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Letter addressed to Jennifer Oades, Chairperson of the Parole Board of Canada on Elder-Assisted Hearings for Non-Indigenous offender(s)

 

April 19, 2021

 

Ms. Jennifer Oades, Chairperson                                                                                              
Parole Board of Canada    
410 Laurier Avenue West, Ottawa, ON K1A 0R1

Re: Elder-Assisted Hearings for Non-Indigenous offender(s)

Dear Ms. Oades,

I hope you are keeping well.  I am writing to you, as Federal Ombudsman for Victims of Crime, regarding a complaint brought forward to my Office. The registered victims’ complaint concerns a non-Indigenous offender appropriating and insensitively following Indigenous traditions and way of life while serving a federal sentence for the murder of an Indigenous woman, as well as the family’s negative and re-traumatizing experiences attending an Elder-Assisted Hearing (EAH).

The family shared with my Office that upon their arrival at the offender’s first parole hearing in 2016, they were shocked and dismayed to find out that it would be Elder-Assisted. The victims expressed to my Office that they felt outraged and offended by this because the offender, a non-Indigenous man, was convicted of the brutal murder of their loved one, an Indigenous woman. They reported feeling re-traumatized by this situation, seeing it as an act of cultural appropriation and a colonial gesture demonstrating white privilege, entitlement, and an appalling lack of empathy and integrity. They feel the non-Indigenous person who has already inflicted unimaginable pain and grief to the victim’s family, should not be allowed to exploit and co-opt Indigenous customs and principles; Indigenous culture is not meant to assuage guilt, provide spectacle, or be used as an accessory to a person’s culpability. This family has also noted that they were further distressed to learn that despite being Indigenous themselves, they were not provided an opportunity to have an Elder present to assist and support their family. Further, the family explained that the way the hearing was set up was not in line with their own cultural beliefs and teachings, creating further barriers to their ability to meaningfully participate in the hearing.

The copy of the decision from the Parole Board of Canada’s (PBC) Decision Registry in this case actually shows that the Board Members stopped the hearing from proceeding when they learned that the victims were very distressed by the dynamic, continuing the hearing as a regular hearing, rather than an Elder-Assisted one. The victims were informed that the offender would have a right to appeal this decision and ask for a new hearing. In contrast, victims do not have a right to contest or appeal decisions to allow EAH for non-Indigenous offenders, despite the emotional trauma they may suffer as a result. I recommend that PBC develop a clear policy for Board members to address and respond consistently to situations where victims contest the hearing format on grounds of Indigenous cultural identity or heritage.

The role of the PBC Elder/Cultural Advisor is to provide Parole Board members with information about the specific culture and traditions of Indigenous communities, and about Indigenous cultures, experiences and traditions in general. The Elder may also offer wisdom and guidance to the offender during the hearing; however, the Elder is not involved in making the decision. The family in this case was not informed of the hearing format in advance, nor were they informed of the Elder’s role in advance of the hearing. There is a strong need for PBC to take a victim-centred, trauma-informed approach to ensure that victims can prepare for what to expect and meaningfully participate in EAH. Victims have rights to information and participation under the Canadian Victims Bill of Rights (CVBR) and it is fair that they be provided information in advance about the format of the hearing and what participating will look like.

As such, to address concerns raised by victims in EAH, I further recommend the following:

According to PBC documents, ‘‘an Elder-Assisted Hearing is a culturally responsive hearing process for First Nation, Métis and Inuit offenders that takes into account the uniqueness of Indigenous culture and heritage’’ and thus this hearing process should be reserved for Indigenous Peoples first and foremost. Indigenous victims’ families feel that their culture should not be permitted to be coopted by non-Indigenous offenders, as this amounts to additional experiences of systemic violence and cultural genocide similar to what was afflicted by the Residential School System, the 60s Scoop, and the ongoing MMIWG crisis.

Amend PBC policy to require Indigenous offenders to request an EAH process at the time of their application for a hearing.

Amend PBC policy to ensure victims are notified, at minimum, 30 days in advance of an EAH and provided with clear information about the process, so that victims are not blindsided by the format of a hearing when they arrive for it.

Amend PBC policy to provide registered victims, who identify as Indigenous, with culturally appropriate supports such as an Elder so that victims feel safe and culturally supported to participate. As recognized and supported by the MMIWG Calls for Justice – which the provincial and federal governments have committed to implementing in their forthcoming National Action Plan – the family members and loved ones of victims must have their cultural, emotional, and spiritual needs respected, and have continual access to ongoing programs, resources, and supports that are culturally competent and trauma-informed.

Given that the offender in this case is approaching eligibility to apply for another hearing, the family is concerned that they, and other victims, will face these same issues with respect to the EAH process. As such, I look forward to your timely response on this matter, and welcome the opportunity to work together to ensure victims’ rights are respected.

Sincerely,

 

Heidi Illingworth
Federal Ombudsman for Victims of Crime

 



Response


May 10, 2021

Dear Heidi Illingworth,

Thank you for your correspondence of April 19, 2021, regarding a complaint that was brought forward to your office concerning Elder-Assisted Hearings (EAH) and your recommendations for policy amendments.

The Parole Board of Canada (PBC) is committed to respecting victims' rights under the Canadian Victims Bill of Rights. The Corrections and Conditional Release Act (CCRA) provides principles that guide the work of the Board, including the sharing of information about our policies and programs with victims, offenders and the general public. As you may be aware, the Board included victim statements and victim participation in parole hearings in policy many years before they were enshrined in law.

The CCRA also recognizes the unique needs and circumstances of Indigenous offenders, and requires the PBC to develop policies and processes that are responsive to them. The purpose of an EAH is to create a culturally responsive hearing process for Indigenous offenders while facilitating a more accurate understanding of the offender for Board members. This process is offered, upon request, to Indigenous offenders, as well as non-Indigenous offenders who have committed to an Indigenous way of life and may therefore benefit from a culturally adapted hearing.

Upon receipt of the EAH request from a non-Indigenous offender, the PBC conducts a thorough assessment of the offender’s file and considers a variety of factors, such as whether the offender is currently participating in Indigenous programs and/or ceremonies or working with an Elder/Cultural Advisor. Board members will document whether they accept or reject a request for an EAH from a non-Indigenous offender and provide a rationale for their decision.

The Board’s procedures indicate that a request for an EAH should be received 28 days prior to the hearing, which allows sufficient time for the PBC to conduct its review and make its determination.

I can assure you that victims are notified about an upcoming hearing as soon as possible, and that the Board strives to ensure victims receive clear information about the hearing process. When notification documents are sent to victims in advance of an EAH, an explanation of the EAH format and a link to the PBC’s victim-focused fact sheet on EAHs are shared. A video providing an overview of an EAH is also available on our website.

As you are aware, the PBC recently developed a trauma-informed communications tool for our Regional Communications Officers who work closely with victims in advance of the hearing to facilitate their participation. The tool includes information about the EAH format.

The role of the PBC Elder/Cultural Advisor is to provide Board members with information about the cultures and traditions of specific Indigenous communities, and about Indigenous cultures, experiences, and traditions in general. The Elder/Cultural Advisor may also offer wisdom and guidance to the offender. Immediately before a hearing begins, victims can request to speak to the PBC Elder/Cultural Advisor to discuss the EAH process and/or Indigenous culture. These interactions take place in the company of a PBC Regional Communication Officer, as the PBC Elder/Cultural Advisor’s role is not to counsel the victim, intervene in their healing path or provide information about the offender.

Registered victims can be accompanied by a person or persons to support them at a PBC hearing. Support persons can include relatives, friends, victim service workers, or Elders/Spiritual Advisors. Both victims and the people who supports them are eligible to apply for financial assistance to travel to any PBC hearing. This financial support is administered by the Department of Justice through its Victims Fund. Please note that in the current context of the pandemic, the PBC is facilitating the participation at hearings by tele- or video-conference to ensure the health and safety of all participants. Since April 2020, the Board has facilitated the participation of over 500 victims and approximately 200 people who provide support to victims at nearly 300 hearings by tele and videoconference, an increase of 12% over the previous year.

In closing, the Board is actively working to ensure that the conditional release process is responsive to the needs of Indigenous Peoples, including offenders, victims and communities.

I trust this information is helpful to you.

Yours sincerely,

 

Jennifer Oades
Chairperson| Présidente
Parole Board of Canada | Commission des libérations conditionnelles du Canada
410 Laurier Avenue West/Ouest, Ottawa ON K1A 0R1
Tel: 613.954.1154
Government of Canada | Gouvernement du Canada





Response

 

July 8, 2021

Ms. Jennifer Oades, Chairperson
Parole Board of Canada    
410 Laurier Avenue West, Ottawa, ON K1A 0R1

Re: Elder-Assisted Hearings for Non-Indigenous offender(s)

Dear Ms. Oades,

Thank you for your response of May 10, 2021. I am writing to follow up on this matter, as I remain concerned about the unclear and contradictory Parole Board of Canada’s policy in relation to Elder Assisted Hearings (EAH). In this letter, I will provide recommendations to update the EAH policy.

In your letter, you state that the Corrections and Conditional Release Act (CCRA) recognizes the unique needs and circumstances of Indigenous offenders and requires the PBC to develop policies and processes that are responsive to them. You also state that the purpose of an EAH is to create a culturally responsive hearing process for Indigenous offenders while facilitating a more accurate understanding of the offender for Board members. Victims and their families have expressed disdain and reported harm to my Office citing that it is culturally insensitive and contradictory that the “process is offered, upon request, to non-Indigenous offenders who have committed to an Indigenous way of life”. They feel this practice is particularly harmful and offensive when appropriated by non-Indigenous offenders who have committed violent heinous crimes against Indigenous victims and represents an ongoing form of colonial violence by the Canadian Justice System.

What does “committing to an Indigenous way of life” require exactly when you have no Indigenous heritage to begin with? How is this assessed and applied consistently? Indigenous victims tell us they view this as cultural appropriation by a non-Indigenous offender making claim to an Indigenous way of life and this should be investigated as impression management in an attempt for early release. Indigenous-specific programming in corrections was introduced to address the over-representation of Indigenous offenders who are incarcerated, and the need to help these individuals in a culturally-relevant and appropriate way. Yet, the popularity of Indigenous programming has resulted in limiting some Indigenous offenders’ ability to access programs, with many Indigenous offenders being waitlisted for programs/services that had initially been developed for their need to partake in healing and rehabilitation practices while incarcerated. Many victims have raised concern with my Office that these programs and services must be primarily reserved for Indigenous offenders. The same applies for EAHs. Indigenous people have an inherent right to their culture, heritage and programming designed for them. Not respecting these rights is an ongoing act of colonial oppression.

 

Recommendations

 

The recommendations below related to EAHs have resulted from discussions with the victims affected by this case, as well as the many victims and survivors who have shared similar experiences with my Office. I have outlined specific points below for ease and clarity.

 

1. Amend PBC policy on to provide Advance Notification of EAH

In your response letter dated May 10, 2021, you note that an EAH application is received 28 days (or more) before a hearing, and that victims are notified as soon as possible by the PBC. Yet, I have heard from many victims, including the family in this particular case, that this has not been their experience. In fact, many victims have shared with my Office that they were not notified in advance that a hearing would take place in the form of an EAH, and were surprised to learn this information upon arrival at the hearing itself. As such, I recommend you to revise this policy.

To reiterate from my initial letter, I also recommend the following:

 

2.  Amend PBC Policy to Require Indigenous Offenders to Request an EAH Process at the Time of their Application for a Hearing and Notify Families

Amend PBC policy to ensure victims are notified, at minimum, 30 days in advance of an EAH and provided with clear information about the process, so they are not blindsided and re-traumatized by the format of a hearing when they arrive for it.

Victims have a right to be informed and to be able to participate at a PBC hearing. This cannot be done meaningfully if the victims do not receive full and complete information about the hearing format, and are not given an opportunity to understand the process and to have any concerns resolved in advance of attending a hearing.

 

3.  Update Board Members’ Manual to clarify policy on this matter

Develop a clear policy for Board members to address and respond consistently to situations where victims contest the hearing format on grounds of Indigenous cultural identity or heritage.

There is a strong need for a clear policy for Board Members on what to do if, and when, victims voice a concern around a hearing taking place by way of EAH when they were not informed in advance (as was the case for the family in question).

 

4. Deciding whether EAH will take place

In your response, you note that a thorough decision-making process is in place to decide if EAH is used. I recommend that victims’ concerns be considered and addressed in this decision-making process, and that the Board specifically respond to any concerns registered victims have raised about cultural appropriation.

 

5. Trauma-Informed Communication with Victims and Families

I recommend that a requirement be outlined to give victims’ concerns proper weight and consideration when decisions are made in regards to whether a hearing will be done by way of EAH; and the reason for the decision be clearly outlined and shared with registered victims. Special consideration must be given to the circumstances of the particular case in order to avoid re-traumatizing and damaging decisions. For example, the Board should explain their reasons to allow an EAH.

 

Implementing the recommendations above would be an opportunity for the Board to demonstrate to victims, survivors and their families that their concerns are acknowledged and considered while also contributing to a more trauma-informed approach. I believe this is a step towards addressing the Canadian Justice System’s harmful legacy of oppression of Indigenous peoples. I look forward to your response.

 

Sincerely,

 

Heidi Illingworth

Federal Ombudsman for Victims of Crime