Proposed changes to Corrections Act could narrow community release options for Indigenous people, says senator

Advocates and legal experts are concerned proposed changes to the Corrections and Conditional Release Act (CCRA) are adding restrictions to provisions for community release for Indigenous people.

Bill C-83, which includes proposed amendments to the CCRA, was tabled in Ottawa last week. Much of the public conversation so far has focused on the proposed changes to the way inmates are segregated but the bill also outlines a number of changes directly related to Indigenous people involved in the criminal justice system.

Advocates and experts are concerned about new terminology in sections of the act related to release options for Indigenous people.

Sen. Kim Pate, who was executive director of the Canadian Association of Elizabeth Fry Societies for more than 20 years, said the new text "is clearly more limiting than the CCRA's current terminology."

"While it is encouraging to see this systemic overrepresentation [of Indigenous Peoples] acknowledged in the statute, this is not sufficient to address, much less end overrepresentation," she said in a emailed statement to CBC.

Despite legislative and policy changes over the years, the rate of Indigenous people incarcerated has increased every year for the last three decades, according to the most recent annual report from the Office of the Correctional Investigator.

The report also pointed out that between 2007 and 2016 the Indigenous prison population increased by 39 per cent.

The Truth and Reconciliation Commission called for action to reduce the overrepresentation in its final report.

Senator sees potential problems for urban Indigenous

Under the current Corrections and Conditional Release Act's section 81, an Aboriginal community can enter into an agreement to provide correctional services, for example a healing lodge, and offenders can be transferred into the community's care and custody.

In section 84, if offenders ask to be released into an Aboriginal community, the Aboriginal community is to be notified and given the opportunity to propose a plan for the offender's release and integration into the community.

"Aboriginal community," is defined as "a first nation, tribal council, band, community, organization or other group with a predominantly aboriginal leadership."

The bill proposes changing "Aboriginal community" in section 81 to "Indigenous governing body or any Indigenous organization."

In section 84, the "Aboriginal community" to be notified would be changed to "community's Indigenous governing body."

"Indigenous governing body" is defined as a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.

Pate said this change in terminology is more restrictive and she worries it will reduce or limit the application of these options through the Correctional Service of Canada.

"Many of those inside, for example those from urban communities, may not have a community of origin with a governing body, which will needlessly generate additional barriers," she said.

"This change would prevent, for example, Indigenous grassroots groups from being able to apply directly to support an individual in the community."

Language change recognizes contracts, says Public Safety

A spokesperson for the Ministry of Public Safety wrote in an emailed statement to CBC that "increasing the engagement of Indigenous communities in planning the release of Indigenous offenders is critical to the achievement of correctional results for Indigenous offenders."

They also said the proposed legislation includes terminology to ensure Indigenous people who are incarcerated are not limited in their release options, adding the term "Indigenous Organization" is not defined in the bill.

"That expression has been left open to ensure that it can address the different possibilities of arrangements."

The statement goes on to say, "There has always been the need to enter into an agreement with a governing body linked to the appropriate authorities to carry out the contractual clauses or obligations. The term 'Indigenous governing body or Indigenous organization' recognizes that agreements and/or contracts must be linked to the appropriate authority and aligns the language in the Act to the reality of entering into contracts."

In reading this response from Public Safety, Pate said she still sees the proposed legislation as being more restrictive than the existing CCRA, which she said uses broader language when it comes to who can play a part in an Indigenous person's release from prison.  

"Bill C-83 could significantly undermine the potential of sections 81 and 84 to bring about decarceration, by restricting the scope of these provisions," she said.

Putting Gladue into law for Corrections

Jennifer Metcalfe, executive director of Prisoners' Legal Services, said she shares the concerns raised by Pate.

"It's a real crisis, the overrepresentation, so we need to be making changes that are easier for people to access conditional release and to reintegrate into their community instead of putting in more restrictions," she said.

But Metcalfe also acknowledges there are some promising elements to the legislation.

One of the additional proposed changes to the CCRA specific to Indigenous people spells out that unique systemic and background factors must be taken into consideration by correctional staff in all of their decision-making related to the individual.

It also requires correctional staff to consider the factors that have led to the overrepresentation of Indigenous people in the criminal justice system "and that may have contributed to the offender's involvement in the criminal justice system."

According to a spokesperson from Public Safety Canada, "These factors would include the impacts of residential schools, intergenerational trauma, and the socio-economic circumstances of Indigenous communities, particularly as they relate to rates of unemployment, lower education levels, poverty, addictions and family violence."

These are a formal acknowledgement in law of the requirement established by the Supreme Court of Canada in the 1999 Gladue decision to apply these principles throughout a person's interaction with the criminal justice system.

Bill C-83 has gone through two readings in the House of Commons and has now been referred to the Standing Committee on Public Safety and National Security for review.