practical forms that can be shared with, and implemented by, local communities [3]. In order to accomplish this goal, all levels of government must work together to provide the necessary programs to combat FASD and also address the need to help heal people and communities who deserve an equal chance to live a life with readily available supports in place. 

 The 2017 Federal Budget allocated an “additional” $10.5M over 5 years to the Fetal Alcohol Spectrum Disorder Program with $3.7M ongoing funding, beyond the $14.2M allocated annually prior to 2017-2018. By 2022 the annual funding will have increased from $16.3M to $17.9M as part of an existing suite of services aimed to improve health outcomes for First Nations and Inuit children, families and communities. However there is no mention in this extra funding of Métis families and communities.[4]

In August 2019, Quebec launched the Agir Tôt (Act Early) program, which included funding for FASD screening in the Nunavik region in northern Quebec. Multiple initiatives in the provinces and territories have also commenced. In Ontario, the Indigenous Fetal Alcohol Spectrum Disorder (FASD)/Child Nutrition Program (FASD/CNP) is designed and delivered by 21 Indigenous service providers across 180 communities, where individuals living with FASD and their families are offered intervention support services. The program provides healthy lifestyle education, personal support, and traditional cultural activities which promote FASD prevention and healthy nutrition.[5] Other provinces such as Alberta and B.C are also focusing on Indigenous approaches to FASD which look at intervention and support across the lifespan. Recognizing that women’s drinking patterns are shaped long before pregnancy, FASD prevention activities are becoming increasingly interwoven into promoting the health of girls and young women and reconciliation and healing. [6]

As these are positive and encouraging responses from the provinces and government when it comes to programs to prevent and address FASD for the Indigenous Communities across Canada. The same however cannot be said for Call to Action #34.  There has been no progress on this Call to  Action, despite quite detailed and specific recommendations from the Canada FASD Network (FASD and the Criminal Justice System). Further, the Federal, Provincial and Territory governments have not made any moves to enact legislative and/or regulatory actions to date on this important initiative [7]. The Research and Statistics Division of the Department of Justice Canada engaged with experts in FASD in the winter of 2019 to develop a “think piece” report regarding what  program evaluations could be developed in response to Call to Action 34 in the context of FASD programming. However,  it remains to be seen if anything will come of these very preliminary actions or if it is just “fluff” reconciliation.[8]

Until next time,

Team ReconcilAction

[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015) at 167.

[2] Center for Disease Control, “Basics about FASDs” (May 7, 2020) online:  <www.cdc.gov/ncbddd/fasd/facts.html>. 

[3] Amy Salmon & Sterling K. Clarren (2011) Developing effective, culturally appropriate avenues to FASD diagnosis and prevention in northern Canada, International Journal of Circumpolar Health, 70:4, 428-433, DOI: 10.3402/ijch.v70i4.17844 

[4] Indigenous Watchdog, “Calls to Action--Not Started” online: <://indigenouswatchdog.org/status-updates/call-to-action-not-started/ >.

[5] Ontario Ministry of Children, “Indigenous Fetal Alcohol Spectrum Disorder/Child Nutrition Program” (Sep 6, 2019) online:  </www.children.gov.on.ca/htdocs/English/indigenous/fasd.aspx >. 

[6] BC Center of Excellence for Women’s Health, Indigenous Approaches to FASD Prevention, (Jan 2018), online:  <bccewh.bc.ca/wp-content/uploads/2018/01/Indig-FASD-COMMUNITY-ACTION_Jan2018.pdf>. 

[7] Supra, note 4. 

[8] Mia Bell, Krystal Glowatski, Robyn Pitawanakwat & Michelle Stewart, FASD and TRC Call to Action 34.4: A Consideration of Evaluation Methods, (Department of Justice Canada, May 30, 2019) online:<www.justice.gc.ca/eng/rp-pr/jr/fasd-etcaf/fasd-etcaf.pdf>. 

Mandatory Minimum Sentences and Justice

(Photo credit: "The Deciders," by Nathalie Sheppard, https://journals.library.brocku.ca/index.php/SSJ/article/view/1246)

Tansi Nîtôtemtik,

Our topic today, Call to Action #32, involves important areas for criminal justice reform. Call to Action #32 states:

We call upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.^[1]

Restrictions on Conditional Sentences

Conditional sentences are non-custodial sentences served in the community. Under s.742.1 of the Criminal Code, conditional sentences cannot be given in certain circumstances, like where the maximum term of imprisonment is 10 years or more.^[2] Further amendments to the Criminal Code under the Safe Streets and Communities Act^[3] made conditional sentences unavailable for even more offences, including property offences like motor vehicle theft.^[4]  

These restrictions reflect the problematic nature of the Canadian criminal justice system. Rather than attending to the factors that lead to criminal behavior, more and more restrictions are placed on sentencing options. These restrictions lead to increased incarceration that simply perpetuates the current overincarceration of Indigenous peoples. 

Mandatory Minimum Sentences (MMS)

Mandatory minimum sentences are minimum sentences that must be imposed by sentencing judges upon the conviction of certain offences. These minimum sentences apply regardless of the specific details of the offence or the circumstances of the offender. Historically, mandatory minimum sentences have been reserved for the most serious offences, such as murder.^[5] In the past two decades, however, mandatory minimum sentences have been legislated for a broader range of offences under the Criminal Code of Canada and other legislation like the Controlled Drug and Substances Act (CDSA).^[6]  

Supporters of mandatory minimum sentences argue that they are necessary to reduce sentencing disparity, create predictability, protect the public and maintain public confidence in criminal sentencing.^[7] Yet studies have shown that mandatory minimum sentences do not deter from crime. ^[8] These studies lend support to the critical view of mandatory minimum sentences, which focuses on their negative consequences. Some arguments against mandatory minimum sentences include heightened risk of disproportionate sentences, increased incarceration of minorities, and removal of judicial discretion.^[9]  

Under the current regime, a sentencing judge can only depart from a mandatory minimum sentence if they declare the required mandatory minimum sentence to be unconstitutional. Mandatory minimum sentences have, on multiple occasions, been found unconstitutional by Canadian courts under Section 12 of the Charter, which protects against cruel and unusual punishment. 

For example, in 2015 the Supreme Court found that the mandatory minimum sentence for possession of a prohibited or restricted firearm with ammunition was unconstitutional in R v Nur^[9] . More recently, Canadian courts have brought attention to the manner in which mandatory minimum sentences result in sentences that disregard the principles set forth in R v Gladue^[10] and R v Ipeelee. As we've discussed at length this week, Gladue and Ipeelee ^[11] require sentencing judges to consider the systemic and background factors that impact an Indigenous offender’s culpability. (see our related posts here & here)

In R v Ookowt, a twenty year old Inuk man from Nunavut argued that the mandatory minimum sentence for reckless discharge of a firearm was unconstitutional because it breached Section 12 of the Charter. The sentencing judge agreed, based on the offender’s personal characteristics, especially upon consideration of Gladue factors.^[12] The sentencing judge’s decision was overturned on appeal, but notice to appeal the Nunavut Court of Appeal decision to the SCC has been filed.^[13]

TRC Call to Action #32 recognizes the disproportionate impact that mandatory sentencing has on Indigenous people in the criminal justice system. A sufficient response to this Call would address competing values where governments want to appear “tough on crime” despite the unacceptable over incarceration of Indigenous people and research that showed punitive sentencing does not deter crime. To date, however, no legislation has been passed to allow any departure from mandatory minimum sentencing of Indigenous offenders. 

Final Thoughts

The Government’s lack of response to Call to Action #32 represents another empty promise to reduce the overincarceration of Indigenous peoples in Canada. Comprehensive criminal justice reform is required to make real progress towards these goals, and as Team ReconciliAction has discovered as we attend to the Justice Calls to Action, very little change has been accomplished so far. For these reasons, we are assigning a failing grade. 

Thank you for reading. Until next time,

 

Team ReconciliAction YEG

¹Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015) at 167. 

²Criminal Code,  R.S.C., 1985, c. C-46, s.742.1. [Criminal Code] 

³S.C. 2012, c. 1.

⁴Public Prosecution Service of Canada, “6.3 Statutory Restrictions on the Use of Conditional Sentences” (March 2014), online: <www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p6/ch03.html>. 

⁵Criminal Code, supra note 2, s.235(2). 

⁶Controlled Drugs and Substances Act, S.C. 1996, c. 19. [CDSA]

⁷Kari Glynes Elliott & Kyle Coady, “Mandatory Minimum Penalties in Canada: Analysis and Annotated Bibliography” (March 2016) online (PDF): Department of Justice Canada <https://www.justice.gc.ca/eng/rp-pr/jr/mmp-pmo/mmp-pmo.pdf>. 

⁸Mary Allen, “Mandatory minimum penalties: An analysis of criminal justice system outcomes for selected offences” (August 2017) online(pdf):<https://www150.statcan.gc.ca/n1/en/pub/85-002-x/2017001/article/54844-eng.pdf?st=WNKZ1Ez_>.  

⁹R v Nur, 2015 SCC 15.

¹⁰[1999] 1 S.C.R. 688. [Gladue]

¹¹2012 SCC 13. [Ipeelee]

¹²R v Ookowt, 2017 NUCJ 22. 

¹³2020 NUCA 5, leave to appeal to SCC filed, 2020 CarswellNun 40. 

5 Years After TRC: Funding Reasonable Alternatives to Incarceration

(Image: Gladue Principles: Indigenous Peoples and the Canadian Criminal Justice System”, online: Wilfrid Laurier University <https://www.wlu.ca/professional-development/centre-for-public-safety-and-well-being/gladue-principles/index.html>)

 

Tansi Nîtôtemtik

 

Punitive sanctions for crime, in particular incarceration, actually increase the likelihood of recidivism over community-based restorative pathways.^[1] The Criminal Code of Canada requires courts to consider the restorative justice concepts of reparation and rehabilitation in sentencing.^[2] Moreover, the Supreme Court of Canada has confirmed that reconciliation efforts with Indigenous offenders necessitates a need for restorative justice in sentencing.^[3] 

 

Sentencing factors for Indigenous offenders

R v. Gladue was a pivotal decision for Indigenous people.^[4]  In this case, the Supreme Court of Canada responded to the Criminal Code reforms to sentencing enacted in 1996, and to the findings of the Royal Commission on Aboriginal People with respect to the over-incarceration of Indigenous people in Canada.^[5]  This decision introduced what was intended to become a new set of normative legal practices, commonly referred to as Gladue factors.  The Gladue factors are meant to address the disproportionate likelihood of incarceration for Indigenous offenders, and require contextual assessment of the ways that Indigenous identity and collective and individual experiences may have contributed to a given offence.^[6]  Gladue clarified the statutory obligation imposed by section 718.2(e) of the Criminal Code, which requires courts to consider the circumstances of Aboriginal offenders,  and set out the following factors for courts to consider when sentencing an Indigenous offender: 

1. The systemic and background factors of the offender that may have had a role in bringing the offender before the courts, and
2. Sentencing procedures or other sanctions that may be appropriate for the offender based on the offenders’ heritage or cultural connection.^[7]

More than a decade after Gladue, the Supreme Court of Canada reaffirmed and clarified these factors in  R v. Ipeelee.^[8]  The Court in Ipeelee analyzed sentencing of Indigenous offenders post-Gladue, and found several errors in the application of the law.^[9]  These errors included; the need for an offender to establish a causal link between background factors and the commission of the offence, and the failure to apply Gladue factors to sentencing for serious offences.^[10]

 

The obligation to seek alternatives to incarceration

Since Ipeelee, there is still evidence that the courts have difficulty applying Gladue factors,^[11] and the proportional incarceration rate of Indigenous people has continued to rise despite a decline in custodial sentences overall.^[12]  It is apparent from cases such as R v. Sangris, R v. C(R) and R v. Paul, where Gladue factors were “considered” but ultimately dismissed despite circumstances involving residential school and intergenerational trauma, that our current system is perpetuating harm against Indigenous people.^[13]  The Supreme Court of Canada’s outright rejection of judicial attempts to minimize the principles set forth in Gladue and statutorily by s.718.2(e), has reinforced that the responsibility of addressing over-representation is an obligation to be borne by all actors in the Canadian justice system.^[14]  The justice system requires the support of government in order to comply with this statutory obligation. 

 

Evaluation of Call to Action #31

Call to Action #31 calls for sufficient and stable funding to implement and evaluate community sanctions that will provide realistic alternatives to imprisonment for Indigenous offenders and respond to the underlying causes of unlawful conduct.^[15]  Alberta allocated $700,000 in funding in 2019, to be distributed as grants for community justice initiatives.^[16] These funds were awarded to 14 organizations within the province, three of which are located near Indigenous communities.^[17]  In 2017, Canada allocated $10 million in funding over five years to an Indigenous Community Corrections Initiative through which 16 projects across Canada were awarded funds.^[18] This is a starting point, however the initiative awarded funds to only 16 out of 126 applicants. 

The combined provincial and federal cost to operate correctional facilities year after year is $5 Billion.^[19]  Considering that Indigenous people make up 33% of the prison population nationally and 45% percent of the prison population in Alberta, $10.7 Million in funding for community justice initiatives hardly seems sufficient.^[20] It is especially disheartening that at least 110 projects were denied funding when the provincial and federal governments allocate 500 times more money to prisons and jails.  

 

If funding continues to be allocated to prisons and jails rather than community based programming, the efficacy of these programs cannot be properly evaluated. These programs require additional resources to be a reasonable alternative to incarceration and to accommodate 30-45% of people eligible for an incarceral sentence. The judicial body may have a statutory obligation to consider alternatives to imprisonment, but the legislators who created that statutory obligation are not providing the necessary support to ensure that realistic options are available. 

 

Team ReconciliAction assigns a grade of ‘C’ for the response to Call to Action #31.  The funding allocated is neither stable nor sufficient to provide realistic alternatives and respond to underlying causes of unlawful conduct. 

Stay tuned tomorrow for our look at mandatory minimum sentencing. 

 

Until Next Time, 

Team ReconciliAction

 

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Several of the concepts discussed in today’s post were borrowed from the prosecution policy proposal prepared and submitted by Sarah Kriekle and Kristen Hamilton for the 2019 Kawashimon Negotiation Moot. This research is shared here with permission and great thanks to Sarah & Kristen.

¹ William Bales and Alex Piquero, “Assessing the Impact of Imprisonment on Recidivism.” (2012) 8:1 Journal of Experimental Criminology at 86.

² Criminal Code, RSC 1985, c C-46, s 718 [Criminal Code]

³ R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC) [Gladue]; R v Ipeelee, 2012 SCC 13 [Ipeelee]; see also R. v. Proulx, 2000 SCC 5 at 22 [Proulx].

⁴ Gladue, ibid.

⁵ Criminal Code, supra note 2 at s 718.2(e) [Criminal Code]; Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada, (Ottawa: Canada Communication Group, 1996) [RCAP].

⁶ Paula Maurutto and Kelly Hannah-Moffat, “Aboriginal Knowledges in Specialized Courts: Emerging Practices in Gladue Courts” (2016) 31:3 Canadian Journal of Law and Society, 451-471.

⁷ Gladue, supra note 3 at 66, 93.

⁸ Ipeelee, supra note 3.

⁹ ibid at 80.

¹⁰ ibid at 81, 84.

¹¹ See R v Sangris, 2014 NWTSC 23 (accused had been to residential school yet the judge found no link between systemic factors and the particular crime committed) [Sangris]; R v C(R), 2013 ONCJ 736 (judge concluded offender had a normal childhood despite being sexually abused by male cousins for two years) [C(R)]; R v Paul, 2014 BCCA 81 (accused had not experienced a difficult past - but his dad was a drug dealer and was murdered)[Paul].

¹² Office of the Correctional Investigator, Press Release “Indigenous People in Federal Custody Surpasses 30%” 21 Jan 2020 online:<https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx>.

¹³ C(R) supra note 11; Paul, supra note 11; Marie-Eve Sylvestre and Marie-Andrée Denis-Boileau, “Ipeelee and the Duty to Resist” (2018) 51:2 UBC Law Review at 569-570.

¹⁴ Jonathan Rudin, "Looking Backward, Looking Forward: The Supreme Court of Canada’s Decision in R. v. Ipeelee." (2012) 57:17 The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference at 381.

¹⁵ Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 173.

¹⁶ Jonny Wakefield, “Restorative justice in Alberta ‘far tougher than spending time in jail’”, Edmonton Journal (7 January 2019), online: <https://edmontonjournal.com/news/local-news/restorative-justice-in-alberta-far-tougher-than-spending-time-in-jail>.

¹⁷ “Alberta Community Restorative Justice (ARCJ) grant table”, online: Alberta Government <https://open.alberta.ca/publications/alberta-community-restorative-justice-arcj-grant-table>.

¹⁸ “Indigenous Community Corrections Initiative - Projects funded since 2017”, (24 February 2020), online: Public Safety Canada <https://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/cmmnt-ccrctns-nttv-prjcts-en.aspx>.

¹⁹ “Financial facts on Canadian prisons”, (23 August 2018), online: The John Howard Society of Canada <https://jhscan.wpengine.com/blog/financial-facts-canadian-prisons/>.

²⁰ Office of the Correctional Investigator, supra note 12; Dylan Short, “Indigenous inmates make up 45 per cent of all people in Alberta’s federal prisons”, Edmonton Journal (22 January 2020), online: <https://edmontonjournal.com/news/crime/indigenous-inmates-make-up-45-per-cent-of-all-people-in-albertas-federal-prisons>.

5 Years After TRC: Overrepresentation of Indigenous People in Custody

Tansi Nîtôtemtik,

 

In R v. Gladue, the Supreme Court of Canada referred to the overrepresentation of Indigenous people in custody as “a crisis in the Canadian criminal justice system,” and Canada’s prisons as the “contemporary equivalent” of what residential schools were to previous generations.^[1] Twenty-one years later, Indigenous people continue to be overrepresented in custody. What’s worse, this overrepresentation has increased since the Supreme Court decided Gladue in 1999.^[2] 

 

This is not the first time we have examined the overrepresentation of Indigenous people in custody. In our October 26 post, we reflected on the BC First Nations Justice Strategy as presented at the 2020 IBA Conference by Chief Doug White. Chief White presented staggering data on the disproportionate representation of Indigenous people in Canada’s incarcerated population. A main takeaway from Chief White’s presentation was that Indigenous people in Canada are over-policed and under-protected. Today, will examine how the TRC Calls to Action address overrepresentation, and assign Canada a grade on its progress.

 

Call to Action 30 states:

 

30. We call upon federal, provincial, and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade, and to issue detailed annual reports that monitor and evaluate progress in doing so.

 

From our previous post, we know that since 2017, BC has taken steps to improve access to Gladue reports at sentencing and bail hearings, and to begin establishing a network of 15 Indigenous justice centers. This is great progress, and we are looking forward to watching the BC strategy as it unfolds. 

 

Outside of BC, how is Canada doing?

 

On its website, the Government of Canada correctly asserts that “[t]he work being undertaken in response to many other calls to action, such as those relating to housing, child welfare, health services and Fetal Alcohol Spectrum Disorder, will further contribute toward achieving Call to Action 30.”^[3] However, these are not the only causes of overrepresentation of Indigenous people in incarceration.^[4] Other causes include:

• Inappropriate guilty pleas,^[5] 
• Bail denial,^[6] 
• Non-compliance with court conditions,^[7] and 
• Lack of culturally relevant treatment.^[8] 

 

Some initiatives to reduce these occurrences include amendments to the Criminal Code (Bill C-75), the Indigenous Justice Program, and the Indigenous Courtwork Program.

 

Criminal Code Amendments

Bill C-75 may have a meaningful impact on reducing the number of Indigenous people in custody. Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts, received royal assent on June 21, 2019.^[9] The Bill requires that circumstances of Indigenous accused are considered at bail and at a “judicial referral hearing” following the commission of an Administration of Justice Offence (AOJO).^[10] AOJOs, such as failing to comply with bail conditions, have contributed to the overrepresentation of Indigenous persons in the criminal justice system.^[11] According to the Government of Canada, four out of every ten cases in adult criminal courts include at least one AOJO, which results in a jail sentence. Bill C-75 changes how certain AOJOs are managed when they do not involve harm to victims. In such instances, police may direct AOJOs to a judicial referral hearing instead of laying charges. The judge or justice reviewing the conditions of release can decide to “take no action, release the accused on new conditions or detain the accused, depending on the particular circumstances of the accused.”^[12] We look forward to seeing if these amendments decrease the representation of Indigenous offenders in custody.

 

Indigenous Justice Program

The Indigenous Justice Program currently serves over 650 communities, and supports Indigenous community-based justice programs that offer alternatives to mainstream justice processes in “appropriate circumstances”.^[13] Individuals who access Indigenous Justice Programs have lower rates of recidivism than those who do not participate.^[14] Unfortunately, most communities do not have access to this program, and those individuals must proceed through the main justice system, which perpetuates overrepresentation of Indigenous people in custody.^[15]

 

Indigenous Courtwork Program

The Indigenous Courtwork Program assists Indigenous adults and youth who are “involved in the criminal justice system to obtain, fair, just, equitable and culturally relevant treatment.”^[16] Currently, seven provinces and all territories administer Indigenous Courtwork Programs.^[17] Courtworkers help Indigenous people navigate the complexities of the justice system, facilitate more culturally appropriate services, build trust and reduce miscommunication between Indigenous people and court officers, and may gather relevant information to apply the Gladue Principles during bail and sentencing proceedings.^[18] Eighty-nine percent of clients served by Courtworkers say they would recommend the Program to other Indigenous people. Although these services are highly valued, the Indigenous Courtwork Program lacks the capacity to consistently meet the needs of Indigenous people, especially outside major cities.^[19]

 

Based on the above initiatives, Canada is on the right track to mitigate some of the known causes for overrepresentation of Indigenous people in custody. Indigenous communities would benefit from better access to Indigenous Justice Programs, which have had positive effects on communities and on lowering rates of recidivism. Indigenous peoples would also benefit from additional funding toward Indigenous Courtwork Programs in order to consistently apply the Gladue principles, provide culturally relevant assistance, and help Indigenous people navigate the court process. Our evaluation of the efficacy of these initiatives is not complete without a look at the ‘hard data’. So, without further ado, let’s turn to the annual reports called for by the TRC.

 

Is Canada producing detailed annual reports?

 

Unfortunately, Canada has not been producing detailed annual reports. On January 21, 2020, the Office of the Correctional Investigator issued a news release indicating that the proportion of Indigenous people in the incarcerated population has increased since 2001.^[20] So, right off the bat, Canada receives a failing grade for eliminating the overrepresentation of Indigenous people in custody. 

 

Other than this news release, the last report appears to be from 2017.^[21] According to the Government of Canada website, “[c]onsultations with provinces and territories are taking place to develop more effective ways to measure the overrepresentation of Indigenous peoples at various stages in the criminal justice system. This will help better understand and address key issues related to overrepresentation.”^[22] The government also receives a failing grade on this aspect of Call 30, for not producing annual reports. In future, we may see an improvement in this grade as Indigenous, provincial, territorial, and federal governments align efforts and data collection to address overrepresentation on an annual basis.

Until Next Time, 

Team ReconciliAction

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¹R v Gladue, [1999] 1 SCR 688, at para 60, citing M Jackson, “Locking Up Natives in Canada” (1988-89), 23 UBC L Rev 215 at 215-216.

²Office of the Correctional Investigator Government of Canada, “Indigenous People in Federal Custody Surpasses 30% - Correctional Investigator Issues Statement and Challenge - Office of the Correctional Investigator”, (16 April 2020), online: <https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx> [Correctional Investigator].

³Government of Canada, “Delivering on Truth and Reconciliation Commission Calls to Action: Justice”, online: https://www.rcaanc-cirnac.gc.ca/eng/1524502695174/1557513515931.

⁴Department of Justice Canada, Evaluation of the Aboriginal Justice Strategy: December 2016, by Evaluation Division - Corporate Services Branch, Catalogue No J2-435/2016E-PDF (Ottawa, Department of Justice, 2017) at 62 [Evaluation].

⁵Department of Justice Canada, Guilty pleas among Indigenous people in Canada, by Angela Bressan & Kyle Coady (Ottawa: Department of Justice, 2017) at 7.

⁶Ibid.

⁷Department of Justice Canada, “Evaluation of the Indigenous Courtwork Program”, online: https://www.justice.gc.ca/eng/rp-pr/cp-pm/eval/rep-rap/2018/icp-papa/p5.html [Courtwork 4].

⁸Ibid.

⁹Department of Justice Canada, “Legislative Background: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill C-75 in the 42nd Parliament)”, online: https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/c75/p3.html.

¹⁰Ibid.

¹¹Ibid.

¹²Ibid.

¹³Government of Canada, “Indigenous Justice Program”, online: https://www.justice.gc.ca/eng/fund-fina/acf-fca/ajs-sja/index.html.

¹⁴Evaluation, supra note 4 at 62.

¹⁵Ibid.

¹⁶Government of Canada, “Indigenous Courtwork Program”, online: https://www.justice.gc.ca/eng/fund-fina/gov-gouv/acp-apc/index.html.

¹⁷Department of Justice Canada, “Evaluation of the Indigenous Courtwork Program”, online: https://www.justice.gc.ca/eng/rp-pr/cp-pm/eval/rep-rap/2018/icp-papa/p3.html [Courtwork 2].

¹⁸Ibid.

¹⁹Ibid.

²⁰Correctional Investigator, supra note 2.

²¹Department of Justice Canada, Research and Statistics Division, “Indigenous overrepresentation in the criminal justice system” (January 2017), online: https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2017/docs/jan02.pdf.

²²Courtwork 2, supra note 16.

5 Years After TRC: Excluded from the Residential School Settlement

(Image: iStock Photo)

 

Tansi Nîtôtemtik,

 

A Record-Breaking Settlement

The Indian Residential Schools Settlement Agreement (IRSSA) resulted in the largest settlement to date in Canadian history.^[1] It included unique non-financial measures including the creation of the Truth and Reconciliation Commission which developed the Calls to Action we are evaluating, a fund for commemoration projects to memorialize the impact of residential schools, and a fund to provide mental health supports to all plaintiffs included in the settlement.^[2]  

 

Individual plaintiffs were eligible for payment through the Common Experience fund, which would pay eligible survivors a set amount based on the duration of residence in a residential school.  In addition to the Common Experience Payment (CEP), survivors who experienced physical or sexual abuse were also eligible for the Independent Assessment Process (IAP).^[3]  IAP was an adjudicative process that offered additional reparations on top of the common experience  
payment, and involved the survivor recounting the abuses that occurred.

This process was not without issue.  The large fund combined with an allowance in the agreement for counsel to charge
up to 15% of the settlement attracted lawyers from all walks, including those who had little training or experience with
trauma-informed work (as should have been required here).  Charging 15% of the settlement payout was meant to be reserved for the most complex of settlements, yet several lawyers took advantage of vulnerable claimants and routinely charged this.^[4] Many survivors who sought acknowledgment and apology over financial compensation were re-traumatized by the incredible detail required during IAP or accepted smaller payouts because they were simply unable to share their trauma in that room.^[5]  

 

Many survivors not eligible to make a claim

The harms of these schools remain significant, but did you know that many survivors of residential schools were excluded entirely from the settlement, as well as the 2008 apology from the Prime Minister? 

 

The settlement agreement did not include; 

• Day school survivors, and those who attended residential schools during daytime hours,
• Métis who attended Métis residential or boarding schools, 
• those who attended schools in Newfoundland and Labrador, and 
• those who attended schools that were otherwise not considered to be under federal jurisdiction.^[6]  

 

Any school not found to be a residential school under some level of federal responsibility was excluded from the settlement.^[7] 

 

Of course all of these schools operated within the policy set out by the Indian Act and its mandate to deal with the “Indian Problem” by “killing the Indian within the child”.^[8] Whether or not the federal government funded or oversaw the operation of these schools, their fundamental purpose was guided by federal law and policy. 

 

Many Class Action Suits 

These exclusions led to a number of new class action lawsuits by affected survivors who had been excluded. 

 

• The Indian Day School Settlement Agreement has been approved for up to $1.4 billion for Day School survivors, but this settlement still excludes survivors who did not attend a federally operated day school.^[9]  
• A proposed settlement of $50 million was approved in 2016 for survivors of Newfoundland and Labrador schools, based on a breach of fiduciary duty by Canada.^[10] This may set a precedent for future claims that involve schools not previously found to be federal jurisdiction.  
• A memorandum of understanding has been entered into by Canada and the Métis students who attended the Île-à-la-Crosse mission boarding school in Saskatchewan, but Métis students who attended Timber Bay Residential School are working to appeal their class action certification after it was dismissed by a Saskatchewan judge.^[11] 
• There is yet another class action by Day Scholars, or students who attended federally operated residential schools but returned home at night.  In this case, negotiations have broken down and the action proceeds to trial in 2021.^[12]

Canada’s response to Call to Action #29

Call to Action #29 calls upon Canada to work collaboratively with survivors who were not included in the initial settlement. Team ReconciliAction gives Canada a grade of ‘D’ on this call.

 

 

The harms caused by residential and day schools are broad reaching, and a common experience for students who attended any school that followed the assimilation policies of the Indian Act, regardless of federal jurisdiction.  Forcing survivors to fight for piecemeal reparations for these broad reaching common harms is not reconciliatory.  Team ReconciliAction is uncertain if Canada is merely waiting for more survivors to pass away or if the government legitimately believes it should not take responsibility for the consequences of its policies. Either way, the reconciliatory approach requires Canada to initiate negotiations will all affected survivors, and to negotiate with repairing the harms as the forefront objective.

 

Do you think Canada deserves a ‘D’, even after some of the largest settlement payouts in history? Let us know in the comments.

 

Until Next Time, 

Team ReconciliAction

 

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¹ Tabitha Marshall, “Indian Residential Schools Settlement Agreement”, (11 July 2013), online: The Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/indian-residential-schools-settlement-agreement>.

² Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 130.

³ Ibid at 169.

⁴ See for example Bird v Blott, 2019 ABQB 764, a recently certified class action suit in which a Calgary lawyer is alleged to have earned $21 million on approximately 5600 mishandled IRS claims.

⁵ Sarah Petz, “Settlement process retraumatizes some residential school survivors, report says”, CBC News (20 February 2020), online: <https://www.cbc.ca/news/canada/manitoba/residential-school-survivors-settlement-report-1.5470001>.

⁶ Truth and Reconciliation Commission of Canada, supra note 2 at 170.

⁷ Indian Residential Schools Settlement Agreement, (8 May 2006), online <http://www.residentialschoolsettlement.ca/settlement.html> at 63.

⁸ Truth and Reconciliation Commission of Canada, supra note 2 at 130.

⁹ McLean v Canada, 2019 FC 1075 [McLean v Canada].

¹⁰ Anderson v Canada (Attorney General), 2016 NLTD(G) 179 [Anderson v. Canada (Attorney General)].

¹¹ Priscilla Wolf, “Canada says it will address wrongs against Metis students who were forced into Saskatchewan residential school”, (22 July 2019), online: APTN News <https://www.aptnnews.ca/national-news/canada-says-it-will-address-wrongs-against-metis-students-who-were-forced-into-saskatchewan-residential-school/>; “Metis Residential Schools Class Action | Merchant Law Group LLP”, online: <https://www.merchantlaw.com/class-actions/current-class-actions/metis-residential-schools-class-action/>.

¹² “Day Scholar Update, February 2020”, online: Justice for Day Scholars <http://www.justicefordayscholars.com/update/day-scholar-update-february-2020/> note: Day Scholars attended the residential schools during the day but returned home at night, whereas day schools that qualify for the approved day school settlement were ONLY day schools.

TRC Calls to Action #27 & 28 - Embracing A Time For Change

Tansi Nîtôtemtik,

Continuing on with our assessment of TRC Calls to Action regarding Justice, today’s post will focus on Calls to Action #27 & 28. These two calls demand changes to Canada’s legal system that focus on education for law students and practicing lawyers. Please refer to our October 14th post where Call to Action #27 was discussed in detail as part of the IBA Conference coverage on Ethics and Professionalism that team ReconciliAction attended.

27. ” We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal– Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.”[1]

Please find the link to the post here: 

TRC Call to Action #28

28. We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and antiracism. 

Making TRC Call to Action #28 a strategic goal for law schools to implement could help to improve the relationship between Canada and Indigenous Peoples and create a deeper understanding of the legal and cultural challenges that Indigenous peoples have faced both historically and presently. It is no surprise that calls to Indigenize legal education are mounting in Canada.  Many law schools offer Indigenous law classes as options and some have made them mandatory, claiming to have made it a priority to address the needs of Indigenous students to ensure that all students have access to knowledge of Indigenous legal issues.  

First and foremost, ReconciliAction would like to give a huge shout out Lakehead University’s Bora Laskin Faculty of Law, which was one of the first law schools in Canada to include stand alone mandatory courses on Indigenous legal issues in its curriculum. Lakehead strongly emphasized that Aboriginal law is at the cornerstone of its curriculum, and that it is vital for their students to be made aware of not only the law generally, but how that law impacts on Aboriginal peoples.[2]

Other faculties of law have taken initiative to implement Call to Action #28. For example, UBC's Allard School of Law boasts one of the highest enrolments of Indigenous law students in Canada, and began its Indigenous legal studies program in 1975. Today, its syllabus includes a broad range of courses covering Aboriginal law and treaty rights, and so on. In response to the TRC Calls to Action, UBC has created a cultural competency certificate to help students connect with the Indigenous community and reflect on the impact of Canada’s colonial legal system. [3]  In 2018, the University of Windsor finally made it a requirement for first-year law students to take a course in Indigenous legal traditions that examined Indigenous legal orders, in particular Anishinaabe, Cree and Haudenosaunee laws. The course had been offered for the past four years prior but was not mandatory until 2018. [4] 

The University of Victoria (UVIC) Faculty of Law created a joint degree program in Canadian Common Law (JD) and Indigenous Legal Orders (JID) in September 2018, the first of its kind in the world.  The program combines intensive study of Canadian Common Law with intensive engagement with Indigenous laws. Students graduate in four years with two professional degrees: A Juris Doctor (JD) and a Juris Indigenarum Doctor (JID). [5]  

While these schools and a few others not mentioned are doing their part to address the TRC Call to Action #28, to date there are Canadian Universities that do not have a requirement of mandatory classes in Aboriginal Law including the University of Alberta which we hope to see a change in very soon. While making classes mandatory are not a solution to systemic racism and discrimination in the legal field, it most definitely represents a big step forward in reconciliation. It is clearly a work in progress and more attention to implement mandatory Aboriginal Law classes among all law schools across Canada must remain the focus in moving forward toward that goal. Teaching history from one perspective has been the norm for far too long at post-secondary institutions and change in legal education is long overdue.  After all, it is  law students who will one day become lawyers and judges deciding the fate of Indigenous legal issues. 

Until next time

ReconciliAction YEG

 

[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 168.

[2] Lakehead University Bora Laskin Faculty of Law, "Aboriginal Law" (2020), online:  <https://www.lakeheadu.ca/programs/departments/law/curriculum/aboriginal-law>

[3] Kerry Banks, "The Rise of Aboriginal Law" University Affairs (05 September 2018)  online: < https://www.universityaffairs.ca/features/feature-article/the-rise-of-aboriginal-law>.

[4] Mary Caton, "Law Students Now Required to Study Indigenous Legal Traditions" The Windsor Star (24 August 2018), online: <https://windsorstar.com/news/local-news/law-students-will-be-required-to-take-course-on-indigenous-legal-traditions/>. 

[5]University of Victoria Faculty of Law, "Joint Degree Program in Canadian Common Law and Indigenous Legal Orders" (2020) online: < https://www.uvic.ca/law/about/indigenous/jid/index.php>.

Statutes of Limitation and Indigenous Civil Claims

 

Tansi Nîtôtemtik,

Today ReconciliAction YEG continues our assessment of the Justice Calls to Action, specifically Call to Action #26:

We call upon the federal, provincial and territorial governments to review and amend their respective statutes of limitations to ensure that they can conform to the principle that governments and other entities cannot rely on limitation defences to defend legal actions of historical abuse brought by Aboriginal people.^[1]

To better understand the importance of this Call to Action, let’s first review the function of statutes of limitations.

Statutes of Limitations

Statutes of Limitations are pieces of legislation that place time limits on when a civil claim can be brought forward. If the limitation period for a claim has expired when it is brought to court, the other party can plead the applicable statute of limitations as a defence. 

With the exception of Quebec, each province has Statute of Limitations legislation. In Alberta the statute is the Limitations Act.^[2] The reasoning behind this legislation is:

1) security, so that parties know when they can be sued; 

2) fairness, by ensuring that evidence is preserved and;

3) ensuring that parties bring their actions forward in a timely manner.^[3]  

Legal Actions of Historical Abuse

The historical abuse suffered by Indigenous peoples through institutional actions is no mystery. From Residential Schools where children were taken from their families and subjected to  physical, psychological, and sexual abuse to the attempted elimination of Indigenous cultures and languages through government policy, many of these historical abuses could found legitimate civil actions. Further, the Government has a special legal relationship with Indigenous people, known as a fiduciary duty. This duty refers to the special responsibility of the Government to act in the best interests of the Indigenous people of Canada.

Legal actions have been brought forward by Residential School survivors, most commonly for sexual and physical abuse suffered at the hands of staff.^[4] The reason these historical claims could be brought forward was because most Canadian provinces exclude sexual abuse from having a limitation period.^[5]  

Litigation guidelines for civil litigation involving Indigenous peoples were published by the Department of Justice in 2018, which state: 

Litigation Guideline #14: Limitations and equitable defences should be pleaded only where there is a principled basis and evidence to support the defence…

When determining whether such circumstances exist, counsel must consider whether the defence would be consistent with the honour of the Crown. Reconciliation is generally inhibited by pleading these defences^[6].

While the Government has pledged to adjudicate Indigeneous claims fairly with a focus on reconciliation, their actions speak differently. For example, when the Canadian Human Rights Tribunal ordered the Government to pay compensation to First Nations youth in care in First Nations Child and Family Caring Society of Canada^[7]; their response was to file an appeal on jurisdictional grounds. ^[8] While a limitations defence was not plead, the Government’s choice to appeal does not demonstrate a desire to preserve the “honour of the Crown”. (See our post about the Decision here.)

As of now, no amendments have been made to the Statutes of Limitations of any Canadian provinces or territories to reflect Call to Action #26 and allow “expired” civil claims stemming from the historical abuse suffered by Indigenous peoples. As a result, Team ReconciliAction is giving a failing grade on Call to Action #26. 

Final Thoughts

It is not hard to comprehend why the TRC made Call to Action #26. For true reconciliation, Canada needs to remove procedural barriers like Statutes of Limitations for the adjudication of Indigenous claims. Accountability is central to reconciliation, and by failing to implement unequivocal legislation that ensures historical claims can be brought forward, accountability is lost.  

Thanks for reading. Please let us know your thoughts on this post!

Until next time,

Team ReconciliAction YEG

¹ Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015) at 167.

²Limitations Act, RSA 2000, c L-12. [Limitations Act]

³M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 SCR 6 at 29-30.

⁴See R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411; H.L. v. Canada (Attorney General), 2005 SCC 25; Cloud v. Canada (Attorney General), 2004 CanLII 4544 (ONCA); Blackwater v. Plint, 2005 SCC 58; E.B. v. Order of the [Roman Catholic] Oblates of Mary Immaculate in the Province of British Columbia, 2005 SCC 60; Canada (Attorney General) v. Fontaine, 2017 SCC 47. 

⁵ With the exclusion of Prince Edward Island. 

⁶ Department of Justice Canada, “The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples” (2018) online (pdf):<www.justice.gc.ca/eng/csj-sjc/ijr-dja/dclip-dlcpa/litigation-litiges.pdf> at 18.

⁷First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2. [First Nations Child and Family Caring Society of Canada]

⁸First Nations Child and Family Caring Society of Canada, “A historic legal victory for First Nations children and Canada’s failure to comply” (29 Jun 2017) Committee on the Elimination of Racial Discrimination, 21st – 23rd Reports of Canada, Alternative Report, online (pdf): <tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/CAN/INT_CERD_NGO_CAN_27941_E.pdf>. 

Calls to Action on Justice and the RCMP

Tansi Nîtôtemtik,

 

This week we begin reviewing the Calls to Action on justice. The focus of our post today is on Call to Action 25, which concerns the Royal Mounted Canadian Police (RCMP). As we will outline, The RCMP and its predecessor, the Northwest Mounted Police (NWMP), have long been at the front line of the unilateral administration of the Candian justice system upon Indigenous communities, to damaging and disproportionate effect. Call 25 is as follows: 

 

25. We call upon the federal government to establish a written policy that reaffirms the independence of the Royal Canadian Mounted Police to investigate crimes in which the government has its own interest as a potential or real party in civil litigation.

 

This call relates specifically to a 1994 RCMP investigation into residential school abuse that became tainted with allegations of bias.^[1] It was alleged by the complainants of the lawsuit that the Federal Government exercised control and influence over the RCMP investigators to protect its own legal interests in any resulting civil claim.^[2] The Federal Government has dismissed the need for action on Call 25, declaring most recently in 2018 that the RCMP are, in fact, an agency independent from the direction of Federal Ministers.^[3] 

 

 

This claim of independence from the Federal government overlooks the complicated role between the RCMP, colonialism and reconciliation - and requires a broader understanding one how deeply intertwined the RCMP is to Canada’s justice system and its disproportionate outcomes. Despite early political relationships and Treaty intentions to the contrary, the Canadian-colonial justice system was by-and-large unilaterally imposed on Indigenous nations.^[4] On Treaty 6 land, First-Nations signatories did not contemplate giving up the right to their own existing justice systems when signing of treaties.^[5] The legal justification behind the initial imposition of the NWMP remains to be clumsy; built upon conflicting legal premises and racist assumptions.^[6]

 

On Treaty 6 land, the first NWMP regiment was sent west to police settlers in 1874. By 1885, the NWMP had found themselves as a military force in direct armed conflict with Louis Riel and the Métis Nation at Duck Lake,^[7] while simultaneously policing Indigenous communities. The line between policing and military blurred. In 1897 a Cree man named Kitchi-manito-waya was a fugitive on the run from the NWMP. When the NWMP found him armed and hiding in a bluff with two family members, a force of 100 officers took a strictly military response and shelled them with artillery.^[8] In response to heavy political criticism that this was ‘heavy handed,’ the acting NWMP Commissioner responded that: “unless such an open defiance of authority was quickly and effectively silenced, others would follow their example.”^[9]

 

Library and Archives Canada, PA-202188

 

Many Indigenous communities have never accepted the authority of the RCMP. In 1923, Hereditary Chiefs of the Six Nations appeared before the newly formed International League of Nations to argue that the Dominion Government’s imposition of settler criminal law on the people of the Six Nation was a violation of their existing nationality, legal systems and independence.^[10] One central argument was that the imposition of the RCMP onto their land constituted a ‘hostile invasion’.^[11] The argument before the League of Nations was accepted by four member nations.^[12] Naturally, the Canadian State didn’t like this assertion of sovereignty and immediately passed legislation to depose and replace the Hereditary council.^[13] This also contributed to the imposition of section 141 of the Indian Act, which made it illegal for Indigenous nations to hire lawyers – with a penalty of jail time – successful quieting such legal arguments for decades to come.^[14]

 

The RCMP have been directly involved in the most shameful acts of Canadian colonialism. This includes systematically apprehending children as young as three from their parents to send to residential schools,^[15] being involved in the mass shooting of Inuit sled dogs,^[16] widespread sexual abuse and gendered violence,^[17] enforcing draconic Indian Act laws such as the ‘pass-system’,^[18] and the forcible relocation of communities.^[19]

 

Photo by Michael Toledano.

Currently, the RCMP’s 3.4 billion dollar annual budget^[20] is spent in part continuing the confused identity between police and military force. This year, the RCMP approved ‘lethal overwatch’ measures from snipers against peaceful protesters to enforce the Federal Court injunction of an oil and gas company.^[21]While the Federal Government may feel that the RCMP is an independent entity, their current operation is so deeply embedded and similar to their violent history that it seems no iteration of the RCMP that can exist congruently with any functioning or serious conceptualization of reconciliation.

 

Keep reading this week for a deeper discussion on the Calls to Action on Justice.

 

Team ReconciliAction YEG

 

----- Want to hear more? -----

¹Canada, Truth and Reconciliation Commission, Honouring the Truth and Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015 at 165.

²Ibid.

³Crown-Ingidionus Relations and Northern Affairs Canada, "Delivering on Truth and Reconciliation Commission Calls to Action" (05 September 2019).

⁴Joshua Ben David Nichols, A Reconciliation Without Recollection? (Toronto: University of Toronto Press, 2020) [Nichols].

⁵Harold Johnson, Peace and Good Order: The Case for Indigenous Justice in Canada (Toronto: McClelland & Stewart, 2019) at 121 [Peace and Good Order].

⁶See Generally: John Leonard Taylor, “The Making of Treaty Six: Treaty Research Report Treaty Six (1876),” Note, (1985), Treaties and Historical Research Centre Indian and Northern Affairs Canada, Online: <https://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ/STAGING/texte-text/tre6_1100100028707_eng.pdf >

⁷Jean Teillet, The North-West is Our Mother: The Story of Louis Riel's People, the Metis Nation (Toronto: HarperCollins Publishers, 2019) at 341.

⁸ Edwards Butts, “Almighty Voice,” The Canadian Encyclopedia (6 February 2006), online: <https://www.thecanadianencyclopedia.ca/en/article/almighty-voice>.  

⁹S. W. Horrall, The Pictorial History of the Royal Canadian Mounted Police (McGraw-Hill Ryerson Limited, 1973) at 14.

¹⁰Nichols, supra note 4 at 161.

¹¹Ibid at 162.

¹² Ibid at 163.

¹³ Ibid. at 164.

¹⁴I First Nations and Indigenous Studies, The University of British Columbia "The Indian Act" (2009), online: <https://indigenousfoundations.arts.ubc.ca/the_indian_act/#:~:text=Section%20141%20outlawed%20the%20hiring,result%20in%20a%20jail%20term.>.

¹⁵ Marcel-Éugène LeBeuf, “Role of the RCMP during the Indian residential school system” (2011) Royal Canadian Mounted Police.

¹⁶ Qikiqtant Truth Commission, "Thematic Reports and Special Studies 1950–1975: Analysis of the RCMP Sled Dog Report" (2014) Qikiqtani Inuit Association.

¹⁷Jaskiran K. Dhillon, “Indigenous girls and the violence of settler-colonial policing” (2015) 4:2 Decolonization: Indigeneity, Education & Society pp 1-31. 

¹⁸See generally: Jane Gerster, “The RCMP was created to control Indigenous people. Can that relationship be reset?” Global News, (15 June 2019) Online: < https://globalnews.ca/news/5381480/rcmp-indigenous-relationship/>.

¹⁹Tina Loo, Moved by the State: Forced Relocation and Making a Good Life in Postwar Canada (University of British Columbia Press, 2019) at 19. 

²⁰Government of Canada, "Royal Canadian Mounted Police 2019-2020 Departmental Plan" (04 November 2019) online: <https://www.rcmp-grc.gc.ca/en/royal-canadian-mounted-police-2019-2020-departmental-plan?wbdisable=true>.

²¹Jaskiran K. Dhillon, "Canada police prepared to shoot Indigenous activists, documents show." The Guardian, (20 December 2019), online: <https://www.theguardian.com/world/2019/dec/20/canada-indigenous-land-defenders-police-documents>.

5 Years After TRC: Indigenous Healthcare Providers

Tansi Nîtôtemtik,

 

In today’s post we wrap up our review of Canada’s progress on the TRC Calls to Action pertaining to Health. Specifically, we are examining Calls 23 and 24.

 

Call 23 calls upon all levels of government to:

i. Increase the number of Aboriginal professionals working in the health-care field.

ii. Ensure the retention of Aboriginal health-care providers in Aboriginal communities. 

iii. Provide cultural competency training for all healthcare professionals.^[1]

 

Call 24 focuses on medical and nursing schools, calling on them to:

require all students to take a course dealing with Aboriginal health issues, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, and Indigenous teachings and practices. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.^[2]

 

According to 2016 census data, 3.13% of people working in health occupations are Aboriginal, which is lower than the overall proportion of Aboriginal people in the Canadian labour force (4.28%).^[3] Call 23 aims to increase the representation of Aboriginal people working in health care fields. As Statistics Canada only conducts a census every five years, we do not have access to more recent data to evaluate whether this metric has increased. Instead, we will focus our evaluation on the strategies all levels of government have implemented that could lead them to positive outcomes.

 

In response to the TRC Calls to Action, the Association of Faculties of Medicine of Canada (AFMC) has committed to ensure Canadian medical schools “[train] more Indigenous health professionals” and develop “safe working and learning environments for Indigenous learners, faculty and staff.”^[4] An example of how Faculties of Medicine are committed to training more Indigenous doctors can be found at the University of Alberta. In 2018, the University of Alberta eliminated an admissions quota that capped the number of Indigenous students admitted to its medical school to five students per year. Instead, all future Indigenous students who meet the eligibility requirements through the Indigenous Health Initiatives Program will be offered a spot in the university’s medical school.^[5] Queen’s University School of Medicine admits up to four Indigenous students per year through an alternative assessment process, but Indigenous students may also apply through the regular admission process.^[6] Canadian nursing schools are making progress as well. The University of Calgary is consulting with nearby rural and urban Indigenous communities to develop a more culturally appropriate nursing program for Indigenous students.^[7]

 

Across the board, we are seeing government organizations and schools implement cultural competency training. Specific to the 24th Call, AFMC has also recommended the following curriculum changes to address racism at multiple levels: 

1. Interpersonal: challenging stereotypes and personal biases; 
2. Systemic: locating racism as a structural problem within society and interrogating power and privilege; 
3. Epistemic [i.e. presumed superiority over others]: challenging the dominance of Eurocentric worldviews and creating space for Indigenous knowledge.^[8]

 

The Canadian Nurses Association has stated that “cultural competence and safety are both integral parts of providing high-quality, safe and equitable nursing care.”^[9] Indigenous Services Canada provides cultural competency training for new nurses employed by the First Nations and Inuit Health Branch.^[10] The Aboriginal Nurses Association of Canada previously created a teaching framework for Canadian nursing schools to follow, including postcolonial theory, culturally safe communication, inclusivity, respect for Indigenous cultural integrity, acknowledgement of Indigenous knowledge, and mentorship and support for Indigenous students.^[11] The University of Alberta Faculty of Nursing employs an Indigenous Nursing Coordinator who focuses on incorporating Indigenous history and reconciliation knowledge into the curriculum.^[12] The University of Alberta’s allied health faculties have also developed a “working group to create an interdisciplinary Indigenous health course for health professional students.”^[13] 

 

Not a lot of data is available concerning the retention of Aboriginal health care providers in health care communities. Indigenous Services Canada indicates on their website that they “financially [support] and [work] with the Canadian Indigenous Nurses Association and other Indigenous health organizations to explore ways to recruit and retain more Indigenous health professionals.”^[14] With only this statement to go on, we do not know how the ISC’s methods are performing. However, one province has managed to trailblaze a promising system that integrates Indigenous health care provision with the provincial system. Since 2007, the BC First Nations Health Authority (FNHA) has given First Nations in BC “a major role in the design and delivery of health care for their own people while ensuring increased coordination and integration with the provincial health care system.”^[15] The FNHA is the “first and only” of its kind.^[16] We would like to see other provinces evaluate the transferability of this model to their jurisdictions, with respect to the specific health needs, local treaties, and Indigenous cultures in the area.

 

While some meaningful work has been accomplished in the area of cultural competency training for healthcare professionals and students, we have not yet seen the effects of the efforts to recruit and retain Indigenous health care providers. Medical and nursing schools have support from their academic and professional partners to incorporate all of the elements of Call 24 into their curricula, but they are not there yet, so we have awarded them a “B-”. We award Canada a grade of “D” for Call 23 in light of the lack of quantitative results. We acknowledge that collective actions appear to be on the right path, and we anticipate this score would be higher pending the results of the 2021 census. 

Until Next Time,

ReconciliAction YEG

 

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¹Canada, Truth and Reconciliation Commission, Honouring the Truth and Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015 at 164.

²Ibid.

³Statistics Canada, “Aboriginal Population Profile, 2016 Census”, online: https://www12.statcan.gc.ca/census-recensement/2016/dp-pd/abpopprof/index.cfm?Lang=E.

⁴The Association of Faculties of Medicine of Canada, "Indigenous Health", online: https://www.afmc.ca/en/priorities/indigenous-health.

⁵Slav Kornik, “University of Alberta medical school changes 30-year admissions policy on Indigenous applicants” Global News (28 November 2018), online: https://globalnews.ca/news/4707777/university-of-alberta-medical-school-indigenous-students/#:~:text=The%20University%20of%20Alberta%20said,to%20the%20university's%20medical%20school.

⁶Queen’s University, “Applying as an Indigenous Student”, online: https://www.queensu.ca/apply/aboriginal.

⁷University of Calgary, “Faculty of Nursing’s path toward Indigenization focuses on cultural safety, helping vulnerable populations” (16 Feb 2018), online: https://news.ucalgary.ca/news/faculty-nursings-path-toward-indigenization-focuses-cultural-safety-helping-vulnerable-populations.

⁸The Association of Faculties of Medicine of Canada, “Joint Commitment to Action on Indigenous Health”, (23 May 2019), online: https://www.afmc.ca/sites/default/files/pdf/AFMC_Position_Paper_JCAIH_EN.pdf, at 12.

⁹Canadian Nursing Association, “Position Statement: Promoting Cultural Competence in Nursing”, online: https://www.cna-aiic.ca/-/media/cna/page-content/pdf-en/position_statement_promoting_cultural_competence_in_nursing.pdf?la=en&hash=4B394DAE5C2138E7F6134D59E505DCB059754BA9

¹⁰Government of Canada, "Delivering on Truth and Reconciliation Commission Calls to Action: Health", online: https://www.rcaanc-cirnac.gc.ca/eng/1524499024614/1557512659251.

¹¹Aboriginal Nurses Association of Canada, “Cultural Competence and Cultural Safety in Nursing Education”(2009), online:https://www.cna-aiic.ca/ at 7.

¹²University of Alberta, “Indigenous Nursing Initiative”, online: https://www.ualberta.ca/nursing/indigenous-nursing-initiative.html.

¹³Ibid.

¹⁴Ibid.

¹⁵Government of Canada, “British Columbia Tripartite First Nations Health Plan”, online: https://www.sac-isc.gc.ca/eng/1581975820117/1581975841888

¹⁶ First Nations Health Authority, "FNHA Overview", online: https://www.fnha.ca/about/fnha-overview.

5 Years After TRC: Health Initiatives and Government Funding

Tansi Nîtôtemtik,

 

Today we are continuing our review of the Calls to Action on health with a focus on call 20, 21 and 22. Call 20 addresses the jurisdictional funding and services gap for Indigenous people who do not live on reserves, while Calls 21 and 22 relate to the integration of Indigenous healing practices into the Canadian health-care system.

 

The Yellowhead Institute’s 2019 overview of the Calls to Action succinctly summarized reforms to the healthcare system – calling them ‘at best, minimal and cosmetic.’^[1] We agree with this assessment and believe that both the Federal and Provincial government’s responses to these three calls demonstrate how cosmetic statements and intentioned titles can dress up budgets and policy that are devoid of substance.

 

The calls are stated as follows:

20. In order to address the jurisdictional disputes concerning Aboriginal people who do not reside on reserves, we call upon the federal government to recognize, respect, and address the distinct health needs of the Métis, Inuit, and off-reserve Aboriginal peoples.

21. We call upon the federal government to provide sustainable funding for existing and new Aboriginal healing centres to address the physical, mental, emotional, and spiritual harms caused by residential schools, and to ensure that the funding of healing centres in Nunavut and the Northwest Territories is a priority.

22. We call upon those who can effect change within the Canadian health-care system to recognize the value of Aboriginal healing practices and use them in the treatment of Aboriginal patients in collaboration with Aboriginal healers and Elders where requested by Aboriginal patients.

 

Crown-Indigenous Relations and Northern Affairs Canada has a running list for what they are doing for each Call to Action. It can be found here, and guides this conversation. Call 20 is narrow and directly focuses on the Federal government to address jurisdictional disputes for Metis, Inuit and Indigenous people living off-reserve. None of the various policy initiatives and budget items that are listed under call 20 by Crown-Indigenous Relations as being implemented by the Federal Government directly relate to call 20.^[2]

 

The Non-Insured Health Benefits Program is the only item listed by the Federal government under call 20 that could refer to off-reserve spending. It was not implemented in response to the Calls to Action and has existed alongside poor health outcomes for decades. While per capita spending has increased year-over-year under the newest Federal government – it has not been a substantial shift in policy and controversy persists.^[3] Additionally, Metis are not included in the listed eligibility.^[4]

 

Funding on NIHB per year. Source: Non-Insured Health Benefits program: First Nations and Inuit Health Branch: Annual Report 2018 to 2019.

 

Focusing on Nunavut and the Northwest Territories for Call 21, there has been one direct action taken, as the government announced that it will be building and funding a recovery and healing centre offering on-the-land healing camps and in-community supports.^[5] While a slow start, this appears promising and uses similar language to Call 21.

 

The substance of Call 22 is considerably more nuanced and involves both levels of government. The Federal government’s current stated implementations are quite limited and do not mention the current administration of on-reserve health care.^[6]

 

Alberta Health Services (AHS) have included a section entitled ‘improving the health outcomes of Indigenous Peoples in areas where AHS has influence’ in several of their past annual reports.^[7]] A statement on healthcare which includes an embedded jurisdictional disclaimer ‘where the AHS has influence’ in its title may be suggestive of the limited scope and effectiveness of the outcomes.

 

The AHS has delivered on some meaningful initiatives surrounding Indigenous health outcomes, a recent highlight being a reduction in the prenatal mortality rate between First-Nations and Non-First Nations by 35% since 2016. This was achieved through the increased implementation of midwifery programs that use community-based methods to enhance care.^[8]

 

While this is a positive outcome, the fact that this gap still exists is atrocious, especially when it appears that it can be reduced through these initiatives. The more critical take away is that if funding these initiatives directly saves lives, then any remaining gap in health outcomes is a policy decision which places a price tag on Indigenous lives.

 

Our grades are as follows:

Until Tomorrow,

 

Team ReconciliAction YEG

 

----- Want to hear more? -----

 

¹Ian Mosby and Eva Jewell, "Calls to Action Accountability: A Status Update on Reconciliation" (17 December 2019), online: Yellowhead Institute <https://yellowheadinstitute.org/2019/12/17/calls-to-action-accountability-a-status-update-on-reconciliation/>.

² Crown-Ingidionus Relations and Northern Affairs Canada, "Delivering on Truth and Reconciliation Commission Calls to Action" (05 September 2019)

³ Beth Brown, "Federal Government Underfunding of Medical Travel for Nunavummiut 'Glaring,' Says Health Minister" (17 March 2020), online: CBC <https://www.cbc.ca/news/canada/north/george-hickes-fed-up-health-funding-1.5500736>.

⁴ Crown-Ingidionus Relations and Northern Affairs Canada, "Benefits and Services Under the Non-Insured Health Benefits Program" (20 December 2019), online: <https://www.sac-isc.gc.ca/eng/1572545056418/1572545109296>.

⁵ Government of Canada, News Release, "Recovery Centre Coming to Nunavut" (19 August 2019) online: <https://www.canada.ca/en/indigenous-services-canada/news/2019/08/recovery-centre-coming-to-nunavut.html>.

⁶ Supra, note 2.

⁷ Alberta Health Services, "Annual Report 2018-19" online: <https://www.albertahealthservices.ca/assets/about/publications/2018-19-annual-report-web-version.pdf > at 38.

⁸ Ibid. 

Truth without Reconciliation: Canada's Role in more than a Century of 'Unfairness' in Indigenous Health

(Artwork: 'Land out of Sight' by Lisa Boivin)

 

Tansi Nîtôtemtik,

 

Yesterday we discussed the informational gap in data collection that leaves us with an incomplete picture of health outcomes among Indigenous people.^[1]  However, even the incomplete data clearly shows worse outcomes in health indicators for Indigenous people when compared with non-Indigenous people.  The Truth and Reconciliation Commission compiled the following data regarding this gap as published in the Summary of the final report:

 

• Infant mortality rates for First Nations and Inuit children range from 1.7 to over 4 times the non-Aboriginal rate. 
• Between 2004 and 2008, the “age-specific mortality rate” at ages one to nineteen in the Inuit homelands was 5.3 times the rate in the rest of Canada.
• First Nations people aged forty-five and older have nearly twice the rate of diabetes as the non-Aboriginal population.
• First Nations people are six times more likely than the general population to suffer alcohol-related deaths, and more than three times more likely to suffer drug-induced deaths.
• The overall suicide rate among First Nation communities is about twice that of the total Canadian population. 
• For Inuit, the suicide rate is six to eleven times the rate for the general population. 
• Indigenous youth between the ages of ten and twenty-nine who are living on reserves are five to six times more likely to die by suicide than non-Aboriginal youth.^[2]

 

Today we will show how these worsened outcomes are a direct result of colonization and government policy in Canada. We will then evaluate progress on TRC Call to Action #18 which calls for acknowledgment of this causation and recognition and implementation of Indigenous healthcare rights as identified under international law, constitutional law, and Treaty.^[3]

 

Colonial Roots

(Image Credit: Stephanie McConkey, The Indigenous Determinants of Health as Predictors for Diabetes and Unmet Health Needs Among Urban Indigenous People:  A Respondent-Driven Sampling Study in Toronto, Ontario The University of Western Ontario, 2018) [unpublished], fig 1.) 

 

Well over 100 years ago Indigenous people faced a period of starvation. During that time, rations were withheld as a tactic to force Indigenous people to give up the lands originally selected as reserve lands. Often, these actions forced the relocation of Indigenous people to agriculturally unproductive lands.^[4] The driving of Indigenous communities from fertile land meant that, as the TRC states, “reserve housing was poor and crowded, sanitation was inadequate, and access to clean water was limited.”^[5]   During the same period, children were being whisked away to poorly constructed residential schools that were understaffed and undersupplied with food, clothing, sanitation, and medical supplies, and other necessities.^[6] 

 

The result was the en masse death of Indigenous people from tuberculosis. Those not killed by this lung disease were often severely weakened and likely to succumb to measles, smallpox, and other infectious diseases.^[7] Despite the high death rates in the schools and Indigenous communities, health resources and hospital care was restricted in 1937 “to those required for the safety of limb, life or essential function.”^[8]  Policies that ignored the health of Indigenous people through multiple generations have had a lasting impact on the health of Indigenous people. Some survivors still suffer from untreated physical ailments from residential schools or an inability to access medical care. The impact of intergenerational trauma on health is also apparent in the high rates of substance-related death and suicide.

 

Contemporary Indigenous Health

(Image Credit: THE CANADIAN PRESS/Paul Chiasson)

 

Let us fast forward to today. First Nations and Inuit households are three and four times as likely to live in an overcrowded dwelling and/or one in need of major repairs.^[9] There are also several communities living under long-term boil water advisories or who do not have access to running water and indoor toilets, including the Neskantaga First Nation who recently had to evacuate due to water access being cut off.^[10]  The current conditions sound pretty similar to 100 years ago when “reserve housing was poor and crowded, sanitation was inadequate, and access to clean water was limited”, doesn’t it?^[11]  In the words of Spirit Bear, Bearister with First Nations Child & Family Caring Society, Canada has not yet “fixed the unfairness” that created and continues to perpetuate these health indicators.^[12]

 

While Canada has formally acknowledged the health care gap to be a result of colonial policy and has allocated additional funding for healthcare improvements, we are not seeing the change.^[13]  Indigenous patients, not the system, continue to bear the brunt of the blame for having poorer health outcomes.  We have seen horrifying instances of healthcare failures in the deaths of Joyce Echaquan, Elder Hugh Papik, Brian Sinclair & Katie Ross; where people in need of healthcare for treatable illness or injury died after being accused or suspected of substance use on the basis of their Indigeneity.^[14]  We have seen provincial leaders flatly deny any problem of systemic racism that would impact healthcare for Indigenous people.^[15] Healthcare is a right protected by the constitution and by treaty.  However, Indigenous people are still being denied this basic right, and Canada continues to fail these people with a lack of formally implemented Indigenous healthcare rights.

 

Evaluation of Canada’s Response to Call to Action #18

On this basis, Team ReconciliAction is assigning a grade of ‘D’ to Canada on Call to Action #18.  

A formal acknowledgment and an increase to short term funding is the bare minimum for a passing grade. Truth is the first step in reconciliation. However, reconciliation here requires;  

• a formal Indigenous health rights framework that works to counter pervasive systemic racism in healthcare; 
• addressing the century-old housing and clean water crises that lead to poorer health; and  
• a commitment to long term and sustainable funding to ensure substantive equality in access to healthcare.

Canada has a duty to actively correct the ‘unfairness’ against Indigenous people created by colonialism and government policy.  Telling the truth about it is only the first step in meeting this Call to Action.

 

Thank you for reading today after a presumably long night of nail-biting over the US election non-results. Check back tomorrow for more on the TRC Calls pertaining to Indigenous health. 

Until Next Time,

Team ReconciliAction YEG

 

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¹ ReconciliAction YEG, “Improving Indigenous Health”, (3 November 2020), online: University of Alberta Faculty of Law Blog <https://ualbertalaw.typepad.com/faculty/2020/11/improving-indigenous-health.html>.

² Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 160.

³ Ibid.

⁴ Ibid at 94.

⁵ Ibid.

⁶ Ibid at 99.

⁷ Ibid at 94.

⁸ Ibid at 98.

⁹ Chantelle A M Richmond & Catherine Cook, “Creating conditions for Canadian aboriginal health equity: the promise of healthy public policy” (2016) 37:1 Public Health Reviews 2; see also Heather Tait, Aboriginal Peoples Survey, 2006: Inuit Health and Social Conditions, Catalogue no. 89-637-X, No. 001 (Ottawa: Statistics Canada, Social and Aboriginal Statistics Division, 2008).

¹⁰ Helen Fallding, “Disease factory Consequences of living without tap water and flush toilets”, Winnipeg Free Press (3 November 2010), online: <https://www.winnipegfreepress.com/no-running-water/health/disease-factory--consequences-of-living-without-tap-water-and-flush-toilets.html>; Jody Porter, “Few left behind in Neskantaga First Nation prepare for winter without water”, CBC News (26 October 2020), online: https://www.cbc.ca/news/canada/thunder-bay/neskantaga-left-behind-1.5776993.

¹¹ Truth and Reconciliation Commission of Canada, supra note 2 at 94.

¹² Spirit Bear, Spirit Bear’s Guide to the Truth and Reconciliation Commission of Canada Calls to Action (Ottawa: First Nations Child & Family Caring Society of Canada) at 3.

¹³ Government of Canada; Indigenous and Northern Affairs Canada, “Health”, (23 April 2018), online: Delivering on Truth and Reconciliation Calls to Action <https://www.rcaanc-cirnac.gc.ca/eng/1524499024614/1557512659251>.

¹⁴ ReconciliAction YEG, “Joyce Echaquan: Death by Racism”, (5 October 2020), online: University of Alberta Faculty of Law Blog <https://ualbertalaw.typepad.com/faculty/2020/10/joyce-echaquan-death-by-racism.html>.

¹⁵ Kristy Kirkup & Tu Thanh Ha, “Indigenous woman records slurs, taunts of Quebec hospital staff before her death”, The Globe and Mail (29 September 2020), online: <https://www.theglobeandmail.com/canada/article-indigenous-woman-records-slurs-taunts-of-quebec-hospital-staff-before/>.

Improving Indigenous Health

Tansi Nîtôtemtik,

Today ReconciliAction YEG evaluates TRC Call to Action #19, which states:

We call upon the federal government, in consultation with Aboriginal peoples, to establish measurable goals to identify and close the gaps in health outcomes between Aboriginal and non-Aboriginal communities, and to publish annual progress reports and assess long term trends. Such efforts would focus on indicators such as: infant mortality, maternal health, suicide, mental health, addictions, life expectancy, birth rates, infant and child health issues, chronic diseases, illness and injury incidence, and the availability of appropriate health services.^[1]

The Need for Accurate Data

Measuring the current state of Indigenous health in Canada is complicated by a lack of data about Indigenous health outcomes. Indigenous health data collection often misses groups like non-registered First Nations people and Metis or Inuit people living off-reserve.^[2]   These gaps in information give an incomplete picture of Indigenous health that likely underestimates inequities.  The COVID-19 pandemic highlights the problematic nature of this deficiency in data. The federal department of Indigenous Services only captures COVID-19 data from First Nations people living on reserves, which has resulted in an inaccurate representation of how COVID-19 is affecting Indigenous people in Canada.^[3]

Despite the lack of accurate data, it is no mystery that Indigenous people in Canada experience worse health outcomes than their non-Indigenous counterparts, ranging from mental health to infectious disease. Just to name a few examples, the Attawapiskat First Nation of James Bay, Ontario had such a high rate of suicide attempts among young people that the Nation declared a state of emergency;^[4] Nunatsiavut (the Inuit region of Labrador) has the highest rate of tuberculosis in Canada;^[5] and Type 2 diabetes is considered at epidemic levels in many First Nations communities.^[6]

(This graphic (2016) demonstrates the immense difference in tuberculosis rates between Indigenous and non-Indigenous peoples, Credit: Public Health Agency of Canada^[7] )

Progress on Call to Action #19

In 2018, two projects to identify  Indigenous health needs were included in the federal budget: $109 million over ten years was budgeted for an Inuit Health Survey and $6 million over five years was budgeted for a Metis health strategy.^[8] There is also a federal initiative called the Health Services Integration Fund (HSIF) aimed to support “collaborative planning and multi-year projects aimed at better meeting the health-care needs of First Nations and Inuit.”^[9] However, the amount of funding and scope of the HSIF is unclear. 

In May 2020, the Government of Canada pledged $250,000 towards data collection regarding COVID-19 in Indigenous communities. However, the data collected by Indigenous Services Canada was largely discrepant with community reports. ^[10] As the figure below shows, the ISC figures greatly underestimate the number of COVID-19 cases. In August 2020, the Government then pledged an additional $285.1 million towards the public health response to COVID-19 to First Nations communities, but considering the underestimation in the number of cases, this amount will likely be insufficient.  

(Credit: Yellowhead Institute, see footnote 10) 

Final Thoughts

The piecemeal nature of the Government’s funding and initiatives towards improving Indigenous health outcomes is disappointing, but unfortunately not surprising. TRC Call to Action #19 asks for measurable goals, and as of yet, basically no measurable goals that have been set. Further, without accurate data collection, accountability for implementing actual change will continue to be very limited. The need for systemic change and measurable outcomes must be prioritized by our Government to ensure that Indigenous health improves in Canada. As a result, Team ReconciliAction YEG is assigning D minus grade to Canada on Call to Action #19.  Stay tuned tomorrow as we continue our evaluation of the TRC Calls to Action on Health!

Until next time,

Team ReconciliAction YEG

¹Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015). 

²National Collaborating Center for Aboriginal Health, “An Overview of Aboriginal Health in Canada” (2013), online (pdf): <www.ccnsa-nccah.ca/docs/context/FS-OverviewAbororiginalHealth-EN.pdf>. 

³Raisa Patel, “Canada must improve COVID-19 data collection for Indigenous communities, minister says” CBC News (May 9, 2020) online: <www.cbc.ca/news/politics/indigenous-covid-19-data-collection-1.5563433>. 

⁴Kate Rutherford, “Attawapiskat declares state of emergency over spate of suicide attempts” CBC News, (April 9, 2016), online: <www.cbc.ca/news/canada/sudbury/attawapiskat-suicide-first-nations-emergency-1.3528747>. 

⁵Patterson, S. Finn, K. Barker,  “Addressing tuberculosis among Inuit in Canada.” (2018) 44(3/4):82-5 Can Commun Dis Rep., https://doi.org/10.14745/ccdr.v44i34a02. 

⁶Lynden Crowshoe et al., “Type 2 Diabetes and Indigenous Peoples” 42 (2018) S296, https://doi.org/10.1016/j.jcjd.2017.10.022. 

⁷Vachon, V. Gallant & W., “Tuberculosis in Canada, 2016” 2018;44(3/4)Can Commun Dis Rep at 78. https://doi.org/10.14745/ccdr.v44i34a01. 

^{8CBC News, “Beyond 94”, Interactive CBC News (Last updated Sept 11, 2020) online: <newsinteractives.cbc.ca/longform-single/beyond-94?&cta=19 >.}

⁹Government of Canada, “Health Services Integration Fund”, (Mar 8, 2020) online: Indigenous Services Canada <www.sac-isc.gc.ca/eng/1583705358726/1583705378757>. 

¹⁰Courtney Skye, “Colonialism Of The Curve: Indigenous Communities & Bad Covid Data” (May 12, 2020, online: Yellowhead Institute <yellowheadinstitute.org/2020/05/12/colonialism-of-the-curve-indigenous-communities-and-bad-covid-data/>.