Almost half of prisoners held in isolation are Indigenous, panel says

By Patrick WhiteThe Globe and Mail

As of March 4, 166 prisoners were in structured intervention, 80 of whom were Indigenous, or about 48 per cent. THOMAS PORTER/THE CANADIAN PRESS

Indigenous people make up half of all prisoners subjected to the harshest form of federal detention, an indication that problems persist under the federal government’s new model of inmate isolation.

An independent oversight panel formulated the statistic as part of its work reviewing Correctional Service Canada’s new prisoner isolation regime, called structured intervention.

The federal Liberals created structured intervention units (SIUs) in November, 2019, calling them a humane replacement for segregation, a prison practice akin to solitary confinement that courts in British Columbia and Ontario had rendered unlawful because it violated constitutional rights. Among the cases was a B.C. Supreme Court finding that segregation discriminated against Indigenous inmates.

The panel found that 48.9 per cent of prisoners in SIUs were Indigenous.

“If the policy intention was to eliminate the evils of segregation, then it doesn’t look like that intent has been achieved,” said Howard Sapers, chair of the panel, which was created to oversee the implementation of 15 structured intervention units across the country. The report containing the statistic has yet to be made public.

Mr. Sapers said the panel members looked at SIU population data for Aug. 22, 2021. He was struck by the proportion of cells occupied by Indigenous prisoners.

“There is something dramatically out of whack when it comes to the use of structured intervention and Indigenous prisoners,” Mr. Sapers said.

In a statement to The Globe and Mail, Correctional Service Canada (CSC) spokesperson Marie Pier Lécuyer confirmed the ratio of Indigenous people in structured intervention remains high. As of March 4, 166 prisoners were in structured intervention, 80 of whom were Indigenous, or about 48 per cent.

“CSC will continue to work with Howard Sapers and the implementation advisory panel, other oversight bodies, and Indigenous communities, as we work to support the rehabilitation of Indigenous offenders and ensure they are provided the tools and services they need to successfully reintegrate the community,” the statement reads.

The federal jailer has long held a large proportion of Indigenous prisoners compared with the general population. In the 2016 census, 1.7 million people in Canada identified as Indigenous, accounting for 4.9 per cent of the population. Within the federal penitentiaries, the share jumps to 32 per cent. That’s up from 12 per cent in 1999, the year the Supreme Court of Canada’s landmark Gladue decision declared that the overrepresentation constituted “a crisis in the Canadian criminal justice system.”

The Gladue decision directed judges to consider a person’s Indigenous background during sentencing, with the intention of diverting significant numbers away from incarceration. In 2015, the Truth and Reconciliation Commission took a crack at addressing the problem, calling on federal, provincial and territorial governments to commit to eliminating “the overrepresentation of Aboriginal people in custody over the next decade.”

When the bill calling for the creation of structured intervention units was before the Public Safety Committee in 2018, Jonathan Rudin, program director for Aboriginal Legal Services, warned that it lacked any consideration of the Gladue decision.

He wasn’t shocked to hear of the high proportion of Indigenous prisoners now housed in SIUs.

“I would like to say it’s surprising, but it’s not, because my experience is that the outcomes for Indigenous people in correctional services are always worse,” he said. “When you see numbers like this, it just speaks to the fact that CSC is incapable of addressing humanely and properly the needs of Indigenous offenders.”

In 2018, Ottawa allocated $297.3-million over six years to staff and equip the new isolation units. A prisoner can be transferred to the SIU when they need to be separated from the general prison population for safety reasons.

Under the old segregation model, prisoners were granted two hours a day outside their parking-spot-sized cells. There was no limit on how many consecutive days they could be segregated. Courts in B.C. and Ontario ordered Ottawa to end the practice. Both endorsed a time limit of 15 consecutive days in segregation.

The federal government countered with structured intervention, which doubled the amount of time prisoners could spent outside their cells to four hours, including two hours of meaningful human contact. But it did not institute a 15-day cap on the numbers of days someone could be isolated.

Mr. Sapers said the panel found that 54.7 per cent of prisoners held in SIUs spent more than 15 days there.

A recent report from Correctional Investigator Ivan Zinger concluded that many people refuse to leave SIUs because they tend to be safer than general population units, especially at maximum-security prisons, and offer greater access to health workers and services.

But previous panel studies have found that SIUs rarely live up to that comfy billing. One review of 2020 data concluded that up to 45 per cent of SIU prisoners never received their four-hours outside the cell.

“I’ve heard from a number of guys who said they were really lucky if they got out of their cell for 15 minutes,” said Kim Beaudin, national vice-chief of the Congress of Aboriginal Peoples and member of CSC’s Aboriginal advisory committee.

Criminologists, judges and lawyers describe a complex set of reasons to explain the overrepresentation. Mr. Beaudin prefers a more streamlined interpretation. “It’s all rooted in racism and discrimination, period,” he said. “There’s just no way around it.”

The CSC has developed an anti-racism framework that focuses on creating an inclusive workplace and rethinking tools used to assess prisoners.

For Mr. Rudin, the relentless surge of Indigenous people in CSC’s custody has persuaded him to stop using the word “overrepresentation” to describe the problem.

“It actually makes the problem sound less serious than it is,” he explained. “The term I’m using now is ‘mass incarceration.’ What we have now is the mass incarceration of Indigenous people in Canada. And we don’t seem to be coming to grips with it.”

This story was originally published at globeandmail.com. Read it here.

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