University of Alberta Faculty of Law Blog

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

 

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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 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

 

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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/>. 

Mi'kmaq March in Solidarity: Raising Voices Together

Tansi Nîtôtemtik,

We feel a heavy burden of responsibility to speak out when we see a wrong being committed. This responsibility means using our voice whenever we can to shine a spotlight on important issues. We here at ReconciliAction YEG have heard the cries of the Mi’kmaq peoples in Nova Scotia located on Mi’kma’ki. Their voices have been loud and in distress because of violent acts of terrorism, bullying and threats of more violence directed at Mi’kmaq fishermen in the last few months.  We have also noticed, along with the rest of the world, the lack of action from the Canadian Government and Law Enforcement in the face of this suffering.

What have the Mi’kmaq fisheries done to warrant violence from the rest of the industry? This is not really a question of what they have done, but rather an unfounded fear of what could they do if allowed to continue to exercise their inherent constitutionally protected treaty right to fish for a moderate livelihood; rights that have been affirmed in the Marshall decisions.^[1]

On September 17, 1999, the Supreme Court acquitted Donald Marshall Jr. of three federal fishery offences and affirmed the Mi’kmaq treaty right to hunt, fish and gather in pursuit of a “moderate livelihood.” This right includes the right to sell the catch, and not to get rich, but to be able to take care of their families and communities. Unfortunately, the SCC did not nail down an exact meaning of “moderate livelihood”. 

In November 1999, the Supreme Court issued a clarification, known as Marshall 2, confirming that Mi’kmaq fisheries would still be regulated by the federal government for conservation purposes. However, the decision still did not clarify the meaning of “moderate livelihood”, and Canada has failed to fully implement the Marshall decision because of that lack of clarification.^[2]

The cause of the violence in Nova Scotia is not a legitimate conservation issue. Many experts and scientists agree that conservation is not either a present nor foreseeable problem if practiced as is by the Mi’kmaq fisheries.^[3] The Mi’kmaq people have been fishing in that area for thousands of years—not hundreds—but thousands—and have never needed conservation-driven seasonal limits or catch restrictions because they did not overfish like the non-indigenous fishing industry. They did not exploit the resource then and they don’t exploit it now. The impetus for the current violence is systemic discrimination and a fear of First Nations people finally emerging from the shadow of colonialism. This is about refusing to honour treaties with Indigenous people.

On Saturday October 24, the “All Eyes on Mi’kma’ki” gripped our nation and cities across Canada, including Edmonton. “All Eyes on Mi’kma’ki” was a peaceful march initiated to help spur government action, to come together in solidarity and in response to the escalating tensions between commercial fishermen and Mi’kmaq fishermen. It received nationwide attention and created an opportunity for further conversation about what Canada is doing to protect affirmed “Treaty Rights” and First Nations people in the face of direct violence from non-Indigenous people. One of our writers here at ReconciliAction YEG, Anita Cardinal-Stewart, President of the University of Alberta Faculty of Law’s Indigenous Law Students Association and Vice-President of the First Nations for the National Indigenous Law Students Association, attended and spoke at the rally that day in Edmonton. 

(Photo Credit: Darlene Hildebrandt/In this photo: Anita Cardinal-Stewart) 

She described the initial atmosphere as being peppered with some worry about anti-protestors and the participant safety. But as the march went forward she said it was clear that the people present had gathered in solidarity with Mi’kma’ki and a desire to a have peaceful walk, the organizers did a wonderful job of ensuring that. As the supporters gathered outside at the Edmonton RCMP headquarters, young Cree singer Noah Simon’s powerful voice rang out over the crowd to the beat of a drum and the air was filled with purpose and conviction. It was a clarifying moment of solidarity and understanding that necessary change and action is required for justice to be effected. Hate and discrimination have no place in our present nor our future. Canada must do better. 

After some words from leaders in the community, the walk continued unprohibited to Gallagher Park. Along the way the marchers raised their collective voices in support for Mi'kmaq and Treaty rights and honks from passing vehicles in support was a welcome sound. Once there, the camera crews and law enforcement slowly dissipated, and it felt like an intimate moment to reflect, talk and listen to those who would be speaking.  It was at that time that Anita spoke to the crowd of supporters about the Marshall decisions, Treaty relations, and hope for a better future. A future where Canada and Canadians no longer ignores what it means when we say, respect and honor the Treaties because, “We Are All Treaty People”, so let us turn all eyes on Mi'kma'ki.   We are pleased to present part of her speech which you can find here: https://www.facebook.com/759855656/videos/pcb.1280855755582514/10164845669325657/ 

Thank you for reading. 

Until next time.

 

Team ReconciliAction YEG

 

[1] R v Marshall, [1999] 3 SCR 456. 

[2] The Canadian Encyclopedia, "Marshall Case" (11 April 2020), Online: <https://thecanadianencyclopedia.ca/en/article/marshall-case>.

[3] Vanessa Minke-Martin, "Mi'kmaw Fishery Dispute is Not About Conservation, Scientist Says" (09 October 2020), Online: <https://www.hakaimagazine.com/news/mikmaw-fishery-dispute-is-not-about-conservation-scientists-say/>. 

IBA 2020 Reflections: A Conversation with Members of Parliament, Jaime Battiste and Jagmeet Singh

Tansi Nîtôtemtik,

 

With today’s post we are wrapping up our reflection posts about the 2020 Indigenous Bar Association conference with the plenary session featuring Jaime Battiste and Jagmeet Singh. 

 

Jaime Battiste is Canada’s first Mi’kmaq Member of Parliament, representing Nova Scotia in the House of Commons. He is also the Indigenous chair for the Liberal caucus. The second speaker, Jagmeet Singh, is the leader of the federal New Democrat Party (NDP), representing Burnaby South in the House of Commons. There was some overlap in the topics addressed in this session and by the Honorable Jody Wison-Raybould in her session on Canada’s failure to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 

 

The Members of Parliament used their presentation to touch on some of the current events affecting Indigenous people in Canada. Mr. Singh described the failure of the federal government to provide clean drinking water to the Neskantaga First Nation for the past 25 years. Appalling enough as that detail is, the community was in the news again this week because their water was shut off completely after an oily substance was found in the reservoir on October 19.^[1] Almost all of the population of 300 residents evacuated, with only 20 people staying behind to care for pets and keep empty homes heated and safe.^[2] Those residents left behind can only access water by hauling it out in buckets from a local lake.^[3] 

 

We agree with Mr. Singh’s statement about this crisis in Neskantaga, “If this was any other city, any other place, we would not accept 25 years [without clean drinking water]. Imagine in Ottawa and Halifax, in Toronto and Vancouver and Montreal, that there was a week without clean drinking water. That would be solved.” It is horrifying that an Indigenous community is forced to evacuate their homes in the midst of a pandemic and in freezing temperatures. Mr. Singh is right; Canadians would never roll over and accept this outcome for non-Indigenous communities. Canada has failed the Neskantaga First Nation. And this isn’t the only area where the federal government has failed recently.

 

The speakers also touched on the hostilities in Nova Scotia. As we discussed in our Wednesday post, there is a direct  correlation between this crisis and Canada’s failure to adequately implement Indigenous rights. On the same day as the IBA conference, the Government of Canada appointed Allister Surette as a “Federal Special Representative” to “rebuild trust between commercial and Indigenous fishers.” He will also make recommendations “with the objective of decreasing tensions and preventing further escalation of [the] conflict” between the Nova Scotia Mi’kmaq and commercial sector leaders and harvesters.^[4] Let’s hope that Mr. Surette moves quickly. Chief Mike Sack told reporters that the fishers can not find buyers for the lobster they have pulled from the water, and cannot even purchase supplies from local suppliers.^[5] “There's pressure that the [lobster] industry is putting on anyone who will do business with us... They've been told they will be blacklisted and boycotted. We're really handcuffed down there."^[6] 

 To paraphrase Mr. Singh, in the case of the Mi’kmaq, it is not sufficient to take an incremental approach to resolve this conflict. Mr. Battiste said he is calling for an approach that results in nationhood and partnership, not paternalism. Canada has a history of failing Indigenous people, let this not be included in the long list of deficiencies.

 

Mr. Battiste also touched on the work of his father, James Youngblood Henderson, as one of the original drafters of UNDRIP. 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.^[7]” This declaration caused a shift in the international human rights consensus and placed political and moral demands on states to protect Indigenous collective land rights and the right to self-determination.^[8] Canada officially adopted UNDRIP without qualification in 2016. However, UNDRIP is not a binding treaty or convention, and there are no consequences for nations that do not follow its provisions.^[9] 

 

Mr. Battiste said that he knows “[he represents] a country that has failed indigenous people... [he represents] a country that it did its best to deport his father while he was representing the Mi’kmaq at the United Nations in the 80s.” He also said that “[he] really had a hard time when [he] swore an oath to faithfully represent the Crown and the Queen.” But at his swearing in ceremony, one of the Mi’kmaq community members who were there to support him reminded him to never forget that the treaties say that the Crown is a Mi’kmaq ally. Mr. Battiste could be someone who changes things for the betterment of the Mi’kmaq in Nova Scotia, and all Indigenous people in Canada.  

 

To this end, Mr. Battiste said he has been putting pressure on Cabinet and Minister Lametti to move forward with UNDRIP legislation since he was appointed as an MP, and the current Liberal government has promised to table UNDRIP legislation by the end of 2020. Mr. Singh countered that if we want to see federal UNDRIP legislation passed, we need to vote out the Liberal party and elect an NDP government. With all due respect to Mr. Singh, we disagree. To redirect Mr. Singh’s own words back at him: “If we right these wrongs it is a victory for all of us.” We are tired of hearing about how this party failed and that party failed, and how we need to elect in someone else to see results—we want to see results now—we want to see results with UNDRIP legislation, clean drinking water in Neskantaga, moderate livelihood fisheries in Nova Scotia, and so much more. If both the minority Liberal government and the NDP agree that a victory for Indigenous people is a victory for all of us, then the mudslinging needs to stop, the partisanship needs to stop, and the two parties need to cooperate to change how Indigenous people are treated in this country during this session. The time for change is now.

Until next time, 

Team ReconciliAction YEG

 

¹Jody 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.

²Ibid.

³Ibid.

⁴Government of Canada, News Release, “Government of Canada appoints Federal Special Representative to facilitate discussions between commercial lobster industry and First Nations in Atlantic Canada”, (23 October 2020), online: https://www.canada.ca/en/fisheries-oceans/news/2020/10/government-of-canada-appoints-federal-special-representative-to-facilitate-discussions-between-commercial-lobster-industry-and-first-nations-in-atl.html.

⁵Michael MacDonald, “Nova Scotia Mi’kmaq chief casts doubt on Ottawa’s bid to quell violence over lobster”, CTV News (25 October 2020), online: https://www.ctvnews.ca/canada/nova-scotia-mi-kmaq-chief-casts-doubt-on-ottawa-s-bid-to-quell-violence-over-lobster-1.5160313.

⁶Ibid.

⁷United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, UN Doc A/61/295 (2007), art 43 [UNDRIP].

⁸Sheryl R Lightfoot “Emerging international indigenous rights norms and ‘over-compliance’ in New Zealand and Canada” (2010) 62:1 Political Science 84 at 87.

⁹Ibid.

Indigenous Bar Conference Day 2/ Indigenous Rights at the forefront of Crisis in Canada - Honorable Jody Wilson-Raybould

Tansi Nîtôtemtik,

Today we continue with our reflection of the Indigenous Bar Conference.

It was our pleasure and honor to attend the Honorable Jody Wison-Raybould’s session on implementing the UN Declaration of Indigenous Peoples (UNDRIP)^[1] and how the current attacks on Mi’kmaq fisheries are a direct consequence of  Canada’s failure to implement UNDRIP. 

Hon. Wilson-Raybould spoke of the extreme disappointment felt by many Indigenous Peoples throughout Canada over how Governments that promised so much keep doing so little to keep their words. It is a tide of disappointment that keeps coming in waves, what was started as good will in the early years has essentially been abandoned. Delaying the implementation of Indigenous rights has resulted in continued injustice, and the ad hoc management of crises like the ongoing attacks on Mi’kmaq fisheries in Nova Scotia ^[2] as they come is not a solution.

During the panel, Hon. Wilson-Raybould spoke to how her pursuit of accelerating the proper rights recognition for Indigenous peoples has been her primary main motivation. She commented on the lack for basic human well being both individually and socially, in all areas that affect  Indigenous peoples. From child welfare to disproportionate violence experienced by indigenous girls and women, the lack of clean drinking water on reserves and more recently the racist incidents involving fishing and Mi’kmaq fisheries, there is a direct  correlation between all these issues and the Government’s failure to adequately implement Indigenous rights. 

On February 14, 2018, Prime Minister Justin Trudeau gave a speech on his Liberal government’s plans for a new legislative framework for relations with Indigenous people. ^[3] However, this speech was another example of high hopes for change being dashed by a lack of substantial action for implementation  other than meeting with Indigenous leaders who were left with empty promises. 

Today, we see the Mi’kmaq fisheries fighting a fight that has already been won in the courts with the Marshall decisions. Yet the Government and law enforcement stood by while the Mi’kmaq were terrorized for exercising their inherent, constitutionally protected right to fish for a moderate livelihood. 

Hon. Wilson-Raybould pointed out that adversarial court processes should not and cannot be the primary focus for reconciliation. Instead, let us imagine what could be with real leadership-- what would it look like if the Canadian Government was actually committed to fully implementing UNDRIP. One of her suggestions included supporting a robust and constitutional rights framework meant to “get the federal house in order” as a starting point. In particular, Hon. Wilson-Raybould noted the 5 main elements of RRF (that are described in greater detail in her book, “From Where I Stand’) ^[4]: 

1. Entrench rights recognition standards, to end the practice of denial; 
2. Legislate the UNDRIP;
3. Establish mechanisms for self governance in moving out under the Indian Act;
4. Establish new and Indigenous institutions and capacity support for nation rebuilding; and
5. Establishing new oversights accountability and dispute at resolution institutions. 

Until these elements are implemented, events like this past weekend's nationwide march in solidarity with the Mi’kmaq will be required  to bring awareness to these important issues. Advocacy from our Indigenous leaders in our communities and supporters will be integral in breaking down barriers and fighting for justice. One of our own here at ReconciliAction YEG, Anita Cardinal-Stewart, who is also the Indigenous Law Students Association President and IBA Student Representative attended and spoke at the march in Edmonton this past Saturday.   We will save a greater reflection of the march for Monday. Please stay tuned. 

Thank you.

Until next time,

ReconciliAction YEG

[1] United Nations Declaration on the Rights of Indigenous Peoples, (September 13, 2007) online: <www.un.org/development/desa/indigenouspeoples/wp content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf>. 

[2] Angel Moore, Trina Roache “Mi’kmaq lobster boats surrounded by Acadian commercial fishing vessels as traps are stolen, cut” (September 21, 2020) online: < www.aptnnews.ca/national-news/mikmaq-lobster-boats-surrounded-by-acadian-commercial-fishing-vessels-as-traps-are-stolen-cut/>. 

[3]  House of Commons Debates,42-1, No. 264 (14 Feb 2018) https://www.ourcommons.ca/DocumentViewer/en/42-1/house/sitting-264/hansard 

[4]  Hon Jody Wilson-Raybould, From Where I Stand (Vancouver: UBC Press, 2019).

Diversity on the Bench

 

A picture of the current Justices of the Supreme Court in Canada. Credit: Supreme Court of Canada Collection

Tansi Nîtôtemtik,

Today we continue our reflections on last week’s Indigenous Bar Association Conference.  

In today’s post, Team ReconciliAction YEG will be discussing the Breakout Session titled: “Indigenous & Black Representation on the Bench, Inclusion and Diversity.” The session was an honest and open discussion about the current representation of Indigenous and Black lawyers in our Canadian judiciary, and suggestions on how to make improvements. The session featured three speakers:

• Justice Harry LaForme, who currently practices law at Olthius Kleer Townshend LLP and previously served as a Justice of the Ontario Court of Appeal and as a Justice on the Ontario Superior Court (ONSC); 
• Justice Nyron Dwyer, a current Justice of the Ontario Court of Justice; and
• Joshua Sealy-Harrington, a current lawyer at Power Law LLP, (now doing doctoral research at Columbia Law School theorizing law, identity, and sexuality) who also completed three clerkships (two at the Supreme Court of Canada (SCC) and one at the Federal Court). 

Photo credit: Joshua Sealy-Harrington, Twitter, October 23, 2020

Each of the three panelists shares a unique perspective on diversity in the judiciary. Justice Laforme was notably the first Indigenous judge on an appellate court when he was appointed in 2004. While at the ONSC, Justice LaForme was one of three Indigenous justices at that time to have been appointed to that level of trial court. Justice LaForme became a lawyer at a time when Indigenous lawyers were few and far between, and has been a champion for Indigenous issues throughout his legal career. 

Justice Dwyer immigrated to Winnipeg from Jamaica when he was seven years old. He pursued a legal career at a time where only two or three Black students had ever graduated from his law school (University of Manitoba). Justice Dwyer built a career in criminal law where he practiced  for over twenty years, and noted the staggering overrepresentation of Indigenous people involved in the criminal justice system. 

Joshua Sealy-Harrington is Trinadadian-Canadian. Joshua shared that during his Juris Doctor degree, he had no Black teachers, was the only Black lawyer at the firm he worked at, and was the only Black law clerk during his three clerkship terms. Joshua shared how these experiences made him feel alone, and noted that in his experience, feeling unique in an institution as powerful as the Supreme Court of Canada was deeply unsettling. 

Barriers in the judicial appointment process

One of the questions posed to the speakers was about barriers in the judicial appointment process for Indigeneous and Black lawyers. The barriers associated with the French language requirement was discussed, which we wrote about in this post.

Some other barriers included:

• Undervaluing the need for diverse perspectives and Indigenous/Black representation on the bench at all levels, especially in the apex court (SCC). 
• Outdated ideas about representation of minorities rooted in colonial values, such as citing a lack of applications for judicial appointments as the reason for underrepresentation rather than looking at the reasons behind the low number of applications. 
• A lack of confidence amongst Indigenous and Black lawyers to apply for judicial appointments, related to a feeling that one has to “do more” or “be perfect” to be worthy of an appointment. 
• A lack of transparency about the application and selection process itself through unequal access to knowledge both implicitly (e.g. specialized tips for interviewing, compiling applications) and explicitly (e.g. a lack of resources to compile applications); and
• Systemic discrimination through the selection process and criteria for application themselves, as they indirectly select for certain schools or backgrounds.

With respect to these last two barriers, Sealy-Harrington pointed to similarities with the clerkship application/recruitment process, and noted that these flaws likely applied to judicial appointments as well. 

Recommendations for change

Sealy-Harrington made a striking comparison between government funding for social programs and representative judicial appointments. He commented that the question is more one of priority, not scarcity. The speakers shared their passion for improving diversity in the judiciary, and made some of the following suggestions:

• Members of the judiciary should encourage strong lawyers with diverse backgrounds to apply for judicial appointments. Justice Dwyer shared that as a young lawyer, Justice LaForme encouraged him to apply to the bench, which was instrumental in his decision to apply. 
• The legal community should lobby the Government to prioritize the appointment of underrepresented Black and Indigenous lawyers.
• Diversity of experience should not be overshadowed by technical specifications like the French language requirement. 

Overall, this Breakout Session really drove home the importance of representation of all backgrounds on the Bench at all levels of court, but especially the SCC. Team ReconciliAction YEG is hopeful Canada’s judiciary will soon start to resemble the people coming before them in our courts. 

We would like to leave you with a powerful quote shared by one of the moderators, Ajay Winterburn during the panel:

"The function, the very serious function of racism is distraction. It keeps you from doing your work. It keeps you explaining, over and over again, your reason for being. Somebody says you have no language and you spend twenty years proving that you do. Somebody says your head isn’t shaped properly so you have scientists working on the fact that it is. Somebody says you have no art, so you dredge that up. Somebody says you have no kingdoms, so you dredge that up. None of this is necessary. There will always be one more thing." -Toni Morrison 

Until next time,

ReconciliAction YEG

IBA Reflections: BC First Nations Justice Strategy

Tansi Nîtôtemtik, 

 

The Indigenous Bar Association conference, themed “Disrupted Systems”, wrapped up its second day on Friday with a stacked set of speakers, performers, and panels. This year’s conference featured important discussions about the state of the Canadian legal system and profession; systemic racism and inequity; practicing law and ceremony during a pandemic; new child welfare laws; incredible drum, flute and song performances; and more turtlenecks than we have ever seen at a single event.  This week, we will share some highlights of the conference before we jump back into evaluating the TRC Calls to Action in healthcare. 

(Illustration: “Meta” by Jason Sweeney)

 

Today, we will discuss the BC First Nations Justice Strategy as presented by Chief Doug White, Chair of the BC First Nations Justice Council.^[1] Signed in March of 2020, the Strategy was jointly developed with the BC government to reform the current legal system, address its harms against Indigenous people, and restore Indigenous legal structures.^[2]  

 

The numbers presented by Chief White were staggering, but not surprising for anyone who has been paying attention. Across Canada, First Nations, Metis and Inuk people make up around 5% of the total population, but a disproportionate 30% of Canada’s incarcerated population.^[3]   For women and girls, the figures are even more alarming. Forty-two percent of all incarcerated women are Indigenous, and 60% of all girls in custody are Indigenous.^[4] Indigenous people are also overrepresented as victims of crime, and underrepresented in roles of authority and responsibility.^[5]  

(Image: Office of the Correctional Investigator. (2020, January 21). Indigenous People in Federal Custody Surpasses 30%. Correctional Investigator Issues Statement and Challenge. https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx)

 

Chief White attributes the worsening impact of the legal system on Indigenous people in BC to a variety of factors, including: 

• improper implementation of the Gladue principles in sentencing, 
• poor access to legal representation, 
• defunding of Legal Aid and Native Community Law Offices,

 as well as over-policing and under protection by police, as has been shown in reports like the AJI, RCAP, TRC and MMWIG.^[6]  

 

After the agreement to develop the Joint Strategy in 2017, a two year consultation and engagement process followed.^[7] During that time, BC did not wait to begin making changes. Funding was immediately increased to improve access to Gladue reports at sentencing and bail hearings, and to begin establishing a network of 15 Indigenous justice centers to provide legal services for criminal, family and child protection matters.^[8]  

 

The 25 strategies outlined in the Joint Strategy are based on 4 pillars: Core Values; Structures and Processes;  Roles, Responsibilities and Capacities; and Laws and Policies ^[9]  Within each of the strategies are clear lines of action for implementation. However, many of those lines of action simply state that an action plan must be developed.^[10]  

 

The emphasis that the BC strategy places on Indigenous-led justice and community-based programming is promising, as is the focus on reforming the current justice model to incorporate more Indigenous perspectives. Team ReconciliAction will be watching the progress in BC as the province embarks on this joint process led by the BC First Nations Justice Council, and is looking forward to the impact of the new strategies on the Indigenous people who shared those lands with settlers. If the BC strategy is successful, we hope to see the other provinces in Canada adopting principles that restore First Nations legal orders and structures within their borders.

Until Next Time,

Team ReconciliAction YEG

 

¹ Chief Doug White, BC First Nations Justice Strategy (Indigenous Bar Association Conference: Disrupted Systems, 2020).

² BC First Nations Justice Council, BC First Nations Justice Strategy (British Columbia, 2020) online: https://www.bcafn.ca/sites/default/files/docs/news/First_Nations_Justice_Strategy_Feb_2020.pdf at 3.

³ Chief Doug White, supra note 1; See also Office 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>.

⁴ Chief Doug White, supra note 1; See also The Native Women’s Association of Canada (NAWC), “Number of Incarcerated Indigenous Women at New High”, First Nations Drum Newspaper (22 January 2020), online: <http://www.firstnationsdrum.com/2020/01/number-of-incarcerated-indigenous-women-at-new-high/>.

⁵ BC First Nations Justice Council, supra note 2 at 20–22.

⁶ Chief Doug White, supra note 1.

⁷ BC First Nations Justice Council, supra note 2 at 8.

⁸ Chief Doug White, supra note 1.

⁹ BC First Nations Justice Council, supra note 2 at 5.

¹⁰ BC First Nations Justice Council, supra note 2 at 27, 28, 29, 31, 32, 38, 40, 48, 49, 51.

Section 25 of the Charter: Indigenous Laws in Canadian Courts

Correction notice: ReconciliAction YEG would like to clarify that s.35 of the Charter recognizes and affirms existing treaty rights. Also, the second takeaway should be clarified to say that Ryan suggested the Vuntut Gwitchin case shows that the s.25 analysis itself (rather than the need for the analysis itself) is very contextual. Please visit the Center for Constitutional Studies website to watch this great webinar at: https://ualawccsprod.srv.ualberta.ca/past-events/speakers-and-panels/. 

Tansi Nîtôtemtik,

Yesterday, Team ReconciliAction YEG attended the Center for Constitutional Studies’ (CCS) Online Charter Series webinar titled “Section 25 of the Charter: Indigenous Laws in Canadian Courts”, hosted by Ryan Beaton from the University of Victoria. Ryan Beaton is a PhD candidate in the Faculty of Law at the University of Victoria and a 2017 scholar of the Pierre Elliott Trudeau Foundation. In the webinar, Ryan reviewed the recent Vuntut Gwitchin decision from the Yukon Supreme Court,^[1] specifically regarding the unique challenges of considering Indigenous law in Canadian courts. 

The Decision

Ms. Cindy Dickson, a member of the Vuntut Gwitchin First Nation (VGFN), wanted to run as a candidate for VGFN Councillor. However, under the VGFN Constitution, an elected Councillor or Chief is required to relocate to the VGFN seat of government in Old Crow, approximately 800 km north from Whitehorse, where Ms. Dickson lived. Ms. Dickson was unable to relocate to Old Crow for many reasons, including her need to be close to medical care for her teenage son. As a result, Ms. Dickson challenged the residency requirement for election under s. 15(1) of the Charter of Rights and Freedoms.^[2]

Old Crow is the most northerly community in the Yukon Territory. (Photo credit: Yukon News, July 3rd 2020, https://www.yukon-news.com/news/vuntut-gwitchin-councillor-submits-resignation/)

The Court first determined that Ms. Dickson’s application was not a fundamentally political question, and thus could be heard by the Court, rather than being negotiated between the VGFN, Yukon and Canada. Secondly, the Court found that the Charter applied to the VGFN government and its residency requirement for election. Thirdly, the Court found that the residency requirement did not infringe Ms. Dickson’s equality rights. Finally, the Court found that even if Ms. Dickson’s s. 15(1) rights were breached by the residency requirement, s.25 of the Charter would shield the residency requirement provision from constitutional scrutiny. 

Section 25 of the Charter

Although the Charter was enacted 38 years ago, s.25 has had very limited interpretation by Canadian courts. Some might say that it has been overshadowed by s.35, which recognizes and affirms existing Aboriginal and treaty rights.

S.25 provides that:

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

        (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

        (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. (94)^[3]

Only one case at the Supreme Court of Canada, R v Kapp, has spoken to what s.25 entails.^[4] Even then, the discussion was in Justice Bastarche’s dissenting opinion, where he suggested a potential framework for its application. The lack of case law dealing with s.25 has been recognized as problematic because it is a Charter provision that could serve a valuable function in protecting a broader range of Indigenous rights.^[5]  

Takeaways 

Ryan Beaton noted that at the heart of this decision is the question of how Indigenous sovereignty will take shape in the Canadian constitutional landscape. Ryan did an excellent job of explaining this decision. We have briefly summarized some of the implications Ryan noted below:

• This decision suggests that a Charter analysis should take place before deciding whether the provision in issue is shielded by s.25, contrary to Justice Bastarche’s approach in Kapp.
• The s.25 analysis is very contextual.
• This decision shows a shift in the attitude towards Indigenous sovereignty. There is no argument of whether VGFN has sovereignty, instead the question is the relationship between Indigenous and Canadian sovereignty.

Stay tuned, because the decision has been appealed by both Ms. Dickson and the VGFN.^[6] We certainly look forward to seeing how the Court of Appeal of Yukon deals with this interesting and important case! 

Until next time,

Team ReconciliAction YEG

¹Dickson v Vuntut Gwitchin First Nation, 2020 YKSC 22. [Vuntut Gwitchin]

²Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [Charter]

^{3Charter, supra note 2, s.35.}

⁴R v Kapp, 2008 SCC 41. [Kapp]

⁵Jennifer Koshan & Jonnette Watson Hamilton, “Kahkewistahaw First Nation v Taypotat – Whither Section 25 of the Charter?” (2016) 52:2 Constitutional Forum 39. 

⁶Jackie Hong, “ Vuntut Gwitchin formally appeals decision in residency requirement case” Yukon News, (August 15, 2020) online: <www.yukon-news.com/news/vuntut-gwitchin-formally-appeals-decision-in-residency-requirement-case>.