Task Force Report on Administrative Segregation

L. Aboriginal Offenders

(a) Introduction

Aboriginal peoples possess distinct legal rights including those in the Constitution of Canada which recognize and affirm existing Aboriginal and treaty rights. This legal reality is reflected in the distinct legal rights possessed by Aboriginal offenders in the CCRA. As a consequence, CSC is by law bound to respect these rights. The CCRA provides a more specific framework for understanding the rights that Aboriginal offenders possess. Section 4 of the CCRA sets out the principles that CSC must respect in administering its duties. These principles specify a clear duty on the part of CSC to ensure that "all correctional policies, programs and practices respect gender, ethnic, cultural and language differences". This section further provides an additional level of responsibility to two groups: Aboriginal Peoples and women. This additional duty requires CSC to be responsive to the distinct needs of these two groups. The Task Force acknowledges that CSC has not made its staff sufficiently aware of the distinct constitutional and legal rights of Aboriginal inmates and the corresponding obligations of staff, within the context of administrative segregation.

Aboriginal offenders face distinct difficulties in administrative segregation and distinct (that is, Aboriginal-specific) solutions should seriously be considered because of their cultural and socio-economic backgrounds. The resolution of these difficulties must consider the cultural and socio-economic backgrounds of Aboriginal offenders. It must also remember that Aboriginal experiences and cultures are diverse. The law requires that access to spiritual and cultural support be made readily available during periods of segregation. The Task Force has observed serious problems in the context of delivering programs and services to Aboriginal offenders in administrative segregation, recommends that immediate action be taken to ensure access to spiritual leaders, Elders, Native Liaison Workers, sacred and cultural items, as well as spiritual ceremonies, such as the sweat lodge.

These rights are so fundamental that CSC must demonstrate that there are valid safety and security concerns if it intends to deny access to them. In addition, the Task Force recommends that Native Brotherhood representatives be provided the same access to segregation areas as provided to members of Inmate Welfare Committees.

Section 81 of the CCRA is perhaps the most important provision and the most innovative provision of the legislation relating to Aboriginal Peoples. It states:

The Minister, or a person authorized by the Minister, may enter into an agreement with an aboriginal community for the provision of correctional services to aboriginal offenders and for payment by the Minister, or by a person authorized by the Minister, in respect of the provision of those services.

It creates the opportunity to address issues of long-term segregation cases in a proactive way, in partnership with Aboriginal communities. Accordingly, the Task Force recommends that CSC embrace and explore the challenges and opportunities presented by Section 81 in partnership with Aboriginal people and communities.

(b) An Aboriginal Vision - Proposed Pilot Project

The Task Force organized a two-day meeting (December 9 & 10, 1996) in Morley, Alberta to discuss Aboriginal issues with respect to administrative segregation [ The participants were: John Angus, Elder, Saskatchewan Penitentiary; Rose Auger, Elder; Phillip Auger, Elder, Kent Penitentiary; William Dreaver, Elder, Saskatchewan Penitentiary; Dale Leclair, Aboriginal Programming (N.H.Q.); a community representative; Janice Many Grey Horses, Aboriginal Programming (RHQ, Prairies), and member of the Task Force; Patricia Montur Angus, member of the Task Force; Darrell Tait, Elder’s Helper; Clifford Rabbitskin, Elder, R.P.C. (Prairies).] . The following is a summary of the main Aboriginal issues raised with respect to administrative segregation.

The Aboriginal participants strongly felt that the practice of involuntary segregation was inconsistent with the driving principles of rehabilitation and reintegration as defined in the CCRA and the Mission. This practice is also inconsistent with Aboriginal principles of restoration of balance and harmony. In fact, the concept of incarceration is not consistent with the Aboriginal view of restorative justice. As a result, the group strongly recommended that CSC make a long-term commitment to abolishing segregation for Aboriginal inmates. This was not a point on which the Task Force could come to consensus but the point is raised in the report out of respect for the Aboriginal view and to underscore the degree of difference between the Aboriginal and non-Aboriginal views of segregation.

The Aboriginal group suggested that the experience at the Healing Lodge should serve as a positive example of a creative model that does not rely on segregation. The participants pointed out that the Healing Lodge has never relied on segregation since its opening, and that its safety and security have not been jeopardized as a result. Although the Task Force recognizes that the Healing Lodge is a lower-security level facility which at times relies on higher security institutions to manage very disruptive offenders, the Task Force would be remiss if it did not acknowledge the unique, committed, effective and creative correctional environment that has been achieved there.

In addition, the group made several recommendations that address issues not limited to administrative segregation. For example, it recommended increased representation of Aboriginal people in CSC management; the establishment of an Office of Aboriginal Investigation and a Task Force on Aboriginal Correctional Issues.

The group proposed that a pilot project be initiated to evaluate whether alternatives to both voluntary and involuntary segregation of Aboriginal inmates could be successfully implemented. All members of the Task Force and the representatives of the Prairie Region recognize the desirability of initiating such a project. Therefore, the Task Force recommends that a pilot project be developed with the close collaboration of Aboriginal representatives. The Task Force recommends that the pilot project be conducted in an institution which has a high number of Aboriginal segregated inmates and that appropriate resources be allocated to it.

The project will seek alternatives to administrative segregation based on principles of restorative justice unique to Aboriginal people, as well as creative methods by which the segregation process can be made more respectful of the cultural and spiritual needs of Aboriginal offenders.

The Task Force believes that the reforms it is proposing, both in the form of an enhanced segregation review process and the experimentation with independent adjudication, will produce significant benefits for all offenders, both Aboriginal and non-Aboriginal. However, it is important to recognize that these reforms proceed largely from a non-Aboriginal perspective of justice. As the Royal Commission on Aboriginal Peoples has documented in its report, "Bridging the Cultural Divide: A Report on Aboriginal People and the Criminal Justice System in Canada", there are distinctive Aboriginal concepts, of both the process and substance of justice. Some of these concepts have already been applied in the form of "circles sentencing", where offenders, victims and members of the community in which the offence has taken place give judges their views regarding the appropriate sentence to be imposed on the offender. This is part of a process that is quite different from the typical courtroom procedure, dominated by lawyers.

The National Parole Board has also conducted a number of parole board hearings in which Aboriginal Elders play an important role, and the process incorporates elements of an Aboriginal talking circle. The time constraints placed on the work of the Task Force has not enabled it to consider sufficiently the ways in which the segregation review process could be shaped to incorporate aboriginal processes, but it believes that this is an important area to explore, and one which should be reviewed as part of the pilot project being recommended. As in other areas of the criminal justice system, the incorporation of Aboriginal conceptions of justice may yield significant benefits for all those involved.