The Justice System and Aboriginal People
The Aboriginal Justice Implementation Commission
A trip to our legislatures and courthouses is enough to impress an observer with the majesty of Canadas legal system. But it is only by visiting our jails and prisons that a person can come to a full understanding of that systems power. Legislators pass laws and judges hand down sentences in awe-inspiring surroundings, but it is in prisons and jails that freedom finally is restrained. Because these institutions are so central to the current justice system, we made an effort to visit as many of them as possible.
We held hearings at the Stony Mountain Institution, the Headingley Correctional Institution, the Brandon Correctional Institution, the Portage Correctional Institution for women and The Pas Correctional Institution. We also visited the Rockwood Institution, the Dauphin Correctional Institution, the Egg Lake Rehabilitation Camp, the Milner Ridge Correctional Centre, the Manitoba Youth Centre and the Agassiz Youth Centre.
With few exceptions, what we encountered was not a correctional system but a punitive one. This was most apparent at Stony Mountain Institution. In the segregation area, when an inmate is taken out of his cell, two guards must be present. Inmates are not permitted to walk in the common area outside their cells, even though the common area appeared secure. Inmates are allowed only one hour of recreation a day in an adjacent outdoor enclosure.
The superintendent of Headingley Correctional Institution, Dennis Lemoine, ended his presentation to us with the sad conclusion that:
Regrettably, the treatment that young people receive is not much different. At the Manitoba Youth Centre, each youth was intended to have a private or semi-private room. Yet, we saw that young women were required to sleep on the floor in one crowded sector of the centre that we went through. At the Agassiz Youth Centre, many of the residents are required to sleep on wooden bunks with thin mattresses. Heating is inadequate, the roofs leak and, in the summer, temperatures in some buildings rise to intolerable levels because there is no air conditioning.
The system even punishes those who have not been convicted of any crime. We were told, and we believe, that the poor conditions and long stays at the provincial Remand Centre have led some people to plead guilty in order to expedite their transfer from the centre. Even more tragically, there have been five suicides at the centre since 1985.
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. Even when modern facilities, such as the Milner Ridge Correctional Centre, are established, they quickly tend toward the usual patterns of older-style institutions.
Surely the inability to return home is punishment enough without locking people in small cells, counting them at every move, restricting their movement and otherwise dehumanizing them. Those treated as untrustworthy can hardly learn to trust. Those treated as subhuman can hardly be expected to develop good habits of human conduct.
We believe that incarceration in secure institutions should be used only as a last resort and only for individuals who pose a threat to some individual or the community. As we discussed in the previous chapter, we believe that alternative programs that do not involve custody can and should be used for most offenders. Yet, we recognize that even if our recommendations are accepted and implemented, jails will continue to be needed for some offenders. But those jails which continue to exist must be transformed. In the institutions that we are proposing, substantially less emphasis would be placed on security and substantially more emphasis would be placed on providing meaningfuland culturally appropriateprograms that will equip Aboriginal inmates to live in society on their release.
In this chapter we focus on the current state of Manitobas jails and on some different approaches to custody that we believe would be far more effective than the existing institutions. We will deal with the specific problems of women inmates in greater detail in Chapter 13. TOP
The Need for a New Correctional System TOP
In subsequent sections we will touch on a number of improvements that would enhance the effectiveness of Manitobas jails. However, we believe that specific program improvements are likely to have little overall effect. We feel that fundamental reforms, based on a new set of principles, are required. The reforms we recommend are designed with the Aboriginal offender in mind, but we believe that these reforms can be of benefit to all offenders.
We received many submissions that were highly critical of the correctional system and that called for its reform. One northern clergyman, John Thompson, correctly pointed out that there is little or no attempt at healing in our jails. A lawyer who has practised in the North for many years, Robert Mayer Q.C., recommended the use of alternate programs, such as restitution and community work. The publisher of the Nickel Belt News, Joan Wright, proposed the establishment of a large farm as an alternative to sending convicted persons to jail.
One Aboriginal inmate, who was serving a life sentence for murder in Stony Mountain, told us in a very thoughtful presentation that the government "should build penitentiaries or learning centres up north, staffed by inmates or native people instead of trying to meet the criteria of the training correctional officersstart from scratch." He made the point that unless people are given the opportunity to improve when in jail, the cycle of crime and jail will not be broken.
Other presenters called for greater access by Aboriginal inmates to self-improvement programs. Many said they would welcome meaningful work. Several called for specialized institutional programs for those convicted of child, spouse or sexual abuse.
As well, those who are responsible for the day-to-day running of Manitobas jails told us on a number of occasions that high levels of security were not needed for most inmates.
These comments parallel many of our own observations and concerns. We are convinced that the prison system fails Aboriginal inmates. This failure involves:
We believe that the incarceration of non-dangerous individuals on the basis that they will be reformed or deterred is foolish, since there is ample evidence that correctional institutions do not achieve these results.
It is clear that, at present, jails do little but keep some people out of society for a period of time. Once released, the majority of Aboriginal inmates are just dumped back into society. Many have nowhere to go. Most return to the community with no further education or training than that they went in with. They are no better equipped to deal with life.
We believe that meaningful reforms are possible. A strategy consisting of several major elements is required:
The first of these strategies is the subject of the previous chapter. The others are discussed in this section.
Aboriginal offenders requiring some form of institutional care should have available a number of alternatives that are matched to their needs. Specifically, we see the need for a program mix that contains the following elements:
Some elaboration on the types of programs we have in mind, and the ways in which they should be established, is required. Our correctional system should reinforce community involvement and responsibility. To this end, facilities ought to be smaller and closer to Aboriginal communitiesnot large institutions in some faraway place. Most Aboriginal offenders ought to be dealt with in their own community, and the programs that are offered to them should be designed and provided by Aboriginal people. This means that for any reforms to be meaningful, the Aboriginal communities affected must play a major role in designing and controlling a reformed corrections system. For this reason, we cannot provide a prescriptive blueprint of what sorts of correctional facilities should be available in each region or in each Aboriginal community. The Manitoba government must negotiate with Aboriginal groups to determine which institutions would suit their needs best. We fully expect that different communities will opt for different program elements.
Correctional institutions in and near Aboriginal communities must be administered by Aboriginal people. For those institutions within the provincial correctional system, this will mean the hiring of Aboriginal staff for senior positions in these facilities. As the Aboriginal justice systems that we recommend come into existence, the correctional institutions to which these systems send offenders should be placed under their administration and authority.
During the course of our Inquiry, we were presented with numerous creative proposals for the establishment of community-based corrections programming and facilities that provide us with a picture of what the Aboriginal community is seeking.
Chief Raymond Swan of the Interlake Reserves Tribal Council made a presentation to us in which he outlined his councils proposal for the creation of a Native Harmony and Restoration Centre at Pineimuta Place near Gypsumville:
The Indigenous Womens Collective prepared a study for the Inquiry which spoke of the need for holistic treatment lodges, especially for cases of family violence:
Another option would be to establish facilities in Aboriginal communities from which open custody programs could be operated. Offenders would be required to be in residence every night, while during the day they would be free to pursue education, counselling or employment. The person also might be free to be at his or her own home.
During the time the offender is required to be in the facility, there should be counselling programs related to the most common causes of unacceptable conductsubstance abuse programs, anger management and abuse counselling, as well as specific skills training related to finding employment. Cultural or spiritual education might be a useful program for some. Those in charge of the facility, in addition to being responsible for the attendance of those under their charge, should have skills in counselling and family reparation.
In instances where it might not be practical to establish a separate secure holding facility, an open custody facility might also have a separate secure section so that Aboriginal people who are arrested could be held overnight until their release the next day. As we have already pointed out, many detentions result from alcohol or drug-related offences. When sober, these individuals can generally be released until their court appearance. We suggest that, rather than transporting accused persons a long distance, they be kept in the community. We believe it would also be possible to use these facilities as halfway houses for Aboriginal men and women leaving other, more secure correctional institutions.
A further option would be to make it possible for private individuals to bring Aboriginal offenders and inmates into their homes. A program of this sort would help offenders reintegrate into the community. This option could be made available to those serving sentences, as a condition of suspended sentence, or for those granted parole. We recognize that this sort of program, which we believe to be highly desirable, would be hobbled by the tremendous housing shortages which currently exist on many reserves. Nonetheless, the potential benefits of such a program and its community-based nature strongly commend its consideration.
While we recognize that these proposals are novel for Manitoba, some have been implemented successfully in other jurisdictions.2 If precedent is required, we need look no further than the Young Offenders Act. In that Act, open custody is recognized as an appropriate type of custody for some individuals.
One advantage of this approach is that communities will become much more involved in dealing with the consequences of harmful conduct. We believe this will lead to more effective deterrence.
With these principles and strategies in mind, we turn to the specific problems of Manitobas correctional system. TOP
Whether one is entering an ancient and imposing institution like Stony Mountain Institution or Headingley Correctional Institution, or a modern facility like the Brandon Correctional Institution or the Manitoba Youth Centre, one cannot help but be struck by the fact that our corrections system is obsessed with security. This was a common feature of most of the jails we visited. They function almost totally on a "worst case" basis, assuming that every inmate would try to escape or do something criminal if given an opportunity. The entire institutional focus appears to be aimed at guarding against these possibilities. No one seems prepared to assume that the individual might be interested in ways to escape, not from the jail, but from the circumstances that led to incarceration in the first place.
We realize that there are some who will try to escape if given the opportunity. For them, a more humane approach may be seen as lax security. Our system cannot operate on the assumption that these types of individuals do not exist. Our point is that they are in the minority. That is what we have observed and that is what the experts have told us.
At Stony Mountain, outer barred doors have to be unlocked to permit entrance to the cell blocks. Each cell block has a long, narrow corridor. The individual cells, also with bars, open into this area. The common area once had tables and chairs, but these were removed following a riot several years earlier and were replaced only after a number of years.
At Headingley, one sees a maze of bars and restrained humanity, here more tightly packed than at Stony Mountain. The Brandon Correctional Institution is a new facility, but the movement of inmates is strictly controlled and centrally monitored. Doors are opened only after a camera identifies the person to the operator of the central console. The Manitoba Youth Centre in south Winnipeg looks like a large, one-storey school from the outside, but entering the building for the first time is a shock. It too has a central security control. Although it is a youth facility, it quickly reminds one of an adult jail. The facility operates as a maximum security institution. Even the provinces newest correctional institution at Milner Ridge, which in many respects has much to commend it, appears to have had the tight discipline and security approach of Headingley Correctional Institution transferred to it along with some of that jails inmates.
Given the systems constant focus on security, it is interesting to note what many of the people charged with running the jails had to say. During his presentation, we asked Stony Mountain warden Art Majkut what percentage of inmates in the penitentiary he considered to be security risks or a danger to society. Here is his response:
This assessment was reinforced by a presentation made to our Inquiry by Guy Tavener, the superintendent of The Pas Correctional Institution and the Egg Lake Rehabilitation Camp. In response to a question about the security requirements for inmates, he said:
It appears to us that lower security institutions, close to or in the accuseds community, would be adequate to house the other 95%.
The experience of the Dauphin Correctional Institution underscores this conclusion. It was once a medium security institution and is now operated as a minimum security one. Inmates may work in the community during the day, attend programs in the community, or work in or around the institution.
The superintendent of the institution stated that he is able to operate a minimum security institution due to the small size of the institution and to the fact that he can transfer inmates who might not be suitable for his program to Headingley. Generally, however, inmates are not a security risk.
Our visit to the camp at Egg Lake, which is administered by the jail at The Pas, showed another way that lower security sentenced offenders can be dealt with. The Egg Lake institution consists of low wooden buildings. At the time of our visit, some still were under construction. There is a kitchen, dining room and some activities rooms. The guards act as supervisors in the kitchen, in construction and in overseeing the inmate work crews. There are no bars on the windows and the doors are not locked at night.
The high level of security at the Manitoba Youth Centre, on the other hand, is extremely disturbing. While we could understand and accept the need for this level of security for a few offenders, all who reside in this facility are subjected to the same high level of security as soon as they are within the walls. Such an atmosphere of oppression and tension has to have a negative, if not devastating, effect on young people.
We believe over-use of custodial institutions is even more serious in the case of young offenders than it is in the case of adult offenders. We find the heavy and inappropriate reliance on custody for young people to be repugnant. Before trial, young offenders should be released on bail or kept in short-term facilities in their home community, except in exceptional circumstances. If they are convicted, incarceration should be a last resort. A full range of community-based alternatives to custody should be made available. The next option should be community or regional facilities.
Even where our existing jails have differing levels of security, such as the annexes at Headingley, the new facility at Milner Ridge, and Rockwood Institution, Aboriginal inmates do not have the same access to these facilities as do non-Aboriginal inmates. The 1988 Report of the Task Force on Aboriginal People in Federal Corrections had this to say:
According to the report, of the 235 Aboriginal persons placed in S5 institutions across Canada (S6 is the highest level of security), 150 of them were in Manitoba (63.8%). What the above shows is that Aboriginal inmates have less access to programs because they are kept in higher security facilities, and they are kept in higher security facilities, in Manitoba, in large part because the main federal institution is a higher security facility, not because of specific security requirements.
While some might suggest the solution is to build more federal jails with different levels of security in Manitoba, we reject any such direction, because the philosophy of the jail system would remain the same and Aboriginal inmates still would experience difficulty being placed in the lower security institutions. Also, the federal concept of "medium" or "minimum" security jails and our concept of that notion are quite different.
A final comment about our existing emphasis on high security jails, with their high technology monitoring and locking systems, and high guard-to-inmate ratios, is that they are extremely expensive for the dubious benefits they provide. In 198788, for example, the federal government alone expended some $800 million and employed about 11,000 staff to maintain the penitentiary system, while there are only 10,000 federal inmates at any one time.4
The cost of housing an inmate at Dauphin is $30,145 per year. This figure does not include the cost of the building or its maintenance. This is somewhat below the average cost of provincial institutions, which was $31,510 in 198889.5 The cost of keeping an inmate at The Pas is $92.38 a day, or $33,700 per year. The cost at Egg Lake is $59.50 a day or $24,000 per year. Based on these figures, there is a difference in operating costs between the two institutions, based on 70 inmates, of about $680,000 per year. For 198889, $86.33 per day is the average inmate cost for provincial correctional institutions in Manitoba.6 These figures do not include capital costs, which would be higher for higher security jails. It is clear that facilities like Egg Lake not only are more humane, but they are less costly to construct and administer. Of course, these arguments say nothing about the savings, both human and financial, to society if fewer persons are incarcerated and if programming assists in reducing recidivism. These effects would benefit potential victims, families of offenders, offenders themselves and taxpayers.
We recommend that:
Jail Location and Capacity TOP
Imprisonment is a profoundly isolating experience. During the course of our Inquiry, we discovered that Manitobas jails operate in a fashion that accentuates that isolation. Of particular concern is the loss of contact with family and relatives that many Aboriginal prisoners experience.
There are many problems associated with the current practice of transporting Aboriginal persons from their own communities to and from correctional institutions and holding facilities. This practice is very expensive and it is unfair to those from rural and northern communities. They must endure greater separation from their families than other inmates, and experience unnecessary hardships because of the distance and the absence of resources to assist them.
At Stony Mountain inmates are limited in the number of phone calls they are permitted to make and all long-distance phone calls must be made on a collect basis. This further discriminates against inmates from remote communities and families with little income. One Aboriginal inmate told us of the difficulty his family members had in coming to visit him from northwest Ontario. Because they had not made advance arrangements, and came at other than the prescribed time, they were not allowed to visit. Another Aboriginal inmate said his sister travelled 240 kilometres to visit him and was turned away at the gate because she did not have proper identification.
We are concerned to find few correctional programs in Aboriginal communities, either in rural areas or in the North. The problem persists even when jails are located in the North. Ninety per cent of the inmates of The Pas jail, almost all of whom are Aboriginal, came from northeastern Manitoba (from Nelson House and east of there). The identical situation exists at the Egg Lake Camp, also located at the western edge of the province. Here, all the residents were Aboriginal, most from communities in northeastern Manitoba. It is, for example, some 630 kilometres by air from Shamattawa to The Pasand there is no connecting road between Thompson and Shamattawa, let alone The Pas and Shamattawa.
The nearest detention centre for youth is in Winnipeg. This means that many of the inmates are far from their homes and their families. Both the cost of transportation and the distance make it impossible for family members to visit. In addition, the system incurs inordinate transportation costs. Our visits to these institutions confirmed our belief that inmates should be housed closer to their home communities.
At the same time as we advocate the establishment of low security facilities in remote communities, we believe that those facilities should not be used to increase the overall capacity of the corrections system. The capacity of existing correctional institutions and custody system can and should be reduced substantially. Inmates who are not dangerous to individuals or the community should be transferred out of secure institutions to low security and open custody facilities. The vacated cells should be knocked down and the space converted to provide more room for programs, such as employment training and counselling, for the few who do require secure incarceration. Expenditures for upgrading and maintaining jails should be redirected to the creation of lower security facilities. The complete phasing out of some existing jails may be possible.
We do not favour the construction of a new provincial jail in Thompson, for which some people are calling. We believe that many of the Aboriginal people currently in jail could be housed in facilities in their home communities. We believe the needs of Aboriginal offenders from northeast Manitoba can be addressed best by the establishment of community correctional facilities and regional work camps, similar to the one at Egg Lake. This is not to suggest that a holding facility is not required in Thompson, but it must not be a holding facility designed to serve Aboriginal communities throughout northern Manitoba.
We recommend that:
Remand Cells TOP
One of the problems we observed in many northern and rural communities was the unnecessary and expensive transportation of prisoners when they are arrested or pending their release on bail. They are now transported to Thompson, Winnipeg or elsewhere because there is no possibility of an early bail hearing in the community or in the circuit court system as it presently operates. There is no one present to make the bail decision, no possibility of meeting with a person able to give legal advice, due to a lack of lawyers, a lack of paralegals and restrictions on the advice existing paralegals are able to give. Prisoners are removed from the community simply because no holding cells exist, because there are no persons able to supervise RCMP holding cells (and provide meals, etc. for the accused), or because the cells are inappropriate.
In many communities, short-term holding facilities do exist in RCMP office trailers. We recommend elsewhere that there be better policing services, preferably provided by a regional force for Aboriginal communities, better court and legal services, with capacity to hold bail hearings in the communities within 24 hours of arrest, and local detention facilities. These recommendations, once implemented, will reduce the need to remove offenders from the communities while awaiting bail hearings. In those communities that do not have short-term remand cells, such cells must be installed.
Problems with the use of holding facilities are compounded by the current practice of transporting offenders to another location and then releasing them on bail without providing return transportation. This is unfair to the accused person. Persons who face such circumstances have no means of support in the community, no way home, and are often unaware and uninformed of the fact that the Department of Justice will provide financial assistance for their return home in such circumstances. This appears to be a policy which exists more on paper than in practice. It was not until close to the end of our hearings that we learned that such a policy existed.
We recommend that:
We are satisfied that many services can be provided effectively in the accuseds own community, and the development of such services will reduce reliance on the expensive and largely ineffective holding and bail programs now in common use. More expeditious trials will also reduce the numbers held on remand. TOP
Responding to Aboriginal Needs TOP
The personal needs of Aboriginal offendersbe it the need for spiritual fulfilment, for education and vocational training, or for counselling to help overcome personal problemsare not being met by the Manitoba correctional system. We base this very serious conclusion on the testimony of many inmates who appeared before the Commission, on our survey of the inmates and on the testimony of the people charged with administering our jails. The sheer weight of the numbers of Aboriginal inmates who reoffend underlines the fact that programming is not succeeding. We wish to stress that we believe this problem will not go away until Aboriginal people and Aboriginal organizations are directly involved in developing and providing spiritual, educational, vocational and counselling programs, within or outside correctional facilities. TOP
Aboriginal Spirituality TOP
It should be clear to even the most casual observer that in the case of Aboriginal inmates, spiritual needs must be met in a culturally appropriate manner. Yet, this is not being done. It is relatively easy to learn about Aboriginal worldviews, belief systems and spiritual practices. It is also relatively easy to discover who can provide spiritual leadership to Aboriginal people. If the jails cannot deliver these programs, then it is clear they have far to go in learning how to deliver other programs in culturally appropriate ways, which will require, among other things, learning subtle differences in manners of communication. Greater recognition of the importance of spiritual programming will be required on the part of correctional administrators if any progress is to be made.
According to a survey of 258 inmates (60 of whom were Aboriginal and 198 of whom were non-Aboriginal) conducted for our Inquiry, 81% of Aboriginal inmates reported they felt that Aboriginal spirituality was not respected in their institution. At present, Stony Mountain is the only institution which is served regularly by an Aboriginal elder. While Aboriginal spirituality is accorded greater status in federal institutions, unreasonable limitations are imposed even there, which arise primarily from ignorance of the importance of certain spiritual activities. One Aboriginal inmate at Stony Mountain, speaking in Ojibway, told us through our interpreter of the lack of cultural and religious activities available to Aboriginal inmates. While there are sweat lodges from time to time and a Sacred Circle every week, other important Aboriginal events, such as a shaking tent, ceremonies on the death of a relative, and religious feasts and fastswhich require a significant amount of ritual and must be held in spiritually significant locationshave not been accommodated. All these ceremonies are an important part of Aboriginal culture, and can contribute to the rectification of psychological and other problems that may be disturbing an inmate.
Headingley Correctional Institution has been inconsistent in meeting the spiritual needs of Aboriginal inmates. At the time of our visit to the institution, there was no Aboriginal elder regularly in attendance. We were told by Headingley superintendent Dennis Lemoine that elders do not work in his institution because they feel the environment is not conducive to cultural and spiritual practices and teachings. This is significant, since Headingley is the most highly populated provincial institution and has the second largest number of Aboriginal inmates in the province, exceeded only by Stony Mountain. That there is a strong desire for this sort of service is underscored by the fact that Headingley has a Native Brotherhood Organization which organizes sweat lodge ceremonies and other spiritual and cultural events. The president of that brotherhood told us that:
Regrettably, Headingley is not alone in failing to meet the spiritual needs of its Aboriginal inmates. The Dauphin Correctional Institution has no Aboriginal programming whatsoever: no elder, no spiritual services, no culturally specific treatment program for drug or alcohol dependency, or counselling. The Egg Lake work camp also suffers from the same lack of programming that afflicts other correctional institutions.
The magnitude of this failure was reflected in our survey of inmates. According to it, 84% of Aboriginal inmates indicated that they would like to participate in a sweat lodge, while only 3% felt this sort of programming was regularly available; 61% wanted to participate in fasts, but only 1% felt they could on a regular basis. Similarly, only 1% of the Aboriginal inmates we surveyed felt they could participate in healing ceremonies or feaststhis despite the fact that over 70% of the respondents would have liked to participate in these ceremonies.
None of the provincial institutions we visited, whether for males, females or youth, paid appropriate attention to the importance of elders and Aboriginal spirituality. As a result, Aboriginal inmates suffer. The absence of elders stands in stark contrast to the availability of Christian chaplains. Chaplains, often from a variety of denominations, are present in every provincial institution. Simply making identical provisions for elders as is made for chaplains is, however, not enough. The forms of religious observance are different. Participating in natural, outdoor surroundings is integral to Aboriginal spirituality and correctional institutions must adapt to that; having Aboriginal staff who share the inmates and elders spirituality, be it Cree, Ojibway or other, to escort inmates to such observances is one solution. This, of course, will require more Aboriginal staff.
Our concern is not only that Aboriginal spirituality is not being encouraged. We believe these practices are being actively discouraged.
In particular, we believe elders and traditional persons should be afforded much greater respect. We were told that institutional practices, such as examining every article and package entering the institution and searching every individual, are objectionable to elders and traditional Aboriginal people. This practice is inconsistent with the treatment accorded Christian clergy and Christian religious articles. These can be brought into institutions uninspected if a priest or minister identifies them as religious articles. Sacramental wine, for example, is not tasted, and hosts are not opened and sent to a laboratory for examination. Yet, objects of equal importance to Aboriginal spirituality have not been shown the same respect. Aboriginal elders should be able to indicate the spiritual significance of special articles so that improper treatment of religious persons and articles is avoided. Traditional bundles, medicines and articles such as pipes should not be handled in the way currently called for by institutional policies. Correctional personnel who are unaware of the significance of these objects can easily offend elders and traditional persons, thereby discouraging them from returning.
We found some parts of the discipline at the Headingley Correctional Institution more restrictive than at Stony Mountain. One inmate wore a traditional headband when he appeared before us, although he knew this was contrary to institutional policy. In contrast, many headbands were seen at Stony Mountain. Personal jewellery is also prohibited at Headingley. This same inmate felt this to be an interference with cultural practices. He spoke of the need for religious programming and of the importance of having the assistance of an elder to discuss spiritual problems. Others spoke of the need for the help of an elder to enable them to accept their situation, and to deal with feelings of anger, hopelessness and frustration. No such services were being provided.
Correctional policy should include a clear and unambiguous principle that Aboriginal inmates, like other inmates, are entitled to the unhindered practise of their religions. Moreover, institutions should accept the responsibility for making the necessary spiritual services available. Aboriginal elders and Aboriginal traditional people should be allowed unhindered access to provincial institutions to provide spiritual services to Aboriginal inmates. Religious articles should be handled with respect.
The manner in which elders and other Aboriginal traditional healers are made known to, or are identified by, correctional authorities is an issue which has been raised on occasion. There appears to be some potential for problems in the fact that, in its policy governing the recognition of spiritual advisers and counsellors for inmates, the provincial corrections department specifically relies upon the qualifications for chaplains established by the Manitoba Interfaith Council, which represents faith groups in the province. The criteria require, "A candidate must be ordained, have pastoral experience, and receive institutional pastoral experience."7
Such a set of qualifications clearly was not written with the situation of Aboriginal elders in mind and, consequently, if applied rigorously, likely would prevent almost all traditional Aboriginal spiritual advisers from qualifying for consideration as "chaplains."
We do note that, recently, Headingley has had an Aboriginal elder service available for Aboriginal inmates, provided with the assistance of the Native Clan Organization. We are aware, as well, that the elder who participates with inmates in the institution on a regular basis is treated with respect by other chaplains, who invite him to attend the regular meetings of the chaplains whenever they are held. However, he is only one person from one particular tribe, and sometimes the assistance which he is called upon to provide requires knowledge specific to another tribe. The fact is, however, that without a process of "ordination," which is one of the premises of the qualifications established by the Manitoba Interfaith Council and which is a standard accepted by the Corrections Branch, Aboriginal elders cannot assert status as such without questions being raised. This can present problems since, as we mentioned earlier, Aboriginal elders are not necessarily healers, and vice versa. From time to time, therefore, other Aboriginal traditional people may be called upon to assist the "on-site" elder with a particular ceremony or to provide assistance with respect to an inmate of a different Aboriginal culture than that of the elder on staff.
Knowing whether a particular person who claims to be an elder or a traditional healer should be afforded credentials as such within an institution can be as problematic as knowing whether a particular person who claims to be a minister of a particular church or faith is so qualified. Correctional institutions do not, we are sure, accept every person who asserts that he or she is a minister of a church without some assurance that the denomination or church to which that person is affiliated has status as a religious organization, and that that person has status as a minister within it. In the same way, correctional institutions should develop a way of recognizing Aboriginal elders in cooperation with Aboriginal organizations.
We believe that, as with religious denominations, correctional officials should simply leave the designation or identification of Aboriginal elders, or traditional persons with authority to counsel or assist Aboriginal people in a traditional manner, to Aboriginal agencies who are more knowledgeable in this area.
For example, an Aboriginal organization recognized as having expertise in the area by Aboriginal people or organizations could be contracted to provide the service directly to provincial institutions. Alternatively, organizations such as the Assembly of Manitoba Chiefs could be asked to prepare a list of those persons whom they recognize as Aboriginal elders and forward that to correctional institutions. Indigenous womens groups also could be asked to identify Aboriginal women who could provide traditional healing to Aboriginal inmates at Portage. The same could be done for Manitobas youth facilities: the Ma Mawi Chi Itata Centre has some involvement with Aboriginal youth and could be asked to help in this area. We do not believe that the problem should be a difficult one to resolve at all.
We recommend that:
Vocational and Counselling Programs TOP
There are very few constructive programs for Aboriginal offenders offered in the correctional institutions we visited. Stony Mountain provides a range of educational, vocational and life skills programs, extending from literacy training to university courses, from building maintenance to life skills training, and many Aboriginal people enrol in these programs. During our hearings at Stony Mountain, however, Aboriginal inmates complained that the programs that do exist are not appropriate to their needs. Yet, if they do not participate in the programs that are offered, that fact appears on their record and harms their chances for parole.
Based on what we have observed and heard, it is apparent that Stony Mountain Institution is not an appropriate institution for most sentenced Aboriginal offenders. Most are not dangerous and should not be there. Few cultural programs are provided, and those that are provided suffer at the hands of institutional administrators primarily concerned about security issuesa factor which Warden Art Majkut (and others) indicated is not an issue for most Aboriginal inmates. Programs offered to inmates generally are not culturally appropriate or sensitive to Aboriginal inmates. The institution suffers, as well, from an under-representation of Aboriginal staff and from an over-emphasis on simply locking people upa focus of little benefit to Aboriginal inmates who are not a danger to society and whose needs are more social than punitive. It is clear that federally sentenced Aboriginal inmates are in need of better alternatives than what Stony Mountain has to offer.
Rockwood generally offers the same type of Aboriginal programming as Stony Mountain. The difference is in the lack of emphasis on security. Inmates are permitted greater freedom than in Stony Mountain. Generally, inmates want to transfer from Stony Mountain and the administration uses the greater freedom at Rockwood as an inducement to encourage them to "work" toward being transferred there. Conversely, inmates who are uncooperative at Rockwood are threatened with being transferred (back) to Stony Mountain if their attitudes do not improve. There is a lower percentage of Aboriginal inmates in Rockwood than in Stony Mountain, confirming what the 1988 Task Force report saidthat it is more difficult for Aboriginal people to be placed in lower security jails.
Aboriginal inmates at Stony Mountain said they had a hard time in the institution. They felt misunderstood and felt that the programs offered to them often had little or no relevance. Many Aboriginal inmates recognized that they had problems; however, requests for treatment or appropriate programs were ignored. One inmate said he asked when he would be ready for release and was told: "When you fit into our profile." It seemed to us that many Aboriginal inmates remained quiet and simply put in their time without any hope of benefits or early release.
If the programming at Stony Mountain is inadequate, it must be recognized that it is far superior to that offered in any provincial institution. The superintendent at Headingley Correctional Institution, Dennis Lemoine, told us that, "There has always been a fundamental problem with programming in a place like Headingley that was built in the 1930s first and foremost as a common jail." We were told that, partly due to the short sentences being served at Headingley, there are few educational or other programs aimed at improving the future opportunities of inmates. There is no trades training or job preparedness programming at Headingley, although inmates are allowed to attend training courses on temporary absences. At The Pas Correctional Institution, there is a part-time adult education instructor who visits the jail, and some inmates can take programs run by the Human Resources Centre and the Keewatin Community College. Other inmates work outside the institution, but, generally, we gained the impression that most of the inmates use their time very unproductively.
A representative of the Native Brotherhood Organization at Headingley Correctional Institution told us that Aboriginal inmates wanted to know why they "are always being dumped back into society."
The programs that do exist are largely insensitive to Aboriginal culture and some border on being completely irrelevant to the needs or aspirations of Aboriginal people. An Aboriginal inmate at Headingley said the correspondence courses offered at that institution are "the least effective method of learning for any people."
Aboriginal inmates in all institutions are told to take programs in order to improve their chances of being granted parole. But these programs, which include Alcoholics Anonymous, anger management and counselling for sexual offenders, are designed by non-Aboriginal people. Often, they fail to consider the individuals backgrounds, the reality of the situations to which they will be returning upon release or their aspirations. One Headingley inmate, for example, told us that he received no help in areas in which he had some qualifications but needed further training. Instead, he had spent 10 months simply pushing a broom.
Aboriginal inmates also require culturally appropriate assistance in readjusting to the community following a period of incarceration. We heard one story from a young man who entered school on his release from jail. Having no resources and no job, he wanted to improve his education so he could find employment. These opportunities had not been provided in jail.
There are other problems. A survey conducted by our Commission revealed that as many as 62% of Aboriginal inmates speak an Aboriginal language at home. There are, however, very few staff in the correctional institutions who speak an Aboriginal language and no programs are offered in an Aboriginal language. As a result, communication problems abound. Aboriginal inmates often do not understand institutional policies and programs. Many cannot read English and experience difficulty expressing themselves in a "foreign language."
We asked Aboriginal inmates what programs they would like to have offered. Most, 43%, wanted educational or vocational training. The next most-desired programming dealt with native culture and spirituality, which was requested by 29% of Aboriginal inmates. The next most-desired program was life skills training, identified by 14% of the inmates. Other programs suggested by inmates included those dealing with alcohol and drug dependency, stress management, crafts, parenting, marital counselling and native languages. Some specifically said they would like to see the Alcoholics Anonymous program delivered in a manner that was culturally appropriate to Aboriginal people.
By far the most common theme of the responses to our survey was that preparation for release is required and is not being offered. Clearly, inmates want to use programs, want to learn how to find employment and stay out of jail, want to learn how to deal with alcohol dependency, and want the programs to be relevant to them and to the conditions they will be encountering on release.
Whether it is vocational or religious programming in the institution, release planning or readjustment in the community, it is clear that Aboriginal inmates will be able to use existing or new programs effectively only if the programs are developed and directed by people from their own culture.
The programs will be particularly effective if the facilities and programs are offered close to the offenders community. If an inmate is serving a short sentence in a provincial jail, it is not possible for the inmate to enrol in a program that would terminate before the sentence is completed, or that would not require the inmate to return to the facility to complete. On the other hand, if programs were offered in open custody facilities in the home community, offenders sentenced to short terms could begin programs and complete them after their sentences were fully served.
We recommend that:
Separation of Pre-Trial and Sentenced Persons TOP
Headingley Correctional Institution houses both sentenced offenders and those on remand who have been denied bail. Thirty per cent of the inmates of The Pas Correctional Institution were on remand at the time of our visit. Overcrowding at these and other facilities often prevents convicted offenders with outstanding charges from being transferred from the Provincial Remand Centre in a timely manner. Stays of a year or longer are not unheard of in that institution. We believe that sentenced inmates and those on remand are quite distinct in terms of their rights and their program needs, as well as in terms of security considerations. The presence of remanded inmates, we believe, interferes with the programs for sentenced inmates, while allowing people who have not been convicted of a crime to come under the influence of those who have been convicted of serious offences.
We recommend that:
It is particularly disturbing to discover that this problem exists at the Manitoba Youth Centre, as well. While the justice system generally seems unconcerned about the separation of remanded and sentenced inmates, it goes to considerable expense to separate youths from adults. Instead of constructing appropriate youth facilities, the system engages in an extremely expensive and disruptive routine of transporting youth from all over the province back and forth to Winnipeg. Not only does the Youth Centre house those who have been sentenced to secure and open custody, but it also houses those on remand who are awaiting a court appearance somewhere in the province. While it is clear that a great deal of effort goes into the operation of the centre, we consider it totally inappropriate for this facility to try to meet this broad range of requirements. We believe that the MYC is unable to sufficiently separate convicted youth offenders and young people on remand, and we do not believe it should be used as an open custody facility. This one facility cannot properly serve the differing needs of these three categories of youth.
We recommend that:
We wish to emphasize that the long-term solution to this problem lies not with the construction of more remand centres, but in a reduction of the use of pre-trial custody, particularly for Aboriginal youths. Short-term custody provided at the community level, as well as pre-trial supervision in the community, will be more effective and less costly than traditional detention. TOP
Staffing Issues and Discipline Procedures TOP
We believe that most correctional officers are ill-equipped to deal with Aboriginal inmates. Dealing with inmates in a purely custodial fashion is the predominant, if not the only, method of dealing with inmates that occurs in Manitoba jails. Considering all the costs of custodial staffing, this is a considerable waste of human and financial resources. Furthermore, we found the custodial treatment to have significant problems. TOP
Guard Behaviour, Affirmative Action and Cross-Cultural Training TOP
Our survey of inmates revealed the extent to which Aboriginal inmates feel unfairly treated by the system and by some of the staff. Our survey indicated that 61% of Aboriginal inmates and 49% of non-Aboriginal inmates in provincial institutions believed that corrections staff treat Aboriginal inmates unfairly, and 70% of the Aboriginal inmates and 58% of the non-Aboriginal inmates in federal institutions whom we surveyed said they thought Aboriginal inmates were treated unfairly. The examples of unfair treatment include preferential treatment to non-Aboriginal inmates for phone calls and temporary absences, more accusations by guards about Aboriginal misconduct, greater tolerance of non-Aboriginal misbehaviour, more intimidation and assaults on Aboriginal inmates by the staff, non-Aboriginal inmates getting better jobs in the jails, and, at Headingley, non-Aboriginal inmates being kept in the lower security annexes while Aboriginal inmates are held primarily in the higher security main population. For some of the inmates who responded, there was no difference in treatment because, in their view, the guards treated everyone badly.
The interviewers who conducted our surveys found the same things as the Task Force on Aboriginal Peoples in Federal Corrections: Aboriginal inmates are held in higher security areas where there are fewer programs and privileges. They are not able to participate in some institutional programs and they have to serve a longer portion of their sentence before being released.
There is little cross-cultural training available for correctional staff. The superintendent of Headingley Correctional Institution explained that it was costly to send existing staff to training seminars, and, as a result, his institution focussed its efforts on providing cultural training for new recruits. This is another way of saying the jail cannot afford to be culturally sensitive. Society cannot afford jails that are not culturally sensitive.
Superintendent Dennis Lemoine described the cross-cultural training as "probably insufficient. Many of our staff who have been in the service here may have not gone back for retraining and in years previous there was virtually no native culture orientation." Aboriginal inmates cited numerous examples of correctional staff making racist comments and insulting people of Aboriginal background.
Aboriginal staff in our prison system are conspicuous by their absence. Only three of the 35 employees at the Rockwood Institution are Aboriginal, while at Egg Lake, where all the inmates are Aboriginal, there are no Aboriginal staff.
We recommend that:
Complaints and Disciplinary Matters TOP
The truism that justice must not only be done, but must be seen to be done, is particularly applicable in prisons. Prisoners are not likely to emerge from prisons with an enhanced respect for societys laws and rules if, during their time in jail, they have been subjected to arbitrary rules and procedures, and have had no meaningful way to appeal their treatment, but in institution after institution, we found this to be the case.
The disciplinary hearing procedure at the Headingley Correctional Institution is largely a facade. The rules are often ignored and, when they are used, they are interpreted narrowly and against the interests of the inmate. In particular, they further dehumanize the inmate and make him feel like a pawn of the system, without any rights and without any respect.
In addressing the complaints that various inmates had about the Inmate Disciplinary Board at Headingley, Superintendent Lemoine said:
According to the rules for disciplinary board hearings, the inmate is entitled to written notice of the hearing date and specific charges. We were told by the superintendent that the charge is read to the inmate only at the hearing. The rule, in other words, is not followed.
Another rule states the inmate is entitled to assistance from another person of the inmates choice. We were told few have help. The superintendent told us inmates could not choose to get assistance from a lawyer, only from another inmate. And that inmate may not be allowed to attend the actual hearing. Another rule states the inmate has the opportunity to question and to call the complaining officer. In practice, the inmate is not permitted to question the complaining officer. When we asked Superintendent Lemoine if the effect of this system was to place the onus on the inmate to prove that he is innocent, he said, "It would appear that way."
Hearings are conducted by a senior staff member of the institution. This, we believe, creates a conflict of interest situation, both apparent and real. These disciplinary "trials," for that is what they are supposed to be, breach the rules of natural justice.
We note with interest the recent decision of Associate Chief Justice Oliphant of the Manitoba Court of Queens Bench, in the case of an inmate who appealed the decision of a disciplinary hearing at the Brandon Correctional Institution. The inmate alleged that his rights under the Charter of Rights and Freedoms had not been respected. In quashing the disciplinary boards ruling, Associate Chief Justice Oliphant agreed with the plaintiff that basic rights to retain counsel and to cross-examine witnesses had been denied. He said, in part, that "From an administrative law point of view, inmates of correctional institutions are no less deserving of the right to procedural fairness than are other persons."8
The fact that the rules governing discipline hearings can be disregarded openly and routinely raises another problem. In both federal and provincial penal systems in Manitoba, there exists no satisfactory, culturally appropriate process for Aboriginal inmates to challenge or appeal their treatment. According to our survey of inmates, 64% of Aboriginal inmates had not made any complaints during their time in prison, compared with 40% of non-Aboriginal inmates. Thirty per cent of Aboriginal inmates felt there was no one they could go to with complaints about the way they were treated, and this figure rises to 41% when one looks only at provincial Aboriginal inmates. Sixty-nine per cent of those who did make their complaints known reported that their concerns were ignored.
Inmates at Stony Mountain and Rockwood can take their concerns to the Correctional Investigator. However, as the 198889 Annual Report of the Correctional Investigator notes:
Inmates of provincial institutions with complaints about either their individual or collective experiences are directed to the provincial Ombudsman. The backlog of cases at the Ombudsman office virtually guarantees that a provincial inmate will have been released from custody before his or her complaint is addressed. While the Ombudsman has carried out a number of important investigations of correctional facilities in Manitobaincluding a sweeping indictment of the Agassiz Youth Centrethe fact that these institutions continue to exist largely unchanged underscores the fact that the Ombudsman office has limited effectiveness.
We recommend that:
Work Programs TOP
Jails in this province provide few vocational training programs, and none that is culturally appropriate for Aboriginal people, but a number of institutions allow inmates to work in the institution and in the general community. At the Brandon Correctional Institution, there are programs that permit inmates to work in parks and elsewhere. At the time of our hearing at the Dauphin Correctional Institution, six inmates were going out to work each day on temporary absences. They worked for minimum wage or more. When they have worked for 80 hours, they are required to start paying the institution for room and board at the rate of $8.70 per day. Some inmates at The Pas also work outside the institution. At the Egg Lake Rehabilitation Camp, inmates go out every day to work along the highways, to improve public campsites and, occasionally, to fight forest fires. At Milner Ridge, there are work details and some inmates attend trades training in Winnipeg. They receive credits for their work that are recognized by a community college.
There is much that is commendable in programs which develop a relationship between jails and communities, and helps prepare inmates for normal work experiences. But we are concerned about the fact that these programs often operate without any guidelinesand often become the institutions only focusto the detriment of training, counselling and rehabilitation programs.
The debate about inmates working outside correctional institutions has gone on for many years. Inmates want to work to earn an income, to gain skills and to make connections that might lead to permanent employment after their release. When inmates earn money in this way, we believe they should be entitled to keep some of it, while they also should be required to pay some amount towards the public cost of housing them. Those who do not want to work outside the institution should have the option of working in and around the institution, thereby helping to defray institutional costs, or of participating in counselling or training programs that benefit themselves and society.
Work programs do have the potential to create some problems. Inmates presumably are incarcerated so that they can be rehabilitated and the public has a vested interest in ensuring this occurs. Inmates may serve as an all too convenient and ready source of labour to help institutional administrators defray the costs of running their institutions or to help local communities defray the cost of public works. A work program may or may not be consistent with the goal of rehabilitation for every inmate. Therefore, it is important that these types of programs take these considerations into account.
We recommend that:
As we have discussed elsewhere in this report, there is a need to institute fundamental reforms in order to overcome the deficiencies of the current approach to providing justice services to Aboriginal people. In particular, specific justice programs must be developed and administered by Aboriginal people.
It is recognized that the types of changes we are recommending will take time to implement. However, current policies and practices cannot be allowed to continue.
We have seen that far too much emphasis is placed on security, even though security is not an issue for 80% or more of the Aboriginal offenders who are incarcerated. Many opportunities exist to provide meaningful cultural, educational and training programs. These programs should become the focus of our institutions, not bars, head-counts and constant surveillance.
In cases where incarceration in secure jails is warranted, every effort should be made to ensure that the experience is socially productive and that the Aboriginal offender returns to society better equipped to take up a meaningful role in the community. We would like to see greater emphasis placed on culturally appropriate counselling to meet individual needs, on substance abuse programs, on anger management and abuse counselling, and on specific skills training related to employment.
During our visit to tribal courts in the United States, we saw that it is not always necessary to have long periods of incarceration to maintain peace and stability in Aboriginal communities.
We believe the changes we have recommended, if implemented, would substantially improve the effectiveness of the provincial corrections system for both Aboriginal and non-Aboriginal offenders. We also believe them to be cost-effective and, in some instances, cost-saving measures. Despite this, the compelling arguments for creating a new correctional system are not economical, but ethical and pragmatic. TOP
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