Debates of the Senate  
1st Session, 41st Parliament,Volume 148, Issue 43
  Thursday, December 15, 2011
Debates: Safe Streets and Communities Act
Hon. Lillian Eva Dyck:

Honourable senators, I rise today to speak to Bill C-10, the government's so-called Safe Streets and Communities Act. Today, I will address the impact of this piece of legislation on our Aboriginal Peoples.

It is the dream of every Aboriginal child to live and grow up on safe streets and in safe communities, but this bill does little to make that a reality in Canada's Aboriginal communities. It is imperative that we examine Bill C-10 in the context of the Aboriginal population, since they will be most affected.

The staggering overrepresentation of Aboriginals in the Canadian prison system has been well chronicled and reported over the last several years, by both the Auditor General and the Office of the Correctional Investigator. Aboriginal people comprise less than 4 per cent of the Canadian population, but they represent 20 per cent of the total federal prison population. This overrepresentation is even worse when we look at the Prairie provinces, where the majority of Aboriginal Canadians live. In my home province of Saskatchewan, Aboriginals make up about 14 per cent of the population, but they represent about 57 per cent of the provincially incarcerated population. Study after study suggests that the underlying historical, social and economic issues plaguing Aboriginal communities are the root causes for this overrepresentation. Yet, the government's only answer seems to be to lock them up, fail to offer the necessary rehabilitation and mental health services and throw away the key.

Bill C-10 only exacerbates the current situation for Aboriginals in prison, and goes completely against the trend of recognition and reconciliation that the criminal justice system has tried to adopt. The Supreme Court of Canada, with their decision in Gladue, tried to address the need for the criminal justice system to give particular attention to the circumstances of Aboriginal offenders, given their social history, and to consider all other available sanctions other than imprisonment. Changes to the Criminal Code and the Youth Criminal Justice Act were made to bring into consideration some cultural and historical sensitivity when it came to sentencing Aboriginal offenders. As the Ontario Court of Appeals wrote in their recent 2011 decision in R. v. Collins, it must be made clear that this approach to sentencing

. . . is not about shifting blame or failing to take responsibility; it is recognition of the devastating impact that Canada's treatment of its Aboriginal population has wreaked on members of that society.

However, as successive reports by the Office of the Correctional Investigator have noted, these traditional Aboriginal justice programs are not widely accessible to the incarcerated Aboriginal population. We are left with greater overrepresentation and little help for the underlying causes of criminal behaviour.

What is neglected by this Conservative government and this piece of legislation, is the historical and cyclical nature of incarceration on the Aboriginal population, especially as it affects Aboriginal women and girls.

This is an important segment of the Aboriginal population to focus on because the proportion of Aboriginal women and girls in custody has continued to steadily increase since 1997. The numbers are truly astounding. In the case of women offenders, 33 per cent of the total inmate population under federal jurisdiction are Aboriginal. This number jumps to 87 per cent for the female Aboriginal population incarcerated in Saskatchewan.

When we look at the cyclical nature of Aboriginal incarceration and these staggering numbers, it should come as no surprise that a significant number of Aboriginal women in prison today had parents or relatives who had also been incarcerated. It is a problem that has deep roots in communities.

The Native Women's Association of Canada has produced a significant report entitled Arrest the Legacy: From Residential Schools to Prisons that highlights the criminalization of Aboriginal women that stems from the decades of intergenerational trauma caused by the legacy of colonial policies, namely the policy of residential schools. This legacy has led to years of physical and sexual abuse, discrimination, alcohol and drug addictions, and other mental health problems. These conditions render Aboriginal women and girls vulnerable to criminalization.

Honourable senators, most incarcerated Aboriginal women, according to the Elizabeth Fry Society, are in prison due to crimes associated with maintaining an alcohol and/or drug addiction. They have been charged with economic crimes such as theft, fraud and prostitution.

In the new provisions of Bill C-10, the government has decided to bring mandatory minimum sentences into the Controlled Drugs and Substances Act. This will eliminate the opportunity for judges to apply subsection 718.2(e) of the Criminal Code, which allows for the application of principles and policies to Aboriginal offenders. Judges will no longer be able to use their discretion with Aboriginal offenders by sentencing them to culturally relevant programs instead of incarceration in prison. With Bill C-10, it is a mandatory minimum and, in reality, nothing else. While a judge may sentence an offender to a drug treatment facility or a drug court, there are no drug courts in the North and serious delays already exist in getting into the few drug treatment programs currently available. Bill C-10 will make things worse.

Many of these programs that try to deal with the addiction problems will not be made readily available to the incarcerated Aboriginal population, especially since they are located in cities far from reserve communities. In addition, Bill C-10 makes no additional exception for judges to sentence Aboriginal offenders to Aboriginal justice courts, such as the Gladue court in Toronto, to avoid the mandatory minimum sentence. Under Bill C-10, Aboriginal women offenders will find themselves with no access to any alternative sentence that incorporates Aboriginal justice principles and they will have a very difficult time accessing the drug and mental health treatment that they need. They need this far more than they need to be locked up in a prison.

Honourable senators, two thirds of Aboriginal women in prison are mothers and many are the sole parent of their dependent children. While programs for incarcerated women to maintain contact with their children are limited, conditional sentences allow the judge flexibility in sentencing to allow single mothers to continue working while serving their sentence, or ensure that those with underlying mental health needs gets the community treatment that best ensures their recovery and rehabilitation. This prevents breakdowns of families and addresses the underlying issues of Aboriginal criminal activity. However, Bill C-10 eliminates this type of conditional sentencing. By replacing conditional sentencing for Aboriginal mothers with mandatory minimums, mothers will be incarcerated longer with no recourse to maintain the relationship with their children.

Aboriginal children whose only parent is in prison will most likely be lost to the foster care system. In addition, the inclusion of nonviolent crimes such as theft over $5,000 in the list of offences ineligible for conditional sentences targets these Aboriginal women. As I stated earlier, the large majority of Aboriginal women are in custody due to economic crimes.

This becomes a salient point when we look at the incarceration rate of Aboriginal girls. Between 2008 and 2009, Aboriginal female youth comprised 6 per cent of the Canadian female population, but accounted for 44 per cent of female youth in custody. Of the Aboriginal girls who are incarcerated, a staggering 81 per cent had been in foster care at some point. If we were to reflect upon my earlier point of how Bill C-10's mandatory minimums and elimination of conditional sentencing affects Aboriginal mothers, we can clearly see this cycle of incarceration on the Aboriginal population. Furthermore, we can specifically see how Bill C-10 makes the problems worse.

For example, consider this: The mother becomes incarcerated. She has no options while incarcerated to access culturally relevant programming and/or mental health treatment. She is not afforded the opportunity of a conditional sentence to allow her to maintain her relationship with her daughter. The daughter is placed in foster care and is also more likely to commit a crime and end up in custody. It is a heart-breaking cycle; mother and daughter, constantly in and out of the prison system.

Honourable senators, I will take a moment to talk about different models of justice and I would like to refer you to the material in Arrest the Legacy: From Residential Schools to Prisons because there are completely different justice systems within our mainstream society and within Aboriginal communities. Years ago I read book entitled Dancing with a Ghost, written by Rupert Ross, a judge who travelled in Northern Ontario to hold Aboriginal court. He wrote this book as a consequence of his experience because he could not understand the community. He did not understand why sentencing someone to prison did not satisfy that community.

I take this information from the Native Women's Association of Canada. In our mainstream community, crime is individualized. In the mainstream community the penalties are prescribed by the state and it limits who can participate in the process and solutions. That is how our mainstream judicial system works.

In the Aboriginal justice system, however, we encourage communities to assume responsibility for what is happening to their young people and to come together with the common purpose of identifying a solution that meets everyone's needs: the person who is being charged, the victim and the whole community. In these communities they recognize that the offender has to come back and live with their family and the community. We cannot just punish the offender. We must rehabilitate, because if the offender is not rehabilitated, he or she will come back and repeat the same sort of offences, unless they learn how to live within a community by the community's rules.

Within the mainstream community, what we talk about here is primarily legalistic. It excludes many people impacted by the crime by extension, such as the families. The victim is fairly marginalized in the process and we have heard that before. The victims of crime are often left out of the process. However, in Aboriginal justice systems, ceremony and prayer are part of the process. The process includes defining who is impacted by the crime so that it is larger and it includes all the people affected by the process in finding solutions. It focuses on the victim and also on communal rights and responsibilities. Both the victim and the offender feel a sense of justice has been accomplished in the resolution. It addresses it much more holistically.

Honourable senators, Aboriginal girls, as well as boys, deserve to grow up on safe streets in safe communities. They also deserve to go to school and graduate.

On a final note, honourable senators, I would like to focus on the importance of education in addressing the issue of the overrepresentation of Aboriginals in prison.

It should come as no surprise that close to half of the Aboriginal youth in custody had dropped out of school prior to their first offence, but what is truly interesting and should be on the forefronts of policy-makers' minds is that education has a significant impact on Aboriginal incarceration rates. According to Statistics Canada, in Saskatchewan the incarceration rate among Aboriginal young adults with a high school education was four times lower than among those without a high school diploma. We need to invest in Aboriginal youth and make sure they graduate from high school.

Some Hon. Senators: Hear, hear.

Senator Dyck: There is a direct correlation between having a high school diploma and lower incarceration rates for Aboriginals.

As honourable senators know, education for on-reserve Aboriginal students has been chronically underfunded for decades. Aboriginals have the highest high school dropout rate, at 34 per cent, across our country, this wonderful country of Canada. In Saskatchewan, the rate is 49 per cent; half of Aboriginals do not get their high school diplomas.

This government fails to recognize the facts right in front of them. Instead, their priority piece of legislation is to get tough on crime rather than get smart about education. Their crime agenda will cost anywhere from $9 billion to $19 billion and will push more Aboriginals into custody and hold them there longer, with no plan to provide them with the necessary culturally relevant and successful programs

The Hon. the Speaker pro tempore: I regret to inform the Honourable Senator Dyck that her 15 minutes is up. Would she like to ask the chamber for more time?

Senator Dyck: Yes. I need about one minute.

The Hon. the Speaker pro tempore: Five minutes is granted.

Senator Dyck: Honourable senators, I do not support the passage of Bill C-10. I believe that the impact of this legislation on our Aboriginal peoples would make it far worse for them.

To conclude, as the police chief of Saskatoon, Clive Weighill, stated, "Until we can change the social contributors to crime, we're not going to see big decreases" in crime rates. The facts cannot be any clearer; the solution is not Bill C-10.

The Hon. the Speaker pro tempore: Would the Honourable Senator Dyck accept a question?

Senator Dyck: Yes.

Hon. Pierre-Hugues Boisvenu: Honourable senators, Senator Dyck said that it would cost $17 billion to implement Bill C-10. Could the senator tell us where she got that figure? If she got it from the analysis carried out by the IRIS research institute, could she tell us whether she read this analysis?

Senator Dyck: I believe I said this could cost anywhere from $9 billion to $19 billion, although $17 billion falls in the middle. I do not have my references in front of me, but I can get the honourable senator the source later.

Senator Boisvenu: I would very much appreciate that. The honourable senator will understand that an amount that high is misleading. I would appreciate having the document in question.

Senator Dyck: If I may, the cost is not the significant factor here. The main issue here is the impact of this bill on Aboriginal women and girls, on Aboriginal people as a whole.