Law and disorder: What Bill C-10 could mean for Canada's native people

The Globe and Mail

(Vivienne Flesher for The Globe and Mail)

By his own reckoning, John Findlay has spent 25 of the past 33 years in jail. He has gone in and out of prison since his first arrest at the age of 17 – mostly for petty property crimes, sometimes violent, often committed after he had been drinking.

He tells me in a soft voice that he's a pretty tough guy. I believe him. There was the time he tried to wrench away a man's laptop in the street, and ended up stabbing him three times with a penknife. The victim survived; Mr. Findlay spent six years in Joyceville penitentiary. Then he was back on the street, much as before, a bundle of anger and fear.

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“I didn't learn anything, being in prison all my life, except to hide my fear and deal with it through violence,” he says.

In 2010, he was about to take a plea offer for another stretch of “deuce less” (two years less a day) when someone steered him to the Toronto Gladue court, a special tribunal for aboriginal people. A year and a half later, he thinks he's gaining on his No. 1 goal: “to figure out how to live outside the Correctional Service of Canada.”

He's living sober at Sagatay, a Toronto transitional shelter for aboriginal men. He has been through addiction and anger-management sessions, enrolled in a life-rehabilitation program and met with Vern Harper, an “urban elder” who presides over sweat-lodge ceremonies and spiritual services. Those encounters changed his life, and got him thinking about following Mr. Harper in helping younger aboriginal men keep out of trouble.

“I never made long-term plans before,” says Mr. Findlay, who is originally from Kenora, Ont., grew up in foster care and residential schools, and has two daughters he hardly knows. Now, he is part of a long-term plan – one created by Patti Pettigrew, a caseworker with Aboriginal Legal Services of Toronto (ALST), to help him become part of the solution to the stubborn problem of aboriginal crime.

Mr. Findlay's story is rare for a man with his history. And it may become much more so if Bill C-10 passes third reading in the Senate, which is currently holding hearings on the draft that the House of Commons passed in December. The legislation, a medley of 10 bills on the Harper government's tough-on-crime agenda, includes mandatory-minimum-sentencing rules that will curtail judges' abilities to deal out alternative sentences. That could undo a decade-long effort to find culturally specific ways of diverting inmates such as Mr. Findlay away from serial engagements with the justice system.

Native Canadians make up less than 4 per cent of the general population, but they account for 22 per cent of prison inmates. Many of those are young men who have grown up in poverty and high unemployment, and who have lower-than-average education levels.

Shawn Atleo, National Chief of the Assembly of First Nations, said recently that aboriginal children are more likely to go to jail than to graduate from high school. More will go to jail after C-10, and many will end up in the gangs that flourish in western and northern jails, where more than 70 per cent of inmates are aboriginal.

“What we're doing with C-10,” says Jonathan Rudin, program director of the ALST, “is to increase our reliance on things that don't work.”

The realization that more jail time and standard programs weren't reducing aboriginal crime found expression in federal law 16 years ago. Amendments to the Criminal Code directed judges to consider the life circumstances of all offenders when sentencing, and especially those of aboriginal people.

A Supreme Court of Canada ruling in 1999 and further legislation fuelled efforts to make healing lodges, spiritual ceremonies and native-elder interventions available to federal prisoners. That includes a Pathways healing unit nearing completion at the Edmonton Institution, a maximum-security prison where about half the inmates are aboriginal and nobody's doing soft time.

The idea was that the cultural damage historically sustained by native communities helps drive anti-social behaviour. Get inmates connected with their own traditions, and they should be less likely to reoffend.

Gladue courts, named after the defendant in the 1999 Supreme Court case, were intended to concentrate expertise in alternative sentencing for natives. A significant feature is the pre-sentencing reports (called Gladue reports) that inform the judge about life circumstances that may make a monitored conditional sentence (similar to parole) more effective than time behind bars.

Effective, that is, at reducing rates of reoffending. If convicts work on their antisocial behaviour while under supervised release, says David Milward, a University of Manitoba law professor, they reintegrate into society more easily than if they serve their time “to the door.” It's cheaper too: Supervised release costs about $30,000 per convict per year, or less than one-third the cost of a year in jail.

“Why spend all that money when the other way is more cost-effective?” Prof. Milward says. Augmenting rehab programs for natives, which are now available to less than 20 per cent of aboriginal inmates, would be a “spend now, save later” investment, he says. More jail time will cost us more now and in the future.

Contradictory stands

The supporters of this approach include not only native organizations and the John Howard Society but the Minister of Justice, Rob Nicholson. He declined requests for an interview, but told the Canadian Bar Association last August that the Correctional Service of Canada's Aboriginal Justice Strategy (AJS) “does reduce the recidivism rate when people get involved. I wouldn't support the AJS if I didn't think it was making a difference.”

He nearly doubled AJS funding in 2008, as part of a “balanced approach” that also includes more police and stiffer sentences.

The strategy costs only $85-million a year for programs in more than 600 communities – peanuts compared with the $3-billion the government will spend this year on corrections. Some projections show that the tough-love Truth in Sentencing Act, passed last year, may triple the correctional budget in five years. We don't know the costs – including to the provinces – that will result from C-10's mandatory minimums.

These numbers “balance” only when you add the political component: Sixty-two per cent of Canadians believe longer prison sentences reduce crime. It's unlikely most of them are keen on culturally sensitive sentencing.

Mr. Rudin says the minimum-sentencing provisions represent an attempt to undermine the Gladue courts “by stealth” – a Gladue report won't be of any use if jail time is mandatory.

Earlier this week, an Ontario Superior Court judge struck down a 2008 federal statute that would have obliged her to jail a man with no criminal record for three years, for posing for a photo with a loaded gun. Madam Justice Anne Molloy ruled that imposing the mandatory minimum would be “fundamentally unfair, outrageous, abhorrent and intolerable.”

Her ruling, which is not binding on other provinces, will probably be appealed. But if judges are compelled to hand down mandatory minimums, discretionary power won't disappear, says Norman Tarnow, Nunavut's acting deputy minister of justice – it will just shift to Crown prosecutors.

“In some cases, it's going to force prosecutors to charge people with lesser offences, to avoid an unjust sentence,” Mr. Tarnow says. It will also clog up the courts, as the threat of long sentences prompts more aboriginal people – who plead guilty far more often than non-aboriginals do – to contest their charges.

A flood of new prisoners would make existing programs for aboriginals even less available, Prof. Milward says. An effective means of prevention will be supplanted by an expensive, punitive statute.

Logic lost in the shuffle

A 2006 AJS study of more than 4,000 inmates found that the recidivism rate among 3,361 aboriginal people who participated in culturally sensitive programs was less than half the rate among 885 who didn't. But the public doesn't hear about crimes that don't occur, and it snaps to attention when sensitivity appears to have trumped fairness.

In December, a young aboriginal man named Richard Smoke drew a “deuce less” for what Mr. Justice Alan Whitten of the Ontario Superior Court described as a “vicious” 2007 beating of a man who will probably never recover fully from the attack. The ruling drew headlines – “Bad logic behind light Caledonia sentence” – and a call from Ontario Conservative Leader Tim Hudak for the Crown to appeal.

Few of the tabloid reports mentioned that Mr. Smoke was a first-time offender who had already served 10 months in jail awaiting trial, and that his sentence included three years of supervised probation after release. Nor did they say his victim had sought out the confrontation at a housing complex in Caledonia, the scene of ongoing bitter standoffs over treaty rights. The man, who had earlier removed a Six Nations flag from the roof of the house, hopped a back fence to the property after being turned away at a police line in front.

Mr. Smoke's lawyer argued that those circumstances pointed toward a mid-range sentence for aggravated assault, 12 to 24 months, as compared with the maximum six years indicated for a repeat offender who assaults a vulnerable victim. The judge agreed. But because he also heard a Gladue report on how addiction and residential-school trauma affected Mr. Smoke's upbringing, critics concluded that a criminal was being coddled because of his race. (Mr. Smoke has applied to serve his time at the Thunder Bay Correctional Centre, one of a handful of Ontario provincial jails to offer programs for aboriginal people.)

In the light of such publicity, and despite steadily declining crime rates, many Canadians worry about crime. That concern is more easily appeased by a straight-line solution than by a complex program of rehabilitation that may run into a few zigs and zags – even if that path has better outcomes in the long run.

“Success is a process of many steps,” says Ms. Pettigrew, the ALST caseworker. “The steps may appear small to the general public, but for the client they may be huge.”

John Findlay, for example, hit a zag last spring, when he got drunk and disorderly at his father-in-law's house. He was arrested for violating parole conditions and served five months. But reforming a life is like that: It doesn't all follow the plan.

Northern exposure

A tough-love advocate might say Nunavut is the perfect place for stricter sentencing: Its crime rate is the highest in the country, six times the national average. But for Madeleine Redfern, the mayor of Iqaluit, C-10 looks like a storm on the horizon.

The territory's only jail, Baffin Correctional Centre, was designed for 48 prisoners, and now holds double that. Many inmates sleep in the gym. The facility was declared unsafe by Nunavut's fire marshal in 2010.

A new prison at Rankin Inlet will fill up the day it opens, and won't address the territory's exported-prisoner problem, says Mr. Tarnow, the acting deputy minister of justice: The territory spends nearly a quarter of its $31-million corrections budget to house surplus inmates in provincial jails to the south, and those provinces may soon have no room for them because of C-10.

“It's overwhelming,” Ms. Redfern says. “C-10 is adding more burden and potentially more harm. Most of our offenders are also victims. Most of the harm is self-harm, or on one's family.” A recent RCMP report showed that more than 90 per cent of crimes in Iqaluit involve substance abuse, “and yet we don't even have an addiction centre in our territory,” the mayor says.

Even since the reforms of the late 1990s, there has been little change in the broader facts of life for aboriginal prisoners. Natives still tend to get longer sentences, higher security ratings, more time in solitary, and less time on parole or conditional release than non-natives.

“We're not seeing as much progress as we expected in those areas,” says Howard Sapers, Correctional Investigator for the federal government, though he says it may just be taking time for the initiatives' effects “to work their way through the system.”

He also notes that aboriginal peoples comprise many different tribes and cultures: A program conducive to Ojibwa needs won't necessarily suit Inuit or Haida inmates.

It will take very little time for Bill C-10's impact to start working its way through the system. As soon as it's signed into law, more people will go to jail, at a cost of $110,000 a year.

Unhealthy surrogate families

Between the 1996 and 2006 censuses, Canada's aboriginal population grew by 47 per cent, compared with 8 per cent for non-aboriginals. Almost half the aboriginal population in 2006 was under 25, the prime age for the onset of criminal and addictive behaviours.

If those young people go to jail, they find a community waiting for them – just not one that most Canadians would want. Aboriginal gangs are always competing for new members. Bigger gangs mean more violence and a more criminalized jail population.

“In most cases, you're taking non-gang-involved people and sending them where they become gang-involved,” the ALST's Mr. Rudin says. “So they come out worse than they went in.”

This is the tragic mirror image of the restored aboriginal community that the Correctional Service, with minimal resources, has tried to foster: With no stable family relationships in their pasts, young inmates are quick to fall in with the security and defined roles that gangs offer.

For many of them, culturally specific rehabilitation programs will remain a distant rumour. They will be left instead to learn skills and attitudes that won't make them any safer for their families or communities when they eventually get out.

Advocates for alternative approaches to aboriginal justice have not found an effective way to counter the “get out of jail free” rhetoric that flows when a Richard Smoke comes along. Still, this week's Ontario decision could open the possibility for the government to amend its mandatory-minimum provisions, without losing them entirely.

For example, a “safety valve” measure of the kind passed by the U.S. Congress in 1994 would permit judicial discretion to prevent cruel and unusual punishment. But the Minister of Justice has rejected that idea before, and even so, it would probably apply only to first-time offenders, like the man in the Ontario gun-photo case. Someone with a record like John Findlay's would draw the mandatory jail time.

Back at Sagatay, Mr. Findlay is feeling something that has been rare in his life – optimism. He recently coached a native youth anger-management group, and would like to do more. “Whether they can hear me or not, at least they'll know I'm talking from real experience, and I don't have an agenda they might be afraid of,” he says.

Perhaps that's what our public policy needs: More attention to the evidence gathered from real experiences, and less recourse to fearful agendas.



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