Segregation in Ontario

"Prisons and jails have rules about everything. There are rules governing every moment a person spends in custody and every movement that person makes. There are rules about everything staff does as well. In spite of this, and with apologies to Justice Louise Arbour, although rules are everywhere, the rule of law is too often absent." – Howard Sapers, the Independent Review of Ontario Corrections

“This is a glaring example of a broken system.” – ORC Isadore Day, on Adam Capay’s solitary confinement

Background

The correctional system in Ontario, more specifically the use of segregation in prisons, is currently in a state of crisis. In the past twelve months there have been several high-profile events that drew attention to the flawed use of segregation in Ontario, and indeed across Canada. The Ontario Human Rights Commission called for an end to the use of solitary confinement in Ontario. In November 2016, McLean’s published a story on Adam Capay’s case, where a young man from Lac Seul First Nation had served 1,560 days in segregation, using his story to shine a light on the practices of segregation in the province. The resulting public uproar coincided with an internal review of the provincial use of segregation in prisons.

The Ontario Ministry of Community Safety and Correctional Services (MCSCS) has in response appointed Howard Sapers to conduct a review of the use of segregation in Ontario prisons as stage one of a three phase reform plan.[1] Sapers has worked in the field of corrections for over 40 years, and has served as the Correctional Investigator at the federal level. He argued that overuse of segregation is symptomatic of wider systematic issues to be addressed in the second report. This report on segregation was done on a quick timeline so that it could quickly respond to these concerns. Sapers had 60 days to complete his report, which was released in March 2017. This was a remarkably fast timeline.

Correctional Services Transformation Strategy

One of the five focus areas of The Journey Together is "creating a more cultural responsive and relevant justice system." Reform of correctional facilities are central towards this goal. In 2015, Indigenous peoples made up 25% of the incarcerated population in Canada, well above the population of Indigenous peoples outside prisons.

Chiefs in Assembly Resolution 04/31 (First Nations Peoples and the Criminal Justice System in Ontario) concluded that there is a need to examine the justice system in Ontario and improve relations, policies and procedures, and Resolution 10/13 (Establishment of the Justice and Corrections Leadership Roundtable) called for a justice forum to discuss correctional facilities and services. Finally, Resolution 13/47 (A Strategy to Work Towards the Reconciliation of Overrepresentation of First Nations Peoples in the Justice and Correctional Systems) directly addressed the problems of overrepresentation in prisons, calling for access to justice for First Nations peoples, and declarations of responsibility of First Nation leadership to ensure that justice is provided in a culturally appropriate way. It also designated overrepresentation of First Nations people in prisons as a priority area for the Justice Forum.

Bill C-262 and Bill C-332: Federal Acts relating to UNDRIP

Status: There are currently two Bills in the House of Commons relating to the United Nations Declaration on the Rights of Indigenous People (UNDRIP): Bill C-262 and Bill C-332. Bill C-262, The United Nations Declaration on the Rights of Indigenous Peoples Act proposes to ensure that the laws of Canada are in harmony with UNDRIP. Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples Reporting Act, required the Minister of Indian Affairs and Northern Development to table an annual report that outlined the Parliament of Canada’s compliance with UNDRIP.

Bill S-215: An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women)

Status: Passed Third Reading at the Senate on December 8, 2016

Summary: This bill, sponsored by Sen. Lillian Eva Dyck of Saskatchewan, would make two amendments to the Criminal Code that require that courts consider when the victim of an assault or murder is an Indigenous woman that this is an aggravating circumstance for the purposes of sentencing. This would be achieved with additions to sections 239(1) and 273(01) of the Criminal Code. 

Bill 57 - Katelynn's Principle Act (Decisions Affecting Children), 2016

Status: Ordered referred to Standing Committee 

Summary: This Act was created to serve as a guiding principle for decisions affecting children. Triggered by a tragic event where a seven-year-old, Katelynn Sampson, died after being brutally abused over many months by her legal guardians, the Bill set out guiding principles to direct decisions concerning children.

The jury in the coroner's inquest into the death of Katelynn Sampson put forth  173 recommendations that would mitigate risks to children and prevent similar situations in the future. The first recommendation, referred to as Katelynn’s Principle, places children at the centre of decisions affecting them. The jury requested that all parties to the Coroner’s Inquest ensure that Katelynn’s Principle apply to all services, policies, legislation and decision-making affecting children.

Creating a Culturally Relevant and Responsive Justice System

In The Journey Together, Ontario committed to create a culturally justice system that responded to the needs of Indigenous peoples. From that document: "In order to counter the pervasive and lasting effects of the residential schools, Ontario acknowledges that meaningful changes to the justice system are necessary." Five of the specific commitments under this section fell under the authority of the Ministry of the Attorney General (MAG). Below is a summary of recent actions the MAG has taken to address these five commitments.

Strategy for a Safer Ontario

Background

On February 10, 2016, the Ministry of Community Safety and Correctional Services (MCSCS) launched province-wide consultations on the Strategy for a Safer Ontario (SSO), an initiative to reform policing in Ontario. It focused on four key policing areas: accountability and oversight, improved interactions between vulnerable Ontarians and the police, clarification of police duties, and the creation of a legislative framework for First Nation police services.

The plan established several major projects and short timelines, including major legislative amendments to the Police Services Act (PSA), implementation of a “hub model” of community policing, enhancing Ontario’s response to missing persons, improving Coroner’s Inquests especially for Indigenous communities, and enacting Ontario’s strategy to end human trafficking.

All of these initiatives will impact First Nations, but the most significant change will be legislative changes to the PSA. Currently, First Nations police operates as a program, not an essential public service, a designation that has significant and tangible ramifications for First Nation police and the communities they serve. Operating as a “program” means that First Nation police are inadequately funded and therefore have insufficient staff and equipment, underpaid officers relative to provincial police services, and no civilian oversight mechanisms.

Work this Year
COO has coordinated MCSCS work with First Nations and First Nations chiefs of police for several years. From 2008-2013 MCSCS participated in a joint bi-lateral sub-table on First Nations’ Policing with First Nations political and police service representatives focused on creating a legislative basis for First Nations policing. 

Chiefs of Ontario received the SSO and proposed amendments to the PSA and, guided by the 43 resolutions on policing from the Chiefs in Assembly, informed Ontario that more time to review the draft SSO was needed. Specifically Resolution 13/21 of the Chiefs in Assembly (First Nations Police Services in Ontario in Crisis Situation) supported the exploration for a request for regulatory change under the Police Services Act so that First Nation police services would fall under the legal definition of a police force. Ontario then worked with COO to structure meaningful engagement concerning the SSO.

The Chiefs of Ontario Executive Office coordinated information sharing sessions of the political/technical table with membership depending on the location. Four sessions took place: February 13-14 in Thunder Bay, March 29 in Six Nations, April 12-13 in Thunder Bay and April 19 in North Bay.

Chiefs of Ontario prepared a Policy Position Paper on the SSO, which recommended key policy and legislative changes that came from these engagement sessions. They include updating the principles within the PSA to recognize the need to respond to the unique context of First Nation, and to ensure equitable funding for First Nation police services. These changes will be completed on an opt-in basis so that self-administered police services will be able apply to be covered by the act. Doing so would enable these First Nation police services to access funding and oversight mechanisms. In June 2017 this policy paper was presented to the All Ontario Chiefs Conference.

Next Steps
The Ministry is finalizing the SSO, including the major amendments to the PSA. Currently, the Ministry is claiming it will be tabled on the first parliamentary calendar sitting day of the Fall session, 2017. This is one sitting day following their last deadline (the last parliamentary calendar sitting day of Spring session 2017). MCSCS has indicated that it is interested in re-engaging with partners over the summer to better implement the Policy Position Paper recommendations, as well as to respond to the Independent Police Oversight Review.

Once the legislation is tabled, MCSCS will enact policy-level changes to better respond to First Nation needs, particularly those expressed by existing First Nation police services. Continued engagement will take place in the fall so that this transition period will be as smooth as possible.

Chiefs of Ontario will continue to engage with the Ministry, as directed by the Chiefs in Assembly, to ensure that equitable and culturally appropriate policing exists in First Nation communities. MCSCS is also seeking to work with COO and PTOs in continued engagement following the introduction of legislation, including who is interested in the new options under the revised PSA and how to develop regulations and policies.

Walking Together: Ontario’s Long-Term Strategy to End Violence against Indigenous Women

It is by now well known that the fact that Indigenous women and girls experience violence at levels far disproportionate to the rest of the Canadian population. Ontario has reported that Indigenous women are three times as likely to experience violence. 

In February 2016, after years of advocacy from various First Nation communities and organizations, Ontario released “Walking Together: Ontario’s Long-Term Strategy to End Violence Against Indigenous Women.” 

Background

The immediate processes that led to this strategy’s creation began on March 20-22, 2007 when the Ontario Native Women's Association (ONWA) and the Ontario Federation of Indian Friendship Centres (OFIFC) convened a strategy meeting entitled A Summit to End Violence Against Aboriginal Women. The success of this meeting led to a second summit hosted in September 2007, which ultimately developed a document entitled “A Strategic Framework to End Violence Against Aboriginal Women.”