OPEN LETTER: UBCIC demands immediate release of all non-violent offenders as part of COVID-19 pandemic response and emergency state of Indigenous incarceration

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Honourable David Lametti
Minister of Justice & Attorney General
of Canada
Honourable Bill Blair
Minister of Public Safety &
Emergency Preparedness
Honourable David Eby
Attorney General

Honourable Mike Farnworth
Minister of Public Safety and
Solicitor General

OPEN LETTER: UBCIC demands immediate release of all non-violent offenders as part of COVID-19 pandemic response and emergency state of Indigenous incarceration

Dear Ministers,

Dr. Ivan Zinger, Canada’s Chief Correctional Officer, has called the current rates of Indigenous incarceration in Canada a national travesty, with nearly 1/3 of all inmates in Federal custody being Indigenous. In response to the growing rates of Indigenous people being sentenced to custody, the UBCIC Chiefs Council presented, affirmed and endorsed unanimously UBCIC Resolution 2020-03, “Call for Action to Declare Indigenous Incarceration Rates a State of Emergency” (attached), on February 27, 2020.

In the weeks since, the COVID-19 pandemic has seized the attention and the resources of the country, with governments rushing to mitigate losses. Crisis-reactions have allowed the most vulnerable people to be overlooked, and without immediate attention and drastic interventions, COVID-19 threatens the safety and wellbeing of incarcerated people across British Columbia and Canada. Over-crowding and insufficient sanitation could cause the virus to spread rapidly in correctional facilities, while insufficient medical and mental health resources increase its lethality. Article 7(1) of the United Nations Declaration on the Rights of Indigenous Peoples, which the government of Canada has adopted without qualification, and has, alongside the government of BC, committed to implement, states that all Indigenous peoples have the rights to life, physical and mental integrity and security of person. It is the responsibility of your governments to ensure that international human rights of Indigenous people are protected and upheld during this pandemic.

The consequences of the pandemic for the criminal justice system will be disproportionately felt by Indigenous people, who remain dramatically over-incarcerated by BC and Canada. UBCIC demands incarceration levels be recognized as an emergency and requires an urgent response from BC and Canada on the issues contained in this letter.

By Resolution 2020-03, the UBCIC Chiefs Council calls upon the Federal and Provincial governments to commit to reducing the overall number of Indigenous people in custody at least 5% by 2022. With the current health crisis created by COVID-19, we ask that your governments elevate the urgency of this call and implement immediate strategies focused upon the decarceration of Indigenous peoples as a pandemic response. To facilitate this, we make the following recommendations:

    • Immediately develop release plans for low-risk and non-violent offenders;
    • Proactively identify all inmates who may be nearing eligibility for parole or statutory release and begin facilitating release plans;
    • Ensure corrections facilities have updated pandemic preparedness plans and adequate medical resources to humanely treat inmates who may contract the virus, including plans for quarantine and isolation that do not rely on over-use of solitary confinement;
    • Provide free calling and video-calling access for all incarcerated people to mitigate the consequences of lost visitations; and
    • Immediately call for the full decarceration of Indigenous youth in custody wherever possible, in line with the intentions of the Youth Criminal Justice Act.

In addition to the risk posed by COVID-19 mismanagement in prisons, we caution the use of policing for enforcement of pandemic-related sanctions. Where BC or Canada uses their authority to restrict civil liberties in order to reduce the transmission of COVID-19, you must work to ensure it does not put Indigenous people at risk of further criminalization. The use of police forces to disperse gatherings or regulate non-essential travel must not unduly target Indigenous peoples, and specifically must not endanger or target those who are homeless or at risk of homelessness, or who may be facing significant socio-economic barriers to self-isolation.

While a response to the COVID-19 pandemic addressing the overincarceration of Indigenous peoples is needed now, we also require assurances that long-term decarceration work is not neglected. UBCIC calls for an ongoing commitment to the full decarceration of Indigenous peoples by taking the following steps:

    • Immediately re-establish the Law Reform Commission with a specific mandate to address the systemic and legislative factors that impact overincarceration and substantive inequality for Indigenous people involved in the criminal justice system; and
    • Work towards the transfer of jurisdiction over the care, custody, and supervision of Indigenous offenders to First Nations, transforming the criminal justice system and ensuring that sections 81 and 84 of the Corrections and Conditional Release Act are utilized to their full legislative intent, including adequate resourcing for First Nations and support to resume jurisdiction over justice.

Image result for union of bc indian chiefsWe await your urgent response to the issues identified in this letter, and we ask that you work closely with the First Nations Justice Council, the First Nations Leadership Council, and First Nations leadership broadly to develop and implement a pandemic response plan for Indigenous people currently incarcerated or at risk of becoming involved with the criminal justice system. Anything less threatens to repeat the patterns of violent institutional negligence that has characterized genocide against Indigenous people in Canada since colonization began.

On behalf of the UNION OF BC INDIAN CHIEFS

Grand Chief Stewart Phillip
President

Chief Don Tom
Vice-President

Kukpi7 Judy Wilson
Secretary-Treasurer

CC: Assembly of First Nations
BC First Nations Justice Council
BC Assembly of First Nations
First Nations Summit

Canada’s growing Indigenous prison population ‘a national travesty’

Opinion: Critics weigh in as federal correctional investigator says, figures show number of jailed First Nations people has reached historic highs

Since April 2010 the Indigenous inmates have increased by 43.4 per cent (or 1,265), whereas the non-Indigenous incarcerated population has declined by 13.7 per cent (or 1,549), according to the office of the Correctional Investigator of Canada. RATTANKUN THONGBUN / GETTY IMAGES

After 48 years of criminal defence work and advocacy for prisoners’ rights, Abbotsford lawyer John Conroy was staggered at the new numbers revealing the swelling tide of Indigenous people being kept locked up.

“I started practising in 1972 and I’m 72 years old,” he said. “How can things be worse? But they are. Here we are in 2020 and it’s worse than ever. I do not understand with the amount of attention and amount of information we have that we’re still in this situation.”

The appalling statistics suggest a modern, racially divided Bedlam.

Conroy pointed out “73 per cent of the men and 80 per cent of the women have the criteria for qualifying for a current mental disorder, 29 require follow-up with mental health services, 25 per cent have some kind of cognitive deficit, 10 to 23 per cent fetal alcohol spectrum disorder (FASD), acquired brain injuries … it goes on and on and on.”

Indigenous people constitute less than five per cent of the population yet now they account for one-in-three of the men in jail, more than four of 10 incarcerated women.

On the Prairies, the numbers are worse — more than seven out of 10 are Aboriginal.

In 2017-18, Aboriginal adults represented three-quarters of admissions to custody in Manitoba (75 per cent) and Saskatchewan (74 per cent). Those provinces also have the highest proportion of Aboriginals, 15 per cent and 14 per cent, respectively.

Compared to 2007-08, admissions of Aboriginal males increased the most in B.C. (83 per cent), from 3,932 to 7,181.

Decades of well-meaning Indigenous legal policies have produced the opposite of what was intended — increasing incarceration rivenrac by racism — a visible disconnect between years of compassionate rhetoric and hard-hearted practice.

Abbotsford lawyer John Conroy, lead counsel in the Allard vs. Canada case that led to the new regulations.

Abbotsford lawyer John Conroy: ‘There are judges who are sending these people to prison and they seem to be disproportionately sending them to prison compared with non-Aboriginal people.’ HANDOUT

Having an Indigenous federal attorney general didn’t help — the numbers went up on Jody Wilson-Raybould’s watch as well.

The shocking report by the country’s correctional investigator, Dr. Ivan Zinger, asserts that the number and proportion of imprisoned Indigenous individuals has reached historic highs.

Providing independent oversight of the Correctional Service of Canada, with some 19,000 full-time employees and 53 institutions, Zinger says Indigenous custody rates have accelerated!

“The Indigenization of Canada’s prison population is nothing short of a national travesty,” Zinger added.

Since April 2010 the Indigenous inmates have increased by 43.4 per cent (or 1,265), whereas the non-Indigenous incarcerated population has declined by 13.7 per cent (or 1,549).

“There are judges who are sending these people to prison and they seem to be disproportionately sending them to prison compared with non-Aboriginal people,” Conroy noted. “Why are so many being sentenced to prison?”

Year after year, Zinger has documented that Indigenous inmates are disproportionately classified and placed in maximum security institutions, over-represented in use of force and self-injurious incidents, and historically were more likely to be placed and held longer in solitary.

Indigenous offenders serve a higher proportion of their sentence behind bars before being granted parole.

Worse, a national recidivism study shows it doesn’t help — Indigenous offenders reoffend at much higher levels, as high as 70 per cent on the Prairies.

When you look at the cases coming down the pipe, it isn’t hopeful.

Numbers from the Legal Services Society of B.C. indicate Indigenous people account for about one-in-three legal aid criminal cases and about one in four in family cases before the courts.

For some reason, in spite of all the hopeful and aspirational rhetoric, legal stakeholders refuse to recognize the reality of Indigenous Canada or the circumstances in which many Aboriginal people live.

“When you read the facts of the case, you can’t help but shake your head and say this guy never had a chance,” Conroy said.

A fundamental problem is that few native communities have the resources, the infrastructure or the capacity to handle violent offenders, so it’s very difficult for them to make a claim in court that they shouldn’t be jailed or argue for early release.

As a result, more and more Aboriginal men are “banished” across Canada — a medieval punishment legally meted out by Indigenous communities to keep away members it cannot control.

Similarly, detailed accounts ordered by the Supreme Court of Canada on the effects of colonialism and the social-economic circumstances of an Aboriginal offender — so-called Gladue Reports — are seen by some Indigenous advocates as valuable tools to assist judges in crafting appropriate sentences but in the prison bureaucracy they can be detrimental.

A report showing a history or prevalence of violence can cause a minor offender to be sent to a maximum instead of medium institution.

“Over my 25 years dealing with prison law, I have seen a big change from focus on helping a prisoner rehabilitate to managing potential PR problems,” veteran Vancouver defence lawyer Donna Turko said.

Various concerns are in play, she explained — judges can’t be too easy on violent offenders as native communities need protection, too, sentencing circles and diversion-style programs are scarce and parole boards seem increasingly afraid of public opinion and reluctant to release offenders. 

Vancouver defence lawyer Donna Turko: ‘Over my 25 years dealing with prison law, I have seen a big change from focus on helping a prisoner rehabilitate to managing potential PR problems.’ ARLEN REDEKOP / PNG FILES

Mostly, though, a shadow has always fallen between the rhetoric about and the reality of Aboriginal crime.

Consider a case in central B.C. involving an older native man who endured residential school and became a dysfunctional alcoholic living off the land. One day, he got very, very drunk and shot a woman.

He spent months in pre-trial custody, went in-custody alcohol treatment, took counselling training and, while out on bail for more than two years, acted as a counsellor in his community.

But he is facing a mandatory minimum sentence of four years and the Crown wants six years in a federal pen.

Instead, the defence wants a provincial sentence of less than two years with an additional conditional term in the community — that way he would be incarcerated close to his family, not shipped somewhere across the country.

Which will have a better outcome for the individual, which for the community?

If your aim is to punish and exact a measure of vengeance, a six-year term makes some sense — but if it’s long-term healthier citizens and communities, well …

“Bold and urgent” action is needed, Zinger said.

People such as Conroy have been ardently arguing that since the 1970s. It obviously hasn’t mattered. SOURCE

 

Despite government “commitment to reconciliation” Indigenous over incarceration continues to rise.

maccov02_29_16A Maclean’s investigation in 2016 that spanned nine months uncovered a system designed to put Indigenous Canadians in jail—and keep them there

TTAWA, ON– The Indigenous Bar Association (‘IBA’) expresses outrage at the continually rising rate of Indigenous incarceration. Despite calls to justice by the Nation Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG), the Truth and Reconciliation Commission findings, the Office of the Correctional Investigator and both former and present Chief Justices, Canada’s abhorrent decarceration attempts are unacceptable.

The Office of the Correctional Investigator found the number of Indigenous people incarcerated has become a human rights issue. Indigenous people are more likely to be incarcerated and are subsequently more likely to be placed in segregation units. Statistics Canada recalls in 2006/2007 the proportion of Indigenous people entered into correctional services at provincial and territorial levels was 21% and 19% at federal institutions. In 2016/2017 those numbers drastically increase to 28% in provincial and territorial institutions and 27% in federal institutions. Indigenous women account for 43% of all custodial admissions.

In 1999 the Supreme Court of Canada in R v Gladue, [1999] 1 SCR 688 recognized the importance of restorative justice measures for addressing the disproportionate number of incarcerated Indigenous people. The Court found when sentencing an aboriginal offender, a judge must consider any unique systemic or background factors and alternate sentencing procedures to incarceration. Despite the clear guidance from Canada’s highest court, the majority of provinces have not implemented a procedure for producing what have come to be called “Gladue Reports” for Indigenous offenders.

Legal reforms are urgently needed to address systemic discrimination and bias within the justice system. The IBA recommends legal reform focused on equipping Indigenous Nations to regulate offenders in traditional ways.

The IBA calls on Indigenous, Federal, Provincial, Territorial and Municipal governments to immediately adopt the Truth and Reconciliation Commission Calls to Action 31 and 34, which calls upon the justice system to provide alternatives to imprisonment and to undertake reforms to better address the needs of offending persons with Fetal Alcohol Spectrum Disorders.

The IBA calls upon those same governments to immediately adopt and pay specific attention to the National Inquiry into MMIWG’s Calls For Justice 5.14 and 5.21 which calls for specific attention to the over incarceration of Indigenous women and the implementation of recommendations made by the Office of the Correctional Investigator and the Auditor General of Canada.  MORE

Justice system an ‘industry’ profiting off Indigenous offenders and victims

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InFocus
Less than five per cent of the population in Canada is Indigenous, yet Indigenous men make up 28 per cent of those behind bar, Indigenous women 43 per cent and Indigenous youth 46 per cent.

And while incarceration rates are on the decline for the general population, they’re trending upwards for Indigenous people.

Poverty and family and community breakdown are contributing factors to being both a perpetrator and a victim of crime.

But Treaty 3 Grand Chief Francis Kavanaugh says there are plenty of people profiting off this – jobs rely on it.

“We’re becoming commoditized,” Kavanaugh told InFocus Host Melissa Ridgen. “We’re providing job opportunities for others. That’s one of the problems. MORE