Residential schools inflicted profound injustices on Aboriginal people. Children were taken far from their communities to live in imposing and frightening custodial institutions. Aboriginal parents were forced, often under threat of prosecution if they resisted, to give up their children to these schools.
Residential schools resembled prisons. Aboriginal children were often treated as if they were offenders who required rehabilitation, while the only thing they were guilty of was being Aboriginal. The regimented life and religious indoctrination and curriculum imposed on them was designed to ‘rehabilitate’ them by assimilating them into mainstream Canadian society. Norman Courchene was one of many Survivors who told the Commission that while he was at residential school, he “felt like an inmate.”1
If the children disobeyed the rules, spoke their own languages, or associated with their own brothers and sisters, they were punished. If they ran away, they were tracked down and forced to return to the schools where they would be again be punished for trying to escape.
Children who attended the schools developed a variety of coping and resistance mechanisms. Some of them stole food to supplement their inadequate diets. Others adopted the bullying tactics of the school by abusing other students.
Mervin Mirasty told the Commission that both he and his brother were sexually abused at Beauval residential school: “To this day, I’ve, I’ve always wanted to go back and burn the place, and I never did.” He also recalled that, “I ran away from school. I’d go out, I’d walk around town, and steal whatever I could steal … I started stealing cars, I got caught, at 15 I ended up in jail. From, from that point of 15 years old ’til I was, the year 2000, I got sentenced to 25 years all together … and I don’t know what I was fighting, what I was trying to do.”2
The Canadian legal system also failed the children. When it eventually began to respond to the claims of abuse in the late 1980s, it initially did so inadequately and in a way that often re-victimized the Survivors. To Survivors, the criminal and civil justice systems seemed to be tipped in favour of the school authorities and school administrators. To Survivors, the justice system was a barrier to their efforts to bring out the truth of their collective experience. The Indian Residential Schools Settlement Agreement provided them access to compensation without the trial process, but their collective need to engage in a process of public disclosure about what happened in the schools would have been denied to them without the Truth and Reconciliation Commission.
The justice system denies Aboriginal people the safety and opportunities that most Canadians take for granted. The failures of the justice system include the disproportionate imprisonment of Aboriginal people and the inadequate response to their criminal victimization. The failures of the system are perhaps most marked in the high number of Aboriginal women and girls who are missing or who have been murdered.
The first part of this chapter will review the failures of the criminal justice system in protecting residential school students and punishing those who abused them physically, sexually, and emotionally. The second part of the chapter will examine the failures of the civil litigation process to provide justice to the Survivors of the residential schools and their families. The third part of the chapter will detail the criminal legacies of the schools, the myriad harms and intergenerational damage inflicted by the government policy of removing children from their homes and forcibly separating them from their families and communities, language, and cultures, all of which have contributed to the disturbingly high overrepresentation of Aboriginal people in prison. The fourth part will look at the equally shameful overrepresentation of Aboriginal people among victims of crime, particularly women. The fifth and final part of the chapter is titled “The Way Forward,” and offers suggestions and insight derived from the Commission’s hearings and research.
The Commission believes that significant reform of the Canadian justice system is necessary to halt the legacy of residential schools. Resources will need to be shifted from costly and often coercive crisis intervention towards crime prevention. Aboriginal communities must also exercise their own inherent powers of self-determination, and consider designing and administering their own justice systems. By using their own traditions, Aboriginal people will be able to take a more holistic approach to offending behaviour and recognize the need to address the underlying causes of the behaviour as well.
Attendance at residential schools was often coerced. For many Aboriginal children, their first encounter with the justice system came when an RCMP officer appeared in their community to take them to residential school. The Mounted Police, who were appointed residential school truant officers in 1927, were, along with local police, used to force parents to send or return their children to school.3 For example, in 1914, Indian agent W. J. Dilworth reported he had sent a parent from the Blood Reserve in Alberta to jail for ten days for taking his son out of a residential school without permission.4 Robert Keesick recalled that in 1930 “the RCMP told my grandmother that she had to take me to attend residential school at McIntosh. If she refused, she would be put in jail.”5 The RCMP also had an active involvement with the schools by investigating runaways.6
Students had few protections from the harsh discipline imposed in the schools. In the spring of 1934, $53.44 was stolen from a locked drawer in a cabinet in the office of the mother superior of the Shubenacadie, Nova Scotia, school. Several boys were questioned: some admitted involvement in the theft; others denied it. Eight of them, including some who denied involvement, were punished that day. They were thrashed on their bare backs with a seven-thonged strap that was specially made by the school carpenter.7 After a few more days of investigation, eleven more boys were thrashed and had their hair clipped. Most were put on a bread-and-water diet for two days.8 A local RCMP officer was present for the initial round of punishment, and said he did not see any blood.9
The story was reported in the local papers. When alarmed parents showed up at the school, Principal J. P. Mackey prevented them from seeing their children because he “did not think it prudent they should see the children and talk the matter among them.”10 Sufficient public attention was devoted to the matter that the federal government appointed L. A. Audette, a retired judge of the Exchequer Court of Canada, to conduct an inquiry into the event. He held two days of hearings in June 1934, two and a half months after the boys were thrashed.
Audette defended the necessity of physical punishment and the strap not only on the basis that it was used in Britain, but because “these Indians, in terms of civilization, are children, having minds just emerging from barbarism.”11 The inquiry concluded that “far from finding fault,” the principal of the school should be “commended and congratulated” for his actions in maintaining discipline in the school.12
Just as the justice system did a poor job protecting the rights of students, it did little to uphold those of their parents. Parents would sometimes voluntarily send their children to a residential school. Sometimes in times of need, families could not provide for their children. Sometimes when a mother died, the father could not care for the children. Children sometimes wanted to go the schools to be with siblings or friends rather than spend a lonely time in their community. Unlike children who were identified and ordered to be sent to the schools by government agents, these children were not subject to a mandatory-stay determination. Legally, their voluntary enrolment should have enabled them to leave when they wished, but government policy decreed that once enrolled, all children in a school had to stay.
In some cases, Indian Affairs refused to discharge children who had been voluntarily enrolled until they turned eighteen. In 1903, when the government refused to discharge two brothers who were over fifteen, the students ran away from the Middlechurch school in Manitoba. They were apprehended and returned to the school on the basis of a warrant issued under the 1894 regulations. Their father, William Cameron, went to court and got a writ of habeas corpus. Normally, such a writ requires that the person under arrest be brought before a court. According to Martin Benson, Justice Richards of the Manitoba Court of Queen’s Bench found on the father’s behalf, and wrote, “the regulations for the detention of children until they reached the age of 18 years do not apply to children who have been voluntarily placed in the school and that as to such children the parents have a right to get them out of the school at any time they wish to demand them.”13
In other words, the government’s discharge policy for students who had been voluntarily enrolled had no legal basis. But this court victory did not change the policy. In 1907, it was still government policy that children, whether voluntarily enrolled by their parents or committed under the provisions of the Indian Act, could not be removed without the minister’s permission.14 In his report for the year ending March 31, 1910, Duncan Campbell Scott, then superintendent of Indian Education, wrote, “pupils of residential schools are not usually allowed to leave the institutions until they reach the age of 18.”15 Clearly, the government was willing to ignore court rulings.
One partial legal victory came in 1913 when a civil suit brought by a parent for the treatment of his daughters at the Mohawk Institute was successful. The parent, with the help of the Six Nations Council, sued the school and obtained $300 damages for “a whipping on bare back with raw hide” received by his daughter and another $100 for a daughter being kept on a water diet for three days.16 In a pattern that would be repeated in modern residential school litigation, however, other claims relating to the cutting of the daughter’s hair, confinement, and bad food were rejected by the court.
The colonization and marginalization of Aboriginal peoples created a situation in which children were vulnerable to abuse, and civil authorities were distant, hostile, and skeptical of Aboriginal reports of abuse. As a result, there were very few prosecutions for abuse while the schools were in operation.17 Poor pay, poor screening, limited supervision, the reassignment of perpetrators, and the normalization of abusive behaviour all increased the vulnerability of students to adult and student predators. It is also clear that abuse was often ‘hushed up’: people were dismissed rather than prosecuted, parents were not informed, and children were not provided with supports or counselling.18 The police investigations that took place in the 1990s were almost invariably mounted in response to organized efforts on the part of the former students themselves.19
The stories of these investigations are described in greater detail in the history volumes of the Commission’s Final Report: Canada’s Residential Schools: The History, Part 1, Origins to 1939; and Canada’s Residential Schools: The History, Part 2, 1939 to 2000. Those early convictions carry important legal weight. They demonstrate that the abuses at the residential school were recognized as criminal offences at that time, which casts doubt on officials’ later assertions that they were unaware that such abuses were criminal in nature. Even if students were not the immediate victims of abuse, they were victims of collateral violence, for they often witnessed or otherwise became aware of the abuse. Memories of violence and abuse stayed with Survivors decades after they left the schools.
Doris Young recalled a child being killed in the residential school in Elkhorn, Manitoba:
I remember was, there was all these screams, and there was blood over the, the walls. [Crying]… and we were told that if we, if we were, if we ever told, or tried to run away, we would, the same thing would happen to us. [Crying] So, it was a dangerous time for, for children, and for me at that, those days. [Crying] We never really knew who would be next to be murdered because we witnessed one already. [Crying]20
Young struggled with this memory and “had nightmares for years.” She eventually reported the incident to the police as an adult:
The RCMP investigated, they said they couldn’t find anything. They came back and told me that they found no evidence of what I was talking about, and but it was not something that I would make up. The thing about all of this violence that happened in those schools is that they had such free access to us, and there was no one there to protect us. They, they had absolute authority over all the violence they committed on, on me, and, and who, all the other children that were there as well.21
The RCMP reports to having investigated fifteen deaths in the schools, but no charges were laid as they concluded that all the deaths were accidental or due to illness.22
The often-strained relations between Aboriginal people and the police in Canada is directly connected to the history of their experience of policing at residential schools. Not only did the police coercively enforce attendance at residential school, but they also failed to protect the children from serious crimes while they were in the schools.
It has been important for the Commission to understand how the Canadian legal system responded to residential schools in order to understand the full legacy of the harms experienced by Survivors. In the next section, four separate police investigations will be highlighted: two in British Columbia, one in the Northwest Territories, and one in Ontario. Each of the following investigations points to different failures of the justice system, failures that have often led Aboriginal people to view the system with a mixture of suspicion and fear.
The Nuu-chah-nulth Tribal Council (NTC), a body that coordinates political action amongst the fourteen Nuu-chah-nulth First Nations on the west coast of Vancouver Island, undertook a major study of the impact of residential schools on its members in 1992. In 1996, the NTC published Indian Residential Schools: The Nuu-chah-nulth Experience, a report that contains excerpts from interviews with former students, as well as several former teachers. The report states that eighty-three of the ninety-six Survivors who were interviewed reported being physically abused, and thirty reported being sexually abused.23 The Tribal Council’s report did not place primary emphasis on criminal investigations. It first called on the federal government to issue an apology, and then stated that a public inquiry was necessary because the abuse it revealed was only ‘the tip of the iceberg.’
In November 1994, tribal council representatives presented their findings to members of the Port Alberni Royal Canadian Mounted Police detachment. In light of the number of potential cases that the Nuu-Chah-Nulth inquiry might give rise to, it soon became apparent to the RCMP that it needed to develop a coordinated response to the issue; it established the Native Indian Residential School Task Force. The province-wide task force was composed of officers from the central E Division Major Crime Section, as well as investigators from eight local subdivisions. The task force commenced its work in 1995 and remained in operation for over eight years. It investigated 974 allegations of criminal misconduct in British Columbia schools.
Four hundred and fifty-three people said they had been criminally victimized. Another 245 people were identified as possible victims, meaning that while there was credible evidence to believe they had been victimized, they had not contacted the police. That suggests there were nearly 700 potential victims. The task force identified 396 suspects. Complaints came from former students of 15 of the residential schools in British Columbia. There were 515 alleged sexual assaults (involving 374 victims), 435 alleged physical assaults (involving 223 victims), and 23 other alleged offences (involving 19 victims).
Yet, in its final report, the task force stated that despite “thousands of hours of investigative time and well over a million dollars in salaries and other expenses ... relatively few criminal prosecutions resulted.”24
Its final report stated that, when the task force was formed in 1994, it
was immediately greeted with anxiety and mistrust from the very people it sought to assist. The Aboriginal community expressed alarm at the potential impact of the investigation on their people, citing the high suicide and substance abuse rates that followed previous investigations. Their other concerns were centred around their historic mistrust of both the RCMP and the Court system. This situation was further aggravated by the RCMP’S earlier role as truant officers supporting the very system that was now under criminal investigation.25
The Truth and Reconciliation Commission’s review concluded that the task force led to the prosecution and conviction of only five men. Three of the five had already been charged and convicted of abusing residential school students before the task force was formed. The task force final report noted a further problem. It stated that “a very common situation that kept occurring over and over again” was that provincial Crown counsel refused to prosecute without corroboration in the form of physical evidence.26 This approach was based on an unwillingness to take the complainant’s own evidence as sufficient to justify a prosecution. It shows a reluctance to take the evidence of Aboriginal people as worthy of belief.
Since 1982, the legal requirement for corroboration was specifically rescinded for sexual offences and never was required for non-sexual offences.27 The RCMP’S own report acknowledged that corroboration was no longer a legal requirement, but that it was nevertheless seen as a practical prerequisite for the prosecution of these cases.28
There is also some evidence in the RCMP report that claims of physical assault were viewed as less serious than claims of sexual abuse. The report suggests that complaints of physical abuse “quite often … were the result of a culture clash between the rigid ‘spare the rod, spoil the child’ Christian attitude, and the more permissive Native tradition of child-rearing.”29
The RCMP’S report also notes that almost every complainant told the RCMP about their loss of culture as well as the physical and sexual abuse that they suffered. This reaffirms that loss of culture and language was extremely important to many former students who looked to both the criminal and civil legal systems for justice.
Unfortunately, the Canadian legal system ignored the harms of loss of culture and language. The RCMP’S E Division candidly explained, “enforced deprivation of Native culture was official Canadian government policy sanctioned by the Indian Act. As such, these complaints are beyond the scope of this investigation and will have to be dealt with in another forum.”30
The RCMP, to its credit, responded to those concerns by negotiating a protocol in which the force agreed not to forward a case for prosecution without the complainant’s consent. However, the RCMP eventually betrayed the trust of the Survivors when it shared files involving investigations into the Kuper Island residential school with the federal Department of Justice, which was defending the government in civil actions brought by former students. When the RCMP requested that the documents be returned, Department of Justice lawyers refused. They insisted that the RCMP documents were also the property of the federal Crown.31 This argument ignored the constitutional principle of police independence and suggested to Survivors that the RCMP was not acting as an impartial law enforcer but as an agent of the federal government, which was actively opposing the Survivors’ civil claims.
The Government of Canada stubbornly resisted RCMP demands for information. This made it necessary for the RCMP to obtain and execute multiple search warrants on the Department of Indian Affairs in Hull, Québec, in order to obtain information relevant to the criminal investigation.32 The RCMP displayed praiseworthy independence and determination in seeking the information. Nevertheless, it is shocking to the Commission that the Department of Indian Affairs would resist cooperation with an important criminal investigation in a manner that required the RCMP to obtain search warrants to obtain material.
25) We call upon the federal government to establish a written policy which 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.
As was the case with the E Division Task Force, the investigation into sexual abuse at Turquetil Hall only came after Aboriginal people took the initiative to examine and reveal the abuses they suffered. In 1991, Marius Tungilik, a former student at Turquetil Hall in Chesterfield Inlet in what is now Nunavut, told a hearing of the Royal Commission on Aboriginal Peoples about being sexually abused at the school. Two years later, he and others helped organize a reunion of students, at which about forty students revealed, while participating in healing circles, that they had suffered sexual abuse.
The former students at the reunion did not stress criminal investigations as an effective remedy. They asked for an acceptable apology, resources so that Survivors, dependents, and abusers could receive therapy, and “a comprehensive independent public inquiry” to investigate sexual, physical, and emotional abuse at Turquetil Hall/Bernier School.33
Bishop Reynald Rouleau of the Hudson Bay Diocese attended the 1993 reunion. He stated that he recognized “the courage of many students who accepted to reveal publicly some aspects of their personal life and of their faith … I am very sorry for those people toward whom abuses have been committed…. According to the limited means I may have, I am willing to collaborate in the healing of those individuals who are ready to get committed in their own healing.”34 Marius Tungilik noted that nothing in the bishop’s statement admitted that sexual abuse had taken place.35
Two RCMP officers investigated 150 allegations of physical abuse and 86 allegations of sexual abuse made by students at Joseph Bernier School in Chesterfield Inlet. The RCMP interviewed 346 former students and almost all of the living staff all over Canada. The RCMP compiled a list of 13 sexual abuse charges against 3 Roman Catholic clergy and 41 charges against a lay staff member. The RCMP expressed confidence that they could obtain convictions.36 Of the 23 staff identified as suspects, only 4 were deceased. A report written for the government of the Northwest Territories concluded that “serious incidents of sexual assault did in fact occur at the Chesterfield Inlet school during its years of operation.”37 The allegations “of abuse include fondling of the breast areas of female students, the genital areas of female students, the genital areas of male students and inappropriate sexual exhibition. An aura of fear, confusion and silence appear to surround the students’ experiences at the time … While many students indicated that they disliked the behaviour, felt it was wrong, and were afraid of it, it is apparent that they felt on many occasions powerless to prevent repeat occurrences.”38 However, when the report was released in June 1995, it was also announced that even the charges contemplated the previous year would not go forward.39
In 1996, Marius Tungilik, who had served in civil service positions in both the federal and the Northwest Territories governments, accepted an apology from Bishop Rouleau. He observed at that time, “Today’s a historic day in Nunavut. Today, the bishop acknowledged the pain we went through and that is very special to me.” At the same time, he told the church congregation, “I felt betrayed very badly by the church for so long … I felt betrayed, so badly, by my fellow Inuit, the church-goers who tried so hard to make us feel bad for what we did.” Marius Tungilik died in 2012, at the age of fifty-five.40 Both his wife and daughter shared with the Commission the many difficulties that he struggled with throughout his life because of the abuse he suffered in residential school and the failure of the justice system to recognize the abuse he suffered.
In 1992 former students of the Fort Albany school in Northern Ontario organized a reunion that attracted about three hundred people.41 The reunion included a special panel on physical and sexual abuse at the school. Thirty students addressed the panel. The report of the panel stated that
Of the 19 men who gave testimony, 10 were sexually abused. Almost all of them were physically abused in other ways; spiritually abused, humiliated, strapped, hit with rulers, hair pulled and dragged by the hair, stabbed with a pencil, made to eat their vomit, etc. etc.
Of the 11 women who gave testimony, 2 were sexually abused. Almost all of them were physically abused in a variety of ways, including strapping, being made to sit in the electric chair, being made to eat their vomit, being made to kneel on concrete floors, locked away in dark basements, being wrongly punished for things they did not do, etc. etc.42
The reunion report made further reference to the use of an electric chair at the school:
Several people talked about the electric chair that was used in the girls [sic] playroom. It seems odd how an electric chair can find its way into a Residential School; however, it seems to have been brought to the school for fun. Nevertheless, all the people who remembered the electric chair do not remember it in fun, but with pain and horror.43
Like other Survivor events at the time, the reunion report did not emphasize criminal investigations and prosecutions as the appropriate remedial response. The report called for an independent inquiry of Elders and former students to be appointed to examine what happened. It also called for compensation and treatment for those who had spoken at the reunion about being abused at the school. The report noted,
The individuals who gave testimony and disclosed physical, psychological, sexual or spiritual abuse need immediate attention. It was a profound and painful event for the victims to come forward and required much courage on their part. They must not be let down now. They must receive ongoing counselling and healing to be determined before they leave the community.44
The reunion included healing circles that lasted from five to eight hours to help the former students deal with the aftermath of the abuse. No one was obliged to talk in the healing circles, which were free “from destructive criticism” and provided a “safe place for the disclosure of abuse and its aftermath.” In the course of the healing circle process, many Survivors disclosed “a lack of self-esteem, alcoholism, domestic violence, marriage break down and a lack of parenting skills.”45
Following the reunion, Edmund Metatawabin, who was then the chief of the Fort Albany First Nation, asked the Ontario Provincial Police to investigate complaints of the treatment that students received at the school in the 1950s and 1960s. In 1997, seven former staff members were charged with a variety of offences.46 None of the documents made available to the Truth and Reconciliation Commission indicate that charges were ever laid in relation to the use of the electric chair. Five former staff were convicted of assault but the sentences were generally lenient.47 More importantly, Survivors were subject to adversarial cross-examination that suggested that they were lying simply to bolster their civil claims. The evidence available to the Commission suggests that the prosecutions were poorly managed, not a good vehicle for the discovery of the truth and re-victimized Survivors.
The story of the prolonged and ultimately failed prosecution of Hubert O’Connor reveals much about the limits of the existing criminal justice system to respond to the harms of residential schools. O’Connor was the principal of the St. Joseph’s residential school in Williams Lake, BC, from 1961 to 1967. He eventually became a bishop but resigned that position in 1991 after being charged with two counts of raping two Aboriginal employees and a former student of the school and having indecently assaulted two students between 1964 and 1967. He was ordered to stand trial on those charges. He was the highest-ranking Roman Catholic official charged in relation to abuses at residential schools.
O’Connor did not deny having sexual relations with the complainants but argued that they had consented, even though he was a person with authority over them. As in other prosecutions, the process of an adversarial trial was particularly hard on the complainants. It put them on trial and further victimized them.
In June 1992, Bishop O’Connor’s lawyer obtained the following sweeping pretrial disclosure order:
THIS COURT ORDERS that Crown Counsel produce names, addresses and telephone numbers of therapists, counsellors, psychologists or psychiatrists who have treated any of the complainants with respect to allegations of sexual assault or sexual abuse.
THIS COURT FURTHER ORDERS that the complainants authorize all therapists, counsellors, psychologists and psychiatrists who have treated any of them with respect to allegations of sexual assault or sexual abuse, to produce to the Crown copies of their complete file contents and any other related material including all documents, notes, records, reports, tape recordings and videotapes, and the Crown to provide copies of all this material to counsel for the accused forthwith.
THIS COURT FURTHER ORDERS that the complainants authorize the Crown to obtain all school and employment records while they were in attendance at St. Joseph’s Mission School and that the Crown provide those records to counsel for the accused forthwith.
THIS COURT FURTHER ORDERS that the complainants authorize the production of all medical records from the period of time when they were resident at St. Joseph’s Mission School as either students or employees.48
These orders were obtained without hearing from the complainants and without apparent consideration of their privacy interests. It meant that, as a price of the prosecution going forward, the complainants would have to give up their privacy with respect to their medical, school, and employment records. The former students understandably refused to grant consent to such a massive and open-ended invasion of their privacy.
There was prolonged pretrial litigation with O’Connor bringing repeated motions that proceedings be stayed because of non-disclosure. The Cariboo Tribal Council wrote a letter to the trial judge to express its concerns about the possibility of the prosecution being stayed and their concern about the victimization of the community. The trial judge admonished the tribal council for inappropriately communicating with a judge about a case out of court.49
The judge ordered that therapeutic files be disclosed, ruling that the accused’s right to disclosure trumped the privacy rights of the complainants. Further disputes arose from a failure of the Crown prosecutor to fully comply with the disclosure order. The trial judge found that a Crown prosecutor had acted improperly and allowed her personal opposition to the disclosure order to cloud her professional responsibility. O’Connor then made a fifth motion for a stay of proceedings. This time he was successful. The judge concluded,
To allow the case to proceed would tarnish the integrity of the court. The court is left with no alternative but to order a stay of proceedings on all four counts. In doing so I recognize that the decision will not be readily acceptable to all segments of our society. It will certainly not be popular with many people. I can only encourage such people or groups to carefully consider the reasons for the decision … Those who will be angered or saddened by the outcome of this case must strive to put themselves in the position of an accused person. They would expect the Crown to fulfill its role to the standard required by law.50
David Neel, a member of the Kwakiutl Nation of Fort Rupert, BC, noted that the decision revealed “two faces of justice.” He wrote, “Bishop O’Connor must face charges and be found guilty or innocent in the eyes of his peers.” He added that he “personally would like to have the opportunity to one day believe in the ‘justice system.’ For the time being, where my people are concerned, it continues to be the injustice system.” Neel also noted that, “it is not only the first nations that need to heal from this period of institutionalized oppression, but our country as well. It continues to be our national shame, as it will be until we come to grips with it.”51
The stay of proceedings was overturned by the British Columbia Court of Appeal, which concluded that the trial judge had not found sufficient prejudice to the accused or sufficient bad intent by the prosecution to justify the drastic remedy of permanently stopping the prosecution.
The accused then appealed to the Supreme Court, which, in a six to three decision, held that the trial should proceed after all. Justice L’Heureux-Dubé stated for the majority,
it is clear, at the end of the day, that the Crown was right in trying to protect the interests of justice. The fact that it did so in such a clumsy way should not result in a stay of proceedings, particularly so when no prejudice was demonstrated to the fairness of the accused’s trial or to his ability to make full answer and defence.52
The Supreme Court used the case to clarify the proper approach to the production and disclosure of records in sexual assault cases. Once therapeutic records had fallen into the hands of the Crown, then the Crown’s duty to disclose all relevant material to the accused would apply. Neither the privacy interests of the complainants or any privilege they might assert could be balanced against the accused’s rights.
This part of the Supreme Court’s decision was widely criticized. Parliament intervened and enacted new legislation that instructed judges to balance the accused’s right to make full answer and defence with the complainant’s right to privacy and equality before deciding whether to order the production of the record to the judge or its subsequent disclosure to the accused.53
As a result of the Supreme Court’s ruling, a new trial was ordered for Bishop O’Connor. At the new trial, the nineteen-year-old complainant who had been O’Connor’s secretary and also a member of the school’s travelling pipe band had testified that she had removed her clothes because she was afraid of losing her job and her opportunity to travel with the band. In his own defence, O’Connor took the stand. He defended the two rape charges by arguing that his former students had consented to sexual intercourse. He denied the two other charges of indecent assaults.
O’Connor was convicted of one count of rape and one count of indecent assault and acquitted on the two other counts. The trial judge stressed inconsistencies between what the complainants told the police and their testimony, even though inconsistencies were in part caused by the age of the case and the prolonged nature of the preliminary battle over disclosure.
The trial judge sentenced O’Connor to two and half years imprisonment for the rape and three months for the indecent assault to be served concurrently. The judge also considered victim impact statements, including that of the victim in the rape conviction who stated that
The effects of this trauma have had a devastating impact on my emotional well-being. As a young woman during my twenties and thirties, I had little esteem after this tragic event. I felt I could trust no one. I felt helpless and I could not tell anyone what happened. I thought they would not believe me or that they would not understand the shame I carried for years. Many times I felt vulnerable and I was an object and not a person.54
The three-month sentence for the indecent assault conviction seems inordinately light, given that it involved an abuse of power against a young girl who was a student at the school. However, the story didn’t end there. O’Connor immediately appealed the two convictions. He sought but was denied bail.55 He renewed the request for bail or supervised freedom in the community and was granted bail pending appeal after serving six and a half months in prison.56
In the end, this was the only jail time he served. The British Columbia Court of Appeal overturned both the rape and indecent assault convictions. It ordered that O’Connor face a new trial on the rape charge. The Court of Appeal also entered an acquittal on the indecent assault charge on the basis that the verdict was unreasonable given inconsistencies in the evidence.57
The new trial of Bishop O’Connor on the one remaining rape charge was never held. Instead, a long healing circle was held at Alkali Lake. It was attended by about seventy members of the community, O’Connor and his lawyers, prosecutors and senior justice officials, and one of the complainants. The complainant had already testified three times at court. She said she was not sure if she “had the strength or the energy to go through it all again.” The complainant was frustrated that the court system had never let her express to O’Connor her feelings about the pain he had caused her. Her sister-in-law said that a circle based on trust, respect, and honesty was “one of the most painful and fearful processes O’Connor has ever had to go through,” probably more so than another trial.58
In the healing circle, O’Connor did not admit to raping the complainant. He did, however, acknowledge that it was wrong for him as her employer and former school principal to have sex with the complainant when she was eighteen years of age. The complainant told reporters that “it was nice to get out of the control of the court system and out of the control of O’Connor himself. There was no way at Monday’s Healing Circle that he got away with anything. I would say he felt some of the fear and pain that natives have felt for all these years.” She recognized that O’Connor’s apology was not an admission of criminal guilt, but the complainant said that “the apology to me meant a lot because it came from him personally. The important thing for me and my people is to move beyond the constant pain and to become stronger.”59
Civil law allows one person or party to take another to court, in search of financial compensation (also called damages) for a wrong that is presumed to have taken place. Having generally failed to find justice through police investigations and criminal prosecutions, residential school Survivors increasingly turned to the civil justice system. The residential schools civil litigation started in the 1990s represented the most extensive engagement between Aboriginal people and the civil justice system. The history of that development is worth considering.
Early after Confederation, the federal government had adopted, and publically communicated, the questionable legal view that Aboriginal people who were subject to the Indian Act were under a legal disability and were the ‘wards’ of the Crown. They justified this on the basis that ruthless individuals could and would take advantage of them, and therefore Aboriginal people needed to be ‘protected’ from such persons, and from themselves. For example, through amendments to the Indian Act, limitations were placed on the ability of First Nations people to market farm produce or dispose of their own personal property.60 In her work, historian Sarah Carter points out that many Aboriginal farmers were running successful agricultural operations before and after Treaties were negotiated. Government interference with those operations after the limitations were put into place rendered those farmers into peasant farmers, able to make barely enough to feed themselves and their families.61
While on the face of it, the stated desire to protect Aboriginal people would be commendable, it seems more likely, based on all of the available evidence from this period, that the real purpose behind such amendments and public messaging was to allow the government to exercise greater control over the lives of First Nations peoples and their lands. The government certainly had no interest in ‘protecting’ Aboriginal peoples who were not governed by the Indian Act or once they had surrendered their status under it.
For many years, Aboriginal people were hindered in seeking legal redress in the courts of Canada because of provisions in the Indian Act. Provisions enacted in 1927 forbade them or anyone on their behalf from raising money to begin court action, or from beginning legal proceedings against the government, without the minister’s permission.
Such limitations clearly had a chilling effect on the willingness of Aboriginal people to turn to the civil system to address their disputes with government or to assert the rights they felt they continued to have. In addition to the legislative hurdles such provisions posed, First Nation people also saw the risks inherent in challenging decisions and enactments of a government who controlled the laws, the legal administration, and the appointment of judges to the courts they would have to use.
The Aboriginal experience with the civil courts generally reinforced that view. For example, in the leading court decision from the nineteenth century of St. Catharine’s Milling v. The Queen, the Judicial Committee of the Privy Council placed serious limitations on the nature of Aboriginal title and entrenched into law the view that Crown sovereignty held a superior and overriding position.62 This was a case about whether the federal government had the right to issue lumber permits in surrendered territory. The Province of Ontario argued that it controlled land surrendered to the Crown by Indians through Treaty. The court held, in the absence of any Aboriginal participation, that Aboriginal title to their lands was granted to the Indians by the Royal Proclamation of 1763, and existed only at the will of the Crown. Aboriginal title the courts held was merely a “personal and usufructuary right”—meaning that it was only a right to use—and was not equivalent to legal title. Because the case was primarily about timber permits, the only parties appearing in the case were those for the federal and provincial governments and the milling company. Evidence from Aboriginal people was not present. This very narrow legal view remained the law for over eighty years.
The decision of the Supreme Court of Canada in Calder v. The Queen in 1973 changed everything.63 In that decision, the court recognized the legal validity of Aboriginal title but was divided on the question of whether it still existed in British Columbia. It was a landmark case in more ways than one. It represented not only a shift in legal thinking; it also caused Aboriginal leaders and their advisers to think about the possibility that perhaps the courts, under the leadership of the Supreme Court, were prepared to rethink some of their earlier limiting legal precedents. Subsequent decisions have affirmed that confidence, but there was little reason for any confidence in the early years.
At one level, residential school litigation could be defined as a success story because it produced the largest class action and settlement in Canadian history with over $4 billion being paid out to residential school Survivors under the terms of a court-approved settlement. Despite the magnitude of the settlement, the performance of the legal system is less effective than it may seem. The residential school litigation was extremely complex, expensive, and lengthy. Even in cases where defendants decided to settle, Survivor’s faced challenges and possible re-victimization in order to assert their claims. For example, Survivors sometimes had to endure insensitive questioning or adversarial cross-examination in pretrial discoveries where judges are not present to prevent the harassment of witnesses. As in the criminal justice system, the Survivors often felt they were put on trial and re-victimized by residential school litigation.
Some of the failings of the civil justice system can be seen in the case of one convicted abuser. William Starr was the administrator of the Gordon’s residential school, north of Regina. A number of criminal investigations involved allegations against Starr between 1968 and his retirement in 1984. During that time, the school was administered by the Government of Canada. In 1993, Starr was sentenced to four and a half years for sexually assaulting ten boys at the school.64
Subsequently, hundreds of civil lawsuits were commenced by former students of the Gordon’s school against Canada and against Starr. Given the criminal convictions, it might be expected that these cases would be relatively simple to conclude. However, these cases imposed further hardships on Survivors.
Survivors in civil litigation should only have been required to prove that they were sexually abused on a “balance of probabilities”—in other words, that it was more likely than not that they had been sexually abused. This civil standard is much lower than the “beyond a reasonable doubt” standard used in criminal trials. However, in practice, civil courts often appear to apply higher standards of proof in cases where sexual abuse is alleged.
Minor inconsistencies in Survivors’ accounts led to the dismissal of many claims. A thirty-two-year-old member of the Key First Nation in Saskatchewan claimed he was sexually assaulted by William Starr at the Gordon’s school in 1968.65 By the time of this civil suit, Starr had already pleaded guilty to ten criminal charges. Yet, at the civil trial, Starr denied some of the specifics of the allegations but also “acknowledged that he cannot now remember all the children he had sexual contact with over the 16 years he was at Gordon’s. He says there could have been hundreds of victims.”66 The plaintiff was subject to an adversarial pretrial discovery process in which civil litigants (through their lawyers) are allowed to ask each other questions under oath without a judge being present, but with their answers recorded for possible use in the civil trial. The plaintiff was subjected to this difficult process first in 1997, then again in 1999, and for a final time in 2000.
Because of inconsistencies in the details of his testimony at trial and in the previous discovery examinations, the trial judge found that the plaintiff was not credible. The judge reached this conclusion on the basis that the head injury and addictions suffered by the plaintiff likely contributed to the inconsistencies in his testimony. The judge said, “I am unable to accept his evidence as proof of the events described.”67 He added, “I do not find the plaintiff’s evidence to be assisted in any way by Starr’s failure to recall, nor by his willingness to say anything is possible.”68 This case demonstrates one of the principal difficulties that former students faced.
In some of the William Starr cases that went to trial, Starr was held liable for sexual abuse and Canada was held “vicariously liable” for his actions. Vicarious liability means that one defendant, such as the government, is legally responsible for the fault of another defendant, such as Starr, on the basis that the second defendant acted under the direction or control of the first. Vicarious liability was the most frequent basis on which the federal government and the churches were held liable for sexual abuse in the schools, as opposed to being held directly responsible for the harms that resulted from the abuse. Residential school Survivors benefitted from judicial expansions of the vicarious liability of organizations during the time period of the litigation.69
In the case of William Starr, Canada generally conceded that it was vicariously liable for the actions of its federally appointed school administrator. This approach was efficient, but it avoided determining whether Canada or the churches were independently at fault for the harms that Survivors suffered at residential school. It created the impression that what happened to Aboriginal children at residential schools was the result of the government and churches making mistakes by hiring pedophiles and by giving them responsibility over the children.
The vicarious liability theory was consistent with the “bad apple” theory that focused on the criminal behaviour of a few administrators within the schools as opposed to the intrinsic harm caused by the residential schools themselves. It fed into public perceptions that the problem of residential schools was that a few pedophiles were allowed to prey on children, as opposed to recognizing and acknowledging that residential schools themselves were part of a larger genocidal attack on Aboriginal culture.
Limitation periods allow defendants to have cases dismissed if too much time has elapsed. Although a statute of limitation can protect a defendant from a civil lawsuit, it can also have the effect of denying a plaintiff an opportunity to have the truth of the allegation determined on its merits or to receive compensation for a wrong.
The courts do not automatically apply a statute-of-limitation defence. It has to be raised by the defendant. The Law Commission of Canada, in its 2000 report on responding to child abuse in institutions, recommended that the federal government should not rely on statute-of-limitations defences.70 This recognized that the federal government is a unique litigant, unlike individual or even a corporate defendants, because it can use public funds derived from taxes to pay damages. It also keeps records longer than most defendants because of their historical significance and as such is in a better position to defend itself in historical litigation after the time limit in a statute of limitation has passed.
The federal government possessed many of the documents that would establish whether allegations about long ago events were accurate. This is especially true in the Aboriginal context where the Truth and Reconciliation Commission itself has discovered that the federal government has a wealth of documents about residential schools that were not always disclosed to this Commission as fully and promptly as they should have been. Nevertheless, the Government of Canada, as well as the churches, has frequently and successfully raised statute-of-limitations defences in residential school litigation. Canadian courts applied statutes of limitations to bar many claims made by residential school Survivors relating to loss of language, culture, and family relations. Some courts even applied statutes of limitations to bar claims relating to sexual abuse. For example, the Manitoba Court of Appeal concluded in a 2001 residential school case that the Oblates had “a vested right to be immune from claims 30 years after the respondents left the school.” It stressed that it would be unfair for the Oblates “to have the sword of Damocles hanging over their head forever” and that it was up to the legislature to intervene “if societal standards of the past are later regarded as unacceptable or unjust in the eyes of a new generation.”71 The next year, the Manitoba legislature amended the Limitation of Actions Act so that it would not apply to actions based on assaults if they were of a sexual nature or other assaults if the plaintiff was dependent on one of the persons alleged to have committed the abuse.72
Not all legislative reforms during this era were as enlightened. Alberta enacted a ten-year ultimate limitation period that would apply regardless of when a cause of action was reasonably discoverable.73 This forced many Survivors to rush to file residential school claims.74 Some provinces, such as British Columbia, only provided exemptions from statutes of limitations for childhood sexual abuse, and the BC Court of Appeal refused to extend the exemption for childhood sexual abuse to other forms of abuse of children.75
The early civil cases involving William Starr all focused on sexual abuse even though Survivors were concerned about a much broader range of harms that they suffered at residential school. Saskatchewan’s Limitations of Actions Act provided that no limitation periods applied to claims relating to “misconduct of a sexual nature.”76 This meant that it was easier and sometimes necessary for lawyers representing the plaintiffs to focus on sexual misconduct rather than other matters.
26) We call upon federal, provincial, and territorial governments to review and amend their respective statutes of limitations to ensure that they conform with the principle that governments and other entities cannot rely on limitation defences to defend legal actions of historical abuse brought by Aboriginal people.
Canada employed aggressive litigation tactics in some of the cases arising from William Starr’s abuse of students. In two instances, the Attorney General of Canada sought and was granted permission to make a third-party claim asserting that the plaintiff’s own First Nation (the Gordon First Nation) was responsible for the abuse by sending children to the residential school and having an advisory board for the school.77 This defence strategy not only added additional expense and delay to the litigation but sought to blame a First Nation that was itself victimized by the residential school.
Even in cases where Canada accepted vicarious liability for sexual abuse, the Survivors faced difficulties in establishing damages. The Attorney General of Canada had considerable success with so-called “crumbling skull” arguments. These arguments assert that while the Survivors experienced difficulties in their lives, these difficulties were not sufficiently related to being sexually abused in the schools to be compensable. The argument was that Survivors were already damaged before they came to the schools. They had “crumbling skulls” and would have experienced difficulties, such as unemployment, addictions, and imprisonment, even if they had not been abused in the schools.78
In one William Starr case, the trial judge reduced a successful plaintiff’s damages for loss of earnings by 50% on the basis that his troubled family life meant he would have made less than an average worker even if Starr had not sexually abused him. The judge stated,
The plaintiff was raised in poverty. He was the youngest of eight children born to an alcoholic mother. He never knew his father (apparently all his siblings had different fathers). His mother was unable to care for her children and, consequently, the plaintiff was removed from her care and placed in the student residence … He attended several different schools and was introduced to alcohol and drugs at an early age by his peers. His siblings have all had problems with drugs and/or alcohol and difficulty in holding employment. Many do not have a high school education and none have post-secondary education.79
The court did not appear to consider the possibility that the life and home situation upon which it relied to reduce the plaintiff’s damages may have themselves, been the result of residential school experiences, or past government actions. This approach to damages essentially blamed the victim and his family for many of the problems that the victim experienced.
Several of the Starr cases that were settled still resulted in adversarial litigation about the terms of the settlement. In 1998, Canada successfully opposed paying for treatments for a number of plaintiffs even though the treatment expenses had been capped by the settlement at $15,000, and even though a therapist mutually approved by Canada and the plaintiff had proposed the treatment. The rejected treatment plans included those that would have provided money for post-secondary education, alcohol addiction treatment,80 and a fitness club membership.81 The rejection of these proposed treatments as luxuries unrelated to the harms also fed into media and public perceptions that the Survivors were abusing the system. The courts at times took very narrow approaches to the harms caused by residential schools by, for example, dismissing alcohol addiction treatment as not related to the admitted abuse that occurred.
Even when the courts approved treatment plans, they demonstrated distrust that the Survivors would abuse the funds that Canada had agreed to pay by specifying in detail what sort of payments would be allowed to cover travel and accommodation costs. In such cases, the Canadian legal system remained a colonial and an intrusive presence in the lives of the Survivors that frustrated reasonable healing attempts.
Survivors brought a wide variety of different legal claims in their residential school litigation. Breach of fiduciary duty was often alleged because of the long-standing trust relationship between Aboriginal people and the Crown as well as the dependency of the children in the schools. This cause of action also had the advantage of avoiding prescription periods. The courts have recognized a distinct fiduciary duty designed to protect the relationship between the Crown and Aboriginal peoples. Claims for breach of fiduciary duty had the potential to highlight how the schools betrayed Aboriginal children, highlighting the fact that those abused in the schools were children and they were Aboriginal and that the government and the churches put their own interests in assimilation, indoctrination, and saving money before the interests of the Aboriginal children. However, the courts frequently refused to find breach of fiduciary duty. Judges noted that litigants were unable to prove there was any intentional dishonesty on the part of those who held the fiduciary duty.82
Another claim of liability that was frequently dismissed by the courts was that of direct or statutory duty. Lawyers for the plaintiffs claimed that Canada had a direct duty that it could not delegate or hand off to the churches with respect to the treatment of the students. The statutory duty approach would emphasize that the government was directly at fault for failing to protect the children in the schools and not simply vicariously responsible for the wrongdoing of individual wrongdoers employed in the schools. However, claims based on breach of fiduciary and statutory duty frequently failed.83
The courts were reluctant to recognize claims that Survivors made seeking compensation for loss of family, language, and culture. Often these claims were dismissed on the basis that they had been brought too late and that statute of limitation defences applied to these claims, in a way that they did not apply to claims of sexual and sometimes serious physical abuse.
The Alberta courts dismissed such claims and the Ontario Court of Appeal found that children of Survivors of residential schools could not bring claims under the Family Law Reform Act because it did not apply retroactively to the schools.84 The eventual settlement of the litigation was limited to claims made by the living Survivors of the schools. One British Columbia court specifically noted that it was “not here assessing damages for the cultural destruction suffered by native peoples.”85
Considering that one element of the UN Convention on Genocide involves recognizing that the forcible removal of children from one group to another group for the purpose of wiping out the racial identity of the children is a crime, it is difficult to understand why courts have not been more willing to recognize at least intentional acts of cultural and racial destruction or deprivation as a compensable tort.
The creation and operation of residential schools also constituted a breach of Treaty rights, which recognized that education was important for Aboriginal people but was to be provided on reserves and on the terms that Aboriginal communities desired. Treaty 1, for example, provides that, “Her Majesty agrees to maintain a school on each reserve hereby made, whenever the Indians of the reserve should desire it.”86 Treaty 3, Treaty 5, and Treaty 6 all provide that “Her Majesty agrees to maintain schools for instruction in such reserves hereby made as to her Government of her Dominion of Canada may seem advisable, whenever the Indians of the reserve shall desire it.”87
Despite such clear language, claims relating to breach of Aboriginal and Treaty rights did not have much success in the courts. In a number of cases, the courts ruled that Aboriginal and Treaty rights could not be positively asserted by individuals.88 This approach had the effect of eroding the power of Aboriginal and Treaty rights as constitutional rights. Other Canadians are able to assert constitutional rights in individual proceedings for damages, but by classifying Aboriginal and Treaty rights as collective rights, the courts were able to deny individual claims based on them.
In a class-action lawsuit one party sues as a representative of a larger ‘class’ of people. Such suits are seen to serve a public benefit because they reduce overall costs by eliminating the need for repetitive hearings, allow for greater access to the courts, and can modify the behaviour of actual and potential wrongdoers.89 Changes in Canadian law in the 1990s created the opportunity for Survivors to make use of class-action lawsuits to pursue their claims for compensation. As late as 1991, such suits were permitted only in Québec.90 Ontario adopted legislation allowing for class-action suits in 1992.91 British Columbia’s class-action legislation came into force in 1995.92 Alberta adopted its legislation in 2003. In the following years, most other provinces adopted similar legislation.93
In October 1998, a group of Survivors of the Mohawk Institute in Brantford, Ontario, filed a statement of claim in the Ontario Superior Court on behalf of all students who attended the school between the years 1922 to 1969, as well as their families.94 The plaintiffs, who were led by Marlene Cloud, claimed $2.3 billion in damages from the federal government, the General Synod of the Anglican Church, the New England Company (the missionary society that operated the school), and the local Anglican diocese, for the sustained, systematic program of physical, emotional, spiritual, and cultural abuse they suffered.95 Cloud and the other Survivors claimed damages for a breach of fiduciary duties, breaches of the Family Law Act, loss of culture and language, and breach of Treaty and Aboriginal rights.96
In June 2000, Charles Baxter Sr., Elijah Baxter, and others filed a class-action lawsuit against the federal government in the Ontario Superior Court. The statement of claim sought damages for negligence, breach of statutory duties under the Indian Act, and breach of Treaty obligations.97 Since it included claims on behalf of students who attended residential schools throughout Canada, it was often referred to as the “national class action.”98 Over time, Survivor associations and litigants from around the country joined the Baxter class-action suit.
In October 2001, Justice Roland J. Haines of the Ontario Superior Court declined to certify the Cloud case, saying that that the experiences of the students were too diverse to constitute a representative class, that many of the claims would be barred by statute of limitations provisions, and that the plaintiffs failed to establish that a class-action suit was the preferable procedure for their claims.99 The decision was upheld by the Ontario Divisional Court.100 In December 2004, however, the Ontario Court of Appeal overturned the earlier rulings and certified the Cloud case.101 The Court of Appeal stressed that that class actions were preferable to individual actions because they would increase “access to justice.”102 This was a very important decision and the Supreme Court’s refusal to hear an appeal of this decision played an important role in encouraging the government and the churches to settle all of the claims through a national class action settlement agreement.
Throughout the civil litigation period, many residential school Survivors were unable to afford the legal fees required to file suit against the federal government. As a result, individual Survivors were usually required to access legal services on a contingency basis, which meant that they would not pay their lawyers unless they were successful in obtaining compensation. In most residential school litigation, the contingency fee arrangements provided that lawyers would receive at least 30% of any compensation awarded to the Survivors. Contingency fees had traditionally been prohibited in Canada because of a concern that lawyers might act unethically if they had a financial stake in the litigation. These restrictions were eased in many jurisdictions to increase access to justice. This change combined with the new availability of class actions made residential school litigation economically feasible.
The Commission acknowledges that residential school litigation would likely not have happened without the possibility of contingency fees that compensated lawyers for investing in the cases of Survivors who were unable to pay legal fees. In most cases, publicly funded legal aid or any other form of public funding for such litigation was not available. However, the payment of legal fees became one of the most difficult issues in reaching the settlement. The combination or rules governing contingency fees and class actions had provided lawyers with an incentive both before and after the settlement to represent as many Survivors as possible, thereby increasing their legal fees. In some, but by no means all, cases this resulted in Survivors not being well understood or served by their own lawyers.
There were numerous reports of aggressive, damaging, and sometimes unethical and illegal tactics employed by some lawyers in recruiting residential school Survivors as clients. Several lawyers were the subject of law society complaints and reprimands about the way they recruited and represented residential school Survivors and collected legal fees. In the end, the Indian Residential Schools Settlement Agreement provided a process under which one firm, the Merchant Law Group, would receive between $25 and $40 million in fees.103 The Law Society of Saskatchewan, in a decision later upheld by the Court of Appeal, reprimanded Tony Merchant in connection with a misleading solicitation letter that suggested that the Survivors “had nothing to lose.” In late January 2015, the Government of Canada filed a suit against the Merchant Law Group alleging that the group claimed millions of dollars in fees that were “intentionally inflated, duplicated or simply fabricated.” The suit also alleges that some individual lawyers billed for more than twenty-four hours of work in a single day.104
Although many lawyers worked hard for Survivors and tried to be sensitive, some lawyers took advantage of their clients and this abuse simply added to the legacy of residential schools. It also has influenced the attitudes of Aboriginal people towards the Canadian legal system.
In August of 2000, the Canadian Bar Association recognized some of the difficulties that aggressive and culturally insensitive solicitations created for Survivors and enacted the following resolution:
WHEREAS survivors of Aboriginal residential schools are often vulnerable and in need of healing as well as legal assistance;
WHEREAS the identity of persons who attended Aboriginal residential schools is available without their consent;
WHEREAS survivors of Aboriginal residential schools wanting to seek compensation from the Government of Canada and the churches involved should have legal assistance which takes into account the potential impact on their well-being when they begin to address their abuse;
BE IT RESOLVED THAT:
1. The Canadian Bar Association urge each law society to adopt the following guidelines for recommended conduct for lawyers acting or seeking to act for survivors of Aboriginal residential schools, that recognizes their vulnerability and need for healing:
(a) Lawyers should not initiate communications with individual survivors of Aboriginal residential schools to solicit them as clients or inquire as to whether they were sexually assaulted;
(b) Lawyers should not accept retainers until they have met in person with the client, whenever reasonably possible;
(c) Lawyers should recognize that survivors had control taken from their lives when they were children and therefore, as clients, should be given as much control as possible over the direction of their case;
(d) Lawyers should recognize that survivors may be seriously damaged from their experience, which may be aggravated by having to relive their childhood abuse, and that healing may be a necessary component of any real settlement for these survivors. Lawyers should therefore be aware of available counselling resources for these clients to ensure that they have opportunities for healing prior to testifying;
(e) Lawyers should recognize that damage to the survivors of Aboriginal residential schools may well include cultural damages from being cut off from their own society, and should endeavour to understand their clients’ cultural roots;
(f) Lawyers should recognize that survivors are often at risk of suicide or violence towards others and should ensure appropriate instruction and training for their own employees, including available referrals in time of crisis.105
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.
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 anti-racism.
Despite a variety of barriers posed by the legal system, slow progress was being made to win justice for Survivors of residential schools. This progress resulted from a combination of legal and political processes and culminated in the negotiation of the Indian Residential School Settlement Agreement in 2006.
In 1998 and 1999, there were discussions involving Survivors, Aboriginal organizations, and representatives of the government and the churches that produced a set of principles to guide twelve different pilot initiatives, called Alternative Dispute Resolution Projects (ADR). The principles for the pilot ADR stressed the need for a sensitive and safe approach that would promote “healing, closure and reconciliation.” It could include monetary compensation, but also a broad range of remedies including healing, memorialization, and prevention programs.106 Health supports would be provided in recognition that discussing what happened in residential schools was traumatic for many Survivors.
In 2001, the federal government created Indian Residential Schools Resolution Canada as a federal department. It was designed to oversee the ADR process. Under the proposed program, the government required that those claiming injury lasting more than six weeks submit many documents related to their income, treatment, school, and correctional records. The program limited the relief available by not providing compensation for loss of culture or language. It graded injury on a point scale and provided caps on compensation of between $195,000 and $245,000 with the cost of future care being capped at $25,000. Those who claimed injury lasting less than six weeks would receive a maximum of $1,500, which could be raised by additional amounts to a maximum of $3,500 if aggravating circumstances were established.107
A report produced by the Assembly of First Nations (AFN), released in 2004, was highly critical of the proposed formula: “This cap … ignores the effects of the residential schools on loss of language, culture, family life, parenting and secondary harms to spouses and descendants. There is no provision to recognize or compensate for emotional and spiritual abuse, neglect, forced labour or educational deficits, or their consequences.”108 The report advocated a more flexible process that “would be but a part of a holistic process with a truth-sharing component which would be created in consultation with survivors, survivor’s families, secondary victims of residential school abuse, First Nation communities, religious entities, Canada and non-Aboriginal Canadians.”109
The report expressed concerns that the caps on compensation were below some awards provided to non-Aboriginal people. It proposed five principles for the equitable settlement of claims:
1. Be inclusive, fair, accessible, and transparent.
2. Offer a holistic and comprehensive response recognizing and addressing all the harms committed in and resulting from residential schools.
3. Respect human dignity and equality and racial and gender equality.
4. Contribute towards reconciliation and healing.
5. Do no harm to Survivors and their families.110
The report drew attention to an important gap in the government’s ADR program—namely, the absence of an Aboriginal perspective. The report stated that true reconciliation and healing would be possible if the AFN’S recommended changes to the ADR program were followed.111
The AFN report recommended a “two-prong strategy.” One prong would focus on compensation and the other on “truth-telling, healing and public education.” The compensation part would include “a significant lump sum award” to every person who attended residential school “to compensate for the loss of language and culture,” combined with another sum tied to each year or part of the year spent in residential school to “recognize emotional harms, including the loss of family life and parental guidance, neglect, depersonalization, denial of a proper education, forced labour, inferior nutrition and health care, and growing up in a climate of fear, apprehension, and ascribed inferiority. As a rule, no adjudication should be necessary for these awards to be made.”112
The second truth-telling and healing track would include “a voluntary truth-sharing and reconciliation process designed to investigate the nature, causes, context and consequences of all the harms resulting from the residential schools legacy. This would include, but not be limited to, harms to individual Survivors, First Nations communities, Survivors’ families, the future generations, culture, spirituality, language and relationships between and among all parties involved.”113 This recommendation, like those made by groups of Survivors in the early 1990s and subsequently by the Royal Commission on Aboriginal Peoples in 1996 focused on the collective harms of residential schools and collective responses to those harms—a significant contrast to the relentlessly individualistic focus of the litigation that excluded compensation for students who had died and for the children of Survivors.
The inadequacies of the ADR process were also revealed in hearings conducted in February 2005 by the House of Common’s Standing Committee on Aboriginal Affairs and Northern Development. They heard from Flora Merrick, an eighty-eight-year-old Elder whose $1,500 ADR award was being appealed by the federal government. The issue was whether she should be compensated for “being strapped so severely that my arms were black and blue for several weeks” and for being “locked in a dark room for about two weeks” after she ran away from Portage la Prairie residential school. Merrick explained that she was willing
to accept the $1,500 award, not as a fair and just settlement, but only due to my age, health, and financial situation. I wanted some closure to my residential school experience, and I could use the money, even as small as it was. I am very angry and upset that the government would be so mean-spirited as to deny me even this small amount of compensation … I’m very upset and angry, not only for myself, but also for all residential school survivors.114
The Committee recognized the urgency of the matter and noted that “on average some 30 to 50 former students die each week uncompensated and bearing the grief of their experience to the grave.” The Committee condemned the ADR process unanimously and in very strong terms, concluding that it “regrets the manner with which the Government has administered the Indian Residential Schools Claims program” and that the ADR process should be terminated. It recommended that “on an urgent basis, with consideration for the frailty and short life expectancy of the former students,” the federal government should move to court-supervised negotiations with former students to secure a court-approved settlement.115
On May 30, 2005, the federal government appointed former Supreme Court Justice Frank Iacobucci as its chief negotiator. He met with representatives from Aboriginal communities, church groups, the federal government, and various law firms. Six months later, on November 10, 2005, an agreement in principle between the parties was reached.116 The details of the settlement were finalized and approved by the federal cabinet on May 10, 2006.117 As a result, the thousands of legal claims made against the federal government and the churches would be settled, although individual Survivors would be able to opt out of the settlement of their class-action claims. The settlement followed the broad outline of what was recommended in 2004 in the AFN report. All Survivors would be eligible for a Common Experience Payment (CEP) based on verified attendance at one of the residential schools listed in the settlement. Claimants would receive a base payment of $10,000 for attendance, plus $3,000 for each additional year or part year of attendance.
In addition to the CEP based on attendance at a residential school, there was an Independent Assessment Process (IAP) available for those who suffered neglect, or serious sexual or physical assaults such as severe beating, whipping, and second-degree burning at the schools. This process would include compensation for assaults by other students if there was a lack of reasonable supervision. The settlement contained a points system where points were assigned both on the type and frequency of assaults. The categories used were “serious dysfunction,” “some dysfunction,” “continued detrimental impact,” “some detrimental impact,” and “modest detrimental impact.” Additional points could be awarded for difficulties in obtaining and retaining employment and an inability to undertake or complete education resulting in under-employment or unemployment. Verbal abuse and racist acts, humiliation, and the witnessing of violence to others were also recognized as aggravating factors deserving of additional compensation points. The total number of points awarded to a claimant determined the amount of the claimant’s award. The maximum IAP payment was $275,000, but up to an additional $250,000 could be awarded in more complex cases.
The settlement included an IAP application form. IAP adjudicators were instructed in the settlement to take an inquisitorial, truth-seeking approach in which they (and not the lawyers) questioned the witnesses. Similarly, the adjudicators (and not the lawyers) would commission expert reports. The adjudicators would be chosen not only for their legal expertise but knowledge about Aboriginal culture and history and sexual and physical abuse issues. Support persons, counselling from Health Canada, and cultural ceremonies would be provided at the hearings. It was anticipated that decisions would be speedily issued. The process would be private rather than public and it would make room for support persons and cultural ceremonies often not allowed in courts.
The settlement also had collective dimensions. In addition to compensation for individual Survivors in the form of the CEP and IAP processes, the settlement provided a $125 million endowment to the Aboriginal Healing Foundation “to support the objective of addressing the healing needs of Aboriginal People affected by the Legacy of Indian Residential Schools, including the intergenerational impacts, by supporting holistic and community-based healing to address needs of individuals, families and communities.”118 An additional $60 million of the settlement funds would also be devoted to a Truth and Reconciliation Commission “to contribute to truth, healing and reconciliation,” through hearings and reports as necessary, with an objective of creating a permanent and public record of the “legacy of the residential schools.”119
The settlement would also involve the termination of a number of class-action proceedings that the courts had authorized. Consequently, it was necessary for courts in most provinces and territories to consider whether the settlement was a fair resolution of the claims and in particular whether it adequately protected the interests of all the class members. After some modifications, court approval was eventually given in all nine jurisdictions.120
Survivors and other Aboriginal people were aware of some of the shortcomings in the settlement. Phil Fontaine, in his affidavit filed in support of the settlement, described how his mother, Agnes Mary Fontaine, was taken from her family when she was seven years old and forced to attend Fort Alexander residential school from 1919 to 1928. He described how his mother “suffered by being removed from the care of her parents, family, and community, and not being allowed to speak her native language, or practice traditional spiritual ways. She also suffered sexual, physical and emotional abuse, and was given inadequate food, health care and education.”121 Chief Fontaine, who acted as the executor of his mother’s estate after she died in 1988, recognized that “it is tragic that so many have died during this fight to have the wrongs that were perpetuated on Aboriginal people through residential schools acknowledged.”122 He recognized that his mother, along with other deceased former students, would receive no monetary compensation in the settlement. Nevertheless, he stated that he believed that the agreement “honors the memory of those who have already died through the commemoration and truth and reconciliation initiatives” in the settlement. He concluded, “I do not believe that we could have reached an agreement that would have provided more for the deceased and that compromise was required in order to ensure that we could achieve some level of compensation for the living.”123
The claims of many former residential school students were excluded from the settlement agreement. Rosalie Webber told the Commission that “it was very frustrating” that schools in Newfoundland and Labrador were excluded. She also commented that even if she pursued litigation she was concerned that no money would go to her children. She explained,
And I realized how my children have suffered because their mother was a survivor of residential school. Through no fault of their own they suffered. And their children will suffer, ’cause it will take at least generations before we come to terms with the anger that we’ve passed on, the negativity that we’ve passed on. Now that my health is failing, I want to make a documentary of this so that if my children want to do research, or my grandchildren, or maybe seven generations from now, that there might be somewhere a record of the fact that I stood up.… Our children and our children’s children have to stand up and see that this not happen again. And that starts with me.124
Jayko Allooloo told the TRC Inuit Sub-Commission that, although he received some Common Experience Payment, he had been unable to access the IAP process with respect to sexual abuse suffered while going to school in Ottawa.
They told me that wasn’t a residential school and they can’t help me … I wrote down my story of what happened to me in Ottawa. I gave all my school records to the lawyer and he told me “The place you stayed in Ottawa was not a residential school so we can’t help you.”125
Litigation has been commenced on behalf of some students who were excluded from the Settlement Agreement. It is expected that the federal government and the churches will aggressively litigate the issues as they have in the past, even though there has been a relatively clear statement of the legal liability questions raised in the earlier class-action cases. To continue to put Survivors through an aggressive litigation process when so much has already been resolved in earlier cases seems both unnecessary and punitive. The Commission recognizes that there may be valid liability questions that need to be addressed, such as the liability related to placing children in hostels or foster homes in order to be educated in urban or other public schools in the South as opposed to residences attached to or affiliated with schools. There may also be questions about the government’s liability concerning those children sent to a particular residential school managed by others but not by the government. It is noted by the Commission that, in addition to the 139 schools included in the settlement agreement, individual Survivors have asked and been denied approval for compensation for having been sent to more than one thousand other schools.
For such a large number of Survivors to be excluded from the settlement and its benefits is to make them feel excluded from the apology and from the process of reconciliation. In the long term, it is in their, and in Canada’s, best interests to address this issue as quickly and as harmlessly as possible.
29) We call upon the parties and in particular, the federal government, to work collaboratively with plaintiffs not included in the Indian Residential Schools Settlement Agreement to have disputed legal issues determined expeditiously on an agreed set of facts.
It is important to appreciate Survivor perspectives on the settlement both to understand the full legacy of residential schools and to understand if there are remaining issues and grievances that may provide a barrier to reconciliation. Leona Bird attended St. Albans school in Prince Albert, Saskatchewan. She explained to the Commission how the settlement for being sexually abused in residential schools did little to alleviate the long-lasting effects on her and her family. She told the Commission that the residential school
took away my happiness. It took everything, everything that I had known for the first four years of my life at home, love, understanding, and being taken care of, and never being hit, or anything. But ever since, ever since I learned how I was treated in school that, that really build up that anger, and I can’t seem to get rid of it ... To this very day, I haven’t changed. My sister prays for and I pray. That’s all I can say. This is how the Indian residential school taught me how to live my life in a cruel, wicked way. I can’t take back what I’ve done in my lifetime. I was forever being charged with assault, sent to jail 18 months at a time.126
Myrtle Ward stressed that no amount of money can repair the harm she suffered in residential school. She told the Commission, “They can give us all the money they want, but it’s not gonna compensate for what happened to peoples’ lives.”127
Geraldine Bob attended residential school in Kamloops and later went on to become a teacher. She told the Commission at Fort Simpson that the money
doesn’t recreate society, it doesn’t recreate extended family and everything it stood for. You can’t recreate intergenerational knowledge that was taken from our people. You know I’ll never get those stories now; yeah from my grand-parents and my parents. They’re lost, they’re gone. You can’t recreate a loving way; all of that was lost. And that pain and suffering will continue well into the future.128
A number of Survivors have expressed concerns to the Commission that their IAP and other damage awards were considerably reduced by lawyers’ fees. Joseph Martin Larocque attended the Beauval residential school. He told the Commission,
I was mad at the government for what they do to us, so … I went through the court process. I went through the Department of Justice through the courts, and you know they, they gave me a little bit of money. They gave me a total of $33,000. What I didn’t know was that the lawyer, the lawyer just to take my case got $15,000, and then he took another 11 from me, so he got about 27 and I got about 21, so, but, like, that’s how it goes, yeah.129
Mabel Brown told the Commission her IAP payments amounted to about $25,000—an amount she observed was not enough for a house or even a vehicle and that the legal fees in the case amounted to $10,500. She recognized that the litigation process meant that Survivors had “a hard time, each one of them who went and had to make it public. That was so awful for them, I thought.”130
Marie Brown attended Sturgeon Landing Indian residential school. She told the Commission about the inadequacy of attempts made in the IAP system to classify the degree of harm suffered by Survivors. She explained,
There’s no difference if you’re psychologically abused it’s the worst, worst thing ever a person can ever go through. Because my feelings, you know, about abuse, abuses, we were verbally abused … I was psychologically abused. I mean psychologically messed up in my mind…. I felt like a reject, too, from everybody, even my family ... And they, they can’t tell me that sexually and physically abuse are more important than, than emotion. I, I don’t believe that one bit, ’cause I went through is the same kind of a hurt that as they went through. There’s no difference to me.131
Chief Theresa Hall, who attended residential school at Fort Albany, also expressed considerable anger at the categorization of sexual abuse used in her case and other cases of sexual abuse. She remarked,
Sexual abuse to a degree, “two.” That’s bullshit. Sexual abuse is sexual abuse, you know. Touching when, when you’re not wanted to be touched is an abuse of the child … If I were to find out that someone was, you know, doing that to my child, my grandchild, I’d go ballistic, you know. There’s no way you could stop me, and that’s the anger that, that I still have. They would have to put me in jail, you know, and that’d make headlines, a former justice of the peace goes in jail, [laughs] you know.132
The overriding concern that Survivors expressed was to question whether the system actually gave them the justice they were looking for. Amelia Thomas attended Sechelt residential school. She said,
You can’t get justice. How are you gonna get justice when the people that did this to us are gone? ... Like, they have us all apply for these statements and then our abuse … Like, I’ve been waiting 5 years now for my appeal, and it hasn’t happened yet. And it’s almost time for them to stop giving the money out to us. And they opened up all our wounds for what? To turn us all down? And some people are dying…. So, so, why did they do this to us, again? They hurt us again. They shouldn’t go back on their word to us. They already hurt us. Stop hurting us.133
Some Survivors had their IAP claims disallowed outright. Darlene Thomas told us that after a “two-part” IAP hearing, “one before Christmas and finished it in January,” she was denied. Thomas explained,
They said it, it could not be true … I haven’t even got a written document. The only thing that I got was I got an email from my lawyer saying they denied me, that they didn’t believe me … I went home and I gathered up all of my residential school documents and I went up to the mountain and I burned it. I said this is my story, this is what happened to me. And I don’t give a shit who believes me or who doesn’t.134
Aboriginal people in this country are imprisoned at a rate far greater than non-Aboriginal Canadians. The reasons are complex, and understanding those reasons—and their relationship to the residential school experience—is essential to moving towards reconciliation.
For example, in 2011, Aboriginal people made up 4% of the Canadian population, yet they accounted for 28% of admissions to sentenced custody.135 As recently as 2013, Aboriginal people constituted 23.2% of the federal inmate population. And since 2005–06, there has been a 43.5% increase in the Aboriginal population in federal prisons for those serving sentences of two years or more, as compared to a rise of 9.6% for non-Aboriginal inmates. One report indicates that from 2010 to 2013 the Prairie Region of the Correctional Service of Canada (primarily the provinces of Manitoba, Saskatchewan, and Alberta) accounted for 39.1% of all new federal inmates, and that Aboriginal offenders comprised 46.4% of the Prairie Region inmate population. This included a majority of the prisoners at the Stony Mountain Institution in Manitoba (65.3% of inmates) and the Saskatchewan Penitentiary and the Edmonton Institution (63.9% of inmates).136
Of those admitted into provincial and territorial custody in 2011–12, Aboriginal females accounted for 43%, compared to 27% for Aboriginal males.137 And in the same year, 49% of girls below the age of eighteen admitted to custody were Aboriginal, compared to 36% of males.138
When Aboriginal people are arrested and prosecuted, they are more likely to be sentenced to prison than non-Aboriginal people. In 2011–12, only 21% of those granted probation and conditional sentences were Aboriginal, yet Aboriginal people comprised 28% of those sentenced to prison.139
The situation for Aboriginal youth is even worse. In 1998–99, Aboriginal youth were 24% of sentenced admissions, but by 2011–12 they constituted 39% of sentenced admissions.140
Prison today is for many Aboriginal people what residential schools used to be: an isolating experience that removes Aboriginal people from their families and communities. They are violent places and often result in greater criminal involvement as some Aboriginal inmates, particularly younger ones, seek gang membership as a form of protection. Today’s prisons may not institutionally disparage Aboriginal cultures and languages as aggressively as residential schools did, but racism in prisons is a significant issue. In addition, prisons can fail to provide cultural safety for Aboriginal inmates through neglect or marginalization. Many damaged people emerged from the residential schools; there is no reason to believe that the same is not true of today’s prisons.
David Charleson, who attended the Christie school on Vancouver Island, explained that he has
a record in jail so bad it’s unreal, but it’s all abuse charges, assault. I used to be happier when I went to jail. Talking to the guards, and they’d say, “You’re back.” And I’d say, “Yeah,” said, “I’m in a safe place.” I said, “It’s more safe than the fuckin’ residential school,” pardon my language. “You know there’s a lot of bad people here ... but you can’t hit me…. I feel good in here.” I said, “Yeah, I feel so good the government is so stupid putting us in here. They’ll look after me more than the residential [school] did.”141
Although jail may have been a safer place for David Charleson than residential school, it held terrors for Daniel Andre, who also attended residential school. He explained that after he left school
everywhere I went … everything I did, all the jobs I had, all the towns I lived in, all the people I met, always brought me back to, to being in residential school, and being humiliated, and beaten, and ridiculed, and told I was a piece of garbage, I was not good enough, I was, like, a dog.... So one of the scariest things for me being in jail is being humiliated in front of everybody, being made, laughed at, and which they do often, ’cause they’re just, like, that’s just the way they are. And a lot of them are, like, survival of the fittest. And, like, the, if they, if, if, if you show weakness, they’ll, they’ll just pick on you even more, and whatever, and then I’m gay, and, oh, fuck, it’s just too many things, like, and it’s almost like why am I here? ... and I had to … I became a, a, a bad person, I became a asshole. But I survived, and learnt all those things to survive.142
Raymond Blake-Nukon’s attended residential school, as did his parents. He explained to the Commission at the Yukon Correctional Centre that,
this year I’ve been in jail for I think 21 years. This past Christmas was my 18th … year in jail … Every time I come to jail, it’s for fighting … I just wouldn’t want any of my kids to go, like, even just see any violence that, like half the violence that I’ve been through, yeah. Yeah, I turned out to be a pretty violent guy. Up in the penitentiary, you know, did a few stabbings in there, and on the street. I’m surprised I never killed anybody yet. I don’t want to kill anybody. So want to, want to get some help, and move on with my life.143
Although some Aboriginal people have been wrongfully convicted of crimes that they did not commit, most are in jail for having committed some offence. The available evidence suggests that these offences are likely to be violent and are likely to involve alcohol or other drugs. Over half of those who had been convicted had been convicted of assault or sexual offences or driving offences, 24.2% had been convicted of theft, 11.3% had been convicted of drug offences, 8.1% had been convicted of robbery, and 4.8% had been convicted of murder.144 There are higher rates of crime on reserve than off reserve.
The Commission cannot ignore these facts, as uncomfortable as they may be. We also need to look beyond the statistics to hear from the Survivors about the reasons why they committed offences. We must understand the reasons why those affected by the intergenerational legacy of residential schools commit crimes if we are to reduce offences among Aboriginal people and the growing crisis of Aboriginal overrepresentation in prison.
Willy Carpenter was forced to attend the Roman Catholic school in Aklavik, NWT. He recalled,
The RC Mission was the roughest place that I’d ever been in my life; the hostel, you know, that school. We’d get picked on, get into a lot of fights; I was very young but I learned how to fight. I had to protect myself. As I grew up, I kept that up. I got married, and without realizing what I was doing, I’ve been teaching my children what I know best; hardship, rough time … I started serving time at a very young age; started going in jail. I was not even 17 years old when I went to jail. Lots of us; I met a lot of my school mates in jail ... All my boys are in jail; two of, two of my youngest ones, right now, are in jail; waiting for court. I blame myself for that … The thing I do best, crime. I’m not proud of it. Now my boys are in there. I’ve been teaching them without realizing that I was teaching them; they learned it from me. It goes on and on; probably my kids will teach their kids the same thing I taught them; I don’t know, who knows? Goes on and on and on; life goes on.145
Ruth Chapman attended a residential school in Manitoba where she was subject to physical abuse. She recalled that by fourteen years of age she had moved “to The Pas, went on the streets. I was, I was nominated for a leader for a gang. Yeah, by that time my heart was hard. This, this is when I got out of the residence.” She recalled how the experience of violence made her violent:
I’ve learned through that rape, I have, I’ve, I’ve learned to have power over men. Because when that guy, when that, when that situation occurred, he had a knife, and, and but somehow I got my strength, and, and I, I, I kneed his back foot, and he fell back, and I was gonna, then I somehow I managed to get that knife from him, and, and then I almost jammed it into his throat, but I stopped, something made me stop, and then he knocked the wind out of me…. I fought, and that’s, that’s, that’s where I, I began to look at men as wimps, disrespected them. When I get mad at a male, I would cut him up. ’Cause if you punch someone, it only hurts, what, five minutes, but then you demean them with your words, ’cause that’s what I learned, right, ’cause if you get someone mad in residence, man, you were cut to pieces.… And so I learned that. Even my husband, you know, he experienced some of the effects. I was charged a couple of years ago for beating him up … I was always scared because of that anger. I knew I had the power with that anger. So, basically that, I would fight on the streets, too, with men in, in The Pas, I would, yeah.146
Many Canadians may fail to understand how the present crisis of Aboriginal over-representation in prison is related to residential schools when many of the remaining Survivors are over fifty years of age. The answer lies in the intergenerational effects of the residential school experience that are passed on through families and often through the child welfare systems. Diana Lariviere was hit with the strap in residential school, and she saw her daughter using the same harsh techniques; “she’ll just say, ‘Mom, that’s how you taught us.’”147
While some social science research supports the connection between the residential schools and the commission of criminal offences, there is a need for more Canadian data that examines this connection. In the absence of such data, the Commission has examined examples of Aboriginal offenders. The picture that emerges through court documents is one in which Aboriginal overrepresentation in prison can be directly connected to problems experienced by Aboriginal people whose roots are deep in the intergenerational legacy of residential schools. The list of such problems reads like a social minefield. It includes, poverty, addiction, abuse, racism, family violence, mental health, child welfare involvement, loss of culture, and an absence of parenting skills. And one of the least well-understood but most insidious afflictions borne by the inheritors of the residential school legacy is fetal alcohol spectrum disorder (FASD).
According to the 2002–03 First Nations Regional Longitudinal Health Survey conducted by the First Nations Centre of the National Aboriginal Health Organization, Aboriginal adults have a higher rate of abstinence from alcohol than the general Canadian population. Rates of alcohol consumption also were lower. For example, in 2002–03 only 65.6% of First Nations people reported consuming alcohol, compared with 79.3% of the general population. Also in that year, rates of alcohol consumption were lower among First Nations females (61.7%) than among males (69.3%), and increased with age.148 But for many Aboriginal people, alcohol consumption has devastating consequences.
Fetal alcohol spectrum disorder is a permanent brain injury caused when a mother’s consumption of alcohol affects the fetus.149 About 1% of Canadian children are born with some form of disability related to maternal alcohol consumption, but estimates suggest that 10% to 25% of Canadian prisoners have FASD. There is a growing consensus that people with FASD more frequently come into conflict with the law. A 2004 study that involved a sample of 415 patients diagnosed with FASD found that 60% of the adults sampled had come into contact with criminal justice systems as suspects or as charged accused.150 A 2011 Canadian study found that offenders with FASD had much higher rates of criminal involvement than those without, including more youth and adult convictions.151
A study done for the Aboriginal Healing Foundation drew connections between the intergenerational trauma of residential schools, alcohol addictions, and FASD and concludes that the “residential school system contributed to the central risk factor involved, substance abuse, but also to factors shown to be linked to alcohol abuse, such as child and adult physical, emotional and sexual abuse, mental health problems and family dysfunction. The impact of residential schools can also be linked to risk factors for poor pregnancy outcomes among women who abuse alcohol, such as poor overall health, low levels of education and chronic poverty.”152
The Aboriginal Corrections Unit of Corrections Canada has also sponsored research on FASD. A 2010 workshop concluded that,
Although FASD has not been documented in the Aboriginal community to have a greater incidence rate than that of other peoples, the fact remains that alcohol abuse in Aboriginal communities is a serious issue. Furthermore, the children and youth population of Aboriginal peoples is growing at a rate that exceeds non-Aboriginal population of Canada. It is fair to make an assumption that increasing numbers of young Aboriginal people are at greater risk of being born with FASD. Without the necessary prevention and interventions, diagnosis and treatment, it is also safe to assume that the secondary characteristics of FASD will be pronounced, including involvement in the mainstream criminal justice system.153
The workshop report went on to observe that “currently the justice system is set up to fail FASD-affected individuals—poor memory functions results in missed court appearances resulting in fail to appear charges.”154
One problem, especially with adult offenders, is the difficulty of obtaining an FASD diagnosis. Obtaining such a diagnosis requires a long and costly process of multi-disciplinary referrals. Even if trial judges have been educated about the symptoms of FASD, they are generally unable to take notice of FASD without evidence of a diagnosis.155 An expert panel, using a jury-style format and chaired by retired Supreme Court Justice Ian Binnie (known as the Binnie Jury) concluded in 2013 that “the individual with FASD is in a bind. No resources. No diagnosis. No evidence. No judicial notice. Therefore no fair and appropriate FASD–related accommodation is available within the usual rigours of the legal system.”156 The Binnie Jury recommended that exemptions be made available for offenders with FASD from mandatory sentences and restrictions on conditional sentences, an important subject to which we will return.157
Only a small minority of the judgments of criminal courts in Canada make clear connections between residential schools, FASD, and criminal offences. One particularly dramatic case involves C. L. K., a twelve-year-old Aboriginal girl in Manitoba who pleaded guilty to committing manslaughter as part of an unprovoked and severe fatal beating of a stranger who would not give cigarettes to her group. The judgment referred to a pre-sentencing report that indicated that the girl was one of seven children of parents who are “themselves victims, having suffered from their experience in foster homes and residential schools.” The parents were described as incapable of parenting and this was clearly the case. The entire family had been involved with Child and Family Services since 1987 when the children were apprehended due to abandonment and parental alcohol abuse. The report described the family as in crisis:
Of C. L. K.’s six siblings, four are known to Correctional Services and two have had gang involvement. C. L. K. herself has gang affiliations. As an example of the total absence of parental guidance the report refers to C. L. K.’s story about how she was first introduced to crack cocaine. She apparently bought the highly addictive drug from a friend of her brother’s who came to the house selling it. When she didn’t know how to use it her mother showed her how.158
C. L. K. was diagnosed with attention deficit hyperactive disorder (ADHD). The sentencing judge noted that “her exposure to drug and alcohol abuse, and her own drug abuse while still relatively young (particularly her use of Percocet, Restoril, and Valium), did little to help her when she was in school.” When the girl was previously incarcerated at the Manitoba Youth Centre, “she was placed in the isolation cell 33 times and was involved in over 70 ‘incidents’ which warranted documentation.”159
In another case, R. v. Jessie George, an Aboriginal man received seven years for manslaughter for brutally assaulting and killing his Aboriginal friend in a dispute over a girl, after he had been drinking. Jessie George’s pre-sentencing report was summarized thusly:
Mr. George’s mother was raised in residential school and foster homes and had a very difficult time. She became addicted to alcohol at a young age. Her addiction while pregnant with Mr. George affected his brain development. He has been diagnosed with alcohol related neurodevelopmental disorder which is within the class of fetal alcohol spectrum disorders. Mr. George’s father is deceased … The offender’s mother and his step-father separated when Mr. George was 5 years old and he bounced between both homes, always subject to the neglect and rejection born of alcoholism and drug dependency.160
George’s subsequent life was also chaotic. His “attempts to return to school were defeated by his association with a gang that emphasized excessive drinking and drug use. He fathered a child when he was in his teens…. At 18, the offender moved back with his mother. He began selling and consuming street drugs as well as drinking heavily to escape his sadness … Life revolved around ‘partying, getting drunk and going to jail.’”161 The trial judge accepted that those with FASD “tend to be impulsive, uninhibited, and fearless. They often display poor judgment and are easily distracted…. FAS patients have difficulties linking events with their resulting consequences. These consequences include both the physical e.g. getting burned by a hot stove, and the punitive, e.g. being sent to jail for committing a crime. Because of this, it is difficult for these individuals to learn from their mistakes.”162 In delivering his seven-year sentence, the judge noted,
Mr. George did not ask for the hand he was dealt even before his birth. He did not ask for a chaotic childhood. His mother did not ask for the hand she was dealt in her childhood. Her inability to parent compounded the prenatal effects of alcohol on Mr. George’s brain. These are handicaps he will have to deal with for the rest of his life. I am sorry he has to deal with them. I hope he can overcome them. Nevertheless, the court must be concerned with the risk this young man presents to the public as a result of his impaired judgment and inability to control his impulsive behaviour.163
In R. v. Charlie, the accused was sentenced to six months and three years probation for armed robbery, failure to attend court, and breach of recognizance. In his reasons for sentencing, Judge Heino Lilles made an explicit connection between the residential schools and FASD as follows:
Mr. Charlie is a status member of the Kaska Nation. He is from Ross River, Yukon, a remote village with a summer population of 450, of which 90 percent are of aboriginal descent. Mr. Charlie’s parents were six years old when they were taken by the Indian Agents, along with other children in the community, to residential school. The parents of these children had little choice in the matter, as they were threatened with the loss of their rations if they did not cooperate. At the same time, they were offered $6 for each child that was taken to the residential school.164
Judge Lilles then observed,
This history of Franklin Charlie’s family is important because it identifies a direct link between the colonization of the Yukon and the government’s residential school policies to the removal of children from their families into abusive environments for extended periods of time, the absence of parenting skills as a result of the residential school functioning as an inadequate parent, and their subsequent reliance on alcohol when returned to the communities. Franklin Charlie’s FASD is the direct result of these policies of the Federal Government, as implemented by the local Federal Indian Agent. Ironically, it is the Federal Government who, today, is prosecuting Mr. Franklin Charlie for the offences he has committed as a victim of maternal alcohol consumption.165
These cases underline the link between residential schools, FASD, and offending behaviour that leads to involvement with the criminal justice system. Given the higher rate of Aboriginal involvement in the criminal justice system and the higher rates of incarceration, there is a need to take urgent measures both to prevent and better manage the harmful consequences of FASD for Aboriginal offenders.
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 preventative 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:
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.]
The connection between parenting skills and subsequent juvenile delinquency has been noted by Canadian courts. In finding an Aboriginal accused to be a dangerous offender, Justice J. E. Topolniski wrote, “For example, the negative attitudes displayed by Mr. Ominayak should be seen in light of his background as an Aboriginal man whose mother failed to learn parenting skills because her parents were products of the residential school system.”166
In another case, an offender’s father testified at his son’s sentencing for sexual assault. He apologized to his son because “as a result of his own residential school experience, he did not know how to raise him properly.”167
In R. v. Jimmie, the accused, a residential school Survivor, received two years plus a day for armed robbery. The Court of Appeal noted,
Ms. Jimmie is a member of the Kluskus community which is situated in a very remote area of the Chilcotin. There are no counselling services on or near the community. Her life was described as being “full of horrors.” She was raised in poverty by an alcoholic mother who often left her and her siblings alone to fend for themselves. Ms. Jimmie was sent to residential school where she was exposed to an atmosphere of violence. She has a sixth grade education. In 1985, her sister’s body was found in a river; she had been badly beaten. That crime has never been solved.
About eight years ago, Ms. Jimmie’s children were apprehended and placed in foster care. At the time of her sentencing, her spouse was hospitalized because of a mental breakdown.168
Many studies have found that domestic violence and abuse are characteristics of dysfunctional homes that are passed along through the generations. One study based on 457 participants found that children who were exposed to domestic violence, or were themselves abused, or were exposed to both (47.5%) had higher rates of committing felony assault in comparison to those who had no exposure.169 Research has shown that when male children witness the abuse of their mothers in the home, it significantly increases their chances of becoming intimate abusers later in life not only of their partners but also of their children. An American study, whose sample of 1,000 persons included black, white, and Latino persons found that mistreatment experienced during adolescence also increased the probability of criminal behaviour. Percentages for late adolescent criminality were 58.7% for general offending, 39% for violent offending, 30.4% for drug use, and 30% for arrest. Although such studies are rare with respect to Aboriginal people in Canada, there is support for the connections between residential school, family violence, and subsequent offending in published cases.
In R. v. Rossi, we see an example in which the accused was abused in residential schools and then in turn abused his own family. The sentencing judge observed, “Beverley’s life is an example of the cost of the impact of residential schools, reservation life, and racism. The abuse her father suffered at the residential school at Brandon, Manitoba, resurfaced in his own relationships and he perpetuated a cycle of violence, addiction and in turn produced a broken family.”170
In R. v. Snake, the judge noted that “classic background factors are present. The accused as a youth suffered alcohol-related abuse by his step-father. The step-father himself had a history with residential schools which might provide some explanation for his abusive behaviour.”171
The Commission’s point is not to suggest that family violence and related problems are valid excuses for serious offences. They do, however, help to explain them. The intergenerational legacy of residential schools is an important background and contextual factor that helps explain Aboriginal overrepresentation in prison.
The residential school environment was deeply racist. It presumed the intellectual inferiority of the children and it demeaned Aboriginal culture, language, and parenting. The students were treated as if they were prisoners who required strict discipline simply because they were Aboriginal.
One study compared African American men who experienced racial discrimination (for example, racial slurs, racial profiling by police, having been physically attacked because of race) to subjects who had not experienced racial discrimination. Those who reported higher discrimination committed crimes of intimate-partner violence more often (28%) in comparison to those who reported lower discrimination (16%).
Another study found that black youth who personally experience racial discrimination had increased levels of general and violent delinquency.172 As far as the Commission is aware, similar studies have not been conducted with reference to Aboriginal populations in Canada. Nonetheless, there is persuasive anecdotal evidence of Aboriginal persons experiencing racism both within and without residential schools.
In R. v. D. M. G., the trial judge remarked on the troubled background of the accused saying, “D. M. G. was born in 1965 to parents who had significant substance abuse problems. Her mother was native and had attended the residential school … suffering the effects of dislocation, loss of identity and self esteem. Her father was French Canadian and ostracized by his family because of his relationship with a native. D. M. G. felt the sting of racial intolerance at an early age.”173
There are other cases where racial taunting and other forms of overt racial discrimination have been recognized as contributing factors to a crime committed by an Aboriginal person.174
Residential schools played a significant role in the loss of traditional culture and knowledge, including the loss of customary laws that could have acted as a positive mechanism of social control and restraint against criminal behaviour. This has profound consequences for contemporary Aboriginal communities. Carol La Prairie worked as the executive director of the Native Council on Justice. She wrote about the James Bay Cree:
Residential schools, the decline of traditional activities, the emergence of the reserve system which binds people together in unnatural ways, and the creation of band government which locates power and resources in the hands of a few have dictated the form of reserve life across the country and have profoundly affected institutions such as kinship networks, families, as well as the unspoken rules of behaviour in traditional societies ... The lack of respect for others, and the absence of shame about one’s bad behaviour and about harming another or the community were, to many Cree for example, the most troubling aspects of contemporary life.175
One 2010 Ontario study involving ninety-seven First Nations children and adolescents living in foster care found that those with more opportunities to participate in First Nations culture had significantly fewer behavioural difficulties.176
Many Survivors, including offenders, have told us that relearning and re-engagement with Aboriginal cultures and languages was very important in supporting them to make progress on healing so that they could live productive and law-abiding lives. Although cultural programming is available in some prisons, there aren’t enough resources devoted to such programs, and Aboriginal offenders can be denied access to such programming on the basis of favoritism, punishment, or security classifications tied to an offender’s past criminal history.
The available social science evidence establishes a disturbingly strong connection between being sexually abused as a child and the later sexually abusing of others. A study of 471 participants found that a youth who was abused by a female was 3.89 times more likely to subsequently abuse a female than a youth who was not abused by a female. A youth abused by a male was 6.05 times more likely to subsequently abuse a male. A youth abused by both males and females was 1.88 times more likely to subsequently abuse both males and females.177 Another study involving 179 pre-adolescent girls found that girls were 3.6 times more likely to experience sexual victimization if the mother was herself sexually abused as a child.178
In R. v. J. O., the accused was sentenced to ten months jail time and eighteen months probation for sexual assault. The judge stated,
As a child, the accused, like many other children of aboriginal communities, had to go to residential school. From the time he entered residential school until 1969, the accused was sexually assaulted by two adults in authority. The assaults included touching, masturbation, and kisses on the mouth. These events left a deep-seated scar in the accused. Mr. J. O., until his last incarceration in the mid 1990s, had never revealed the assaults he suffered. The assaults left him in a state of confusion where affection, love and sexuality are entangled. Due to these traumatic events, the accused developed an alcohol-related problem. He admits having started to drink by the end of his school years. Many of the sexual assaults committed by Mr. J. O. took place while he was under the influence of alcohol. A link must be made between the past events of the accused’s life and the assaults he committed ... In the testimony given at the hearing on sentence, the accused says: “I knew it was bad. I thought that it was normal but bad.”179
In R. v. W. R. G., the accused was convicted of sexually touching his daughter. In his judgment, Justice C. Baird Ellan observed,
Mr. G was himself abused sexually in two separate incidents when he was very young, perhaps five. He also witnessed abuse at the residential school, and on the reserve before that. He once walked in on his uncle abusing one of his sisters, but she did not complain about the incident. He believed that his mother was also sexually abused, as were her sisters, but his mother herself never told anyone.180
Considering the effect of Mr. G’s attitude to the offence, I consider that his background, in particular the sexual abuse he experienced, may have resulted in a blurring of the boundaries that would otherwise naturally prevail in a parental relationship.181
There is a need to help those who suffered sexual abuse to overcome that experience and not to abuse others. There is also a need for culturally appropriate forms of treatment that recognize the widespread sexual abuse that occurred in residential school and now unfortunately continues in Aboriginal families.
Substance abuse is widely recognized as a cause of offending behaviour. An analysis of thirty different studies showed that drug users were three to four times more likely to offend than non-drug users.182 Subsequent studies have continued to confirm that drug and/or alcohol abuse significantly raise the risks of recidivism for many offences, including crimes committed while incarcerated, sexual offences, domestic violence offences, and juvenile delinquency.183 In nearly two-thirds of non-spousal violent incidents, Aboriginal crime victims related the offence to the offender’s use of alcohol or drugs. Close to 88% of Aboriginal males (and 94% of Aboriginal women) accused of homicide had consumed alcohol or drugs at the time of violent incident, compared to 64% of non-Aboriginal accused and 41% of non-Aboriginal women.184 Aboriginal people who reported using drugs were four times as likely to be victimized by crime compared to Aboriginal people who do not use drugs.185
Many sentencing decisions have recognized that substance abuse was at once both a reaction to having been victimized in residential schools, and a contributor to subsequent criminal behaviour.186 In R. v. Craft, the accused received a nine-month conditional sentence and three years probation for driving under the influence. Chief Judge Ruddy of the Yukon Territorial Court made very explicit connections to residential school:
His time spent in the residential school system was an extremely difficult period of time in which he, as is described in the report, suffered from extreme violence, torture and sexual abuse within the residential school system. That, in turn, led to him abusing alcohol, which in turn led to his extensive involvement with the criminal justice system between 1961 and 1986.187
In R. v. M. L. W., in which the accused was given a two-year conditional sentence for driving under the influence, Dr. Peter Saunders, as an expert witness, connected the accused’s residential school experiences to post-traumatic stress disorder, alcohol abuse, and subsequent criminal behaviour as follows:
[M. L. W.] has been a patient of mine since May of 2001. Over the last three years I have seen him regularly on a professional basis and have come to have some understanding of the long-term effect on his health that has resulted from the abuse that he sustained while attending residential school as a child. As a result of the post-traumatic stress disorder that [M. L. W.] suffered as a young man, he experienced periods of drug and alcohol abuse.188
Many studies have confirmed that alcohol and drug abuse in the home environment significantly increase the chances of the cycle of substance passing on from generation to generation.189 Judges cannot help but notice that substance abuse spans generations in Aboriginal communities.
There are cases where individuals have been both residential school Survivors and had been exposed to substance abuse in the home as a child. In one case, a judge who sentenced an Aboriginal person to four years for sexual assault noted,
I have heard that he is a residential school survivor and I have heard that he was faced, while growing up, and surrounded by, a lot of dysfunction, and by many people who abused alcohol. There is very little doubt in my mind that Mr. G. has indeed faced systemic factors that have contributed to his difficulties with the law that probably contributed to his own unhealthy relationship with alcohol, which in turn has resulted in a fairly consistent pattern of breaking the law, going back to even before he was an adult.190
Intoxication by drugs or alcohol can, even in the most serious cases such as murder, be argued as a mitigating factor for criminal conduct. The courts, however, have taken a strict approach to such arguments. Even when intoxication is a factor, the accused will almost always be convicted of a less serious offence.
It is widely accepted that the criminal justice system is not well-equipped to deal with mental health problems. Although mental illness is frequently present, it does not amount to a lawful defence to a charge unless it is of such intensity that it renders an accused incapable of knowing that which actions were wrong. Nonetheless, it can be and often is, a factor in offending behaviour. The role that residential schools have played in an accused’s mental health is something that the courts have to take note of.
A study done by the Aboriginal Healing Foundation looked at 127 Aboriginal persons in British Columbia who had litigated residential school claims. Ninety-three of those case files had evidence of mental health problems. They included 21.1% for major depression, 20% for other disorders related to depression, 26.3% for substance abuse disorder, and 64.2% for post-traumatic stress disorder.191 Sixty-two of those 127 case files had criminal histories, most for sexual offences, assault, and driving offences.192
One recent case indicated how a man accused of murder had been held in pretrial custody for four-and-a-half years. During that time he had been unable to obtain either mental health services or Aboriginal-specific programming. This man’s father had attended residential school at Chesterfield Inlet. His mother had been taken away from her parents (who had also attended residential school) and adopted into a non-Aboriginal home. The offender had been diagnosed by a forensic psychiatrist as likely to be suffering post-traumatic stress disorder, personality disorder, and FASD. The judge observed that the offender “has been ‘on hold’ for the last four and a half years in an environment that cannot have done much for his spiritual or psychological health” and that when he was sent to an Ontario federal penitentiary he would be “caught in a Kafkaesque situation” because of the unavailability of any Aboriginal-specific program for his alcohol and violence problems.193 The judge went on to say that the “unavailability of Aboriginal programming in federal institutions should not become simply the latest example of how Canadian society let [him] fall through the cracks.”194
Aboriginal people are more likely to live in poverty than non-Aboriginal Canadians, and when they do, the depth of their poverty is likely to be greater than that of other Canadians. They have an average income that is further below the poverty line on average than that of non-Aboriginal adults.195 The impact of the 2008 recession was greater and persisted longer for Aboriginal workers than for the non-Aboriginal population.196 Aboriginal people are more likely to experience unemployment and are more likely to collect employment insurance and social assistance.197 When working, Aboriginal people have earnings well below their non-Aboriginal counterparts. The median income for Aboriginal peoples in 2010 was approximately 30% lower than the median income for non-Aboriginal workers ($20,701 vs. $30,195).198 It is not surprising, then, that the child poverty rate for Aboriginal children is very high—40%—compared to 17% for all children in Canada.199
Many studies have shown a direct link between community poverty and higher crime rates.200 This is apparently true even for the most serious of offences, including homicide.201 Poverty and the lack of employment opportunities have also been found to be a pathway to gang membership.202 Poverty also contributes to domestic violence. It leaves women living with violence with fewer resources to obtain independence from abusive partners.203 A 2010 study found that residential school attendees were more likely to live in low-income households and to have experienced income insecurity. Aboriginal children who came from higher-income households were more likely to be successful in school than Aboriginal children from low-income households that were vulnerable to food insecurity.204
In R. v. C. G .O., poverty was recognized as a strong contributing factor behind the accused being brought into court. The judge observed,
Ms. C. O. grew up on a reserve near Regina … Ms. C. O. has lived her life in poverty, isolation and violence. For the last ten years, if not longer, she has been disconnected from her family and traditions that are her sources of strength and support. She continues to live in poverty and violence. She is socially isolated with no one to call upon for help. Her home community still struggles with poverty, violence and offers few resources. Based on the evidence on sentencing, Ms. C. O. has had few realistic opportunities to change. In my view, the poverty, isolation and violence are precisely what brought Ms. C. O. to court.205
C. O. received a two years less a day conditional sentence plus three years probation for failure to provide the necessities of life and assaulting her three-and-half-year-old child.206
A child’s involvement in the child welfare system has been found to increase juvenile delinquency for children, in particular male children. One study of children who were maltreated in Chicago and its Cook County suburbs found that maltreated children who were placed into care had a delinquency rate of 16%, compared to 7% for children who were not placed into care.207 Another study of children in California’s system found that children who were placed at least once in a group home were 2.5 times more likely to become delinquent in comparison to children who were placed in a foster home.208
Frequent changes in placement (known as placement instability) has also been found to be significantly predictive for adult criminality. A study based on 772 persons with histories of abuse or neglect prior to age twelve found that the rates of adult arrest correlated with the degree of placement instability. The rates were 35% for no child welfare placements, 45.4% for one, 60% for two, and 76.3% for three or more.209
R. v. J. E. R. presents a vivid account of how placement in the system involving one generation led to further harm for those in the next generation:
Mr. R. is the youngest of four children. He was born in Winnipeg. His parents separated just prior to his birth. Mr. R. understands that both were part of the residential school system. Mr. R. understands that his mother, V., was taken and sold as an orphan into the United States … It is believed V. and her sister were placed in adoption in the United States at V.’s age five. They were physically abused in this adoptive home. The parents divorced, and V. and her sister were again placed in foster care and at V.’s age 12, adopted a second time and over the next one-and-a-half years were exposed to emotional and mental abuse. Thereafter, V. and her sister were separated and V. lived in several group homes … in one she was sexually molested.
V. returned to her biological mom at age 16 and gave birth to Mr. R.’s brother, J., at her age 17, and moved out at age 18. Mr. R. lived with his mother initially in Winnipeg. His mother and family then moved to Calgary and then on to Vancouver. The Calgary move was when he was an infant of seven months or so. The Vancouver move in August 1994 was when Mr. R. was about age two. The father prior to separation used drugs and alcohol and abused the mother V.210
The reasons for the overrepresentation of Aboriginal people in the correctional system are complex and interrelated. What is clear is that governments must commit to ending this imbalance. Better monitoring and evaluation of the situation is only the first step.
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.
Over the past two decades significant advances have been made in the process of sentencing of Aboriginal offenders. However, these advances are under challenge from more recent amendments to the criminal law that expand the circumstances in which courts must impose mandatory minimum sentences.
In 1996, in recognition of the fact that Canada was imprisoning more people than many other democracies, Parliament overhauled the laws relating to sentences. One key change was the introduction of “conditional sentences,” which allow offenders who might otherwise be imprisoned to serve their sentences in the community. But the centrepiece of sentencing reform was section 718.2(e) of the Criminal Code. It instructs judges that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” Then Minister of Justice Allan Rock explained that
the reason we referred specifically there to aboriginal persons is that they are sadly overrepresented in the prison populations of Canada. I think it was the Manitoba justice inquiry that found that although aboriginal persons make up only 12% of the population of Manitoba, they comprise over 50% of the prison inmates. Nationally aboriginal persons represent about 2% of Canada’s population, but they represent 10.6% of persons in prison. Obviously there’s a problem here. What we’re trying to do, particularly having regard to the initiatives in the aboriginal communities to achieve community justice, is to encourage courts to look at alternatives where it’s consistent with the protection of the public, alternatives to jail, and not simply resort to that easy answer in every case.211
The 1996 reforms represented a genuine and comprehensive attempt to recognize the need for restraint in the use of imprisonment and to provide trial judges with tools to provide realistic alternatives to imprisonment.
R. v. Gladue (Gladue) was a landmark decision by the Supreme Court of Canada involving section 718.2(e) of the Criminal Code, in the case of an Aboriginal woman from British Columbia. On September 16, 1995, Jamie Tanis Gladue was celebrating her nineteenth birthday when she got into a violent disagreement with her boyfriend and stabbed him. She was eventually convicted of manslaughter. At her sentencing hearing, the judge took into account her youth, her status as a mother, and the absence of any serious criminal history. She was sentenced to three years imprisonment. When the Supreme Court dismissed her appeal of the sentence in 1999, the Court approvingly quoted a study to the effect that “the prison has become for many young native people the contemporary equivalent of what the Indian residential school represented for their parents.”212
The Court noted that Aboriginal people constituted 12% of federal prisoners, and included the following statement in its ruling:
The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree. The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process.213
The judgment continues: “The fact that the reference to aboriginal offenders is contained in section 718.2(e), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction.”214 R. v. Gladue is a much cited judgment and it has in some jurisdictions resulted in the introduction of more extensive pre-sentence or Gladue reports that provide the sentencing judge with contextual information on the background of Aboriginal offenders. Producing these reports has not been without difficulty and controversy. In 2012, the Globe and Mail reported,
Saskatchewan, Alberta and Manitoba have barely begun to produce [Gladue] reports. While the number in Alberta has shot up from 14 in 2011 to 100 that are now in production, most of them are being prepared by probation officers—who are trained to assess risk factors but have no particular understanding of aboriginal culture and history. In Quebec, Gladue reports are almost unheard of.215
Many jurisdictions work with Aboriginal community groups to prepare Gladue reports. This is a good practice because probation officers who prepare pre-sentence reports generally do not have cultural training to work with Aboriginal offenders, families, and communities to prepare adequate Gladue reports prior to sentencing.
There are some concerns that defence lawyers may not always request a Gladue report or use it to their clients’ advantage. One defence lawyer noted, “The lawyer is not compensated for the report and yet we are expected to do multiple hours of work that we are not paid for. Sometimes we are asked to review the report. That can take 3 hours. More time is spent on the Gladue report than other PSRs [Pre-Sentence Reports] because of the structure of the program.”216
Gladue reports can often be difficult for offenders and their families. One Gladue report writer stated, “The interviews are very hard. They are very emotional. Especially if a person is in custody. I’ve had guys say, ‘I can’t talk about that because I can’t cry in here.’ Sometimes I wonder if we are re-traumatizing them.”217
However, some judges see that they have a greater responsibility. In R. v. Jesse Armitage, which was heard in the first official Canadian court established to adhere to the principles expressed in R. v. Gladue and accordingly called a “Gladue court,” Justice Nakatsuru wrote his entire judgment in unusually simple prose:
In the Gladue court at Old City Hall, accused persons who share a proud history of the first people who lived in this nation, not only have a right to be heard, but they also have a right to fully understand. Their voices are heard by the judges. And they must also know that we have heard them ... I know that all accused, whether they have any Aboriginal blood or not, should have this right. Judges struggle to make sure they do. However, when judges write their decisions, they are writing for different readers, different audiences. Judges write not only for the parties before them. Judges write to other readers of the law. Lawyers. Other judges. The community. In this case, I am writing for Jesse Armitage.218
In his ruling, Justice Nakatsuru noted that Jesse Armitage’s grandmother was a residential school Survivor, and that her own children have struggled with alcoholism; and that Armitage came from a broken home. The judge went on to say,
If I could describe Mr. Armitage as a tree, his roots remain hidden beneath the ground. I can see what he is now. I can see the trunk. I can see the leaves. But much of what he is and what has brought him before me, I cannot see. They are still buried. But I am sure that some of those roots involve his Aboriginal heritage and ancestry. They help define who he is. They have been a factor in his offending. They must be taken into account in his sentencing.219
The case R. v. Ipeelee (Ipeelee) involved two men—one from Yukon, the other from Nunavut, both with serious alcohol problems going back to their youth, both with long criminal records, both from broken families, and both with links to residential schools. The argument that reached the Supreme Court of Canada concerned the breach of their long-term supervision order. In its 2012 ruling, the Court reduced the sentence of one man and affirmed the other. What will be remembered from this ruling was the Supreme Court’s decision to revisit and reaffirm Gladue. The justices noted that the problem of Aboriginal overrepresentation had gotten worse in the thirteen years since Gladue was decided. The Court pointed out that while Aboriginal people comprised 12% of federal inmates in 1999 when Gladue was decided, they constituted 17% of federal admissions in 2005. The Court then noted that
courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.220
The Supreme Court pointed out that some lower court judges had erred in their application of Gladue by concluding that it did not apply to serious offences or that it required an offender to demonstrate a causal connection between the commission of the crime and the legacy of residential schools or other background or contextual factors. Gladue mandates trial judges to consider all the background factors for Aboriginal offenders. This was clear direction from the Supreme Court’s ruling that offenders need not demonstrate a direct causal relationship between the legacy of residential schools and the commission of offences.221
Section 718.1 of the Criminal Code codifies a long-standing principle of criminal justice that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” The Court in Ipeelee indicated that the fundamental questions of proportionality must be addressed in a different light given the reality of how Aboriginal people have been treated in Canada. The Court invited judges to revise their understanding of traditional sentencing principles, including deterrence and denunciation in light of evidence of their failure to achieve their objectives and “to meet the needs of Aboriginal offenders and communities.”222
The Gladue factors require consideration of restorative principles of sentencing, including acknowledgment of harm done to victims and communities and rehabilitation of offenders in contrast to punitive principles of sentencing.
The Supreme Court’s landmark decisions in Gladue and Ipeelee remind trial judges to take a different approach in applying the purposes and principles of sentencing to Aboriginal offenders, including those related to deterrence, denunciation, and retribution. These decisions recognize that the application of a uniform one-size-fits-all approach to punishment will be discriminatory and ineffective given the treatment of Aboriginal people in Canadian society, including the intergenerational legacy of residential schools. However, there is a pressing need for sufficient and stable funding to implement and evaluate community sanctions that will provide realistic alternatives to imprisonment for Aboriginal offenders and will respond to the underlying causes of offending by them. Without adequate and stable funding of community sanctions and evaluation of their success, it is likely that the overrepresentation of Aboriginal people in prison and among crime victims will continue to grow.
Aboriginal youth experience the justice system in very different and more disruptive ways than other youth. They are more likely to be detained in facilities that are far from their homes, families, and communities. Having court processes hundreds of kilometres away makes it more difficult for them to have someone in court to support them or suggest alternatives to incarceration.
In an analysis of Ontario data from 2004–05 and 2005–06, Aboriginal youth were underrepresented amongst those who received non-custodial sentences available under the Youth Criminal Justice Act and overrepresented in more serious sentences.223 The explanation does not lie in any differences in the types of crimes that Aboriginal youth are charged with. In fact, Aboriginal youth receive custodial sentences at a greater rate than non-Aboriginal youth for the same offences.224
Sentencing decisions are one of the most obvious points in the system for reform. Courts often consider factors that may seem neutral on their face but are not. For example, a person with a good job, a good education, and wealth is likely to receive a sentence that is less disruptive to his or her lifestyle. On the other hand, as Professor Tim Quigley has observed, “the unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination.”225
The Commission has heard testimony from Survivors about how community sanctions can work to the benefit of both offenders and the community. Gerald McLeod explained to the Commission how he developed an addiction to alcohol as a coping mechanism after being sexual abused in two residential schools in Yukon. He recalled,
I was 16, I started getting impaireds. I ended up with 18 impaireds, ’cause of my drinking and alcoholism, and I’m not proud of it. I’m, I’m happy that I didn’t kill my, nobody, or I killed myself, or one of my family members. I was blessed that way that I didn’t hurt no one.
McLeod faced a ten-year jail sentence when convicted for the eighteenth time, but Justice Barry Stuart, a pioneer in community sanctions and circle sentencing, gave him an opportunity to stay out of jail. McLeod recounted,
[I] got to treatment in Calgary, Stoney Medicine Lodge, and I sobered up for two years, and I came home to the Yukon here. The judge put me through circle court. I was the first one to go through circle court here in the community. I got cleared of this charge for two years, and blood tests for two years. So, I did that for two years, proved to them I can stay sober… and two of us did that, went to treatment, Dennis Jackson and I, and we’ve been sober for 19 years now. And you know when we came out of our sweat in Calgary, there was two eagles flying around, and I told Dennis that that’s us up there, and then I said right on.226
The use of community sanctions to deal with deep traumas caused by residential schools is not a panacea, and there may be failures on the road to recovery. Gerald McLeod explained to us that despite his successful battle against alcoholism, he has been convicted and imprisoned twice for sexual assaults. He explained, “I’m marked by the government, to sign a paper saying, ‘I am a sexual assault offender for the rest of my life.’ … And you know I’m marked for the rest of my life for something that I was taught as a kid, or forced on as a kid, then I go do it, and I’m marked for life for doing it.” McLeod admitted his offences and said, “I’m not trying to make excuses or anything, but I, I can’t answer it yet. I can’t, you know, what was passed on to me, then am I passing it on to others? Or, you know, the only way I can answer that is go through treatment, and that’s what I’m seeking right now is treatment through my counsellors, and I’m looking at residential treatment in the future.”
Such treatment can be more difficult for offenders like Gerald McLeod who have served a lot of time in prison. He explained,
It’s a lot of work, and it’s, it’s not easy to keep opening up this can of beans to, or can of worms to spread it out … It was all there from my childhood I was digging up, fighting all my life, and then now they want me to dig it all out again, and then start over again with all this misery that I have to live with, that I’ve lived with. But I know it’s the only answer for me is to get it out of me, and start working on a new life … It’s a lot of stuff there that you have to work on the, your spirituality, your language, your, everything that you lost, you know, you’re trying to get it back so you can be in balance with yourself again a little bit. But you got so many hurdles out to overcome from the residential [school] that you’re faced every day in your community, everything that you live with in your community that is, that is not right, ’cause it’s a stem off from residential that we do suffer in our communities with today from our children, and from our grandchildren.227
All of that causes us to conclude that, for Aboriginal people, many, if not most, offences committed by them result in sentences of incarceration that fail to address the underlying causes of offending behaviour in a manner that supports their mental, spiritual, and cultural needs or reduces crime. The promise of the Criminal Code amendments of 1996 and the Supreme Court’s decisions in Gladue and Ipeelee have not yet been met. More needs to be done.
31) We call upon the federal, provincial, and territorial governments to provide sufficient and stable funding to implement and evaluate community sanctions that will provide realistic alternatives to imprisonment for Aboriginal offenders and respond to the underlying causes of offending.
In 2012, Parliament enacted Bill C-10. This legislation includes more mandatory minimum sentences and restrictions on conditional sentences. In announcing the Royal Assent of the Bill, several federal parliamentarians declared, “Our Government is committed to ensuring that criminals are held fully accountable for their actions and that the safety and security of law-abiding Canadians comes first in Canada’s judicial system. We will continue to fight crime and protect Canadians so our communities are safe places for people to live, raise their families and do business.”228
Mandatory minimum sentences are sentences that, if properly enacted, no judge can reduce or modify. For example, Bill C-10 introduced longer mandatory minimum sentences for several sexual offences against children, ranging from a ninety-day minimum when the Crown prosecutor proceeds by summary conviction, and a one-year minimum when the Crown prosecutor proceeds by indictment.229 Bill C-10 also affected the mandatory minimum for various drug offences, like trafficking, exporting, and possession with intent to either traffic or export. The mandatory minimums for these offences range from one to two years depending on the nature and amount of the substance, and certain aggravating factors of which the court is obliged to consider.230 Similarly, Bill C-10 introduced a mandatory minimum sentence of two years for the production of certain substances, or a three-year mandatory minimum where certain health and safety factors are proven.231
Since the enactment of Bill C-10, certain offences are also no longer eligible for a conditional sentence—a term of imprisonment to be served in the community as opposed to in a correctional facility. These include any offence that has a maximum sentence of fourteen years or life (e.g., manslaughter, aggravated assault), as well as certain offences punishable by ten years or more where the provincial Crown chooses to proceed by indictment.232
The legislative emphasis on whether or not a charge proceeds by way of indictment places particular importance on the role of provincial Crown prosecutors in pursuing each charge. Prosecutorial discretion, being unreviewable by the courts, can have a dramatic impact on the considerations available to the judiciary and possible opportunities for rehabilitation come sentencing. In addition, no conditional sentence is available if there is any mandatory minimum term of imprisonment even for sentences as short as thirty to ninety days.233 The restricted sentencing options challenge courts to find appropriate sentencing, and impact the health and healing of Aboriginal people, their communities, and their families.
Joann May Cunday explained to the Commission that she became addicted to alcohol and other drugs at an early age in part because of “learned behaviour” from her mother who attended residential schools: “It’s only ’till last year that I quit drinking. But the only reason I quit drinking is ’cause I was forced into it by the courts. But I feel so much better that I did and I know my kids are, I know that they’re doing better because I’m, I’m not drinking.”234 She explained that the judge was able to give her a two-year “house arrest” sentence. The Crown prosecutor had initially asked that she be incarcerated for seven years, but the conditional sentence allowed her to continue her relationship with her children, attend Aboriginal ceremonies, and “to slow down” and realize the intergenerational effects of residential school on her and her children. The conditional sentence that she received would likely not be available under the restrictions on such sentences in Bill C-10.
A number of judges have already pointed out how such restrictions are making it even more difficult for them to provide appropriate sentences for Aboriginal offenders. One judge observed,
Legislation designed to “get tough” on crime must not lose sight of the fact that the very individuals that suffered harm, either directly or indirectly, perhaps as children of students of residential schools, may be the same individuals who are committing the crimes and who are, under such legislation, the individuals that the justice system will “get tough” on.235
Bill C-10 and other similar Criminal Code amendments have undermined the 1996 reforms that required judges to consider all reasonable alternatives to imprisonment with particular attention to the circumstances of Aboriginal offenders.
In 2015, the federal government passed a Canadian Victims Bill of Rights, which emphasizes institutional imprisonment for the sake of community safety.236 The premise of such approaches is that imprisonment keeps communities safe; however, if that were true, Aboriginal communities should be among the safest of all Canadian communities, given the high level of incarceration of Aboriginal adults and youth. Although imprisonment prevents offenders from committing offences against the community, while the person is imprisoned, offences including violence and drugs take place in prisons just as other types of offences took place in residential schools. All but a few offenders will be released, and the prison experience, just like the residential school experience, often makes them more, rather than less, likely to reoffend. Prison also makes offenders less employable, less self-reliant, angrier, and often more violent. Far from being kept safe by mandatory sentences of imprisonment and restrictions on community sanctions, Aboriginal communities may be less safe due to the bill’s movement away from alternatives to imprisonment.
The extended terms of Bill C-10’s mandatory sentences and restrictions on conditional sentencing, as well as the enactment of the Canadian Victims Bill of Rights, will likely have a disproportionate impact on Aboriginal offenders who are overrepresented in the criminal justice system in part because of their poor socioeconomic circumstances and the effects of historical and systemic discrimination in Canadian society.
32) 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.
Despite the disproportionate number of Aboriginal inmates, Canada’s correctional systems fall short in their treatment of these prisoners.
Provinces and territories administer facilities for those imprisoned for less than two years and awaiting trial, and they also supervise most community sanctions. Most provinces and territories, however, appear not to have made Aboriginal-focused corrections a priority. They generally underfund community sanctions that can provide an alternative to imprisonment. For example, in 2011, community supervision accounted for 37% of all admissions into provincial and territorial facilities but only 16% of expenditures.237 Aboriginal people receive few services in provincial correctional facilities. The Manitoba Aboriginal Justice Inquiry, after visiting various correctional institutions, concluded in 1991 that “Most of the jails we visited reminded us of zoos where men and women were caged behind iron bars. For the most part, there is nothing to do as the months and years drag by.”238
Only a few provinces, such as British Columbia, have Aboriginal justice strategies that include cultural awareness training for officials, and contracting with Aboriginal communities to provide spiritual leadership, counselling, and cultural programming.239 Many provinces and territories have no such plans and do not provide public data on the number of Aboriginal people imprisoned in their facilities.
Judges sometimes sentence Aboriginal offenders to “federal time” of two years plus a day, or more, because the programming for Aboriginal offenders has generally been better in federal penitentiaries than in provincial correctional facilities240 or through community sanctions.241 This is particularly the case for the growing number of female Aboriginal offenders.
The Commission finds little evidence that most provincial and territorial correctional services are making available culturally appropriate programming for Aboriginal offenders, including those with violence and substance abuse problems relating to the intergenerational legacy of residential schools.
The 1992 Corrections and Conditional Release Act provides that the Correctional Service of Canada (CSC) “shall provide programs designed particularly to address the needs of aboriginal offenders.”242 Section 81 allows offenders to be transferred to an Aboriginal community to serve their sentence where the community consents.243 Section 83 guarantees that Aboriginal spirituality and Aboriginal spiritual leaders have the same status as those of other religions. It also requires the Correctional Service of Canada to take “all reasonable steps” to ensure that Aboriginal inmates have access to Aboriginal Elders or spiritual leaders.244 Section 84 also provides for Aboriginal communities to be involved in an Aboriginal offender’s release and integration into the community.245
The Correctional Service has committed itself to observing these principles. Unfortunately, the implementation of this commitment lags and compliance looks better on paper than in reality. The correctional investigator (a federal government appointee who serves as an ombudsman for federally sentenced offenders) delivered a report in 2012, that criticized the CSC for failing to live up to its statutory and policy commitments to Aboriginal inmates. This report recognized that
• Aboriginal offenders serve disproportionately more of their sentence behind bars before first release.
• Aboriginal offenders are under-represented in community supervision populations and over-represented in maximum security institutions.
• Aboriginal offenders are more likely to return to prison on revocation of parole.
• Aboriginal offenders are disproportionately involved in institutional security incidents, use of force interventions, segregation placements and self-injurious behaviour.246
The investigator also reported that the promise of Aboriginal healing lodges is largely illusory for most Aboriginal inmates because so few spaces are available. In any event, a prisoner has to be classified as minimum security to qualify for an Aboriginal healing lodge but 90% of Aboriginal inmates have medium or maximum security classifications.247
The programming for Aboriginal offenders in federal penitentiaries is deteriorating to such an extent that some judges are no longer sentencing Aboriginal offenders to “federal time.” In one recent case, a judge noted that reports on federal corrections “paint a grim picture for aboriginal offenders and their access to programming,” suggesting that most Aboriginal inmates are placed on waiting lists and if admitted to such programs often have their release date delayed as a result. The judge observed, “the gap between aboriginal and non-aboriginal offenders continues to widen, the situation for aboriginal people under federal sentence deteriorates, and the Service revises and updates frameworks and strategies without apparent results.” The judge also cited a Standing Parliamentary Committee on Public Safety report that found the existing programs “for treating mental disorders and addiction issues constitute an inadequate response to the cultural and spiritual needs of aboriginal offenders.”248
Another barrier to accessing needed programming is that Aboriginal offenders are placed in stricter security classifications in disproportionate numbers in comparison to non-Aboriginal offenders.
Initial determination of security classification upon arrival in a federal penitentiary is mandated under to the Corrections and Conditional Release Act, and is made using the Custody Ratings Scale.249 Under this scale, a score of 133.5 or higher on the security risk component qualifies an inmate for maximum security.250 The factors to be considered in assigning a security classification are
a. the seriousness of the offence committed by the offender;
b. any outstanding charges against the offender;
c. the offender’s performance and behaviour while under sentence;
d. the offender’s social, criminal and, where available, young offender history;
e. any physical or mental illness or disorder suffered by the offender;
f. the offender’s potential for violent behaviour; and
g. the offender’s continued involvement in criminal activities.251
The offender’s prior criminal history is an important factor in the security assessment that operates to the detriment of many Aboriginal inmates.252
In 1990, the Task Force of Federally Sentenced Women found that Aboriginal women were much more likely to receive higher security classification than non-Aboriginal women.253 The Native Women’s Association of Canada estimated that, as of 2003, Aboriginal women comprised at least 50% of incarcerated federal women classified as maximum security.254 A study done in 2000 found that Aboriginal inmates were classified as maximum security or medium security at rates of 27.7% and 34.7%, respectively, in comparison to rates of 20.3% and 24.1% for non-Aboriginal offenders.255
The Canadian Human Rights Commission describes the effects of a maximum security classification on female inmates as follows:
Maximum security inmates, unlike their minimum and medium security counterparts, are not eligible to participate in work-release programs, community release programs or other supportive programming designed to enhance their chances of reintegration. In fact, half of all maximum security women are now being released directly from maximum security incarceration into the community after serving two-thirds of their sentence, without the benefit of preparatory programming.256
This is clearly detrimental to the inmate’s prospects of reintegration in the community. The inmates are released without having had adequate correctional programming, as well as with a lack of resources and supports to facilitate rehabilitation.257
Studies have shown that Aboriginal inmates in the aggregate have criminal histories that are considered by authorities as worse than those of non-Aboriginal inmates.258 One study for example shows that in 2003 at least 80% of Aboriginal federal inmates had previously served terms in provincial jails in comparison to approximately 70% for non-Aboriginal inmates.259 Inuit and First Nations federal inmates were more likely to have served a previous adult community supervision sentence, at rates of 87% and 79%, respectively, in comparison to 72% for non-Aboriginal inmates.260 Aboriginal inmates are more likely to have been convicted of serious crimes than non-Aboriginal offenders. First Nations and Métis offenders also have had greater involvement with the youth justice system.
The Correctional Service of Canada’s Commissioner’s Directive on Security Classification makes little reference to the unique experiences and needs of Aboriginal offenders, apart from a requirement to consider “Aboriginal social history.”261 It is a fair question to ask whether this part of the directive results or will result in any tangible benefits for Aboriginal inmates while static factors involving prior history remain a substantial component of security classification determinations. Aboriginal offenders continue to be placed more often in higher security classifications. Previous criminal history, youth history included, will represent enduring penalties for Aboriginal offenders, even during reclassification determinations. Therefore, the security classification scheme as applied to Aboriginal inmates may represent a form of systemic discrimination.
There are alternatives that may indeed be workable. The Security Reclassification Scale for Women was developed as a gender-specific method of security classification for female offenders. The nine items that are considered in this scale are as follows:
1. Correctional plan; program motivation.
2. Maintains regular positive family contact.
3. Number of convictions for serious disciplinary offences during the review period.
4. Number of recorded incidents during the review period.
5. History of escape or unlawfully at large from work release, temporary absence or community supervision.
6. Pay level during the review period.
7. Number of times the offender was placed in involuntary segregation for being a danger to others or the institution during the review period.
8. Total number of escorted temporary absences (ETAS) during the review period.
9. Custody Rating Scale incident history.262
What is noteworthy is the de-emphasis on static factors involving the offence, or previous criminal history, and a greater emphasis on progress and behaviour during the review period. Early field tests involving 580 files have found that the scale is reliably predictive of actual security risk.263 Given that there is evidence that Aboriginal spiritual healing can improve offender behaviour, and improve prison conditions generally, there is no reason other than bureaucratic inertia why the Canadian correctional system could not develop an Aboriginal-specific classification scale.
Studies based on interviews with Aboriginal inmates have confirmed that participation in Aboriginal cultural programs in prison can contribute to the healing of the inmates through increased self-esteem and positive changes in lifestyle that make release and reintegration a real possibility.264
Joanne Nimik’s birth mother was a residential school Survivor. Nimik was adopted into a white family. She recounted,
[I got] into the bad crowd and started partying and drinking and drugging and, I ended up having three girls that were also apprehended through CFS [Child and Family Services] … And it wasn’t until I was 28 years old that I was reunited with my birth family. Apparently my mother Rowena had been looking for me all those years that I was adopted out and we had the reunion and it was, it was really nice ’cause, you know I always wondered who my family, like my real family was, my birth family. And, there was that missing piece in my life that I’d been searching for and didn’t know how to make up for it. So I was using drugs and alcohol as a coping mechanism I guess. I’ve had a very hard life I guess; involved with the justice system, CFS system, drugs and alcohol, the legal system. And, because of my lack of knowledge of support systems or how to ask for help, I stayed in that way of life for quite awhile. I didn’t identify myself as First Nation or Aboriginal or didn’t have no clue about what it meant to be Anishina-abekwe or anything.265
Joanne Nimik’s healing journey away from crime and drug abuse started at an Aboriginal centre for addiction treatment as part of a sentence she was serving. She recounted,
I went to treatment at Poundmakers in Alberta and that was actually the first time I’ve been exposed to a sweat lodge. I signed up for it, but I was too scared to go in. First time exposure to what an Elder was, to smudging, sharing circle, sweetgrass. So it, it was a real eye opener, it scared me but I was still curious to a degree … I had, been arrested and I guess in that being arrested that was the turning point in my life where I was able to take advantage of a program to get some help.266
Since she started her healing journey away from crime, Nimik has been able to help others who like her were at risk of being victimized by crime and committing crimes.
Chris Gargan spoke to the Commission from The Yellowknife Correctional Centre in the NWT. He was looking for Aboriginal guidance and not getting it:
Right now I’m doing a program. There’s a white, white woman that’s treating that program, and they, and they put, they push it on us … like, I wish it was somebody like Healing Drum Society program, or something like that…. They’re teaching us about anger, anger. It would be nice if our own people would come in here and teach us about life ... you know, how to live. This is not the way of life for us. It’s not the way for us people.267
The regimented and often violent life of prison has striking resemblances to life in residential schools. Judge Heino Lilles served on the Yukon Territorial Court.
Jail has shown not to be effective for First Nation people. Every family in Kwanlin Dun [Yukon] has members who have gone to jail. It carries no stigma and therefore is not a deterrent. Nor is it a “safe place” which encourages disclosure, openness, or healing. The power or authority structures within the jail operate against “openness.” An elder noted: “jail doesn’t help anyone. A lot of our people could have been healed a long time ago if it weren’t for jail. Jail hurts them more and then they come out really bitter. In jail, all they learn is ‘hurt and bitter.’ (emphasis added)268
The Ma Mawi Wi Chi Itata program, based in the Stoney Mountain Institution in Manitoba, is a program designed for Aboriginal inmates who have been convicted of domestic violence offences. It approaches the problem through a combination of healing and spiritual ceremonies, and educational components that are designed to help inmates understand and control their violence and develop healthier relationships and parenting skills.269 During a review of the program after its first-year pilot, many of the Aboriginal inmates who were interviewed by researchers indicated that the program was a positive experience since it provided their first exposure to their traditional cultures and helped them understand and control their violence. Correctional staff also noted positive changes, including reduced aggression in the inmates and improved relationships between staff and inmates.270
A study has shown that the recidivism rate for Aboriginal offenders who participated in cultural activities was 3.6% compared to 32.5% for those who did not.271 The recidivism rate was 14.4% for those who participated in spiritual activities (for example, a sweat lodge ceremony) compared to 24.2% for those who did not.272 The recidivism rate was 12.9% for those inmates who had contacts or meetings with an Aboriginal Elder compared to 26.8% for those who did not.273 Authors of another survey interviewed fifty-six male and twelve female Aboriginal ex-offenders who had stayed out of trouble with the law for at least two years following their release. While other factors such as family support and steady employment were important in keeping them out of trouble, a large percentage of the respondents indicated that participation in spiritual ceremonies (71%) and cultural activities (68%) were also important in helping them avoid conflict with the law.274
Unfortunately, such culturally appropriate programming is not always available in Canada’s prisons. In 2008, Correctional Investigator of Canada Howard Sapers indicated before the Senate Standing Committee on Legal and Constitutional Affairs that the Correctional Service of Canada had an annual budget of $1.8 billion, and yet allocated only $27 million of that for the delivery of core program services. He went on to suggest that, given these figures, it was hardly surprising that many Aboriginal inmates had no access to culturally specific programs that could help them progress towards release.275
Culturally relevant programming has to accommodate the diverse spiritual needs and practices of Aboriginal inmates. The Saskatchewan Commission on First Nations and Métis Peoples and Justice Reform recommended that both provincial and federal correctional authorities should ensure “that access to cultural and spiritual programming, whether traditional or religious, be made more available” to Aboriginal offenders.276 The wisdom of this recommendation is affirmed by what the Commission has heard from Survivors about the value that traditional and other religious practices have had in their healing.
36) We call 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.
There are four Aboriginal healing lodges run by the Correctional Service of Canada (CSC) and four run by Aboriginal communities under section 81 of the Correctional Services Act. According to the Correctional Service of Canada, its lodges “provide living environments that use Aboriginal traditional healing approaches as a method of intervention. Both are rooted in the spiritual and cultural activities led by Elders, and supported by dynamic contact with the community through CSC’s temporary absence program and pro-social interactions with staff members and management, many of whom are Aboriginal.”277
A 2011 report by CSC documented positive findings about Aboriginal healing lodges, including that healing lodge residents, staff members, and management interviewed during the evaluation noted improvements in offenders’ attitudes and behaviours, as well as their greater understanding of, and connection to, Aboriginal culture. For example, offenders showed improvements in the areas of self-confidence, personal responsibility, motivation, and self-discipline. They demonstrated deeper understanding of their lives and criminal behaviours, greater respect, and positive attitudes towards others, and recognized the importance of seeking help and establishing support networks.278
Despite these positive findings, the most pressing concern about Aboriginal healing lodges is the lack of resources. At the basic level, section 81 lodges are in need of physical improvements. Furthermore, the lack of funding has affected recruitment, training, and retention of lodge staff. Recruitment is especially difficult as Aboriginal people with the required skill sets are in high demand and the lodges cannot afford to pay what the market dictates. In terms of training, most section 81 lodges do not have the funds to adequately train their staff regarding CSC procedures. Programming is another area that has been affected by lack of funds. Smaller facilities do not offer structured programs, as they do not have the resources to offer programs given the small number of residents who need them.279
Given the positive role that healing lodges can have for those Aboriginal offenders who must serve a period of incarceration, and the proven failure of existing correctional programs not specifically aimed at supporting Aboriginal inmates, it makes considerable sense to provide more resources to healing lodges.
35) We call upon the federal government to eliminate barriers to the creation of additional Aboriginal healing lodges within the federal correctional system.
An important factor that is considered by the National Parole Board in whether to grant or deny parole is an actuarial risk assessment of whether the offender is likely to reoffend. According to one study, the percentages of inmates who were assessed as a high-risk to reoffend were 85% for Inuit, 73% for First Nations, 67% for Métis, and 57% for non-Aboriginal inmates.280 One problem here, as with initial security classification, is a tendency to give great weight to the static factor of criminal history. This means that Aboriginal offenders often come to the parole board with two strikes against them and there is nothing they can do to overcome their prior convictions. Some research has concluded that criminal history is a reliable risk predictor for both Aboriginal and non-Aboriginal inmates.281 At the same time, however, prior convictions of Aboriginal offenders are frequently a response to oppressive social conditions, including the intergenerational legacy of residential school. Viewed in this light, reliance on criminal history in the parole context, as in the security context, may be a form of systemic discrimination that disadvantages Aboriginal offenders. As in the security classification context, there are strong arguments that more emphasis should be given to dynamic factors such as substance abuse that the Aboriginal offender can, to some extent, control. The John Howard Society says of dynamic factors,
Dynamic factors have been found to predict recidivism as well as, or better than, static factors, and are also measured by several actuarial risk assessment tools. It is knowledge of dynamic factors that is necessary in order to assess changes in an offender’s risk level. Through participation in rehabilitative programming, an offender may become less likely to recidivate, but corrections and parole workers would not be able to measure this change unless they assessed the offender’s risk based on changeable factors.282
Actuarial risk assessment of Aboriginal offenders that de-emphasize static factors, and instead focus on participation in appropriate programming, including cultural and spiritual healing programming for Aboriginal inmates, along with attendant offender progress in addressing dynamic risk factors, would be just as useful and fairer to Aboriginal inmates. It would also encourage Aboriginal inmates to engage in such programs, once they know that participation would have more significant weight. Such programming and spiritual healing can affect Aboriginal inmates’ behaviours so they can prepare themselves for parole and reintegration. Such an approach, however, will only achieve greater fairness for Aboriginal offenders to the extent that Aboriginal programming is made available to them.
When the National Parole Board grants parole, the delivery of correctional programming continues. The early stages of parole are often spent in a residential correctional facility—a halfway house. A halfway house, while not a prison, requires the offender to reside there and not be absent save under specific exceptions (e.g., supervised absences or employment). It is meant as a transitory phase in an offender’s parole, neither full incarceration nor full freedom in the community, with the goal of gradual reintegration into the community.
There are a number of halfway houses designed specifically to provide culturally sensitive services for the reintegration of Aboriginal offenders. These include but are not limited to the Stan Daniels Centre in Edmonton, Waseskun House outside of Montréal,283 and the Kwìkwèxwelhp Healing Village run by the Chehalis First Nation in British Columbia. The Beardy’s and Okemasis First Nation in Saskatchewan began operation of a forty-bed minimum security institution called the Willow Cree Healing Lodge in 2003. In addition to core programs that address educational and life skills, the facility also provides healing circles and programs designed to raise cultural and spiritual awareness.284
Unfortunately, there are too few halfway houses that provide programming specifically for Aboriginal offenders. A study by Jason Brown found that Aboriginal parolees often faced a lack of adequate housing, or racial discrimination from prospective landlords. They were therefore vulnerable to residential instability, which increased their risk of reoffending. The study stressed the needs for increased community supports so that Aboriginal parolees can find adequate housing.285 The Commission concludes that more supports are needed to address such issues.
37) We call upon the federal government to provide more supports for Aboriginal programming in halfway houses and parole services.
Young offenders are defined as those young people who are at least twelve years of age but less than eighteen at the time of sentencing. Of the youth admitted to custody in Canada in 2011–12, 49% of young women admitted were Aboriginal, as were 36% of the young men admitted. As troubling as these statistics are, they probably understate the case, because they exclude Nova Scotia, Québec, Saskatchewan, and Nunavut, for which data was not available for the period covered.286 Aboriginal youth accounted for only 7% of the young people aged twelve to seventeen.
Young people who commit crimes have historically been treated differently than adults. The justice system recognizes that young persons have a heightened vulnerability, less maturity, and a reduced capacity for moral judgment, standing as they do at the borderline between childhood and maturity. Canada’s youth justice system has operated on the presumption that young people have a reduced degree of moral blameworthiness such that the use of incarceration should be restricted.287
This recognition is not only a long-standing characteristic of Canada’s domestic law, but is also required by Canada’s international legal commitments.288 The United Nations Convention on the Rights of the Child states that children have the right to a criminal justice system that “takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”289
Currently, the procedures for addressing young people accused of crimes are set out in the Youth Criminal Justice Act (YCJA), which was introduced in 2002. One of the key objectives of the YCJA is to reserve jail for the most violent or habitual offenders. Even in such cases, one of the express goals of the youth criminal justice system is to address the circumstances underlying a young person’s offending behaviour in order to rehabilitate and reintegrate young people back into society.290 The YCJA recognizes that most youth come into contact with the law as a result of fairly minor and isolated incidents, or by impulsive behaviour that should not stigmatize them with a criminal record in the same way as with an adult offender. There are a number of tools to resolve youth cases in informal ways, such as “extrajudicial measures” (e.g., warnings, cautions, mediation, and family conferencing.) This emphasis on reintegration and restorative justice has much in common with Aboriginal perspectives on justice, and gives reason to hope that Aboriginal youth can expect more appropriate treatment when they come into contact with the law.
In addition, the YCJA requires youth courts to consider all available sanctions other than custody that are reasonable “with particular attention to the circumstances of aboriginal young persons.”291 The YCJA also requires that any “measures taken against young persons who commit offences should … respond to the needs of aboriginal young persons.”292 There is nothing comparable to such a provision in the Criminal Code of Canada applicable to adults. In theory, this should allow Aboriginal youth to maintain access to their traditional practices and to be dealt with by the justice system in accordance with Aboriginal values.293
By many objective measures, the Youth Criminal Justice Act has been a success. Prior to the YCJA, Aboriginal youth had a better chance of going to jail than of graduating from high school.294 But while there has been a steady decline in youth crime, youth court caseloads, youth supervised on a community sentence and in custody in Canada since the legislation came into effect,295 the rate of Aboriginal youth incarceration remains high.296
Many of today’s Aboriginal children and youth are living with the legacy of residential schools, as they struggle to deal with high rates of addiction, fetal alcohol spectrum disorder, mental health issues, family violence, the incarceration of parents, and the intrusion of child welfare authorities. All of these factors place them at greater risk of involvement with crime. In addition, the overincarceration of Aboriginal adults (also tied to the residential schools) has repercussions for their children. One study in British Columbia found that 39% of youth in custody have a parent with a criminal record and 47% have another family member with a criminal record.297
The young person standing before a judge represents the end point of a history of colonization and marginalization that is breathtaking in its scope. The criminal justice system accomplishes little more than increasing that marginalization.
The growing overrepresentation of Aboriginal youth in custody mirrors the even more dramatic overrepresentation of Aboriginal children in child welfare care. The child welfare system plays an important role in Aboriginal youth crime. Not only do children and youth in care have poorer outcomes in education, health, and well-being than the general population,298 some child welfare facilities are also prime recruiting grounds for Aboriginal gangs, with a large proportion of gang members reporting that they became involved with gangs after placement in either a child welfare or correctional facility.299
Almost three-quarters of youth in custody in British Columbia have been in government care at some point in their lives. The fact that, in 2005, 55% of children in care in British Columbia were Aboriginal, leads to the conclusion that overrepresentation within the child welfare system may be one factor contributing to higher proportions of Aboriginal youth in custody.300 Addressing this national crisis must be a priority if we are to keep Aboriginal young people out of the criminal justice system.
Legal scholar Larry Chartrand observed that it is hard to characterize the rates of Aboriginal youth involvement in the criminal justice system as anything other than discriminatory:
When the impact of social factors results in greater involvement in the criminal justice system than would otherwise be the case, and the circumstances that gave rise to such social factors of poverty and social marginalization are attributed to the continuing effects of colonization, the result is systemic discrimination of Aboriginal youth in the criminal justice system.301
The Commission believes that there are ways to reduce the growing overrepresentation of Aboriginal youth in custody, but that they will primarily be found outside the justice system. A recent study examined crime rates throughout Canada and found that Québec had the lowest rates of crime, including violent crime. The author of the study examined a number of possible explanations. He dismissed socioeconomic differences because Québec has lower average incomes than the Prairies, Ontario, or British Columbia, all of which have higher crime rates.302 He related the findings to Québec’s greater investment in social services, including economic supports for families, family housing, a considerable range of services against family violence, health and social services for families and children, parental educations and skills programs, child day care and parental leave systems, and related crime prevention programs.303 Other provinces would do well to follow Québec’s example.
Bill C-10 (passed by Parliament in 2012) made changes to the Youth Criminal Justice Act. These changes are likely to undermine attempts within the youth justice system to accommodate Aboriginal justice practices and values. The bill changed some of the most basic principles that guide the way that the justice system deals with young people.
The YCJA begins with a section that outlines the basic goals and aspirations of the youth criminal justice system, which include dealing with young people in a way that promotes rehabilitation and reintegration. Prior to the enactment of Bill C-10, this section used to say that the goal was to “promote the long-term protection of the public”304 (emphasis added). It now says that the goal is to “protect the public.”305 This change is significant. Canada has signalled that the long-term gains that come from investing in the rehabilitation of youth are not the priority. Instead, public protection in the here and now is the focus. It may seem a subtle difference, but the consequences may signal a shift of resources away from diversion and informal resolutions and towards custodial sentences.
Under Bill C-10, the Youth Criminal Justice Act has been amended to increase reliance on pretrial detention and custodial sentences, in part by broadening the definition of “serious offences” to include any indictable offence for which the maximum punishment is imprisonment for five years or more. This definition of “serious offences” now captures such crimes as theft over $5,000.306 The powers of the Crown prosecutor to apply to have youth as young as fourteen sentenced as adults have been extended.307 Sentencing judges are now required to impose sentences that express “denunciation and deterrence” of youth crime.
Denunciation and deterrence have long been sentencing principles in the adult system. A denunciatory sentence reflects general societal disapproval of a given crime. Those convicted are meant to feel the sting of this disapproval with the severity of the sentence. Deterrence in a sentence speaks not just to the convicted, but to observers, again directing the judge to ‘send a message’ with a severe sentence.
The introduction of deterrence in youth sentences is based on the same questionable premise that harsh sentences will be an example to offenders and other youth, thus deterring them from committing crime. Denunciation and deterrence, however, can have a more punitive effect that can conflict with the goal of rehabilitation. Even in the adult context, there is little evidence that imposing harsh sentences has any impact in deterring crime. In criticizing the inclusion of these principles in the youth system, the Assembly of First Nations observed, “one can assume the denunciation and deterrence would be even less effective for young persons.”308 What the change does accomplish is to send a message to sentencing judges that they are expected to impose longer youth sentences.309 There is a danger that these amendments will steer judges towards more punitive considerations and away from contextual factors such as residential schools, child welfare system, and the crisis of overrepresentation of Aboriginal people in prisons.
The Youth Criminal Justice Act also protects the privacy of youth by banning the publication of names and identifying information. This is an important feature of the criminal justice system designed to ensure that youthful indiscretions do not permanently mar the lives and reputations of young people, including their opportunities for employment. The underlying purpose of the publication ban is to minimize stigma and instead focus on rehabilitation of the young person.310 The recent amendments now give youth court judges the discretion to lift publication bans whenever a youth is given a sentence for a violent offence.311 Giving judges the discretion to lift publication bans is not necessary for public safety.
Other changes to the law will make it more likely that Aboriginal youth will find themselves in the formal court process, rather than being diverted into more informal and restorative resolutions. The Youth Criminal Justice Act allows police to give cautions or warnings to youth (called “extrajudicial sanctions”) rather than a criminal charge. The changes to the Act now allow judges to consider these types of informal sanctions as a reason to sentence youth to a custody centre.312 As the Canadian Bar Association has observed, these amendments undermine the purpose of extrajudicial sanctions and send a mixed message to the police that they must keep track of situations where they are lenient with a young person because the court may wish to use those statistics at a future date to impose a custodial sentence.
Overall, opportunities to find alternative and restorative means to address youth misconduct have been drastically reduced with a shift towards increased incarceration. The overrepresentation of Aboriginal youth in custody will increase under this new regime, as judges will have less discretion and less inclination to consider the particular circumstances of the young person before them.
All of this speaks to the need to recognize that Aboriginal youth incarceration rates are likely to continue to increase when the evidence shows the ongoing ineffectiveness of incarceration as a means to address Aboriginal youth criminal involvement. The emphasis in the view of the Commission should be to recognize the very clear evidence that youth crime is connected to poverty, home dysfunction, lack of proper parenting, nurturing, and parental love, inadequate child welfare involvement, community breakdown, a poor sense of personal identity and cultural connection, poor school success, youth gang involvement, substance abuse, unemployment, and systemic racism in many aspects of social involvement available to youth. In the view of the Commission, the emphasis when it comes to Aboriginal youth needs to be on how to bring about a decrease in the use of incarceration.
38) We call upon the federal, provincial, territorial, and Aboriginal governments to commit to eliminating the overrepresentation of Aboriginal youth in custody over the next decade.
The justice system has historically and consistently failed Aboriginal victims of crime. Aboriginal children were victims of crime in residential schools. Close to 38,000 living Survivors have applied for compensation for sexual or serious physical abuse. Over $2.8 billion has been paid in the approximately 32,000 cases resolved so far.313 This is the single largest recognition of criminal victimization in Canadian history. Today, the justice system continues to fail Aboriginal people who are disproportionately the victims of crime.
Accurate information about the rate of victimization in Aboriginal communities can be hard to come by. Statistics Canada surveys likely underreport the extent of victimization, because they are not designed to reach Aboriginal people specifically. The studies do not include people without a phone or who do not speak English or French, and do not provide the kinds of supports necessary to permit some Aboriginal victims to comfortably disclose their experience to researchers.
The most recent study by Statistics Canada indicates that the homicide victimization rate of Aboriginal people between 1997 and 2000 was seven times that of non-Aboriginal Canadians. However, that data is no longer being gathered. Statistics Canada’s most recent data on homicide and family violence fails to report how many victims were Aboriginal, despite reporting many other characteristics of victims including their ages, gender, and occupations, and whether the victims consumed intoxicants.314 It is positive that Statistics Canada has indicated that revised data on the Aboriginal identity of victims that were reported to Statistics Canada as a result of the Royal Canadian Mounted Police report on Missing and Murdered Aboriginal Women are planned for release with the 2014 Homicide Survey data.315 However, so far Statistics Canada has not committed to collecting such information on an ongoing basis.
The Commission notes that other more recent material produced by Statistics Canada on violence against women includes data on police reports as to whether homicide victims were Aboriginal.316 As in other areas, the Commission is concerned that our statistical knowledge about the conditions faced by Aboriginal people in Canada is getting worse and this may make these issues less visible to Canadians.
39) We call upon the federal government to develop a national plan to collect and publish data on the criminal victimization of Aboriginal people, including data related to homicide and family violence victimization.
I ask that everyone here remembers a few simple words—love, kindness, respect and forgiveness … As a survivor, I respectfully challenge you all to call for a national inquiry into missing and murdered indigenous women.317
—Rinelle Harper, speaking to the Assembly of First Nations December 9, 2014
For a brief few moments in the early winter of 2014, a shy sixteen-year-old Aboriginal girl stood before the cameras at a meeting of the Assembly of First Nations in Winnipeg. She held an eagle feather and, though she spoke quietly, millions heard what she had to say. The story of the savage attack she had endured barely a month earlier had caught the attention of the country—as did the fact that she chose to make such a public appeal. Her name is Rinelle Harper. In early November, two men assaulted her, beat her, and left her for dead on the banks of the Assiniboine River in Winnipeg. That she survived the attack is a testament to her strength.
The story of Rinelle Harper is but one part of a sweeping history of Aboriginal women and girls who are victims of crime. In the past decade, there has been growing public awareness and concern about the large number of Aboriginal women and girls who have been killed or have gone missing. The recent release of data has amplified that concern and led to the widespread call for a public inquiry into the issue. It is a call that the Commission supports.
Aboriginal women are more likely than other women to experience risk factors for violence. They are disproportionately young, poor, unemployed, likely to have been involved with the child welfare system and to live in a community marked by social disorder.318
Statistics Canada’s 2009 General Social Survey (GSS) found that 13% of Aboriginal women reported that they had experienced violence within the past year, a rate 2.5 times higher than non-Aboriginal women.319 Most of these violent incidents were never reported to police (over three-quarters of such incidents).320 It is likely that the GSS study itself underreports the extent of crime against Aboriginal people because of the failure to make special outreach to Aboriginal people. This makes it findings of disproportionate victimization of Aboriginal women all the more disturbing.
Extremely high rates of intimate-partner violence are one of the causes of the high victimization rate. Of those Aboriginal women with a current or former spouse who responded to the GSS, 15% reported having been a victim of spousal violence in the previous five years, as compared to 6% of non-Aboriginal women.321 The spousal violence reported by Aboriginal women was more severe, with 59% of Aboriginal female spousal violence victims reporting injury as compared to 41% of non-Aboriginal female victims.322 Aboriginal survivors of spousal violence were also more likely to report having been victimized multiple times in the past five years, with 59% reporting being victimized more than once as compared to 43% of non-Aboriginal victims.323
Tabitha Takawgak was married to a residential school Survivor. She recounted,
I was married to him for 35 years. I couldn’t take it anymore and I finally left him. I loved him and I wanted him as my husband for my lifetime. It’s so hard to be married to a man who has been abused in this way. As the woman who spoke before me said, my dear children also suffered. I have many sons with my former husband and one has been in and out of jail and we lost our oldest to suicide. During those times that we were suffering I wanted to help my husband but I didn’t know what to do. I loved my husband and yet he was my abuser … I don’t want people to think badly of my husband. I still love him so much but I had to make a choice to no longer be his wife today.324
Residential schools deprived children of access to cultural and spiritual teachings and disrupted Aboriginal women’s traditional roles as “mothers, grandmothers, caregivers, nurturers, teachers, and family decision-makers.”325 Discriminatory Indian Act provisions that had the effect of denying Aboriginal identity to women who married non-Aboriginal men, and their children, and this contributed to the separation of Aboriginal women from their communities.
Among the many tragic cases of violence perpetrated against Aboriginal women several have become particularly well known and serve as case studies.
Early in the morning of November 13, 1971, Helen Betty Osborne, aged nineteen, was approached in The Pas, Manitoba, by four white men who wanted to pick up an Aboriginal woman for sex. She was abducted, sexually assaulted, and brutally murdered—stabbed fifty times with a screwdriver. Her skull, cheekbones, and palate were broken and her face was unrecognizable. She was left naked.
Betty Osborne attended Guy Hill residential school because there were no similar educational opportunities provided by the federal government in her home community of Norway House, a northern Cree community. In 1991 the Manitoba Aboriginal Justice Inquiry found that Betty Osborne was in The Pas because of government policy of “removing Aboriginal children from the influence of their parents and their cultures and to educate them to the ‘white man’s ways’” and found that “the actions of the government in doing so were clearly racist and discriminatory.”326
It was not until sixteen years later that one of the murderers was convicted. The other three men went free. This was the conclusion of the Manitoba Aboriginal Justice Inquiry:
Helen Betty Osborne would not have been killed if she had not been Aboriginal. The four men who took her to her death from the streets of The Pas that night had gone looking for an Aboriginal girl with whom to “party.” They found Betty Osborne. When she refused to party she was driven out of town and murdered. Those who abducted her showed a total lack of regard for her person or her rights as an individual. Those who stood by while the physical assault took place, while sexual advances were made and while she was being beaten to death showed their own racism, sexism and indifference. Those who knew the story and remained silent must share their guilt.327
One of Helen Betty Osborne’s friends spoke with the Commission about life today in Norway House:
I’m glad you guys came … There’s so much drugs going on here; a lot of drinking; young kids. Not too long ago we had a murder too, a young girl got stabbed. I guess some guys went to her house, their house and beat up the dad and she jumped in to help her dad and she got stabbed and she got killed; about two weeks ago. She was only about 20 years old. I couldn’t even bring myself to go to the wake, to the funeral, I just. I couldn’t do it; I couldn’t bring myself to come there. There’s so much of that going on; holy it’s bad. And I always think, “Yup, that’s the schools, the residential schools” put a big hole in our lives.328
This statement reveals how the trauma of residential schools and disproportionate victimization by crime continue in Aboriginal communities like Norway House to this day.
Another infamous case of violence against women that is connected with the legacy of residential schools is Robert Pickton’s multiple murders of women from Vancouver’s Downtown Eastside. Many of Pickton’s victims were Aboriginal; some were residential school Survivors. One of the first victims who went missing in 1983 was Rebecca Guno, a member of the Nisga’a Nation, who attended residential school and had been working as a sex worker. A friend told the provincial Missing Women Commission about her last meeting with Guno:
She introduced me to her son. During the course of our conversation she said “I’m a prostitute, Millie; I can’t really explain why. But it’s a living, we do what we have to do … Life’s not that bad. I have my baby and that’s all that matters to me. His dad is really good to us, but I’m gonna keep doing what I do, his dad knows that and we are happy to be parents to our baby … We’re happy and that’s what matters. I’m not ashamed of myself.”329
Georgina Papin was from Hobbema, Alberta, and attended residential school. She was placed in foster care before she ran away at the age of twelve and began sex work in Las Vegas at the age of fourteen.330 The police failed to investigate properly when Papin went missing. For example, they did not conduct interviews at native friendship centres she was known to attend.331 Her remains were later found on the Pickton farm, and Robert Pickton was convicted of second-degree murder in her death.332 Dawn Crey, another victim, was an intergenerational Survivor and was also placed in non-Aboriginal foster homes as a child.333 When Crey was reported missing, the police apparently did nothing for six weeks and only interviewed one witness.334
On June 1, 2014, police in Prince Albert, Saskatchewan, found the body of Marlene Bird. She’d been sexually assaulted, beaten with a nail-studded board, and then set on fire. Although she survived, she would later lose both her legs, and surgeons would have to reattach half her face. “What did I do so wrong to have this happen to me?” Bird asked APTN News in Prince Albert. “I do try my best to be strong.”335
Marlene Bird comes from the small northern Saskatchewan community of Molanosa. Talking of her childhood at home with alcoholic parents she said, “I remember playing with dolls, and they’d be inside drinking. When they started getting loud that’s when I knew, dad bought something again … so I started drinking that wine, me and my little brother.”336
She was also in the residential school system. In a graphic novel of her story, she says that she was sexually abused in the school and again later as a young adult.337 Her daughter was also abused but refused to speak about it to the police. Bird says she blamed herself and turned to alcohol, and that’s when her own children were taken away.
In early August 2014, fifteen-year-old Tina Fontaine, a girl from Sagkeeng First Nation, was reported missing in Winnipeg. A week later, two Winnipeg police officers stopped a car with Tina Fontaine in it. Even though she was fifteen and intoxicated, and was already listed as a missing person, they allowed the car to move on with her in it. Nine days later, her body was found wrapped in a bag in the Red River. Fontaine’s great-aunt was told by the chief investigator that the officers had run her identity through the system and released her anyway. When it became known that the two officers had contact with Tina Fontaine prior to her murder, they were put on administrative leave. Several months later, the Winnipeg Police Service announced that although the officers were to be disciplined, no charges would be made against them for their conduct.338 It is cases like this one that lead Aboriginal groups to question the willingness of the police to protect Aboriginal citizens. This lack of trust has some of its origins in the police’s role in enforcing attendance at residential schools and in the less than robust performance of the police and courts in responding to wide spread violence against Aboriginal children in the residential schools.
Public awareness of the issue of violence against Aboriginal women has continued to grow through the efforts of advocates and through the work of high-profile investigations, inquiries, and reports.
The Native Women’s Association of Canada (NWAC), through its Sisters in Spirit project, has done groundbreaking work in discovering the truth about murdered and missing Aboriginal women and girls. This was a multi-year research, education, and policy initiative funded by Status of Women Canada, and was specifically designed to uncover the root causes, circumstances, and trends in violence against Aboriginal women in order to promote policy change to increase the personal safety and security of Aboriginal women and girls.
The Sisters in Spirit project found that, in most of the cases they identified, parents or grandparents of the missing or murdered women had attended residential school. Many grew up in families experiencing serious dysfunction, were forced into the child welfare system and adopted into non-Aboriginal families.339 Without access to quality education and fewer employment opportunities, a high proportion of Aboriginal women and their children live in poverty and in situations of dangerous dependency and unsafe housing.340 The devaluing of Aboriginal peoples symbolized by residential schools also contributes to the vulnerability of Aboriginal women. They are targeted for violence because they are Aboriginal, on the assumption that no one will miss them and police will not take the case seriously. Too often, this assumption proves to be true.
Sisters in Spirit also identified particular areas (and cities) in which Aboriginal women are at extremely high risk of violence, disappearance, and death. The cities include Regina, Saskatoon, Edmonton, Winnipeg, Vancouver, and communities in Northern British Columbia along Highway 16.341 The 724 kilometres of Highway 16 that run between Prince Rupert and Prince George has been named the “Highway of Tears” because of the extraordinary number of young women who have gone missing along this stretch of road. Because of a lack of public transportation, those living in rural areas often have to resort to hitchhiking rides with strangers. Over a thirty-five-year period, some estimate that as many as forty women have been murdered or gone missing on that highway.342 The majority of those victims were Aboriginal.343
In 2006, a Highway of Tears Symposium was organized by a number of affected First Nations and allied organizations. Among the recommendations that resulted from that symposium was a plan to prevent hitchhiking along Highway 16 through the establishment of a shuttle bus service. In 2012, that recommendation was adopted by the British Columbia Missing Women’s Inquiry and by mayors in communities along the highway.344 Yet, a month later, Greyhound Canada announced cuts on fifteen routes, including a 40% reduction in service along Highway 16.345 Three years after the recommendation was accepted, it has not been implemented.
When the Sisters in Spirit project was completed, the Native Women’s Association had identified 582 missing or murdered Aboriginal women and girls for the period between 1944 and 2010. Of those women, 67% were murder cases, 20% were missing persons, 4% were suspicious deaths, and 9% were simply unknown (i.e., it is unclear whether the victim was murdered, is missing, or died in suspicious circumstances).346 Most of the cases in the database were from the previous ten years, occurring at a rate of about twenty cases per year, but the association believed that there were many unidentified older cases that were simply unrecorded and unknown.
The Sisters in Spirit final report indicated that 88% of the missing women had children or grandchildren, and it underlined the intergenerational effects of the loss of parents and parenting skills due to the residential schools experience and the Sixties Scoop (the wide-scale apprehension of Aboriginal children in the 1960s, 1970s, and 1980s). The report noted that only 13% of the women it had identified had been murdered on a reserve and only 7% had gone missing from a reserve.347 Of the cases where location was known, 70% of the women and girls disappeared from an urban area and 60% were found murdered in an urban area. The study concluded that Aboriginal women were almost three times more likely to be murdered by a stranger than non-Aboriginal women.348
There were 149 cases identified where the activity of the missing women was known. About half of those women were involved in the sex trade, but the majority were not.349 The study also found that only 53% of the cases involving homicide had resulted in a charge, a much lower rate than is typical in homicide cases.350
In 2010, the Government of Canada ceased funding the Sisters in Spirit project. While the Native Women’s Association maintains the database as best it can, it does not have the resources that it once did.351 The Government of Canada’s refusal to continue to fund the project is part of a disturbing and recurring pattern of cuts to Aboriginal organizations that have been collecting information and knowledge about Aboriginal people. Other examples include the cuts to various Aboriginal health organizations, the long-form census, and other research conducted by Statistics Canada.
In March 2013, the Native Women’s Association revised its record of cases of missing or murdered Aboriginal women and girls to 668.352 That research was supplemented through the work of Maryanne Pearce, who completed a dissertation in 2013 at the University of Ottawa on missing and murdered women in Canada.353 Also relying on publicly available information, Pearce’s database includes 3,329 women (both Aboriginal and non-Aboriginal) who went missing or were murdered between 1946 and 2013. Ethnicity was known for only 1,595 of the women listed. Of these, 824 were identified as Aboriginal.354
In 2010–11 the House of Commons Standing Committee on the Status of Women heard from 150 witnesses across the country about violence against Aboriginal women. The Committee also heard about a pattern of police failing to take reports of missing and murdered Aboriginal women and of serious delays in investigations. They were told that in domestic violence situations, police do not always respond in a timely manner, and that the police sometimes dismiss claims of sexual assault by Aboriginal women who they consider to be living a ‘high-risk’ lifestyle.
Aboriginal women are often treated as offenders, rather than Survivors or victims, making women less likely to contact police for help. Witnesses attributed this negligent approach to violence against Aboriginal women to racism and sexism by police officers, but also to the underresourced nature of policing on reserves and in more remote communities. As with many other areas of the lives of Aboriginal peoples, their access to police services can be undermined by overlapping and unclear jurisdictional lines. In some cases, it is unclear whether the RCMP, First Nations, municipal, or provincial police forces are responsible for the investigation.355
The Honourable Wally T. Oppal, formerly a justice of the British Columbia Court of Appeal, and later BC’s attorney general, served as commissioner of the Missing Women Commission of Inquiry. In his report, released in 2012, Justice Oppal said he was
particularly troubled by the failure of the police to employ an Aboriginal-specific investigation strategy given the disproportionate number of Aboriginal women among the missing women from the DTES [Downtown Eastside]. The First Nations Summit had brought their concerns about the large number of murdered Aboriginal women to the attention of the VPD, RCMP and PUHU [Vancouver Police Department, Royal Canadian Mounted Police, and Provincial Unsolved Homicides Unit] through its requests for action in February 1997. Independent Counsel for Aboriginal Interests repeatedly asked police witnesses about their consideration of tailored investigative strategies involving the Aboriginal community: the responses were woefully deficient … The police completely overlooked the Aboriginal dimensions of the missing women crisis throughout the investigations. This systemic blindness to distinctiveness and specificity of the Aboriginal communities is staggering in light of the number of Aboriginal victims.356
Justice Oppal also singled out the RCMP for criticism by noting,
it is particularly difficult to comprehend the RCMP’s failure to prioritize the missing and murdered women investigations. The fact that it did not do so is a blatant manifestation of systemic bias. Given its long history of involvement in the colonization process, including the forced recruitment and confinement of Aboriginal children in residential schools, the RCMP has a heightened duty to protect Aboriginal people. There is no evidence that the RCMP took active steps to meet this moral obligation.357
In May 2014, the RCMP released Missing and Murdered Aboriginal Women: A National Operational Overview. The document identified 1,181 cases of Aboriginal women and girls who were murdered or still considered missing. To be more specific, that’s 1,017 Aboriginal women and girls who are known to have been killed since 1980, and 164 who are missing, and suspected to have been the victims of foul play. When these RCMP statistics are compared to those of non-Aboriginal women, it reveals that Aboriginal women are four times more likely to be victims of homicide. The report notes that “In 2011, there were 718,500 Aboriginal females in Canada, representing 4.3% of the overall female population that year.”358 The report goes on to point out,
Between 1980 and 2012, there were 20,313 homicides across Canada, which averaged approximately 615 per year. Females represented 32% of homicide victims (6,551 victims) across all police jurisdictions between 1980 and 2012. Every province and territory was implicated. There were 1,017 Aboriginal female victims of homicide during this period, which represents roughly 16% of all female homicides—far greater than their representation in Canada’s female population.359
In its review, the RCMP attempted to explain a history of confusion that had prevented the force from identifying Aboriginal victims of crime:
The use of the term “Aboriginal” as a descriptor has different definitions in the different data sources that make up this research project. For example, CPIC (Canadian Police Information Centre) captures Aboriginal as an “ethnicity” whereas Statistics Canada’s official position is that “Aboriginal” is not an ethnicity but rather an origin ... Differences in police practice between agencies make it hard to create a data set that is comparable across jurisdictions. For example, in collecting data on homicides, some agencies use official Aboriginal “status” as the means to determine identity, others use officer discretion (as discussed above), and others rely on self-identification by individuals or their associations (family, friend etc.) … Historical police service (including the RCMP) adherence to jurisdictional and organizational policies has undermined the consistent collection and sharing of information on Aboriginal identity. This has meant a high number of Homicide Survey reports where the identity of the victim (and/or the accused) remained “unknown.”360
Because of the ambiguities in identification and data collection, many believe that the number of murdered and missing women has been underestimated. Aboriginal scholar and activist Pamela Palmater wrote, “It is logical to conclude that the RCMP grossly under-counted the actual numbers of murdered and missing Aboriginal women in Canada. This conclusion is confirmed by the RCMP’s own admission that due to these methodological problems ‘a high number of Homicide survey reports where the identity of the victim (and/or accused) remained unknown.’”361
The release of the RCMP report has intensified public calls for a public inquiry into the issue. The federal government, however, has denied there is need for an inquiry and has suggested that the causes of violence against Aboriginal women are already known. Aboriginal Affairs Minister Bernard Valcourt has said that First Nation men have a “lack of respect” for women and girls on reserve. In a March 2015 speech he told Alberta chiefs that 70% of the cases of murdered and missing Aboriginal women were the result of the actions of Aboriginal men.362 Information subsequently released by the RCMP was interpreted as supporting the minister’s assertion.363
Many Canadians have rejected the contention that an inquiry is unnecessary because all the contributing factors are already known and understood. Pamela Palmater writes,
This shell game of numbers and statistics is meant to blame the victim and deflect attention away from Canada’s continued inaction to address this crisis which the United Nations has called a “grave violation” of our basic human rights. The crisis of murdered and missing Indigenous women and little girls continues while Canada (through Valcourt) blames the victim and the RCMP fail to live up to their duty to serve and protect everyone in Canada.364
Although there are many voices calling for a national inquiry into the murdered and missing Aboriginal women and girls, the federal government has refused to establish one. That refusal has drawn international criticism. Respected international human rights organizations that often focus on disappearances in brutal dictatorships now conclude that it is necessary to examine Canada’s problem of missing and murdered Aboriginal women.365
United Nations human rights treaty monitoring bodies—including those committees addressing children’s rights violations, torture, discrimination against women, and civil and political rights violations—have criticized Canada for the inadequate government response to violence against Aboriginal women and girls.366 The UN Committee for the Elimination of Discrimination Against Women expressed concern that “hundreds of cases involving aboriginal women who have gone missing or been murdered in the past two decades have neither been fully investigated nor attracted priority attention, with the perpetrators remaining unpunished.”367 The committee urged Canada to investigate the cases, to determine whether there is a racial pattern to the disappearances, and to take the necessary steps to remedy the deficiencies in the system.
The UN special rapporteur on the rights of Indigenous peoples remarked that a national inquiry “could help ensure a coordinated response and the opportunity for the loved ones of victims to be heard, and would demonstrate a responsiveness to the concerns raised by the families and communities affected by this epidemic. These and further steps are required to realize the promise of healing and a new relationship that was made in the 2008 apology.”368
Amnesty International points out that the scale of violence faced by Aboriginal women in Canada is a human rights violation. The organization says comprehensive national response is required that “addresses the social and economic factors that place Indigenous women at heightened risk of violence; … the police response to violence against Indigenous women; the dramatic gap in standard of living and quality of life; … continued disruption of Indigenous societies by the high proportion of children put into state care; and the disproportionate imprisonment of Indigenous women.”369
In response to the number of missing and murdered women along the Highway of Tears in Northern British Columbia, Human Rights Watch worked with the community to investigate. The organization conducted interviews with fifty Aboriginal women and girls, nineteen community service providers, and seven current and former RCMP officers.370 The investigators found that “for many Indigenous women and girls interviewed for this report, abuses and other indignities visited on them by the police have come to define their relationship with law enforcement.”371
Human Rights Watch was told stories of excessive use of force, racist and sexist verbal abuse, cross-gender searches, and sexual and physical abuse by police officers. When police protection was sought in response to domestic violence, community service providers and Aboriginal women reported that police sometimes blamed the women for the abuse and shamed them for alcohol or substance use. Not surprisingly, Human Rights Watch found that “indigenous women and girls report having little faith that police forces responsible for mistreatment and abuse can offer them protection when they face violence in the wider community.”372
For all the reasons enumerated by these organizations and many others, the Commission believes that a comprehensive inquiry must be undertaken.
41) We call upon the federal government, in consultation with Aboriginal organizations, to appoint a public inquiry into the causes of, and remedies for, the disproportionate victimization of Aboriginal women. The inquiry’s mandate would include:
i. Investigation into missing and murdered Aboriginal women and girls.
ii. Links to the intergenerational legacy of residential schools.
In making this call to action, the Commission offers the following considerations:
1. A public inquiry will need to have two different components. It will need to be a fact-based inquiry as well as a policy inquiry, examining both individual cases as well as systemic issues.
2. In order for the inquiry to have sufficient credibility, a consultation advisory committee should be struck to make recommendations concerning its mandate. Such a committee should include professional advisors, Aboriginal women, and representatives of victims’ families.
3. In examining individual cases, the inquiry must be cautious when dealing with open cases in which there may be a person of interest and where additional evidence is needed to lay a charge.
4. The inquiry should be allowed to look into the role of governments, the RCMP, and other police services, and the child welfare system.
5. An inquiry should consider using witness panels with multiple witnesses as opposed to only single witnesses testifying, when considering systemic issues.
6. Commissions would not be able to name offenders, or identify criminal wrongdoing that has not already been found through an appropriate criminal process.
7. Anyone potentially affected by an inquiry must be protected from character and reputational harm, and has the right to attend and be heard.
8. An inquiry would provide an opportunity for personal, family, and community healing. Health supports for persons involved will need to be provided.
9. The need for families of victims to know more must be an important factor.
10. The inquiry should be mandated to study the role of police in the investigations of the cases.
11. The inquiry should gather and analyze data relating to
• where and when incidents occurred;
• the specific circumstances of incidents;
• consistencies, similarities, and differences between incidents;
• how many victims were engaged in a high-risk lifestyle; and
• whether there been a change in the number of incidents since 2010.
12. The inquiry should examine whether there is evidence of gang involvement (e.g., street gangs, motorcycle gangs, traffickers in the sex trade with international ties).
13. Is there evidence of serial killings?
14. What did police or others know, and when did they know it?
15. What is the degree of interprovincial and national coordination in investigations?
16. Is violence against Aboriginal women and girls in Canada comparable to what is happening to Indigenous women in other countries (including the United States, Australia, New Zealand, and Africa)?
17. Is there a Great Lakes sex trade with operatives at play?
18. Since the termination of federal funding to the Native Women’s Association of Canada’s Sisters in Spirit project, how effective have federal initiatives to address Aboriginal female victimization been?
19. Is there evidence to support the contention that the government’s tough on crime initiative is helping to reduce victimization?
20. What analysis did the federal government conduct prior to its decision to shut down further research by the Native Women’s Association of Canada in 2010?
21. Has the number of missing and murdered Aboriginal women reduced in frequency since 2010?
22. Is it likely that the number of missing and murdered Aboriginal women will increase?
Supports to victims of crime are offered by a variety of service providers. These supports may be provided by police services, community-based agencies, or by the courts. Some provide assistance in navigating the justice system; some provide residential shelter, and others focus on the victims of sexual assault, providing specialized medical care and emotional support.373 Culturally appropriate services are needed for all Aboriginal victims of crime but particularly for Aboriginal women. A 2012 survey conducted by Statistics Canada found that only 3% of shelters exclusively serve an on-reserve population (a total of eighteen shelters).374 At the same time, funding from Aboriginal Affairs for emergency shelters is currently available only to Aboriginal people on reserves, which excludes almost all communities in the Territories.375 The problem is particularly severe for Inuit women living in the North, where more than 70% of the communities do not have a shelter for abused women and children. Nunavik has only three shelters to serve fourteen northern villages.376 There is also a lack of culturally appropriate services for Aboriginal women in urban areas and a lack of any services at all in some rural and remote communities.377
In a Statistics Canada survey conducted in 2011 and 2012, 760 victim service providers were interviewed. Only 28% of them reported that they provide services to Aboriginal people. Twelve per cent of providers reported they could provide services in Cree, 3% in Ojibway, 1% in Inuktitut, and 11% in other Aboriginal languages. The majority of victim services said they provide protection and support for criminal justice matters: 64% offered medical related services; 59% offered shelter-related services; 56% offered assistance with compensation; and 47% offering counselling. Only 9% report providing restorative justice proceedings but 27% will provide support for crime victims in such informal processes.378
There is an urgent need for more study of the effectiveness of the services that are provided to Aboriginal crime victims. Some victim services are offered by the police but, given the historic strains in the relationship between Aboriginal people and the police, the police may not be the best service provider for Aboriginal crime victims. There is a danger that victim services will focus on supporting victims only in the formal criminal justice system and not on providing other supports including supports in out of court processes.
The General Assembly of the United Nations proclaimed a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power in 1985, which was cosponsored by the Department of Justice and subsequently adopted by Canada’s federal and provincial/territorial governments.379 This declaration defines victims broadly to include both victims of crime and abuse of power by “public officials or other agents in acting in an official or quasi-official official capacity.”
Article 5 of the 1985 UN Declaration contemplates that victims should receive redress through formal or informal means. Article 6 recognizes that efforts should be taken to protect the privacy of victims in the criminal process and protect them against unnecessary delay, intimidation, and retaliation. Article 7 specifically states that “Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.” It goes on to provide that “Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person,” and article 7(2) specifically affirms that Indigenous people have “the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.”
Article 8 obliges states to both prevent and redress acts such as the operation of residential school, acts that have “the aim or effect of depriving” Indigenous people of their integrity as distinct peoples, or of their cultural values or ethnic identities. As with the 1985 United Nations Declaration, states are obligated to prevent and redress serious breaches of these rights.
Article 12 provides that “States should endeavour to provide financial compensation to:
(a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;
(b) The family, in particular dependents of persons who have died or become physically or mentally incapacitated as a result of such victimization.
Article 14 of the 1985 UN Declaration recognizes the importance of Indigenous communities providing various forms of assistance for Indigenous victims of crime or abuse of state power by providing that “Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means.”
Article 17 also recognizes that in “providing services and assistance to victims, attention should be given to those who have special needs because of … race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability.” This UN Declaration provides a sound basis for recognizing the distinct needs of Aboriginal crime victims and ensuring that they receive a broad range of appropriate health and economic support.
In 2007, the UN proclaimed another declaration of particular importance for rights that are relevant to Aboriginal victims of crime or state power: the UN Declaration on the Rights of Indigenous Peoples.380 The 2007 UN Declaration provides for a broad range of educational, linguistic, cultural, land, and self-government rights, and the rights not to be removed from their land and not to suffer discrimination. Although not formally framed as such, these broad rights to development and self-determination can be seen as crime prevention actions that foster strong Indigenous families, schools, communities, and health services that will allow people to live law abiding lives and to demonstrate greater resilience if crime does occur.
Article 22 of the 2007 UN Declaration also provides a right of particular relevance given the situation of missing and murdered Aboriginal women and girls in Canada by providing that “States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.”
The international recognition of the need for services for the victims of crime—particularly women—has outpaced the willingness of Canadian governments to adequately respond.
40) We call on all levels of government, in collaboration with Aboriginal people, to create adequately funded and accessible Aboriginal-specific victim programs and services with appropriate evaluation mechanisms.
One of the failings of the Canadian justice system towards Aboriginal people is its tendency to divide services between those for victims and those for offenders and ignore the overlap between the two populations. For so many in Aboriginal communities, there’s no distinction between those who are the offenders and those who are the victims. The cycle of abuse that began with the residential schools has not been broken.
Michael Sillett was sexually assaulted while he was a student in a hostel in North West River, Newfoundland. He explained,
These incidents, these incidents have had a tremendous impact in my later life outside the dorm … I found it very hard to trust people. I didn’t like to be hugged or touched. I didn’t have much respect for authority figures; I had a bad attitude that stunted my full potential all my life. I have broken the law. I have done things that I am deeply ashamed of. My greatest regret is hurting my three daughters; especially my eldest.381
Ron McHugh, an intergenerational Survivor told the Commission of the connection he saw between victimization and crime:
It all stems from that one thing, that one policy, that one act—residential school. And so, today, I mean, you take a dysfunctional family of people. You know, a history of molestation over generations and generations—that’s just one family. Now, you take a whole culture of people, and that kind of behaviour also goes from generation to generation.382
Many of the difficulties that both Aboriginal victims of crime and offenders suffer, including substance abuse and poverty, stem from the common legacy of residential schools. A related failure is the system’s reluctance to appreciate that, in the Aboriginal context especially, it is often necessary to heal individuals by healing families and communities. Strategies must be directed towards community structures and dynamics as well as families. They must also recognize the tremendous diversity of cultures among Aboriginal peoples.
The Royal Commission on Aboriginal Peoples recommended that justice systems should be central in self-government for Aboriginal communities and that such systems respond to the legacy of colonialism and forced assimilation that distinguished the circumstances of Aboriginal people from other disadvantaged groups.383
Article 5 of the United Nations Declaration on the Rights of Indigenous Peoples recognizes the right to self-determining justice systems: “Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.”384
Manitoba’s Aboriginal Justice Inquiry concluded,
Wherever possible, Aboriginal justice systems look toward the development of culturally appropriate rules and processes which have as their aim the establishment of a less formalistic approach to courtroom procedures so that Aboriginal litigants are able to gain a degree of comfort from the proceedings while not compromising the rights of an accused charged with a criminal offence.385
The Manitoba Inquiry proposed that all people within the relevant territory be subject to Aboriginal justice systems and that Aboriginal communities be entitled to enact their own criminal, civil, and family laws and to have those laws enforced by their own justice systems. If they wish, they should also have the right to adopt any federal or provincial law and to apply or enforce that as well.
Aboriginal forms of justice will be as diverse as Canada’s Aboriginal peoples. Typically, they would involve community-based justice processes, employing customary law, and focusing on restoring balance to communities. This vision of Aboriginal justice would, in a manner similar to American tribal courts, allow Aboriginal courts, in some cases, to have jurisdiction over criminal, family, and civil matters involving Aboriginal people that may arise, as they frequently will, in the cities.
The Commission fully supports this vision but recognizes that there may be some risks in undertaking Aboriginal justice initiatives, especially in small communities that have suffered much intergenerational trauma. Aboriginal and restorative justice is slower than processing through the courts. Extra time and expense must be invested if a vulnerable victim is also included in the community justice process. Care must be taken to ensure proper supports and ceremony for both offenders and victims and their supporters.
Concerns have been raised about approaches that rely on often underfinanced and strained communities to correct offenders. If an Aboriginal offender lacks support in the community, he or she may be vulnerable to the exploitation of a power differential enjoyed by community factions who are hostile to the offender. In consensual decision-making processes such as sentencing circles, this can result in a chorus of disapproval voiced against an offender who demands especially harsh sanctions.
Joyce Dalmyn observes that such realities have tainted some sentencing circles:
If the feather gets passed around and no-one makes any comment whatsoever, I have heard a judge state, right on the record, “Well it’s clear that because nothing has been said, obviously they’re not willing to say anything good about this person therefore I can only draw the conclusion that there’s no sympathy for this person and I have to use the harshest penalties available to me.”386
Ross Gordon Green is a provincial court judge in Yorkton, Saskatchewan, who has written about Aboriginal justice. He cautions, “A concern with these community sentencing and mediation approaches is that local involvement should not become a forum for the application of political pressure to the advantage of local elite and to the detriment of politically unpopular or marginalized offenders or victims.”387
Judge Claude Fafard presided over Saskatchewan’s first modern day sentencing circle. He expressed these reservations:
I guess the greater thing is that it affects so many different people in that one community, that I’m almost afraid of some political influence. Because it touches on so many people, and I just sort of felt that maybe I should be there to ensure that politics doesn’t get involved, that you don’t have a powerful family dictating to a weaker family, that kind of thing.388
Some Aboriginal scholars have expressed concerns that Elders may be idealized as participants on whom communities will depend in pursuing their visions of justice.389 There have been times, however, when individual Elders have fallen short of conducting themselves in accordance with expectations, and with serious repercussions for justice processes.
Bruce Miller relates that abuses of power plagued the South Island Justice Education Project on Vancouver Island. Elders, often from powerful families, would try to convince female victims to acquiesce to lighter sanctions for offenders under the project rather than the usual justice system. Their tactics included the offering of various persuasions in favour of dropping the allegations, the threat of witchcraft to inflict harm, or threatening to send the abuser to use physical intimidation. Some women felt that the problem was exacerbated by the fact that some of the Elders were themselves convicted sex offenders, which left them wondering how seriously their safety and concerns would be addressed. The project ended in 1993.390
David Milward is a law professor, specializing in Aboriginal justice issues, and a member of the Beardy’s and Okemasis Nation in Saskatchewan. He suggests that the Canadian Charter of Rights and Freedoms has a role in ensuring the fairness of contemporary adaptations of Aboriginal justice. One of his proposals is for Aboriginal communities to administer their own community courts. These courts would have an important role in ensuring that participants in the process behave fairly towards each other, without intimidation or coercion. The customary law of Aboriginal communities would govern the disputes and the ‘sentence’ without reference to Canadian sentencing law. The community court judges would intervene only when one party has tried to exploit a power differential or coerce the other party. The community court judge could, for example, suspend matters indefinitely if the process is marginalizing an accused. If it is the victim who is being coerced or harassed, the community court judge could then impose a resolution that prioritizes the victim’s safety, even over the objections of the other party. A community court judge thus becomes more of an arbitrator and mediator with some judicial powers.391
Canada’s legal system failed to prevent the abuses that took place in the residential schools and when it did, Survivors were often re-victimized by the adversarial and alienating nature of the justice system. Eventually, all the parties to the residential school litigation agreed that the Canadian legal system was not well-equipped to deal with the massive injustice of residential schools and designed an innovative settlement that allowed claims to be settled in a less adversarial forum. The settlement also recognized the need for collective reparations in the form of the Aboriginal Healing Foundation and this Commission. Given the failure of the Canadian legal system to stop or repair the genocidal injustice of residential schools, it is only reasonable to suggest that Aboriginal people be allowed to develop their own justice systems.
42) We call upon the federal, provincial, and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with the Treaty and Aboriginal rights of Aboriginal peoples, the Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in November 2012.
The justice system needs to be reformed if the crisis of Aboriginal overrepresentation is not to become worse. Aboriginal people should not continue to be imprisoned and victimized because of the legacy of residential schools. That said, the Commission is convinced that overrepresentation in the justice system will not be reduced by justice system reform alone. It will be necessary to address all of the ongoing harms of residential schools—the harms to Aboriginal family, education, language and culture, and health. A key element of that change must be a justice system, based on Aboriginal law and healing practices and under Aboriginal control. Such a system will be essential in the movement to banish the legacy of residential schools and build a new future of Canadian reconciliation.