Letter addressed to Anne Kelly, Commissioner of Correctional Services Canada on Canada’s Indigenous Heritage and its use for personal gain amongst incarcerated individuals
April 9, 2020
Ms. Anne Kelly, Commissione
Correctional Services Canada
340 Laurier Avenue West
Cc: The Honourable David Lametti, P.C., Q.C., Minister of Justice and Attorney General of Canada
Dear Commissioner Kelly,
I hope you are staying healthy during the pandemic. I am writing to you regarding my concerns about Canada’s Indigenous Heritage and its use for personal gain among incarcerated individuals. There is new data that demonstrates that in the past seven years, non-Indigenous offenders have comprised up to 15 percent of those being housed in healing lodges. Given that these lodges were designed to support Indigenous people, the number of non-Indigenous offenders using these resources is alarming. I believe it is important for federal institutions to play a role in properly respecting and preserving the Indigenous cultural identity by restricting access to healing lodges to Indigenous individuals only. Given the limited number of space in these lodges, and the fact that Indigenous individuals are heavily overrepresented in the criminal justice system, it is essential that the available space be reserved for their use.
This issue was recently reported in the media in the case of an inmate convicted of killing a pregnant Inuk woman who is now claiming Indigenous heritage. It was further revealed that the offender in this case was granted multiple temporary absences to attend Indigenous-related services. Victims and survivors of crime have raised related concerns to my Office, as it appears that multiple offenders are suddenly claiming Indigenous heritage only after they have been incarcerated federally. With CSC allowing offenders to pursue any spiritual path they desire, we believe more consideration should be given to the concerns of Indigenous victims and their families.
This issue of non-Indigenous Canadians benefitting from Indigenous status has also divided certain key organizations. This is exemplified by recent events at the Métis Council of Canada, where a push by the Ontario Métis Council to expand the eligibility criteria for Métis status led to their removal from the Council of Canada. The Métis Council of Canada continues to adhere to the rigid 2002 definitions and standards that determine the granting of Métis Status, both to avoid the abuse of Status by non-Métis individuals, and to ensure that members are accurately representative of their people to better capture their stance on important matters.
Considering these current issues, I believe it is the time for us now, more than ever, to play a role in properly respecting and preserving the Indigenous cultural identity. As such, I am writing to you to recommend that:
- Determination of an Indigenous inmate’s identity, when it cannot be determined by Status Card or demonstrated by ancestral lineage, should be supported by a collaborative process inclusive of the inmate’s Indigenous community; and not only personal declaration or “by way of an Elder assisted hearing”;
- CSC should consider any concerns or submissions raised by Indigenous groups and/or the victim’s family before granting status to an inmate;
- The victim’s family should be informed of the inmate’s rehabilitation progress, or lack thereof, in a timely manner. This would allow the family to, hopefully, be supportive of further rehabilitative initiatives;
- Healing lodges should have regional programming that genuinely acknowledges and aids Indigenous inmates to connect with their specific Indigenous history, cultural and spiritual identity – for example, one should not assume that Algonquin culture will transfer wholly to Haida;
- Indigenous Elders should be provided with financial remuneration to encourage their participation in determining the inmate’s suitability to their community.
I look forward to your response and to working collaboratively to ensure the views and concerns of victims and survivors of crime are considered in policy and operations.
Federal Ombudsman for Victims of Crime/l'Ombudsman fédérale des victimes d'actes criminels
I hope that you are well and keeping healthy and safe.
Thank you for your email of April 9th and for expressing your concerns regarding Indigenous inmates’ access to Healing Lodges and to the process of identification of Indigenous identity.
First, I would like to reiterate the fact that CSC supports an Indigenous offender’s right to identify, either through official status recognition or self-identification, in recognition of the impacts of historical factors such as the Indian Residential School system and the ‘60s Scoop; in particular the loss of identity and culture that many Indigenous people have experienced. Additionally, research and evaluations have indicated that a reclamation of culture and commitment to Indigenous healing interventions have positive impacts.
As you have noted , in CSC, Indigenous self-identification is based on an offender's expression of their identity. For some Indigenous offenders, the information may already be on file as a result of police or court documents, or it is provided by the offender. If an offender is a member of a First Nations community, they provide their band number and affiliation, or they are provided assistance to obtain this information. As with any other designated group member (persons who self-identify as being of a visible minority group or a person with a disability), there is no expectation of proof. If an inmate identifies as Indigenous, he or she is considered Indigenous. CSC does not monitor or verify this information, just as it does not verify if someone self-identifies as a visible minority or a person with a disability. The inclusion of Elder input and Elder reviews is not to establish “proof” of Indigenous identification but rather to assist CSC in better understanding the systemic and background factors specific to the offender and to support the development of healing components of their Correctional Plan. As part of the intake process, as you are aware, victim concerns are identified and considered and community members and families of offenders are consulted as part of the Post-Sentence Community Assessment. In these consultations, Parole Officers identify both the concerns as well as the opportunities that community members will raise.
Within CSC, there is no formal application for Indigenous services. One of the benchmarks used is an offender’s responses to the intake question regarding interest in following traditional healing path. In terms of federally-sentenced persons, at the end of 2018-2019, approximately 4500 Indigenous offenders were interested in following a traditional healing path. Moreover, CSC’s approach to granting access to Indigenous services is consistent with the 2016 decision by the Supreme Court of Canada in Daniels v. Canada that Métis and Non-Status peoples are considered Indians under section 91(24) of the Constitution Act, 1867. Additionally, it is in accordance with its legal obligation, pursuant to section 79.1(1) of the Corrections and Conditional Release Act (CCRA), to take into consideration, when making correctional decisions, the systemic and background factors affecting Indigenous peoples of Canada, as well as the Indigenous culture and identity of the offender, including his or her family and adoption history. This is particularly relevant when considering that an individual’s inability to demonstrate his or her ancestral lineage may, in itself, be a direct consequence of the systemic and background factors affecting Indigenous federally sentenced persons, including family and community fragmentation, loss of language and cultural identity.
Additionally, while CSC offers Indigenous continuum of care services that are culturally and spiritually responsive, any offender regardless of their ancestry is able to access these services, including the services of an Elder, if they are interested in following a traditional Indigenous approach to intervention. The Indigenous Continuum of Care provides a continuum of culturally responsive and spiritually significant services and interventions to Indigenous men and women offenders at all security levels.
In terms of transfers to Healing Lodges, all inmates must commit to following a traditional healing path prior to transfer to a Healing Lodge. Non-Indigenous offenders can also live at a Healing Lodge, however, they must choose to follow Indigenous programming and spirituality. All inmate placements and transfers are made in accordance with the Corrections and Conditional Release Act (CCRA), the Corrections and Conditional Release Regulations (CCRR), and CSC policies and guidelines. In all cases, CSC thoroughly assesses an offender's risk to public safety before a decision is made regarding a potential transfer to a healing lodge. The safety and security of staff and inmates are paramount when making decisions about inmate accommodation. CSC continues to work closely with partners, including Indigenous governing bodies and Indigenous organizations who have entered into agreements for the care and custody of Indigenous offenders pursuant to section 81 of the CCRA, and with advice from the National Indigenous Advisory Committee, to work to identify and eliminate barriers to the creation of additional capacity at Healing Lodges within the federal correctional system, as called upon by the Truth and Reconciliation Commission. Over the past four years, the representation of Indigenous residents has increased from 86% (in 2015-2016) to 90% (in 2018-2019) of the overall resident population at Healing Lodges.
Thank you for your recommendation regarding regional programming and the need for variances amongst programming designed for different Indigenous groups. CSC’s Indigenous Continuum of Care model, which includes Healing Lodges, is designed to respond specifically to the cultural and spiritual needs of Indigenous offenders, and to respect the diversity of First Nations, Métis and Inuit Peoples. The Model accounts for the significant provincial and territorial variations in cultures, traditions and languages, and the diverse needs and capacities of rural, urban, remote and northern communities. It provides programs and interventions at all stages of the sentence lifecycle, from intake through to warrant expiry, for both men and women offenders. Programs offered at Healing Lodges include guidance and support from Elders and Indigenous communities. Indigenous staff and Elders with lived experience provide the necessary environment for offenders to engage in healing and rehabilitation. Healing Lodges operated by Indigenous governing bodies and organization under Section 81 of the CCRA offer a wide variety of programming and interventions that are designed by the partner organization and are specific to the community and/or territory in which they operate. Secondly, CSC operated Healing Lodges operate in collaboration with the local Indigenous community and offer many programs that are specifically designed by them; examples of this would be the Horse Program at Okimaw Ohci Healing Lodge and the existence of a Longhouse and the Si'on ceremonies (Winter mask dances) Cedar Brushings and Spirit Baths at Kwìkwèxwelhp Healing Village.
In terms of your recommendation regarding the provision of timely updates to the families of victims regarding rehabilitative progress, both the CCRA and CD784 provide a strong framework for the sharing of offender information with victims. This includes “the programs that were designed to address the needs of the offender and contribute to their successful reintegration into the community in which the offender is participating or has participated”.
As you know, victims who choose to be registered with the Correctional Service of Canada receive information about the offender who harmed them and, should they indicate interest, victims services officers can share the Correctional Plan Progress Reports (CPPR) with these registered victims. The CPPR, which can be provided annually, provides a written summary of the offender’s Correctional Plan and progress toward meeting the objectives.
Finally, with regard to your recommendation around financial remuneration for Elders, contracts with community-recognized Elders and spiritual advisors are awarded in accordance with contracting policy established by Treasury Board of Canada Secretariat. CSC currently contracts approximately 140 Elders, who provide services in all institutions, at all security levels, from coast to coast to coast to meet the spiritual and cultural needs of federally incarcerated Indigenous offenders. CSC contracting policy and processes respect the principles of fairness, openness and transparency, as well as traditional protocols and community practices. When working with CSC, Elders provide spiritual services and the reimbursement is considered a recognition of their gifts. Elders, exercising their independent discretion under traditional Indigenous law, teaching, and protocols, determine participation of individuals in Indigenous services. Ceremony and culture are the expertise of the Elder, and only Elders can assess the dedication and commitment of an offender to healing through his participation in ceremony and other interventions. Elder-driven interventions are based on the Elder’s determination of the timing, level, and type of intervention that is most appropriate for a specific offender at any given time, based on traditional teachings and protocols.
I hope this addresses the concerns you have raised. Don’t hesitate to get in touch with me for any further information.
Commissioner / Commissaire
Correctional Service Canada / Service correctionnel du Canada