2007-2008 Correctional profile: Native Persons Committed to the Custody of Québec's Correctional Services
“The correctional services of the Ministère de la Sécurité publique, the Commission québécoise des libérations conditionnelles and the community-based organizations which are their partners, as well as all society's stakeholders having an interest in the correctional system shall facilitate the reintegration of offenders into the community. In keeping with the fundamental rights of the offenders, the correctional services shall contribute to the maintenance of a safe society by helping offenders become law-abiding citizens and by providing reasonable and humane measures of security and control in their regard, while recognizing their potential for rehabilitation and their willingness to engage in a reintegration process (Act respecting the Québec Correctional System, R.S.Q. c. S-40.1).
“More specifically, the correctional services are responsible for (1) the provision of pre-sentencing reports and any other information requested by the courts; (2) the assessment of the persons committed to their custody; (3) the supervision in the community and the care of the persons committed to their custody, until the end of their sentences; (4) the development and implementation of programs and services that contribute to the reintegration of offenders, and the facilitation of access to specialized programs and services offered by community-based resources; and (5) the carrying out of research in the corrections field, in conjunction with the other stakeholders.”
The Act also requires that the services offered and the development of support programs for social reintegration take into account in particular the specific needs of Native persons and women (section 21). Canadian studies have repeatedly shown that the reality of Native persons has specificities related to the sociohistorical conditions in which they have developed. These specificities can be observed in several areas, including criminology and justice.
The overrepresentation of Native persons in Canadian penal institutions is a phenomenon that has been identified in scientific writings for almost four decades. Obviously, this phenomenon is persistent and has resisted the various policies and programs implemented to overcome it (Dickson-Gilmore & LaPrairie, 2005). According to the Office of the Correctional Investigator of Canada1 (OCI), unless steps are taken rapidly to improve the situation, Native persons could account for nearly 25% of the federal offender population within ten years (OCI, 2006).
1 “The Correctional Investigator is mandated by Part III of the « Corrections and Conditional Release Act » as an Ombudsman for federal offenders. The primary function of the Office is to investigate and bring resolution to individual offender complaints. The Office as well, has a responsibility to review and make recommendations on the Correctional Service's policies and procedures associated with the areas of individual complaints to ensure that systemic areas of concern are identified and appropriately addressed.”
In Québec, the overrepresentation of Native persons in both federal and provincial penal institutions was observed later; however, it is acknowledged to be less than in the provinces of Western Canada. The earliest work published on this subject was that of Jaccoud (1986). On the basis of a study covering all admissions to Québec penal institutions from 1977 to 1985, the author found that Amerindians accounted for 1.2% of admissions, whereas that population made up 0.6% of Québec’s general population.
The Services correctionnels have carried out this study to be able to better understand the situation of Native persons in the Québec correctional system. Better knowledge of the Native offender population should be useful for evaluation and intervention purposes, and it should facilitate a better harmonization of the needs of Native persons and available resources. This study is the first to describe the sociojudicial profile of the overall Native population in the custody of the Services correctionnels for a given year. The correctional population under provincial jurisdiction is made up of persons in interim detention and persons under a maximum sentence of incarceration for two years less a day and/or supervision in the community for three years or less.
According to the 2006 census (Statistics Canada, 2008a), Canada is in second place in terms of the proportion of Native persons in its overall population, which is 4%. It is behind New Zealand, where the Maoris make up 15% of the population. In Australia, Native persons account for only 2% of the population, and in the United States, they account for just under 2%. In all three countries, these persons face the same kinds of difficulties as those faced by Canada’s Native persons. They are challenged by important social problems, such as poverty, underschooling, unemployment and alcoholism, as well as important problems related to the criminal justice system, such as the high level of crimes committed and overrepresentation in penal institutions (Lithopoulos, 2007). By recognizing the need to reduce criminality problems in Native communities, each of those countries has developed and implemented various initiatives. One of the essential elements for success in this regard is the participation of Native persons in the various components of the justice system. Although the political structure and historical traditions of each country may result in differences in the initiatives put in place, we are of the opinion that Canada’s expertise in correctional services for Native persons is one of the most extensive, making Canada a leader in the field. Therefore, we have chosen to provide a review of the actions undertaken with respect to the criminalization of Native persons that is limited to Canada.
Divided into two major parts, this report first reviews the state of criminological and judicial knowledge on Native persons in Canada and in Québec since the beginnings of the field of criminology (chapters 1 and 2) and then traces the sociojudicial profiles of the Native correctional population in Québec in 2007-2008 (chapter 3). In chapters 1 and 2, the state of knowledge begins with the history of Native criminalization, by mentioning in particular traditional methods of conflict resolution. We then consider the phenomenon of the overrepresentation of Native persons in penal institutions, which is, in a way, the motivating factor for the work and developments that followed, that is, the main models explaining the overrepresentation and the various means taken by both levels of government in an attempt to remedy the problem. Those means involve the organization of investigative committees and work, as well as the implementation of various measures to meet the specific needs of Native persons. The state of knowledge is completed by the presentation of risk management for Native offenders and the sociojudicial profile of Native offenders under federal responsibility. In chapter 4, we make the connection between the overall state of knowledge in Canada and the sociojudicial profile of the Native correctional population in Québec.
Who are the native peoples of Canada?
Within the meaning of the Constitution Act, 1982, the term “Aboriginal peoples” refers to all the original inhabitants of Canada and their descendants. The Canadian government recognizes three official categories of aboriginal peoples: Indian, Inuit and Métis. In this report, the term “Native person” is used for individuals who belong to the Aboriginal peoples of Canada.
Indians, (i.e., Amerindians) may or may not be registered in the Canada’s Indian Register.
Status Indians are individuals who are entitled to have their name registered in the Indian Register, a directory maintained by the federal government. Certain conditions determine eligibility for Indian status registration. Only Status Indians are recognized as Indians within the meaning of the « Indian Act », which gives them certain rights and social benefits.
Non-Status Indians are individuals are claim Aboriginal ascendance or First Nation membership, but who are not entitled to be registered in the Indian Register in accordance with the « Indian Act ». This situation may be because their ancestors were never registered in the Indian Register or because of loss of status under former provisions of the « Indian Act ». Non-Status Indians do not have the same rights and social benefits that Status Indians have.
Treaty Indians belong to a First Nation whose ancestors signed a treaty with the Crown and who, therefore, are entitled to the benefits procured by the treaty (AANDC, 2007).
Métis are individuals of mixed ancestry—who have European ancestors and ancestors from a First Nation—identify themselves as Métis and distinguish themselves from members of First Nations, the Inuit and non-Native persons.
Inuit are Aboriginal people originally from the Canadian Arctic. They live north of the 50th parallel. More specifically, they are found in Nunavut, the Northwest Territories and northern regions of Labrador and Québec (Nunavik). The Cree Nation of Chisasibi (formerly known as the Chisasibi Band) are considered to be Inuit.
The Inuit do not live on reserves, and the « Indian Act », 1982 does not apply to them. However, they are under the responsibility of the AANDC like Status Indians listed in the Indian Register (AANDC, 2007).
Demography of Canada’s and Québec’s Native Peoples
According to 2006 census data (Statistics Canada, 2008a), the number of persons who identified themselves as Native persons of Canada, that is, as Indians (members of First Nations), Métis or Inuit was 1,172,790. In 2006, the First Nations, Métis and Inuit accounted for almost 4% of Canada’s total population. There are currently 615 First Nation communities and 53 Inuit communities in Canada (AANDC, 2007).
In the entire Canadian Native population in 2006, around 698,025 individuals (about 70%) identified themselves as members of First Nations. The term “First Nations” applies to both Status Indians and Non-Status Indians. Some 40% of them were living on-reserve, and 60% were living off-reserve. Métis accounted for 389,785 individuals in 2006 (about 25%). It is estimated that around 7 out of 10 Métis (69%) were living in urban areas of Canada. Finally, the Inuit accounted for 50,485 individuals in 2006 (about 5%). In 2006, 49% of the total Canadian Inuit population was living in Nunavut, 19% in Nunavik (Nord-du-Québec), 6% in the Inuvialuite region (Northwest Territories), 4% in Nunatsiavut (Northern Labrador) and 22% in urban areas.
In 2007, there were 87,251 Native persons living in Québec, that is, 1,2% of the total population, which was about 7,500,000 (Secrétariat aux affaires autochtones, 2007). According to the 2006 census data, the Native population of Québec increased by 53% between 1996 and 2006, putting the province in fourth place for the highest rate of Native growth in Canada. Québec is home to 10 Amerindian nations (Abenaki, Algonquian, Attikamek, Cree, Huron-Wendat, Innu/Montagnais, Malecite, Mi’kmak, Mohawk and Naskapi), the Inuit2 and the Métis, and they are found in 55 Native communities and 14 Nordic villages. Appendix 1 shows the distribution of Québec’s Native communities and villages.
2 The Cree and the Inuit signed the James Bay and Northern Québec Agreement on November 11, 1975. That agreement grants them territorial property rights, compensation and a degree of administrative autonomy. Therefore, the Inuit are partially responsible for the administration of their villages. On May 25, 1978, the Makivik Corporation was created by an act of the National Assembly of Québec to implement the James Bay and Northern Québec Agreement.
1. Native Persons and Criminality in Canada
History of the criminalization of Native persons
Criminology is a young discipline in the Western world despite the fact that there were Greek philosophers who asked questions about the nature of crime and criminals. It was not until the last quarter of the 19th century and the beginning of the 20th century that criminology took form and became a true scientific discipline. That is why the earliest Canadian studies on the criminalization of Native persons were not published until the end of the 1960s.
Before the arrival of the first settlers, the Aboriginal peoples had a “system of justice” that ensured social regulation. The First Nations have been subject to the application of various legal systems since the “discovery” of the Americas until the present time; first under the French regime, then under the British regime and finally under the Canadian regime. From a sociohistorical perspective, it is clear that from the beginning of the colonial era, the Aboriginal peoples began to be subject to the application of governmental legislation.
Justice among the Aboriginal peoples before European colonization
It would be wrong to say that before the arrival of the first Europeans in North America, the Aboriginal peoples did not have any system of justice. Indeed, while it is true that their system was not easily identified by the settlers, because it was not made up of formal civil institutions, they did, in fact, have a system of justice based on the importance of individual freedoms, which was “administered” by each member of each community. Although they did not have a formal structure of social authority, the Aboriginal peoples maintained nevertheless an ordered social life. In this respect Plante (2005) says:
“The level of tolerated delinquency varied from one community to another. Conflicts between individuals were considered to be extremely serious acts. The inevitable disputes were settled in several ways. One could use physical violence, shamanism or ritualize the conflict. One could also use forms of social pressure, such as withdrawal of the community’s support. With some exceptions, the Aboriginal peoples’ conflict settlement mechanisms were not based on punishment, as they were in Europe, but on mediation between the individuals involved.”
Mediation between individuals could also take several forms, depending on social class, tribe, ethnocultural origin and the nature of the offence. What must be remembered is that the application of the law was based on an obligation of consensus and was linked to the family and the solidarity of the entire community rather than any punitive or ostracizing logic (Plante 2005).
Criminalization of Native persons under the French regime
The criminalization of Native persons began in 1541, under the auspices of La Roque de Roberval. There was a desire to impose French justice on the Aboriginal peoples with the ultimate objective of assimilating them, peaceably if possible, otherwise by armed force. The attempt failed. In 1603, Pierre Du Gua de Monts arrived in New France bringing Letters Patent that gave him the authority to apply French law to the Aboriginal peoples in the name of the King. Despite the harmony that existed between the Montagnais and the Europeans, Champlain was adamant: “The Aboriginal peoples must submit themselves to French law. The recklessness of the French, their inability to understand Aboriginal customs and the independence of the Aboriginal peoples would have quickly provoked conflicts and shown the inability of the French to apply their laws, as well as the dangers of a confrontation with the Aboriginal peoples” (Plante, 2005).
Several incidents between Europeans and the Aboriginal peoples that occurred in the 17th century show the Europeans’ misunderstanding of Native subjectivity, in particular on the question of murder and rape. We can mention the October 1627 case, in which “Mahican Alic Ouch, a Montagnais, got into a quarrel with a Québec butcher and took revenge by killing two French people in their sleep” (Plante, 2005). Thereafter, the Europeans show somewhat more open-mindedness. For example, in 1664, after the rape of a young white woman by a Native person on the Île d’Orléans, the Europeans and the Aboriginal peoples agreed to apply French law in cases of murder and rape in return for the Europeans’ agreement not to criminalize Native persons for public drunkenness. They were to be imprisoned for the time required for them to sober up.
It is important to point out that the French in America were bogged won in various conflicts: The English and the Iroquois are two examples among many others. The low number of Europeans in the French colony resulted in a watered-down application of assimilation policies. Plante says, “For the good of the colony and to accommodate the strength of the Native allies, which dictated respect, the French authorities did not hesitate to apply to Native persons a ‘parallel justice’, which forced them to deviate regularly from judicial procedures” (Plante, 2005).
Criminalization of Native persons under the British regime
In 1760, the French colony passed into the hands of the British. King George III, by the Royal Proclamation of 1763, established a constitutional framework to be used in negotiations with the Aboriginal peoples. After that time, Canadian territorial policy was to grant territories (known as “reserves”) to the Aboriginal peoples. It must also be noted that the war with Chief Pontiac (1720-1769) contributed to the implementation of territorial policies aimed at pacifying the conflict’s protagonists.
With respect to the criminalization of Native persons under the British regime, it is difficult to identify even one policy that was specifically for the Aboriginal peoples, because an attempt was made to apply British law, without any exception, to all Canadians. The situation was even more drastic for the Aboriginal peoples since they were considered to be second-class citizens who were to escape from their situation of inferiority through assimilation. This paternalism toward the Aboriginal peoples has continued until the present time under the Canadian Constitution, and it is quite likely to be the source of the discrimination, racism and structural and interactional violence of which they are sometimes victims.
Criminalization of Native persons under the Canadian regime
As soon as the Canadian confederation came into existence (1867), the policies with respect to justice for the Aboriginal peoples could be summarized in two words: assimilation and paternalism. “Criminal penalties were used to suppress certain traditional social and political practices of the Indians. Other measures, such as the restrictive liquor provisions, were considered to be protective” (Moss and Gardner-O’Toole, 1991). Beginning in 1868, the federal government prohibited the sale and barter of alcohol to Native persons. Six years later, in 1874, an Indian found drunk in public faced a maximum sentence of imprisonment for one month, which could be extended by 14 days if the prisoner refused to divulge the name of his supplier. The law prohibiting any Indian from possessing intoxicating beverages was formalized in the « Indian Act », 1876 (Moss & Gardner O’Toole, 1991). Pursuant to the Indian Act, 1936, anyone in possession of intoxicating beverages in the presence of an Indian, on or off reserve, was subject to a fine. These provisions remained in force until the adoption of Bill C-31, in 1985, which “repeal[ed] the substantive provisions relating to liquor offences on and off reserve” (Moss & Gardner-O’Toole, 1991).
The federal government also implemented various measures and legal rules that prohibited Indians from carrying out traditional activities, as set out in the « Indian Act », 1914, which limited to the reserves the expression of their traditional activities and religious ceremonies (« Act to Amend the Indian Act », S.C. 1914, c. 35, s. 8, in Moss & Gradner-O’Tool, 1991)
Another example of an assimilation policy occurred in 1861, just before the signing of the Canadian constitution, when the first confessional residential schools opened their doors. In 1867, those establishments were legitimized by the Canadian government. That recognition contributed greatly to the weakening, loss of cultural reference points and acculturation of Aboriginal communities (Canadian Criminal Justice Association, 2000). The prohibition on speaking Aboriginal languages, the geographical dislocation of Native children by compulsory placement in residential schools for 10-month periods and their conversion to Catholicism are examples of the cultural assimilation polices that were followed in those institutions. This situation does not directly touch on the question of the criminalization of Native persons under the Canadian regime. However, it emphasizes the fact that assimilation policies affected the personal and social well-being of Native persons.
In 1969, the Canadian government, under Prime Minister Trudeau, “called for an end to federal government’s responsibility for First Nations, termination of their special status and abolition of Native reserves”.(Gillmor, Michaud & Turgeon, 2001). Under this impetus, Native nationalist social movements appeared and took form. From then on, policies were more understanding of Native specificities. Jaccoud observes that:
“Thus, since 1982, the ancestral rights of the Aboriginal peoples are recognized (but not defined) in the Canadian constitution. In this sociopolitical context, government intervention in matters of justice in Aboriginal settings has been deeply and constantly divided between the need for permanent nation-state frontiers by means of a political and juridical incorporation of the Aboriginal peoples and the need (forced or not) for sensitivity and consciousness with respect to the political and cultural specificities of the First Nations” (Jaccoud, 1999, p. 83)
In short, the Canadian criminal justice policies adopted since the Confederation’s founding until the 1980s contributed to the assimilation of the Aboriginal peoples, the weakening of their capacity to decide their future as individuals and as communities and their assimilation into Canadian culture, sometimes even threatening their fundamental rights under the « Canadian Charter of Rights and Freedoms ». And we have still not covered the various isolationist policies that contributed to the creation of the Indian reserves. The Canadian government began to consider Aboriginal specificities only in the 1960s.
The emergence of criminal studies on Native persons in the Canadian and Québec justice systems: overrepresentation in penal institutions
In criminology, the production of criminological papers in Canada began with the Laing survey (1967), entitled « Indians and the Law », that was commissioned by the Canadian Corrections Association. That survey, for the first time, denounced the overrepresentation of Native men and women in the Prince Albert, Saskatchewan, penitentiary. Since that time, the incarceration rates for Native persons in Canadian prisons has continued to increase. In 2006, the annual report of the Canadian Office of the Correctional Investigator revealed that, at the national level, Native persons accounted for almost 18.5% of the penal institution population under federal responsibility. For women, the overrepresentation was even greater, accounting for 32% of offenders incarcerated in federal prisons.
In Québec, the overrepresentation of Native persons in penal institutions (both federal and provincial) was observed later, and has been found to be less than in the provinces of Western Canada. However, it must be noted that although overrepresentation is less in Québec, it does exist and is trending upwards. Some hypotheses, concerning in particular the fact that Aboriginal peoples in Québec live mostly in rural areas, have been put forward to explain the lower rate of Native persons’ overrepresentation in Québec, but they have not been scientifically tested. In 1986, the first research studies on the overrepresentation of Native persons in Québec penal institutions were published. In a study on the overall admissions to Québec penal institutions from 1977 to 1985, Jaccoud (1986) observed that Indians represented 1.2% of total admissions whereas that population accounted for only 0,6% of Québec’s general population.
A profile of the correctional population was produced in Québec in 2001, based on a sample of persons interviewed individually. That report traced the profile of Native persons (141 individuals) admitted to a penal institution or supervised in the community (Boutet, Lafond & Guay, 2007). A variety of subjects are covered, including school life, the labour market, physical and mental health and needs related to programs and services. In 2006, the proportion of Natives in Québec correctional institutions was around 4.5% (MSP, 2006).
Since the observation of the overrepresentation of Native persons in the criminal justice system was made at the end of the 1960s, we have been able to put the various scientific studies on Native persons and criminality into three distinct categories: (1) those that focus on the reasons that explain criminality among Native persons, which represent around 80% of the knowledge generated; (2) studies on the specific needs of Natives, which represent around 15% of the knowledge generated; and finally (3) studies that trace a sociojudicial profile of the Native population in Canadian prisons and provincial detention facilities. However, in the last ten years, the topics covered by Canadian and Québec criminological studies related to Native persons have tended to be more diverse. Risk management, alternative justice and restorative justice are some examples of topics currently covered in Canadian and Québec studies. The review of the scientific work that we present in this report shows that Québec research on Native criminology has not known the same expansion as in the rest of Canada.
Criminological studies on Aboriginal peoples
As noted in the preceding section, the interest shown by criminologists for the phenomenon of the massive imprisonment of Native persons goes back to the Laing survey (1967). Several research studies have, without interruption, reiterated this reality during the last 40 years (Laing, 1967; Bienvenue & Latif, 1974; Schmeiser, 1974; La Prairie, 1984, 1990; Jackson, 1999; Canada, 2000). We need to examine the various models for explaining the overrepresentation of Native Persons in penal institutions that have been proposed up until now in Canada.
The main models for explaining the overrepresentation of Native persons in Canadian penal institutions
Since the end of the 1960s, the period in which the overrepresentation of Native persons in the Canadian criminal justice systems was observed, we have witnessed a real debate on the causes of that overrepresentations. The various models for explaining the phenomenon can be put into two categories: models focused on individual and cultural factors and models focused on structural and historical factors.
Models focused on individual and cultural factors
The models focused on individual and cultural factors try to explain the overrepresentation in penal institutions on the basis of specific factors related to the living conditions of Aboriginal peoples. More specifically, they give rise to three types of theories.
Individual and social pathologies
The earliest explanatory studies covering the high detention rates for Native persons showed the “individual and social pathologies” present in Native communities. Some authors, including Schmeiser (1974), Finkler (1975), Birkenmeyer & Jolly (1981) and Misch & al. (1982), pointed out the links between alcohol consumption, the commission of offenses and the incarceration of Native persons. The researchers rapidly realized the limits of their models, and multi-factor explanations were used to fill the gaps in the early models.
The first researchers to ask questions about criminality among Aboriginal peoples first found a link between massive incarceration and alcohol consumption (Schmeiser, 1974; Birkenmeyer & Jolly, 1981). Shortly thereafter, the models used to explain the high detention rates for Native persons became multifactor. Thus, other factors were considered in the various explanations. Unemployment, underschooling, racism and discrimination, urban migration and colonialism are examples of the explanatory factors used up until now in the research studies of Canadian criminologists (see among others: Bienvenue & Latif, 1974; Mikel, 1979-1980; Verdun-Jones & Muirhead, 1979-1980; Hylton, 1982; Boldt & al., 1983; Shkilnyk, 1985; Sawatsky, 1986; McCorquodale, 1987; LaPrairie, 1984, 1990 and 1997; Marenin, 1992).
Other researchers, such as Kelly (1990), emphasized the cultural maladjustment model. That model points to the difficulties experienced by Aboriginals peoples in adapting to the dominant European Canadian society. According to the model, the overrepresentation of Native persons in penal institutions is related to cultural difficulties, that is, to their inability to integrate norms and values that conform to European Canadian society (Mikel, 1979-1980; Havemann & al., 1984; Collins & Flewelling, 1991). According to this model, the overrepresentation of Native persons in penal institutions is a strictly cultural problem.
Although more rare, some other studies propose a model based on inadequate socialization. In those studies, high crime rates as well as high unemployment rates and alcohol abuse among Aboriginal peoples are explained as resulting from the fact that the learning of social norms is inadequate in Aboriginal societies (Collins & Flewelling, 1991).
Models focused on structural and historical factors
The models focusing on structural and historical factors introduce the degree of oppression and power that characterizes relations between Aboriginal peoples and the European Canadian society. The explanatory factors considered include in particular social class, social stratification/organization, society, community, institution, systems and structures. With the appearance of these so-called “conflict” arguments, more critical, we observe a shift in meaning in the explanation of the overrepresentation of Native persons in penal institutions. Thus, cultural conflict and inadequacy are no longer attributable to Aboriginal peoples themselves but rather to the domination exercised by the dominant society and the justice system itself.
Among the most used conflictualist explanatory models, we can mention, for example, the underdevelopment model, the social change model, the sociostructural model, the acculturation model, the conflict/pluralist model as well as the discrimination model, which has two variants, the legislative and structural model and the visibility model.
According to this model, the precarious living conditions of Aboriginal peoples (e.g., poverty, underschooling, alcohol abuse, violence and high levels of criminality) are both the consequences of the underdevelopment of Aboriginal communities and the reactions of Aboriginal peoples to that underdevelopment (Harding, 1978; Anders, 1980). Already, in 1989, LaPrairie had pointed out that that Aboriginal communities exhibited deficiencies in the areas of recreation, work and education that were attributable to the underdevelopment of Aboriginal communities. Such underdevelopment was considered to be a consequence of the domination of Aboriginal peoples by European Canadians. That domination resulted in Aboriginal sedentation and reduction in mobility, which led to very limited expansion and development. In general, the value of these explanatory models is to add to the analysis the fact that the overrepresentation of Native persons in penal institutions is related more to precarious living conditions and underdevelopment than to “cultural deficiencies” (LaPrairie, 1989). However, the underdevelopment model is limited in that it reduces the problem of the overrepresentation of Native persons in penal settings to the sole fact of underdevelopment.
Social change model
In the social change model, the overrepresentation of Native persons in penal settings is explained by the social disintegration resulting from the rapid changes experienced in Native communities that arose from their contacts with European Canadian society, which led to new forms of social problems, including the adoption of delinquent behaviour (Mikel, 1979-1980). “The modernization process increased social tensions and conflicts in Aboriginal communities. It must be remembered that those rapid changes also contributed to the erosion of traditional mechanisms of social control” (Heiland & Shelly, 1992 in Fraser, 1979-1980). According to Rouland (1979), the traditional mechanisms for settling problems were not adapted to the social phenomena related to the rapid changes of the 20th century. Similarly, LaPrairie (1992b) “considers that Aboriginal criminality and the massive incarceration of Native persons to be the result of numerous upheavals that have changed the lifestyle of Aboriginal peoples since their contact with the European Canadian society” (LaPrairie, 1992b).
The explanatory model proposed by LaPrairie (1989), which is the only one that specifically explains the overrepresentation of Native women in penal institutions, draws on both the underdevelopment model and social change models. Following displacements of Aboriginal populations, Aboriginal economies were weakened. To remedy the situation, the federal and provincial governments implemented a series of social measures that had perverse effects, mainly by creating Aboriginal dependence on Canadian political institutions and by destructuring the operation of Aboriginal societies. In the traditional Aboriginal economy, the family was the main production and consumption unit. Men and women had distinct traditional roles. Because of economic changes, men, who used to hunt and fish to provide for family needs, were forced to depend on the “welfare state” (Simard, 1979), whereas women tended to become the family’s providers. Those transformations created tensions, frustration and anger within the family structure. After losing every possibility of exercising their power through traditional activities, men redirected the exercise of control toward women. In that specific context, women could retaliate against the violence from men or choose to flee such violence by migrating to an urban setting. When they found themselves in an urban setting, lacking education and skills, they were, most of the time, relegated to the ranks of the unemployed. That situation increased the probability that they would turn to alcohol abuse or prostitution and consequently come into conflict with the law and experience incarceration.
In 1979, Norbert Rouland’s work gave us the acculturation model. In addition to relying on the idea of a relation of domination, his model made it possible to explain how the imposition of the European Canadian justice system on Aboriginal communities “had led to a kind of cultural uprooting in Inuit society, where until the first contacts with Caucasians, disputes were settled by recourse to their own traditional justice system” (Brassard, 2005, p. 26). Imposing the Canadian justice system led to a number of mutations and ruptures in the field of justice for Aboriginal societies (LaPrairie, 1990 in Brassard, 2005). The Aboriginal peoples thus found themselves caught in the middle: they were not completely emancipated from traditional conflict settlement methods but at the same time, were not fully acknowledged in the Canadian justice system (Philips and Ennui, 1986; LaPrairie, 1997). That situation of limited acculturation in a transitory period of adaptation caused a “maladaptation” in Aboriginal societies, which led their members to commit crimes (LaPrairie, 1997).
Drawing on the colonial theory, Reasons (1977) showed that the overrepresentation of Native persons in penal institutions was an obvious sign that the dominance exercised by the Canadian government over the Aboriginal peoples was still present. More specifically, he maintained that the Aboriginal peoples were unequal in the face of the political, economic and social powers. Strictly speaking, in the area of justice, he pointed out that the social and penal institutions are not neutral and that social inequalities are built on both history and our current actions. Based on those premises, Reasons affirmed that social inequalities had been institutionalized and as a consequence, sociopenal control institutions (i.e., prisons), in addition to participating in the colonization of the Aboriginal peoples, were also a source of racism and discrimination, as well as a participant in maintaining the unfavourable social position of Aboriginal peoples in Canadian society.
The scientific studies based on discrimination models emphasize the cultural differences between the various Aboriginal communities and the European Canadian society to explain the overrepresentation of Native persons in penal institutions. Among the most recent work, we can mention those that reveal the numerous difficulties that Aboriginal peoples have in understanding our justice system (Finkler, 1975; Foley, 1984) as well as those showing that police officers are a direct source of discrimination and that they often have a more negative attitude toward Native persons when making an arrest (Graham, 1989). In addition to denouncing the unequal treatment of Native persons in the penal justice system, these studies highlight some important concepts. The concept of systemic discrimination, for example, has been considered in several studies (Harding, 1978; Sawatsky, 1986; LaPrairie, 1990; Royal Commission on Aboriginal peoples, 1996). This concept calls into question one of the fundamental principles of procedural and substantive law: the principal of equality (Brassard, 2005). According to this concept, it is in fact the application of the same norms to all that constitutes a discrimination factor for the Aboriginal peoples.
Legislative discrimination is also explored in the studies on discrimination. Rouland (1979) maintains, for example, that the « Indian Act », 1867 made the Aboriginal peoples wards of the state and created their irreversible dependence on European Canadian institutions. With respect to the legislative discrimination against Aboriginal women, Brassard (2005) summarizes the issues involved by stating that:
“Several authors have already shown that Aboriginal women have been especially discriminated against and marginalized by section 12(b) of the Indian Act (Courtois and Gill, 1982). According to that section, any Aboriginal woman who married a non-Aboriginal man, lost their rights, among others, to live on a reserve, own land on an reserve, participate in band affairs and finally the right to have their children recognized as being of Aboriginal origin.”
The studies on legislative discrimination are of great importance, not only because they put into historical perspective the characteristic dominance of European Canadians over the Aboriginal peoples, but also because they show, in a macrosociolgical way, the effects produced by the legislative policies in effect. Briefly put, according to these studies, the overrepresentation of Native persons in penal institutions is a direct consequence “of the precarious living conditions, inequalities and domination experienced in the past and still experienced by Aboriginal societies inside the European Canadian society” (Brassard, 2005).
Finally, other researchers defend the visibility model and believe instead that the high arrest and incarceration rates among Aboriginal peoples in urban setting is a consequence of their cultural visibility (Bienvenue and Latif, 1974), whereas other researchers maintain that precarious socioeconomic conditions are what lead to their visibility (e.g., the public drunkenness of Native persons or those who spend most of their time in public places, parks, subway entrances, streets, corridors, etc.).
Beyond explanatory models of the overrepresentation of Native persons in penal institutions
It was not until the 1990s that concrete initiatives were proposed to encourage the development of Canadian criminological research on questions related to criminality among the Aboriginal peoples. The Corrections Research Division of the Department of the Solicitor General Canada was one of the first entities to propose, as of 1991, a special series of research reports on Aboriginal policing. Developing Crime Prevention Strategies in Aboriginal Communities (Solicitor General, 1991), Inventory of Aboriginal Policing Programs in Canada (Canada, 1992c), Policing Options Available to First Nations in Canada (Canada, 1995) and First Nations Police Officers Survey (Canada, 1996a) are some of the research studies carried out by the Solicitor General.
The Correctional Service of Canada (CSC) and the Solicitor General of Canada have supported several initiatives in the field of developing scientific knowledge on the questions that are of concern to us. In addition to the series of reports on Aboriginal policing, they have set up the very well known Aboriginal peoples Collection, which since 1992, has covered a broad range of topics, including A Survey of the Administration of Justice Respecting the Inuit of Northern Quebec (Canada, 1992a), Dimensions of Aboriginal Over-Representation in Correctional Institutions and Implications for Crime Prevention (Canada, 1992b), Healing, Spirit & Recovery—Factors Associated with Successful Integration (Canada, 1994a), Conquest by Law (Canada, 1994b), Selected Urban Aboriginal Correctional Programs in Canada (Canada, 1996b), Responding to Sexual Abuse: Developing a Community-based Sexual Abuse Response Team in Aboriginal Communities (Canada, 1997b), Developing & Evaluating Justice Projects in Aboriginal Communities: A Review of the Literature (Canada, 1998a), Issues in Urban Corrections for Aboriginal people (Canada, 1998b), Understanding and Evaluating the Role of Elders and Traditional Healing in Sex Offender Treatment for Aboriginal Offenders (Canada, 1998c) and A Cost-Benefit Analysis of Hollow Water's Community Holistic Circle Healing Process (Canada, 2001). In 1994 the CSC research division began publishing an important collection of research studies covering, among other topics, the evaluation of drug dependence among Native offenders (Canada 1994c), pre-treatment programs for drug dependent Native offenders (Canada, 1994d), a profile of Native offenders in the North under federal responsibility (Canada 1994e) and a survey on Native offenders (Canada 1997c).
Those studies made it possible, of course, to better understand certain topics related to Native criminalization but until the 1990s, researchers remained mainly interested in the explanatory analysis of the overrepresentation of Native persons in penal institutions.
Government and institutional responses to the difficulties experienced by Native persons in the criminal justice system
Governments, federal and provincial, have not been inactive in the face of the problems experienced by Native persons in the justice system. Under pressure from the Native lobby, which began to develop in the 1970s to claim self-determination rights, and under the impact of certain tragic events, the Canadian government found itself forced to examine in detail the relationships between the Aboriginal peoples and the justice system. Various committees, inquiries and study groups carried out work in Canada. The most important are discussed in the following subsections.
Canadian commissions of inquiry, study groups and conferences on Native persons in the criminal justice system (between1970 and 1990)
In the 1990s, the movement to reform the justice system became larger and various federal and provincial commissions of inquiry were set up to study, in full or in part, the question of the administration of justice with respect to Aboriginal peoples. These Canadian efforts also led to a more specific exploration of the judicial treatment of some Aboriginal populations; there began, for example, to be an interest in the imprisonment of women of Aboriginal origin.
« Survey of federally sentenced aboriginal women in the community ». Native Women's Association of Canada, SUGAR, F. FOX, L., 1990.
The first published report on Aboriginal women incarcerated in Canadian penitentiaries that of Sugar and Fox (1990). In their report, the two authors denounced in particular the lack of consideration for the needs of Native women in the treatment that they received, in their detention conditions and in the evaluation of security levels. They recommended the closure of the Kingston Penitentiary, in Ontario, the construction of four new regional facilities for women and the creation of a healing lodge for Native women. It was not until 1995, however, the Okimaw Ohci healing lodge project, in Maple Creek, Saskatchewan, got under way.
Although the detention conditions of Native women in Canada served as the starting point for the work of Sugar and Fox (1990), certain unfortunate incidents involving Native persons, including those that occurred at the Kingston Penitentiary for Women, in Ontario, in April 1994, led to the creation of the commission of inquiry headed by Louise Arbour, in 1995. The 12 months of inquiry and examination led the commission to denounce the precarious detention conditions for Native women and to focus on their specific needs (Arbour, 1996). Among the commission’s recommendations, the most important were those aimed at encouraging better access to the healing lodge and the creation of other lodges to meet the specific needs of Native women offenders in Eastern Canada.
« Report of the Aboriginal Justice Inquiry of Manitoba », Winnipeg, in Public Inquiry into the Administration of Justice and Aboriginal people (HAMILTON, A.C. and C.M. SINCLAIR, commissaires), 1991.
In 1991, the Aboriginal Justice Inquiry of Manitoba was set up. This inquiry to look into the administration of justice in Manitoba was prompted by pressure from Aboriginal peoples after the death of two Native persons (Osborne and Harper), who were killed by a police officer on a Manitoba reserve. The commissioners decried the high rates of incarceration, the high rates of recidivism, the absence of programs for Aboriginal peoples and their adversarial relationships with local authorities in 1987 and 1988.
« The Task Force on the Criminal Justice System and its Impacts on the Indian and Metis People of Alberta », Dept. of the Solicitor General, Cawsey Report, Canada, 1991 .
In this report, Alberta judge Cawsey looks at the relationships between the justice system and Aboriginal peoples. After several months of fieldwork, the commissioners recommended that putting emphasis on prevention rather and on incarceration, advocating an integrative approach that would take into account Native realities, involving seniors in the process of social reintegration of Native persons and developing more programs for Aboriginal peoples living in urban settings.
« Law Reform Commission of Canada: Aboriginal peoples and Criminal Justice », (LRCC, 1991).
In that same year, the Law Reform Commission of Canada was set up (LRCC, 1991), which carried out a general analysis of the Canada Criminal Code and related legislation to verify whether, in the legislative texts, access to services and fairness for Canadian religious and cultural minorities were being respected, and at the same time, to ensure that Canadian legislation better reflected Aboriginal peoples’ needs. In summary, the principal conclusions were that the “Canadian justice system, in spite of all the attempts at realignment, did not take into account the cultures of the Aboriginal peoples. The commissioners also decried the racism directed at Aboriginal peoples by those involved in the justice system and said that the desire to modify the current system must cease so that thought could instead be given to developing alterNatives likely to better meet the demands and aspirations of the Aboriginal peoples” (see Brassard & al., 2003, p. 654).
« Bridging the Cultural Divide. A report on Aboriginal people and Criminal Justice in Canada ». Royal Commission on Aboriginal peoples. Ottawa, Supply and Services, 1996.
The Royal Commission on Aboriginal peoples was set up in 1991 and presented its final report was presented in 1996. It was the most extensive inquiry into the situation of Aboriginal peoples that had ever been made in Canada to look into major topics, such as treaties, economic development, health, housing, the Métis and the North. The commission began during a troubled and agitated period: Canadian leaders were debating the place of the Aboriginal peoples in the Constitution, First Nations were blocking roads and rail lines in Ontario and British Columbia, Inuit families were setting up camps to protest against military installations in Labrador and, in 1990, there was the Oka crisis, in which Mohawks were in conflict with the Québec and Canadian governments. In their report on Aboriginal people and criminal justice in Canada, commissioners Erasmus and Dussault concluded that:
“The Canadian criminal justice system has failed the Aboriginal peoples of Canada—First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural—in all territorial and governmental jurisdictions. The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elementary issues as the substantive content of justice and the process of achieving justice. […] The British legal system fails where it is applied to Aboriginal populations. The failure arises from power relationships rather than to justice.” (Royal Commission on Aboriginal Peoples, 1996, p. 309).
Motivated by such findings, the authors propose nothing less than the creation of an autonomous, responsible Aboriginal government whose mandate would be to define and apply laws based on their specific traditional and cultural needs or arising from their value system. The idea of giving the Aboriginal peoples a larger place in the justice system and even in some cases of implementing mechanisms that would eventually result in Aboriginal self-governance in matters of justice goes beyond the conclusions of most of the major Canadian inquiries. As we will see later, over time, the Québec and Canadian governments have implemented various policies, legislative provisions and programs to better take into account the specific needs and cultural realities of Aboriginal peoples in the justice system.
Canadian commissions of inquiry, study groups and conferences on Native persons in the criminal justice system after 1990
« Native People and Justice : Reports on the National Conference and the Federal-Provincial Conference on Native Peoples and the Criminal Justice System » (Sollicitor General, Canada, Edmonton, 1975).
In 1975, under the aegis of the Solicitor General of Canada, the very first national conference on Native persons in the criminal justice system was held. The conference produced four main proposals: (1) work to implement a system in which the Aboriginal peoples would have better access to justice in all its aspects; (2) combat racism for fairer treatment of First Nations members; (3) implement employee indigenization programs (i.e., programs facilitating the hiring of Native employees) and awareness seminars/training on Amerindian and Inuit cultural diversity; (4) implementation of prevention programs and giving a larger place for so-called “alternative” justice systems (Clairmont & Linden, 1998).
Law Reform Commission of Canada: « Our Criminal Law » [Report no. 3] (Ottawa: Law Reform Commission of Canada, 1976).
During this period, the Law Reform Commission of Canada, set up in 1971 and whose mandate was to “study and keep under review, continually and systematically, the statutes and other laws comprising the laws of Canada with a view to making recommendations for improving, modernizing and reforming them” (Fortin, 1982), concluded in 1976 that the Canadian government should ensure that imprisonment would be used only as a last resort. The report’s authors had already proposed making efforts for the dejudiciarization (diversion) of Native persons and to implement certain decarceration measures, such as fines, restitution and community service (Law Reform Commission of Canada,1976). It was only in 1996, however, that the Canadian government amended section 718.2(e) of the Canada Criminal Code.
718.2. A court that imposes a sentence shall also take into consideration the following principles: […] (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
« Task Force on Aboriginal peoples in Federal Corrections » (Solicitor General, Canada, 1988).
In 1988, the Solicitor General of Canada (SGC) published the « Final Report : Task Force on Aboriginal Peoples in Federal Corrections ». The mandate of the task force members was to identify the factors that would facilitate the social reintegration of Native offenders and improve the services offered in detention institutions (SGC, 1998). The report’s authors pointed out in particular that Natives have specific spiritual and cultural needs that were not taken into account in detention institutions (Zellerer, 1992). What must be noted is that the task force members acknowledged the specific nature of Aboriginal peoples in the areas of health, spirituality, law and the socioeconomic context (SGC, 1988).
« Commission royale d’enquête sur l'affaire Donald Marshall », Jr. Prosecution, « Royal Commission on the Donald Marshall Jr. Prosecution », vol. 1 (Halifax, Nova Scotia: The Commission, 1989).
Following a judicial error against Donald Marshall, a Mi’kmaq who was wrongfully imprisoned for eleven years, the government set up another commission of inquiry, the Royal Commission on the administration of justice in Nova Scotia (Hickman, 1990). The commission members concluded that justice system officials had shown racism, incompetence and corruption during the trial of the young Native person.
The major Québec inquiries on the Inuit and Amerindians from 1970 to the present
The creation of surveys, commissions and study groups in Canada is often a reaction of the government to tragedies involving Aboriginal peoples. Criminological research on Aboriginal peoples has grown less rapidly in Québec than elsewhere in Canada because the overrepresentation of Native persons in penal institutions is less alarming than in the western provinces of Canada. Nevertheless, we have catalogued various Québec works on the Inuit and Amerindians, the earliest of which date from the 1970s.
Comité d'étude sur l'administration de la justice dans le Nord québécois: « The Administration of Justice beyond the 50th Parallel », 1973.
In 1972, the Ministère de la Justice du Québec (MJQ) launched the first study commission denouncing the injustices experienced by Inuit persons who had to be sent to the South to be judged (MJQ, 1973). That commission, chaired by Jérôme Choquette, whose report entitled « The Administration of Justice Beyond the 50th Parallel » provoked controversy by recommending the implementation of an itinerant court to cover the Inuit, Cree and Naskapi territories. The itinerant court was to be in place by 1974. In that context, the legal anthropologist Norbert Rouland (1983) examined the juridical and judicial acculturation process in Inuit settings. In this regard, Brassard gives the following summary:
“Rouland shows how the imposition of the White man’s justice system led the Inuit in the North West Territories and Québec to a condition of acculturation (acculturation being defined as the creation of a mixed judicial culture integrating positive contributions from the Inuit culture and the White culture). He denounced in particular the perverse effects of policies aimed at integrating the Inuit into the administration of justice by showing that those policies, under the guise of adapting the Southern system, precipitated on the contrary their deculturation” (Rouland, 1983, in Brassard & al. 2003, p. 655 (trans.)).
Essentially, the recommendations that came out of this first study commission were to take into consideration the sociocultural realities of the Cree, Inuit and Naskapi populations living in Northern Quebec and to establish various structures for the administration of justice in which Aboriginal peoples would participate as judicial officers (MJQ, 2008).
During the 1980s, the MJQ became aware of certain dissatisfactions concerning the services provided by the itinerant court and those related to the participation of Aboriginal peoples in the administration of justice. Although some actions were carried out, the economic conditions at the time did not allow for a more enhanced development of justice structures in Aboriginal settings.
Groupe de travail sur l'accessibilité à la justice« – Jalons pour une plus grande accessibilité à la justice », ministère de la Justice du Québec, Québec, 1991.
The decade of the 1990s was a period of reflection in Québec. Beginning in 1991, the MJQ participated in setting up a working group chaired by Professor McDonald called Groupe de travail sur l'accessibilité à la justice. That group’s mandate was to study the modernization of the Québec justice system and make certain recommendations on the various Aboriginal justice structures.
Study Group on Justice and the Cree: « Justice for the Cree ». Final Report. Grand Council of the Cree, Québec, 1991.
In 1991, the Study Group on Justice and the Cree, mandated by the Grand Council of the Cree, presented its final report, which contained three different studies (Brodeur, LaPrairie & McDonnell, 1991): one on keeping order and crime in Aboriginal communities, one on police services and one on the customary justice practices among the Québec Cree. The final report recommended the creation of an independent Cree police force within the criminal justice system that would be adapted to the problems found in Cree communities.
« Justice for and by the Aboriginals » (Rapport Coutu), Ministère de la Justice, Québec, 1995.
On the occasion of the Québec Justice Summit in 1992, Minister Rémillard formed the Advisory Committee on the Administration of Justice in Aboriginal Communities, chaired by Mr. Justice Coutu. The committee’s mandate was to define justice models better adapted to Québec’s Aboriginal communities. After holding various consultations for more than two years and meeting several times with Aboriginal leaders in more than 27 Amerindian and Inuit communities in Québec, the committee presented its final report in 1995, entitled Justice for and by the Aboriginals. The study found that it would be appropriate to make some transfers of power in the justice area. To that end, the report’s authors recommended: (1) that justice committees be set up in Aboriginal communities to determine the interest of those communities in implementing mediation, diversion, creating justice committees and community consultation in setting sentences for offenders; (2) that improvements be made in access to judicial services, legal aid, relations between communities and judicial professionals, para-judicial and correctional services; and (3) that consultation with the Aboriginal peoples be facilitated.
Inuit Justice Task Force. « Blazing the trail to a better future », Final report of the Inuit Justice Task Force, Makivik Corporation, 1993.
In 1993, the unceasing difficulties experienced by the Inuit with respect to the administration of justice motivated the Makivik Corporation (an Inuit organization created following the signing of the James Bay and Northern Québec Agreement, in 1975) to form a task force to organize a broad consultation of the Inuit population on the question of the administration of justice. The consultations carried out in 14 Inuit communities in Nunavik brought to light a certain number of problems, including the adversarial relations between the police and the Inuit, the failure to use traditional mechanisms for dispute settlement, the lack of information among the young on the judicial process and the failure to adapt current correctional programs to Inuit realities. Those observations led the members of the task force to recommend that programs adapted to the Inuit culture be established for adult offenders, that studies be carried out with a view to a better understanding of the problems created by “White” justice in Northern Québec and that in-depth changes be made to transfer the administration of justice to the Inuit communities so that they could apply traditional principles of dispute settlement (Inuit Justice Task Force, 1993).
Work in Québec as of 1997
From 1997 to date, the MJQ has responded to some of the recommendations received, in particular, from the Coutu report by improving, for example, the services provided by the itinerant courts and the operation of the courts, by providing better access to Aboriginal para-judicial services in Aboriginal communities and by facilitating the development of initiatives in the areas mediation and restorative justice (by setting up justice committees). It is obvious that these initiatives have not solved all the problems experienced by the Aboriginal peoples and the Inuit with respect to the Québec justice system. However, they have contributed bit by bit to improving justice among Québec’s Aboriginal peoples. In fact, a recent report, published by the MJQ (2008), entitled « La justice en milieu autochthone : vers une plus grande synergie », eloquently presents the current issues in the administration of justice among Québec’s Aboriginal peoples and proposes some approaches and strategies for confronting them (Québec, 2008).
Québec criminological studies on the administration of justice among the Inuit and Aboriginal peoples
In this section, we consider separately the Québec criminological studies specifically covering the Inuit and those covering the Aboriginal peoples in general, that is, in which the Inuit can be included along with Amerindians.
Québec studies on the administration of justice among the Inuit
The earliest Québec criminological studies on the relations between the justice system and Aboriginal peoples began in Nord-du-Québec, in Inuit communities. Harold Finkler (1975), who adopted a historical perspective and social change theses, describes the traditional system of control among the Inuit in the Canadian North and shows, in particular, how the development and imposition of the White justice system had significant negative effects on Inuit communities. The main difficulties identified by the researcher were the inability to even understand the terminology of the justice system, the lack of participation of Inuit communities in the judicial process, the limited success arising from the various programs set up to combat delinquency and the glaring lack of Inuit staff in the justice system. Finkler proposed that efforts be made to increase the participation of the Inuit in the social reintegration of offenders, to translate laws into Inuktitut for make them easier to understand for the Inuit, to adapt laws to Inuit cultural realities and to expand services beyond mere detention by implementing various programs of alternative justice (Finkler, 1975).
During the 1990s, studying justice among the Inuit continued to attract the attention of some researchers. In her doctoral dissertation, Jaccoud (1992) analyzed the history of the imposition of the White justice system and the point of view of the Inuit in a Nunavik community on the administration of justice. Two opposing views emerge from the study’s results: for some, the White justice system is a benefit, a product of the modern world that is needed in communities where social organization is disturbed by social problems and violence; for others, it is a symbol of historic White domination over and trusteeship of the Inuit.
In 1993, the Sûreté du Québec’s Division de la recherche carried out a study on police organization in the Inuit communities of Nord-du-Québec since the 1980s (Sûreté du Québec, 1993). The analysis of interviews carried out in the police force and among Inuit and non-Inuit populations in several Northern communities showed that the staff turnover rate for Inuit police officers is relatively high, at 4.3 persons per position. The reasons given to explain the turnover were lack of interest as well as isolation and stress arising from policing duties in the communities.
Québec studies on the administration of justice among the Aboriginal peoples
For Québec’s correctional services, the work carried out by Jaccoud (1986) was the first to expose the situation of Native persons in penal institutions. The study was the first to show that in Québec: (1) Native persons are overrepresented in penal institutions and (2) Aboriginal women are twice as numerous, proportionally, than non-Aboriginal women in Québec penal institutions. The researcher explained this fact by the Aboriginal women’s precarious socioeconomic conditions, low rate of schooling and difficulties communicating in French and/or English.
Those results were later corroborated in a study by Zambrowski (1986), who on behalf of the Native Friendship Centre of Montréal, carried out 39 semi-directed interviews of Aboriginal women who had had or were at risk of having trouble with the justice system. The study, like that of Jaccoud, showed a significant social and economic vulnerability: 72% of the respondents were social assistance recipients; more than 79% of them had not completed grade 12 in school and 60% had alcohol and drug abuse problems. In 34% of the cases, they had been arrested for breach of the peace, and in 17% of the cases, for soliciting (Zambrowski, 1986).
Delinquency among Aboriginal youth has received much attention in the field of research. The only study found on this topic is that made by Bélanger (1992). Focusing on nine social workers at L’Étape reception centre in Abitibi who were working with Aboriginal youth in contact with the Québec’s justice system for youthful offenders, the study emphasized the language barriers, isolation and separation from home communities faced by Aboriginal youth. According to the researcher, the justice system was not at all adapted to the realities of young Native persons (Bélanger, 1992).
The growing urbanization of Aboriginal peoples prompted the Canada Justice Minister to order a pan-Canadian study on the situation (LaPrairie, 1994). The purpose of the study, carried out in Edmonton, Regina, Toronto and Montréal, was to better understand the various aspects of Aboriginal life in urban settings in order to reduce or indeed to eliminate the phenomenon of Aboriginal overrepresentation in penal institutions. According to the results of the study, it appears that Montréal has the greatest number of Aboriginal and Inuit women. Furthermore, Montréal is the city where the Native persons seem to live in greatest isolation, are more numerous in not having custody of their children and in having alcohol and drug abuse problems. Although Montréal accounts for the lowest number of Native persons charged with offences among the four urban centres studied, a larger number of Aboriginal women in Montréal face charges for serious offences, and their experiences with police racism are the most intense.
In 2005, Brassard looked at the sociopenal trajectories of Aboriginal women. At the end of her study, she concluded that Aboriginal women who migrated to an urban setting were a priori greatly disadvantaged, compared with their male counterparts, in terms of variables such as schooling, language barriers and extremely precarious socioeconomic conditions. After living in such conditions in their home communities, when they arrive in an urban setting, the are strongly predisposed to come into contact with the justice system.
Staff awareness and aboriginalization and legislative changes
Following various Aboriginal mobilizations, the publication of the Laing survey (1967), but also under the urging of various Canadian studies, the federal government and Canadian justice institutions implemented various initiatives in an attempt to reduce the overrepresentation of Native persons in Canadian penal institutions. To that end, various programs, training and legislative changes built on the premise that cultural differences are behind the phenomenon were drafted. They can be grouped into three types: (1) training and awareness programs for employees in the justice system; (2) measures facilitating the hiring of Aboriginal employees (here called “staff indigenization”) and finally (3) certain legislative changes to take better account of Aboriginal cultural realities.
The emphasis put on culture as the a priori foundation for reforms was based essentially on two premises: (1) that the overrepresentation of Native persons is the result of the discrimination that they experience in the justice system, and therefore overrepresentation arises from cultural conflicts and (2) that the programs containing a certain number of symbolic Aboriginal cultural elements are the more effective, understandable and better adapted to the needs of Native persons in the justice system. It thus became imperative to explore those programs.
1. Essentially, training and awareness programs for justice system employees on Aboriginal realities attempted to change the beliefs that underlie attitudes of prejudice by raising awareness and understanding through the transfer of information. More specifically, those programs had four goals: (1) encourage interactions and understanding between the police and Aboriginal peoples; (2) aid in the development of a shared understanding and shared awareness of the Aboriginal values and beliefs from the perspective of each party; (3) facilitate the use by justice system employees of the resources available in Aboriginal communities to develop effective strategies and (4) promote Aboriginal education about and awareness of the operations of the justice system as well as the various programs and services available to Aboriginal peoples (Miner, 1984; Stenning, 2003).
Such programs have taken various forms depending on the circumstances and the groups for which they are intended: seminars, workshops, lectures, film projections, debates and discussions on the history, achievements and contributions of Aboriginal peoples. Occasionally, the activities have called upon trainers of Aboriginal origin. This type of training is common for employees of the Canadian justice system and for those working directly or indirectly with Aboriginal peoples. Judges and lawyers (through bar associations) also have access to such training programs. Training is accessible and available, but is it effective?
Very little research and very few studies have been carried out in Canada to assess the actual impacts of such training. In fact, no Canadian research has assessed the medium- and long-term benefits. The only known assessment program to date was carried out in Australia for the employees of the Courts Administration Authority (CAA) (Hill & Augustino, 2001). At this time, the conclusions that we can draw from the Australian experience are that training on intercultural education and awareness have not had the desired effects in either the short term or the long term. Thus, while it is possible to believe that direct interactions with facilitators of Autochthone origin would have led to weakening stereotypes, that has not, in fact, been the case. On the contrary, respondents considered the facilitators to be exceptions or atypical individuals compared with Aboriginal people “in general”.
2. From the beginning of the 1970s, programs promoting the hiring of Aboriginal employees have been set up. The objective of those programs has been to fill positions usually held by non-Native persons by integrating Native persons into the justice system so that they can participate in weakening the stereotypes and prejudices of their non-Aboriginal co-workers. That objective has not been achieved as desired, because the Aboriginal employees have been perceived to be atypical individuals who do not at all represent the values and lifestyles of their community of origin. They have been compared to apples: red on the outside and white on the inside (Dickson-Gilmore & LaPrairie, 2005). It must also be pointed out that Aboriginal employees have also experienced pressures, even rejection, from members of their communities of origin and been perceived as “traitors”.
The first known indigenization program in Canada dates from 1973. It was a program for Aboriginal peace officers and Aboriginal constables of the Royal Canadian Mounted Police (RCMP) in the Canadian North. Although the Aboriginal and non-Aboriginal peace officers both had positions of full authority, problems and disparities arose because of management structures and employee training. First, the training given to Aboriginal officers was shorter than that given to all other officers. Then, the salaries of Aboriginal employees were lower than those of their co-workers, and their career advancement possibilities were very limited. Finally, control of the special Aboriginal services was under the governance of the RCMP rather than under the control of local communities. The Aboriginal officers always found themselves hierarchically subordinate to their White “co-workers”.
The RCMP’s indigenization program also had the objective of empowering Aboriginal communities. It was intended, in one fell swoop, to reduce the gap that separated the two cultures so as to eliminate conflicts and thus to facilitate a more “traditional” social control (Dickson-Gilmore & LaPrairie, 2005, p. 72). Gradually, the control over policing services was to be transferred to Aboriginal communities, but that never really happened. In 1990, the RCMP dropped the program, for the reasons mentioned above, and replaced it with measures to “facilitate the entry of Native persons” into the RCMP’s regular services.
In Québec, the indigenization of police forces began around 1978. At that time, the Conseil de police autochthone was set up, and the Sûreté du Québec implemented an Aboriginal policing program for the Bay James and Nord-du-Québec communities. The program was re-defined in June 1991, when the federal government implemented a new policy, which was the first of its kind in Canada. That policy transferred the powers of the Department of Indian Affairs to the Department of the Solicitor General of Canada (SGC, 1992). Under the policy, the management of public safety was made by means of tripartite negotiations involving the federal government, provincial governments and Aboriginal band councils.
3. The growing acknowledgement of the religious rights and freedoms of Aboriginal peoples and their specificity was confirmed in the « Corrections and Conditional Release Act » (CCRA), which came into force in 1992. The Act made it possible to reorganize the relations between the Correctional Service of Canada and the Aboriginal peoples. It was the first law in Canada to include specific provisions for Aboriginal peoples (sections 79 to 84, in CSC, 1992). It gave the green light to the National Parole Board (NPB) and the Correctional Service of Canada (CSC) to implement policies to take into account Aboriginal specificities in the development of federal correctional programs for Native persons. Those changes led to the development of commissioner’s directives (CD) providing a specific framework for introducing of Aboriginal cultural and spirituality in federal institutions. The recent CD 702, entitled « Aboriginal Offenders », which replaces CD 750, entitled « Religious Services and Programs », provides guidelines to be followed in accordance with section 83 of the CCRA.
Sections 31 and 32 of the Act respecting the Québec correctional system sets out terms and conditions for agreements between the Gouvernement du Québec and Aboriginal communities. Section 31 provides that “[t]he Government may, in accordance with the applicable legislative provisions, enter into an agreement with a Native community represented by its band council or the Northern Village council or with a group of communities so represented or any other Native group entrusting the Native community with all or part of the administration of a community correctional centre or with the community supervision of Native offenders.”
In 1996, the passage of Bill C-41 brought in changes in the area of sentence determination in Canada. That law introduced a statement of sentencing objectives and principles that now appear as sections 718 to 718.2 of the « Canada Criminal Code ». Section 718.2(e) covers the specific problem of Aboriginal overrepresentation in Canadian penal institutions. Under that section, “« all available sanctions other than imprisonment » that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders” (emphasis added) (« Canada Criminal Code », section 718.2(e))
Although it is true that since the 1980s, Aboriginal elders and liaison officers had been present, in an informal way, in penal institutions (Couture, 2001), Aboriginal spirituality and culture would from now on be acknowledged and have force of law in Canada. It is in the specific context of legislative changes that restorative justice projects, such as sentencing circles and healing circles came into being, as well as the new healing lodges and programs specifically developed for Natives that were put into place. Before discussing them, we need to define the concept of “restorative justice” so as to dissipate any misunderstanding.
Restorative and alternative justice
Although it is acknowledged that some forms of restoration existed in traditional Autochthone societies, the origin of the concept can be attributed to the American psychologist Albert Eglash in 1975 (Jaccoud, 2007). The CSC defines restorative justice as “a non-adversarial, non-retributive approach to justice that emphasizes healing in victims, meaningful accountability of offenders, and the involvement of citizens in creating healthier, safer communities” (Canada, 2007).
According the Norwegian criminologist Nils Christie, criminal conflicts have become “the property of others”, specifically of the police, lawyers and judges. He champions the idea that offenders should take responsibility for their acts through a process of mediation with the direct and indirect victims (Christie, 1977). This interpretation of justice was reinforced when the Australian criminologist John Brathwaite presented, in 1989, the idea of reintegrating “shame” in the justice process. According to him, shame would be a way to enable offenders by criminalizing acts rather than stigmatizing individuals. Shame is a way to facilitate social reintegration whereas stigmatization is a way to break social bonds. The adequate use of shame makes it possible for an offender to express remorse and restore the social bonds broken by deviant acts while facilitating social reintegration (Dickson-Gilmore & LaPrairie, 2005, p. 92).
Healing circles for alternative justice
Healing circles are examples of the creation of a justice system alternative to the institutional process. It is a way around European Canadian criminalization. The healing process embraces the holistic philosophy and uses mediation between the various actors (offender, victim and community) to rebuild the social bonds broken by reprehensible actions. According to the Sivell-Ferr (1997) model, there are thirteen steps in the healing process.
Figure 1 Community Holistic Circle Healing
Source : Sivell-Ferri (1997, p. 131)
Healing circles are, of course, answerable to the European Canadian justice system. If the healing process in a circle fails, the offender is remanded to the European Canadian justice system.
Sentencing or sentence determination circles
Sentencing circles first appeared in the Yukon at the end of the 1970s (Campbell Research Associates, 1995), but it was not until 1992 that they were systematically used under the urging of Mr. Justice Barry Stuart, who “in a judgement that has become famous since that time, decided to render his judgement by taking inspiration from traditional Aboriginal dispute resolution circles” (Jaccoud, 1999, p. 12 (trans.)). A sentencing circle is a healing process that operates on the principle of community integration (generally twenty to thirty persons) in the sentence determination phase of a trial. The participants make recommendations that the judge may consider or reject in the sentence that he renders. In essence, it is an internal measure in the European Canadian justice system.
This practice has been in use since 1992, especially in the Yukon, the Northwest Territories and in the provinces of Saskatchewan and Manitoba. The use of the process in Québec is relatively marginal. In this regard, Jaccoud says:
“Mr. Justice Dutil was the first judge to take up the Yukon experience by applying it to the Inuit communities in Nunavik. He is currently pursuing that initiative with the itinerant court that sits in the Cree and Naskapi communities of Northeastern Québec. The first case in which the process was applied concerned an assault committed by a husband on his wife (in 1993). It must be noted that Mr. Justice Dutil prefers to substitute the term “consultation circle” for the term “sentencing circle” (Jaccoud, 1999, p.13) (trans.).
These sentence determination measures have been integrated into the European Canadian justice system, and the Aboriginal members of a sentencing circle are empowered only to make a recommendation, not to make a decision, on the type of sentence appropriate for the case in question. “[…] judges do not use the sentencing circle process uniformly. For some, the sentencing circle is simply a substitute for the role of a probation officer, and the participants’ recommendations are equivalent to a presentence report. Other judges see in sentencing circles a way to steer the sentencing process away from its punitive objectives and toward the objectives of reintegration, rehabilitation and the restoration of social harmony” (Jaccoud, 1999, p. 15 (trans.)).
Aboriginal healing lodges and federal correctional programs for Aboriginal offenders
The first healing lodge in Canada, which came into being in 1995, was « Okimaw Ohci », in Saskatchewan. In 2009, a dozen federal institutions of that type were catalogued to meet the needs of Aboriginal offenders held in minimum security facilities. Healing lodges are places where Aboriginal values, customs and beliefs are respected. Even the architecture and geographical orientation of the premises respect the traditional philosophy. Everything is put into place to meet offenders’ needs, whether by providing them with specific learning opportunities or spiritual ceremonies conducted by elders. Because they are based on a holistic philosophy, programs are provided in interactive settings with members of the community. Thus, offenders are gradually prepared for reintegration into their own communities and provided with tools or succeeding.
1 Voir See Appendix 2 for a complete list of healing lodges.
These facilities are managed in two distinct ways: (1) by the CSC, like the « Okimaw Ohci »centre in Saskatchewan and the « Pê Sâkâstêw » centre in Alberta, and (2) directly managed by Aboriginal communities (section 81 of the CCRA), like the « Stan Daniels » centre in Alberta, Ochichakkosipi centre in Manitoba, « Wahpeton » centre in Saskatchewan and « Waseskun »centre in Québec. In the first category, the centres are considered to be CSC correctional facilities, and the emphasis is on traditional Aboriginal ideologies. In the second category, under the terms of an agreement between the managers and the CSC for the provision of correctional services, certain guidelines must be respected. The premises managed by the community receive both offenders transferred from the Canadian penal system, pursuant to section 81 of the CCRA, and offenders on day parole, parole, statutory release and under provincial responsibility (Crutcher & Trevethan, 2002).
According to a study made by Crutcher & Trevethan (2002), the perception that users have of healing lodges is rather favourable: 80% say their experience was satisfactory. Contact with elders and participation in cultural activities are two major factors in the healing process. The improvements suggested by the researchers go from the construction of larger facilities and access at higher levels of security to increases in their funding so as to offer more programs and hire more qualified staff (Crutcher & Trevethan, 2002). According to the CSC, recidivism rates are lower for offenders placed in healing lodges compared with the rates for offenders placed in federal or provincial confinement at a similar level of security.
Federal correctional programs for Native offenders
In 1997, the CSC, through its Direction des initiatives pour les Autochtones, approved the National Strategy on Aboriginal Corrections. In some federal penitentiaries, various programs were implemented to meet the specific needs of Aboriginal offenders. As a general rule, those programs are provided by Native persons who are knowledgeable about traditional practices. Unfortunately, the only difference between Aboriginal programs and non-Aboriginal programs are the traditional spiritual aspects which, in the later case, are superimposed on non-Aboriginal models. The services cover substance abuse and sexual offences as well as violence prevention and family violence.
The Aboriginal Offender Substance Abuse Program was still a pilot project when the paper by Varis, McGowan & Mullins (2006) was published. It is intended to meet the meets of Native men by making it possible for them, through a holistic approach, to reflect on the effects of substance abuse on their physiological, psychological, emotional and spiritual health. In the program, professionals emphasize awareness (connections between criminality and substance abuse), motivation (engaging in the healing process), skills improvement (providing tools adapted to offenders’ situations) and the development of spirituality (Varis, McGowan & Mullins, 2006). Since this program was only recently implemented, on assessment has yet been carried out.
For Inuit sexual offenders, the Tupiq (“tent” in Inuktitut) program is provided in their native language. Based on the prevention of re-offending, the program makes it possible to better understand the relationships linking thought processes and criminal acts, while taking into account Inuit culture (Hamilton, 2002; Trevethan, Moore, Naqitarvik, Watson & Saunders, 2004). This intensive program makes it possible to target violent sexual behaviour in a holistic framework and integrate cognitive restructuration factors, social values, emotions management, the dynamics of violence and the prevention of domestic violence. Two types of group therapy are proposed: conventional therapy and Inuit healing groups.
“Conventional” therapy is given in English and in Inuktitut by the program’s director of clinical services and an Inuit instructor. In this program centred on self-control, offenders are encouraged to take responsibility and to show some empathy toward victims, etc.
“Inuit healing” therapy, given in Inuktitut by two healers, is adapted to Inuit cultural realities. Music, dance, legends, poetry, spirituality and visual arts are among the elements used in the healing process to help offenders understand the source of their violent behaviour. To that skill groups are added, which in a motivational approach, for acquisition, practice and integration of cultural and pro-social skills as well as their use in various spheres of life: respect for values, cognitive restructuration, the study of violence dynamics, goal development, emotions management and domestic violence prevention (Hamilton, 2002). The Tupiq program is considered to be a culturally acceptable alternative, with a specifically Inuit orientation, to the National Sex Offender Treatment Program. At least, that is what the preliminary results of an assessment study of the Tupiq program carried out by Trevethan, Moore & Naqitarvik (2004) indicate. Already, a record number of participants (93%) has completed the training. There appears to be a reduction of criminogenic needs and cognitive distortions. Justifications for offences and the risk of recidivism appear to be lower for similar (sexual) crimes and the success of social reintegration appears to be more likely.
The In Search of Your Warrior program is an example of a violence prevention program for Native offenders. This healing program is based on Native culture, learning and ceremonies. Those eligible for admission to the program have a record of violence and a high risk of recidivism. The analysis of the program carried out by Trevethan, Moore & Allegri (2005) showed that the respondents found the experience satisfactory. It seems that there were positive effects on criminogenic factors and behaviour, both during detention and afterwards. They wrote:
“[…] participants demonstrated lower need for intervention targeting personal distress, family issues, substance abuse, community functioning, employment, social interactions and pro-criminal attitudes. Participants also were rated as having greater potential for successful reintegration post-treatment. These findings suggest that the program had an impact on reducing offenders’ need for correctional programming and improving their potential for successful release into the community” (Trevethan, Moore & Allegri, 2005, p. 39-40).
According to the authors, the spiritual component is a major element in explaining the program’s success. However, we should avoid generalizations based on the report’s conclusions, because as the researchers point out, further studies are needed.
Spousal and family violence
The Aboriginal High Intensity Family Violence Prevention Program (AHIFVPP) is considered to be a culturally appropriate alternative to the High Intensity Family Violence Prevention Program (HIFVPP) offered non-Native offenders. AHIVFPP was set up in 2003-2004 and works on risk factors related to violence against women (spousal abuse) and children (family violence). The interventions with offenders thought to be at high risk are intended to encourage the development of pro-social behaviour and a non-abusive attitude.
Other federal programs for Native persons
Although some correctional programs for Native persons are in development or already implemented in institutions, it is difficult to give an exhaustive list. We recommend, however, referring to the « National Overview of Programs », « Services and Issues Related to Aboriginal Offenders », prepared by the Aboriginal Issues Sub-Committee to the Heads of Corrections (CSC, 2000).
It should be noted that programs other than those listed above are available to Native men. The include the Aboriginal Basic Healing Program, the Circles of Change Program, the Pathways Units Program and the Spirit of a Warrior Program.
The Aboriginal Basic Healing Program is intended to help participants acquire communication skills and problem solving skills as well as learning some cultural and spiritual aspects that can be of help in the process of changing attitudes and avoiding criminal behaviour. Childhood traumas, drug abuse and interpersonal relations are among the topics studied by participants in order to develop an action plan that can facilitate healing. Initially, the program was considered to be a cultural alternative adapted from the Reasoning and Rehabilitation Program and the Anger and Emotions Management Program. In 2003, the CSC developed new projects in partnership with the Council of Elders:
- Seven national correctional programs for Native persons aimed at basic healing, violence prevention, family violence prevention, substance abuse and the prevention of sex offence recidivism among Inuit offenders;
- A management strategy for the population participating in the Pathways Units Program that were the subject of a pilot project in three medium security institutions to better prepare offenders for transfer to a lower security level and for parole;
- Development officers in Native communities who initiated community participation in the planning of the release of nearly 400 offenders;
- Major technical studies, published in 2004, that looked at the various profiles and needs of First Nations, Métis and Inuit offenders (CSC, 2003).
The operating methods of Pathways Units vary from one penal institution to another because elders determine the program content in each unit. The specific goal is to provide a living environment that meets the cultural and spiritual needs of Natives. In addition to facilitating offender healing, they also facilitate family and community healing through mediation and exchanges between members of the offender group (intragroup) and people on the outside who have been affected by an offender’s socially reprehensible actions (extragroup).
Federal programs for Native offenders in Québec
No criminological study has examined the federal correctional programs for Native offenders in Québec. Thus, it is difficult to be knowledgeable about what programs have been offered to date in the penal institutions. The preliminary data from a study now under way on Native spirituality programs in Québec (Jaccoud & al., 2008) tell us that some federal institutions have already provided or are still providing correctional programs for Native offenders. For example, we can note that the Drummondville facility (which has a Pathways Unit) and Cowansville facility (which had a Pathways Unit in 2000 and a Aboriginal Offender Substance Abuse Program in 2007) are regionally designated as the two medium security facilities that have programs for Native offenders. Until 1997, the CSC had a program for Native sex offenders in its La Macaza facility (in the Laurentian region), but that program no longer exists. Therefore, there is no specific program for Native sex offenders in Québec (Hylton, 2002).
In addition to having programs for Native offenders, some federal institutions have an organizational framework that meets the specific realities of Native offenders in Québec. Among the various facilities, we find in particular longhouses, traditional food, tepees and sweat lodge.
Agreements with the Gouvernement du Québec, programs and services provided by the Services correctionnels (Québec Ministère de la Sécurité publique)
Agreements with the Gouvernement du Québec
In recent years, the Gouvernement du Québec has undertaken consultations and negotiations with some Québec First Nations to adapt correctional services for their communities. To properly understand current correctional issues affecting Québec’s Aboriginal peoples, a broad overview of the development and current status of negotiations with First Nations is given here.
Recent negotiations on justice between the Inuit and the Gouvernement du Québec began in August 2006; they are based on the Sanarrutik2. Agreement. Under section 4.4 of the Agreement (Correctional, social and preventive related mesures), it is agreed that the Gouvernement du Québec will invest money to be used, among other purposes, for crime prevention, promoting community safety, providing assistance to crime victims and improving the correctional services provided to Inuit persons. An expert committee formed in 2006 has the mandate to establish action priorities and make recommendations for the development of correctional programs and services that are better adapted to the Inuit population.
2 The purpose of the Sanarrutik Agreement is to establish a new nation-to-nation agreement and propose a shared vision for economic and community development in Nunavik.
In 2007, the Agreement concerning the administration of justice for the Cree between the Gouvernement du Québec and the Grand Council of the Cree (« Eeyou Istchee ») and the Cree Regional Authority (CRA) was signed. Like the Inuit agreement, this agreement provides funds for improving correctional measures and the administration of justice on Cree lands. An advisory committee has the mandate to identify community needs and make recommendations to the CRA priorities in the area of justice. After visits to Cree communities in 2008, it was decided to prioritize the construction of courthouses in the communities and to facilitate the hiring of Cree professionals (as elders, social workers and social reintegration officers) at the Amos Detention Centre and on Cree lands. The construction of courthouses on Cree lands is desired by the community, which sees such courthouses as a first step to self-governance and the assumption of responsibility for the justice system.
Among the main developments envisioned for the Innu in the Côte-du-Nord region, are the construction of a community residential centre, the hiring of Innu staff at the Sept-Îles Detention Centre and the implementation of specialized programs and services adapted to the needs of Innu offenders.
Since the political agreements made with the Inuit and the Cree in Québec provide for negotiations in the area of the administration of justice, it is not surprising to see that there are ongoing discussions with those two nations.
Programs provided by Québec’s Services correctionnels
The Québec Ministère de la Sécurité publique (MSP) has set up a variety of programs to meet the needs of incarcerated offenders and facilitate their social reintegration. Some programs are provided in all detention centres, while others are available in the majority of centres or only in several centres. Very few programs are specifically for Natives (including Inuit offenders). This section first discusses the specific programs and then the main programs provided both to Natives and to non-Natives. The list of programs presented here is not exhaustive3.Furthermore, programs provided specifically for women offenders are not covered here.
3Source : « Programmes et services offerts aux personnes prévenues ou contrevenantes dans les établissements de détention », Québec, Service des programmes, Services correctionnels (2009).
Programs specifically for Natives
The Amos Detention Centre provides the Qajaq program, which consists of meetings between workers from the Nunavik’s Qajaq Men’s Resource Network and Inuit men to raise their awareness of violence and substance abuse issues. The program also provides visits from elders and the sharing of traditional food.
The Saint-Jérôme Detention Centre also has a Qajaq program. It is 12 weeks’ long, focuses on spousal and family violence and is adapted to Inuit traditions and culture. In addition, the centre has a program on alcoholism in which one of the two weekly meetings of Alcoholics Anonymous (AA) is reserved for Inuit offenders as well as a schooling program provided by the Kativik School Board.
Programs for both Natives and non-Natives
A program that focuses on schooling is provided under an agreement between the MSP and the Québec Ministère de l’Éducation, du Loisir et du Sport. School boards provide a literacy and general education program up to Secondary V in all detention centres.
An employability program, aimed at integrating offenders into the labour force and keeping them there, is provided in all detention centres, with some variations from one centre to another. The MSP provides these programs in collaboration with government agencies and community organizations. They include paid employment activities financed by a centre’s Reintegration Support Fund. These activities involve the laundry, kitchen, cleaning, snow removal, painting, land maintenance and the library.
In accordance with the Entente relative à la prestation de services de main-d’œuvre et d’emploi aux personnes contrevenantes adultes that is under the responsibility of the Direction générale des services correctionnels (signed in February 2001), Emploi-Québec and the MSP have coordinated their efforts to provide employment services in Québec’s detention centres. In February 2003, these services were available in all the centres. Paid employment is generally carried out under subcontracting arrangements with private companies. The first phase of the agreement involved the implementation of an employability program in the centres which is provided by a labour force counsellor, who provides individual follow-up for the integrating offenders into the labour force and keeping them their. The second phase involves the implementation of qualifying projects, that is, projects aimed at improving specific job skills. The third phase of the agreement concerns consolidation of service offers to ensure the transfer of follow-up responsibility from the centre to the community. (In 2011, the second and third phases are still under development.)
For the MSP, other types of activities likely to facilitate the social reintegration of offenders include unpaid work and sports, sociocultural and recreational activities. Unpaid work may take two forms: work in a detention centre (cleaning, library work, etc.) and work in not-for-profit organizations (volunteer activities).
All the centres provide sports, sociocultural and recreational activities to combat the idleness of offenders during their confinement. Various formulas are used to encourage sports participation, including physical education courses, physical fitness training equipment and team sports. The sociocultural and recreational activities vary from one centre to another and may include access to a library, computer games and activities that accompany special occasions.
Most detention centres have programs to address alcoholism and substance abuse. AA meetings and in some cases, Narcotics Anonymous meetings are held in centres. Other approaches are also used for substance abuse: awareness programs, relapse programs, group meetings on the outside, etc.
A suicide prevention program is provided in all Québec detention centres to evaluate the risk of suicide when offenders first arrive. Persons at risk are cared for and may receive services from specialized outside resources.
Under an agreement between the MSP and Québec Ministère de la Santé et des Services sociaux, incarcerated individuals are entitled to the same services as the general population for any problem related to their physical or mental health. Those services include the continuation of medication, appointments with specialists during detention and medical examinations in hospital centres. Incarcerated individuals also have access to a screening service for sexually transmitted and blood transmitted diseases.
The Parcours4 program : « a road leading from one place to another », is aimed at raising offender awareness and responsibilization and is available in all the centres. In fact, section 21 of the Act respecting the « Québec correctional system » provides for […] “develop[ing] and offer[ing] programs and services to encourage offenders to develop an awareness of the consequences of their behaviour and initiate a personal process focusing on developing their sense of responsibility.”
4 The Parcours program was developed Mr. Denis Lafortune, a professor of criminology at the Université de Montréal.
In the Parcours program, case histories are used as teaching tools to illustrate values conflicts, relapse and recidivism trajectories as well as difficulties when faced with change. The program is for offenders who have been sentenced to six months or more of detention and who exhibit denial or minimization as assessed by the Level of Service/Case Management Inventory (LS/CMI). Priority is given to individuals whose risk level is high or very high according to the LS/CMI.
The availability of other programs varies from one centre to another. Such programs are mainly focused on violent behaviour, rage management, self-awareness and self-esteem, interpersonal relations, emotional dependence, social and parenting skills, problem solving and compulsive gambling.
Other services made available to Natives by the Québec’s Services correctionnels
For several years, some probation officers have been assigned exclusively to the Native offender population in Baie-James region and the Nunavik territory. They receive training and supervision so that they can adapt their interventions to the Inuit and Cree cultures.
Since 1997, Inuit community reintegration officers have been working with Inuit offenders in Nunavik communities. Working closely with probation officers in the territory, they ensure part of the follow-up in the communities to facilitate the social reintegration of offenders.
In 1998, the Makitautik Community Residential Centre was set up in the municipality of Kangirsuk in Nord-du-Québec. Its mission is to receive in the residence, for variable periods of time, Inuit offenders following their time in prison or in some cases, during community follow-up. The centre has 14 places and receives Inuit offenders from all over Nunavik, offering them reintegration programs adapted to the Inuit nation’s culture.
In addition, the MSP purchases places in the federal Waseskun Healing Centre in Saint-Alphonse-Rodriguez (in the Laurentians), whose mission is to assist Native men in their healing process.
For several years, programs for visits from elders coming from the various communities have also been set up for Natives for individual and group meetings. Some detention centres have also begun to serve traditional food, mainly for the Inuit and the Cree.
Furthermore, in future, detention centres the most likely to receive a significant number of Natives will be designed to take into account the specific needs of Native persons. That is already happening at in projects at the Amos centre and the new centre planned for Sept-Îles. The specific areas for Natives in Sept-Îles will include a circular hall for ceremonies and an office for elders, and in Amos and in Sept Îles, a sweat lodge will be provided.
Aboriginal courtwork and para-judicial programs in Canada and in Québec
Para-judicial services for Aboriginal peoples came into being in the 1960s, under the auspices of native friendship centres throughout the country. At that time, they provided assistance to Native persons who had to appear before the courts. Volunteers devoted to the cause provided para-judicial services so that Native persons could be represented by a lawyer and so that they could have access to social and health services. Moreover, in addition to the support provided to accused persons, the volunteers explained to them how the justice system operated, which before had been foreign to them.
Although the Canadian government had begun to fund judicial services for Native persons in 1969, it was only in 1972 that the Canada Department of Justice (CDJ) became the organization in charge of funding pilot projects related such services. In 1978, judicial services for Native persons acquired national status and became the Aboriginal Courtwork Program (ACP). Following passage of the « Act respecting youthful offenders », the program was extended to Native youth (CDJ, 2008). The objectives of the program are to ensure fair treatment and respect for the indigenous culture of Natives. More specifically, the program was aimed at “assist Aboriginal people to understand their right to speak on their own behalf or to request legal counsel, and to better understand the nature of the charges against them and the philosophy and functioning of the criminal justice system; assist in enhancing the awareness and appreciation of the values, customs, languages and socio-economic conditions of Aboriginal people; respond to problems and special needs caused by communication barriers which exist between Aboriginal people and the criminal justice system” (CDJ, 2008).
In the various provinces, the Aboriginal Courtwork Program is available through organizations that provide Native services under contracts signed with the provincial and territorial governments. In Québec, Native Para-judicial Services of Québec (NPSQ) has had the mandate to carry out the program since NPSQ’s creation in 1981. Québec was the last province to have a para-judicial assistance program for Native persons. NPSQ is a not-for-profit organization that was established following negotiations between the various First nations and the Ministère de la Justice of Québec. NSPQ assists Native persons in areas related to justice to better meet the needs of Native communities in Québec (NSPQ, 2008)
Under the federal Aboriginal Courtwork Program, Native liaison officers from NSPQ give Native persons information on how federal penal institutions function and insist on the importance of participating in correctional programs for Native persons. They also increase the awareness of correctional staff to the cultural specificities of Native persons so that staff can take them into account in their interventions. NSPQ also has service staffed by Native para-judicial counsellors. That service, which is funded under a federal-provincial agreement, provides personalized assistance before sentencing to Native persons involved with the criminal and penal justice system. Para-judicial counsellors meet, assist and inform Native persons on the various judicial procedures. At the community level, counsellors also participate in the development of justice alterNatives to meet the specific needs of the communities.
Sociojudicial needs of Native persons
There have been numerous studies touching all areas of the justice system on the sociojudicial needs of Native persons. The literature makes it possible for us to focus on various needs, such as those related to prevention/training, but also on those arising at every step in the judicial process: before being arrested, during the judicial process, in correctional services, after serving a sentence and in all alternative justice initiatives.
In this section, we present a summary of the recommendations resulting from the Canadian and Québec studies and commissions of inquiry discussed above, so as to point out the needs of Native persons at each step of the criminalization process. It must be remembered that the purpose of the work that has been carried out was to take stock of the situation of Native persons to determine problem areas and needs so as to guide the various levels of governement (Sugar & Fox 1990; Brodeur, LaPrairie & McDonell, 1991; Cawsey, 1991; Arbour, 1995; Coutu, 1995; Royal Commission on Aboriginal Peoples, 1996; Clairmont & Linden, 1998; Stenning, 2003; Justice Québec, 2008).
Prevention/training activities in the communities
- Implementation of sports and recreation programs and infrastructures, notably to prevent delinquency;
- Encourage and improve access to schooling;
- Encourage and support the economic development of Native communities;
- Encourage and support cultural revitalization initiatives;
- Implementation of awareness and prevention programs on:
- the justice system, the law and judicial procedures;
- alcohol and substance abuse;
- spousal and family violence;
- Integration of Native persons into the governance process in the area of justice so that they can, on the long term, become self-sufficient and fully responsible for their future (the best word for this recommendation is “empowerment”).
Para-judicial service needs of Native persons (prior to court appearances)
- Make para-judicial services available and give special attention to the residents of remote communities;
- Dispense justice services in Native languages or provide Native persons with an interpreter;
- Translate laws and regulations;
- Facilitate staff indigenization;
- Give intercultural awareness training to justice system staff;
- Support alternative and restorative justice initiatives;
- Support Aboriginal policing services.
Needs of Native persons during the judicial process (court proceedings)
- Hold hearings in Native communities;
- Give consideration to traditional social regulation mechanisms;
- Develop judicial mechanisms based on settlement, mediation, community service and alternative justice, rather than on mechanisms of repression and marginalization of Natives;
- Encourage, where possible, alterNatives to incarceration.
Service needs of convicted Native persons (after sentencing)
- Allow offenders to serve their sentences in their community of origin, where possible;
- Create more positions for liaison officers of Native origin;
- Provide services, training and correctional programs based on traditional spirituality adapted to the needs of Natives and focused on various problems (substance abuse, return to work after release, family and spousal violence);
- Provide support services to Natives in custodial settings to assist them in preparing for their parole interview;
- Make parole more accessible;
- Integrate Native persons into parole boards.
- Make social workers available to Native persons who are released from confinement to assist them in reintegrating their community;
- Provide services, training and correctional programs based on traditional spirituality, for prevention and treatment of substance abuse, return to work after release, family and spousal violence that are adapted to the needs of Natives.
Needs of Native persons that complement the justice system
- Implement impartial protective services for victims of family and spousal violence;
- Support para-judicial associations that provide assistance to Native persons;
- Facilitate cooperation between the actors in the justice system and offenders’ home communities;
- Facilitate the participation of Native persons in the activities occurring at all decisional levels of the justice system;
- Implement community-based intervention services for Native victims;
- Support and fund research and program assessment with respect to the administration of justice among Aboriginal people.
In brief, what must be remembered is that Native persons must have a larger place on study committees, work in close collaboration and in a synergetic way with members of communities affected by reprehensible actions, facilitate and encourage the emergence of alterNatives to customary judicial processes and implement measures that will make it possible for Aboriginal people to regain control over the governance and future of their communities.
Risk management and Canada’s Aboriginal people
For a long, long time, Aboriginal people have been put into categories. The First Nations are organized around categories that have been formalized in various Canadian laws (« Indian Act », 1876 and « Indian Act », 1936), where simply registering under the status of “Indian” is an act of categorization, creating thus historical otherness, that is, historical differentiation (Monture-Angus, 1999).
Risk management consists in categorizing people who have similar sociodemographic and criminological profiles so as to reduce, individually and collectively, the risk of recidivism. Native status is itself a risk factor. “[R]esearch has found that Aboriginal offenders are more likely to commit violent crimes, are classified as higher-risk and higher-need, […] have a lower level of education and are less likely to employed when admitted to custody” (Rugge, 2006).
Calling for risk management in Canadian justice systems is very recent. In Canadian penal institutions, risk management tools have been in use since 1996. In Québec detention centres, risk management tools have been in use since December 2006, shortly before the coming into force of the « Act respecting the Québec correctional system ».
Risk management: a brief definition of the concept
In Canada, the assessment of offenders’ level of risk is has been a common practice in the penal system since 1996. It is “the process of determining the level of risk that an individual poses to commit a future criminal act” (Rugge, 2006, p. 3). Under federal jurisdiction, level of risk is determined in several steps of the case management process, particularly at the time of sentencing, when a security classification is assigned, in the parole process and upon release. In addition to predicting the risk of re-offending, the various tools used in federal institutions have two other functions: determination of the security classification and the risk factors and criminogenic needs of offenders so as to provide them with the appropriate correctional services (Bonta & Cormier, 1999; Howells & al., 1999; Andrews & Bonta, 2003; Rugge, 2006).
By using several past or present individual and social characteristics, the risk assessment tools give a rating that is used to classify offenders as “low risk”, “moderate risk” or “high risk”. For the assessment to be more representative of reality, composite ratings are sometimes used, such as “low-moderate risk” or “moderate-high risk”.
To date, three principles guide correctional treatment so that it can be effective: (1) the principle of risk, which requires interventions to be adapted to the offender’s level of risk of re-offending; (2) the principle of need, which requires that services be dispensed to reduce criminogenic behaviour; and finally (3) the principle of receptivity, which requires taking into account the offender’s learning style and capacity so as to orient him to the appropriate services.
Over time, risk assessment tools have been developed based on a large body of scientific research (Andrews & Bonta, 2003; Andrews, Bonta & Wormith, 2006; Bonta & Cormier, 1999; Gendreau & al., 1996b; Gendreau, Goggin & Smith, 2002; Grove, Zald, Lebow, Snitz & Nelson, 2000).
The studies carried out to date seem to clearly show that actuarial methods are more effective than clinical judgement in assessing risk (Grove & Meehl, 1996; Grove & al., 2000; Douglas, Cox & Webster, 1999). Furthermore, assessment must include dynamic factors (e.g., employment, family relationships and substance abuse) so that the results will be the most representative of reality (Andrews & Bonta, 2003; Andrews & al., 2006; Bonta & Cormier, 1999; Gendreau & al., 1996b; Gendreau & al., 2002; Rugge, 2006).
In summary, by using statistical tools, risk management is a process for assessing risk and assigning a security classification that is used to place offenders at the appropriate security level, provide them with correctional services adapted to their needs and determine the probability of recidivism.
The following two points give an overview of the work on risk assessment tools: work on the factors and determinants of the risk of re-offending and (2) work leading to critical analyses of risk management.
Factors and determinants of re-offending
The analyses and meta-analyses carried out in recent years have made it possible to identify a certain number of psychological and social factors that are better predictors than others of re-offending (Gendreau & al., 1996a; 1996b). In general, researchers agree on four strong factors and moderate strong factors that are added together to give the risk level for re-offending. Note that those eight factors correspond to the eight criminogenic needs measured by the actuarial tools that have been in use in the Québec correctional system since December 2006, that is, the Level of Service/Case Management Inventory (LS/CMI). We also present the weak factors that may have an influence on the risk of re-offending.
The four most important factors (strong factors) are:
- History of antisocial behaviour;
- Antisocial personality model;
- Antisocial cognition;
- Antisocial associates.
The moderate factors are:
- Spousal or family problems;
- Problems at school or work;
- Leisure and recreational activities;
- Alcoholism or substance abuse.
The weak factors are:
- Personal or emotional distress;
- Serious mental disorder;
- Physical health problem;
- Fear of official sanction;
- Low intellectual quotient;
- Social class of origin;
- Severity of the offence resulting in the current sentence.
The main criticisms of the risk management mode for Native offenders
The problems related to risk management are contemporary and directly related to the development of the actuarial technique. We have seen in the previous section that several studies have been carried out to make the results obtained from the various risk analysis tools representative of reality. That could lead us to believe that specific tools or tools adapted to Aboriginal realities exist and are in general use. That is not the case; the same tools are used both for Native offenders and non-Native offenders.
One of the few risk management studies on Native offenders to date is the study carried out by Bonta & al. (1997). According to the researchers, the Manitoba Risk-Needs Classification System (MRNCS) is just as predictive for Native offenders as for non-Native offenders, with the exception of the “spousal or family problems” and “problems at school or work” factors, which have a higher predictive value for non-Native offenders. Those conclusions support the theoretical perspective of Andrews and Bonta (1994), according to which the main risk factors are generally independent of the racial origin and culture.
Of course, those conclusions are not universally accepted in the scientific community. The critical literature on risk management has been abundant in recent years (see, for example, Moffat, 2005; Moffat & Shaw, 2001; Davis, 1999; Waldram, 1994; Ryan & al., 2006; Day & al., 2004; Silverstein, 2005; Dickson-Gilmore & LaPrairie, 2005; Howells, & al., 1999; Monture-Angus, 1999).
The strongest criticism made in this respect by Aboriginal populations is that the specialized tools, in particular the LS/CMI, in addition to not taking into account their cultural specificities, disadvantages them from the outset because of their overall socioeconomically depressed social situation. Generally, incarcerated Native persons obtain higher risk levels than other offenders.
2. Examination of the General Profile
Proportion of Native persons in the correctional system
CSC data indicate that at the end of March 2006, Native persons accounted for almost 17% of the offenders under its responsibility (CSC, 2009) The Corrections Statistics Committee (2006) concluded that there had been a reduction in the federal offender population between 1996 and 2006. However, for Native offenders, it noted an increase of 26.6% during the same period. In some Canadian provinces, particularly in the Prairie provinces, almost 60% of the offender population is of Aboriginal origin. The situation of Native women is even more alarming than the situation of Native men. In the same decade, the number of Native female offenders increased by 106.5% compared with an increase of 11.5% for male offenders (Griffiths & Cunningham, 2003). (See also Statistics Canada, 2001; Finn & al., 1999; Correctional Service, 1999; Jackson, 1999.) Between 1997 and 2006, the proportion of Native offenders under federal jurisdiction increased from 15% to 25% (Statistics Canada, 2008b).
In 2004, about two thirds of offenders under federal responsibility were Amerindians, a third were Métis and 4% were Inuit (CSC, 2009). Generally, Native persons admitted to the federal penal system are younger than their non-Native counterparts. In 2005-2006, for example, 52.2% of Native offenders admitted to a penitentiary were under 30 years of age, compared with only 39.9% of non-Native offenders (Corrections Statistics Committee, 2006).
The study made by Moore & Trevethan (2002) clearly shows the dissimilarities between Native and non-Native offenders admitted to federal incarceration. Native offenders have a lower level of schooling, a higher level of unemployment, a more serious prior criminal history and a greater need for intervention than non-Natives. Disparities also exist among Métis, Inuit and Amerindians. Inuit offenders have the least schooling; when admitted to penitentiary, 57% of Inuit had less than a grade 8 education, compared with 31% of Amerindians and 21% of Métis. The differences for unemployment rates are lower: Amerindians, 77%; Métis, 75%; Inuit, 68% and non-Natives, 68%.
The average age upon admission to a penitentiary was lower among Amerindians (30.5 years) and Métis (30.5) than among Inuit (33) and non-Natives (33.9). Fewer Inuit were married (28%) when admitted than Amerindians (40%) and Métis (43%) (Moore & Trevethan, 2002).
For more information on this type of comparative profile, the reader is referred to First Nations, Métis, Inuit and Non-Aboriginal Federal Offenders: A Comparative Profile by John-Patrick Moore (2003). He writes, “Despite certain similarities, the profiles of First Nations, Métis and Inuit offenders are generally different. Each group has unique background, offence and need characteristics” (Moore, 2003).
In brief, Native persons are younger when incarcerated, and they have less schooling and more unemployment than their non-Native counterparts. This is the case although there are certain disparities from one Native group to another.
The role of sociodemographic factors on the incarceration rates for Native persons
Data from the Integrated Correctional Services Survey (ICSS) collected by the Canadian Centre for Justice Statistics make it possible to analyze the factors that may have an impact on incarceration. The jurisdictions that participated in the 2007-2008 ICSS were Newfoundland and Labrador, Nova Scotia, New Brunswick, Ontario, Saskatchewan, Alberta and the CSC (Statistics Canada, 2009).
Since age is one of the most significant factors in criminal behaviour, Canada’s Native population is younger than the non-Native population (2006 census data) and persons aged 20 to 34 are the most likely to have been in trouble with the law, we might be led to believe that at the same age, the two populations would have the same incarceration rates. However, the ICSS data show that the demographic curve explains only in part the greater representation of Native persons in penal institutions.
Since the Native population is proportionally larger than its non-Native counterpart in terms of the lack of a school diploma and unemployment (2006 census data), we might be led to believe that were those proportions were the same, the two populations would have the same incarceration rates. Analyses show that the employment and education characteristics explain about half the overrepresentation of young adult Native incarcerated persons (analysis limited to the 20 to 34 age group). Even under similar proportions, the risk of incarceration is still higher among Native persons than among non-Native persons.
All these results suggest that factors other than age, schooling and employment contribute to explaining the high incarceration rates for Native persons. Those factors may include income, housing and the judicial process. In addition, Native offenders have a greater number of needs that are associated with a higher risk of re-offending and therefore re-incarceration.
An analysis of the security classifications assigned to Native offenders and non-Native offenders shows that there are more Native offenders than non-Native offenders in federal medium and low security institutions. (Corrections Statistics Committee, 2006). On April 9, 2006, the proportion was 81.8% of Native offenders who were serving a sentence for a violent offence compared with 67.2% of non-Native offenders.
Among all convictions for murder in 1996, 15.6% were imposed on Native persons. There is a large difference between Native offenders and non-Native offenders with respect to the type of crime committed. For Native offenders, the five most frequent types are: (1) assaults, (2) theft, (3) drug trafficking, (4) second degree murder and (5) assault with a firearm (LaPrairie & al., 1996a, p. 39).
According to 2004 CSC data, Amerindians, Métis and Inuit can be differentiated according to their background, offences and assessed risk (CSC, 2009). Amerindian offenders are characterized by long judicial records and violent criminal behaviour (homicide and aggravated assault) such that more of them are placed in maximum security, compared with Métis and Inuit. Métis offenders are most often incarcerated for robbery and breaking and entering, then for drug offences. In the case of Inuit offenders, 62% are incarcerated for sexual offences, which greatly exceeds the proportions observed for Amerindians (22%) and Métis (16%). According to the same source, upon admission to custody, the risk of re-offending is higher for Inuit offenders (85%) than for Amerindians (73%) and Métis (68%).
Several researchers agree that Native women commit more offences against the person than Native men. (Bienvenue et Latif, 1974; LaPrairie, 1984; Brassard, 2005). Native women are more likely to be incarcerated for those types of offences than non-Native women (CSC, 2000). LaPrairie (1997) suggests that offences against the person committed by Native significant role.
In Canadian provincial detention centres, several studies seem to show that Native women are in fact incarcerated in greater numbers for offences against the person but also for non-serious offences. Native women are more frequently incarcerated for failure to pay a fine or for offences such as vagrancy, public drunkenness, solicitation or public disturbance (Schmeiser, 1974; Hylton, 1982; Dubec, 1982; LaPrairie, 1984; Jaccoud, 1986; Jackson, 1999; Brassard 2005).
Risk factors and criminogenic needs
The criticisms made in the previous chapter, in the section on risk management, seem to be confirmed here. Several risk factors are shared by all offenders, Native and non-Native, but not necessarily all (see LaPrairie, 1994; LaPrairie & al., 1996; Planning Branch, 1975; McCaskill, 1970, 1985; Waldram, 1992; Comack, 1993; Birkenmeyer & Jolly, 1981). Thus, risk factors in play regardless of ethnocultural origin are attitudes toward criminality, antisocial backgrounds, antisocial personality, antisocial cognitive style, associating with antisocial peers, family history and poverty.
On the other hand, risk factors that set Native offenders apart from their non-Native counterparts are region of origin or place of residence (distance from place of residence with respect to major population centres, rural or urban area, neighbourhood, etc.), as well as psychosocial, individual and collective experiences. In this regard, these factors may also distinguish one First Nation from another.
Factors related to the correctional and judicial system: parole
The criticisms made in the previous chapter, in the section on risk management, seem to be confirmed here. Several risk factors are shared by all offenders, Native and non-Native, but not necessarily all (see LaPrairie, 1994; LaPrairie & al., 1996; Planning Branch, 1975; McCaskill, 1970, 1985; Waldram, 1992; Comack, 1993; Birkenmeyer & Jolly, 1981). Thus, risk factors in play regardless of ethnocultural origin are attitudes toward criminality, antisocial backgrounds, antisocial personality, antisocial cognitive style, associating with antisocial peers, family history and poverty.
On the other hand, risk factors that set Native offenders apart from their non-Native counterparts are region of origin or place of residence (distance from place of residence with respect to major population centres, rural or urban area, neighbourhood, etc.), as well as psychosocial, individual and collective experiences. In this regard, these factors may also distinguish one First Nation from another.
3. Natives in the Québec Correctional System
In the first two parts of this report, we have presented the state of criminological knowledge on Native persons and criminality in Canada. The third part gives the sociojudicial profile of Native persons under the jurisdiction of Québec’s Services correctionnels in 2007-2008. The make up the “Native correctional population”, which includes both incarcerated Natives and those under community supervision.
This part is based on statistical data from the Dossiers Administratifs CORrectionnels (correctional administrative files, DACOR), a computer database maintained by the Services correctionnels. The data concern the sociodemographic characteristics of the Native correctional population and follow-ups on sociojudicial data, both for incarcerated persons and persons under community supervision. Before going further, several remarks on the methodological strategy must be made.
The study covers all Québec offenders and accused persons who, by self-declaration, claimed to be members of a First Nation when taken into the jurisdiction of the Services correctionnels. Incarcerated persons may have been admitted to detention between April 1, 2007 and March 31, 2008, or have been admitted earlier, provided they were still in detention during the year of the study. The same approach was applied to persons under community supervision: regardless of the date when jurisdiction began, provided they were still under jurisdiction in 2007-2008.
Analyzing a full year means that a person may have been incarcerated during part of the year and placed under community supervision during another part of the same year. In fact, it is not rare for a correctional sentence to include a period of confinement followed by supervised probation.
Table 1 gives a brief summary of the number of Native persons in the study population, by correctional setting. In 2007-2008 the Native correctional population was made up of 1,734 “distinct” individuals, who were incarcerated, under community supervision or both. Persons admitted before April 1, 2007, are shown separately from those admitted after that date, because the former are excluded from the data related strictly to admissions in 2007-2008.
|Incarcerated Native Population2||Number|
|Number of distinct individuals under incarceration in 2007-2008||977|
|Number of admissions in 2007-2008||1,260|
|Number of admissions before 2007-2008 (and still present in 2007-2008)||204|
|Incarcerated Native Population2||Nombre|
|Number of distinct individuals under community supervision in 2007-2008||1,328|
|Number of placements in 2007-2008||1,628|
|Distinct individual2 in incarceration or under community supervision||1,734|
In operation since 1987, DACOR is the computer system used by the Services correctionnels to manage the correctional population. It makes it possible for the Services correctional staff to follow the activities and interventions related to confinement and to collate information on persons held in detention centres, including cell assignment, sentence administration and absences. DACOR also makes it possible to follow up on interventions for persons under community supervision. Although several groups of employees can put information into the database, most of the information is added by Services correctionnels officers. The system contains a very large number of variables: we can imagine all the events that must be noted, dates, judicial information, personal information, etc. It goes without saying, that this study is based on a limited number of variables.
The analysis of the data is essentially descriptive. One of the variables studied, average daily incarcerated population (ADIP) is exceptionally presented on a historical basis. The situation of Natives is continually compared to that of non-Natives. Furthermore, the results are analyzed by First Nation for the most numerous First Nations: Algonquian, Attikamek, Cree, Innu (Montagnais), Inuit and the other nations. Specific results for Native women are given succinctly. The Native correctional population was 214 women (distinct individuals). The results by First Nation and for women are grouped, respectively, in Table 20, Summary of the Characteristics of Native Persons in the Correctional System, by First Nation, Québec 2007-2008; and Table 21, Summary of the Characteristics of Native Women in the Correctional System, Québec 2007-2008.
Since we have population data, the statistics given describe the actual situation. Therefore, we did not make any statistical test to find any difference between the percentages. Given the nature of the variables analyzed, it must be noted that the number of persons on which the percentages are based can vary greatly. For example, status upon first admission is determined based on the total number of admissions in the year; sentence length and offence category are determined only for convicted persons, and the duration of detention can only be determined for persons who have served their entire sentence.
LS/CMI data: the problem of representativeness
/The Level of Service/Case Management Inventory (LS/CMI) is an actuarial tool developed by Andrews, Bonta & Wormith (2004). It has been used by the Services correctionnels since December 2006 in all detention centres and since 2007 in the Direction des services professionnels correctionnels (DSPC) (for persons under community supervision). Offenders assessed using the LS/CMI are those who are sentenced to six months or more in the community or in detention and who have committed an offence against the person.
For the year studied, we have LS/CMI data for 127 Native men and 10 Native women. An initial analysis of the characteristics of the persons assessed showed biases that could greatly compromise the validity of the results. One bias concerns the correctional setting in which the assessment was made: two times fewer Natives than non-Natives (21% versus 40%) have been assessed with the LS/CMI while being under community supervision. The underrepresentation of Native offenders under community supervision can be explained, for the most part, by the fact that Nord-du-Québec residents under community supervision were not assessed with the LS/CMI in 2007-2008. However, almost half of all Native offenders under community supervision in 2007-2008 were living in the Nord-du-Québec region.
Another bias was observed regarding First Nations and region of residence.1 Among the Natives assessed, the Innu were found to be greatly overrepresented, whereas the Cree and Algonquians were underrepresented in terms of their weight in the correctional population. With respect to region of residence, Natives residing in Côte-Nord were greatly overrepresented, whereas those residing in all the other administrative regions were under represented. In brief, we believe that it will not be appropriate to present the LS/CMI data until the Natives assessed are more representative of the correctional population.
1.For First Nation and region of residence, the distribution of the Native correctional population is shown in Table 2 Distribution of Native persons in the correctional population and in the Québec general population, by First Nation, Québec 2007-2008 and Table 8 Region of residence of the Native correctional population and the non-Native correctional population, Québec 2007-2008 (percentage).
Limitations of the study
Some variables from DACOR can have a large number of missing values. A value is missing when no information has been input. For example, in the case of main source of income, information is missing for more than 60% of the 2007-2008 correctional population. Furthermore, the amount of information stored in DACOR and its level of precision can also depend on the actual duration of penal placement. If a person is admitted to detention for only a few days, for example, staff may input less information than if the person stayed longer or came back often.
In the case of the variable for First Nation identification, which is used in this report to identify Natives, there may be a margin of error because the person was not systematically asked the question upon admission or simply because a Native did not deliberately declare being a Native person when placed. An internal analysis already made by the Services correctionnels based on several variables (family name, municipality of residence, etc.) estimated that the actual number of Natives placed was 6% higher than the number obtained by simple self-identification. By applying a margin of error of that magnitude for 2007-2008, we would have about a hundred more Natives in the population, which would slightly change the indicators related to the presence of Natives in the correctional system.
From April 1, 2007, to March 31, 2008, 51,814 offenders and accused persons were under the jurisdiction of the Services correctionnels. Of that number, 1,734 were of Native origin, which represented 3.3% of Québec’s total correctional population. However, Native people account for only 1.2% of the general population. Among the Natives, 977 had been incarcerated one or more times and 1, 328 had been under community supervision.
In addition to First Nation data, which makes it possible to better know the Native population being studied, the presentation of other sociodemographic characteristics also makes it possible to assess the differences between Natives and non-Natives. Sex, age, usual language spoken, civil status, number of dependents, schooling and region of residence are variables used to answer this first question.
Although we do not have, in this first report, the objective of carrying out an in-depth analysis of Natives in terms of First Nation identification and sex, we believe that it is interesting to provide descriptive data related to those two aspects. The data is mentioned in the text and shown in Table 20 - Summary of the characteristics of Natives persons in the correctional system, by First Nations and Table 21 (sex), in section Summary tables of the characteristics of Native, by First nations and sex, so as to facilitate understanding the sociojudicial profile of a given group.
Table 2 compares the distribution of Native persons in the correctional population and in the general Native population in Québec by nation. It makes it possible to compare the proportion of each First Nation in the correctional system with the proportion in the non-correctional population.
Although Inuit represent 31% of the Native correctional population, they account for only 12% of Québec’s total Native population. Therefore, the Inuit are the most overrepresented in the Québec provincial correctional system. The situation of Attikameks is similar; they represent 11% of the correctional population but account for only 7% of the total population.
Conversely Mohawks, are largely underrepresented because (among other factors) of their geographic situation along the borders of Québec, Ontario and the United States. We know that a significant number of Mohawk offenders are in the custody of the correctional services of Ontario and the United States. Another plausible explanation for the underrepresentation of Mohawks is that the Mohawk Nation is, without doubt, the most autonomous in terms of justice in Québec. In fact, the Mohawks have their own justice mechanism (Court of Kahnawake, Native justices of the peace, etc.) which facilitates keeping some of their correctional population in the community.
In his study of admissions to Québec detention centres, Jaccoud (1986) concluded that there was overrepresentation of Natives but was unable to make a differentiation by First Nation. The data used for our report, however, made it possible for us to affirm that the overrepresentation of Natives under the jurisdiction of Québec’s Services correctionnels touches more specifically Inuit, followed to a lesser degree by Attikamek. Algonquian and Cree are only slightly overrepresented in terms of their proportion in Québec society. It should be noted that the other First Nations (Huron-Wendat, Abenaki and Malecite) are practically absent from the Québec correctional system.
|1Five data on First Nation are missing.|
|1 Data from the Secrétariat aux affaires autochtones that include the Akwesasne Mohawks on Québec territory, Québec, 2007.|
The vast majority of Natives under the jurisdiction of the Services correctionnels are men, that is, 88% compared with 12% for women, which is comparable to the rates for non-Natives (Table 3). The proportion of Native women offenders and accused varies from 11% to 14%, depending on the First Nation. The lowest proportion are Innu/Montagnais and the highest are Cree (Table 21, Summary of the Characteristics of Native Persons in the Correctional System, by First Nation, Québec 2007-2008).
On average, Natives are three years younger than non-Natives, that is, 33.2 and 36.2, respectively. The largest age groups among Natives is the 18-24 group (21%), 25-29 (20%) and 35-39 (18%). Natives over age 45 account for 12% of the correctional population compared with 25% for non-Natives (Table 4). These data confirm the results of Canadian studies that show a higher representation of Natives under age 30 than of non-Natives of the same age (Corrections Statistics Committee, 2006; Office of the Correctional Investigator of Canada, 2006).
The average age of Natives varies from 31.6 to 35.2, depending on the First Nation. The Algonquians and the Cree are the youngest, whereas the Attikamek are the oldest (Table 20 - Summary of the characteristics of Natives persons in the correctional system, by First Nations).
|1Age on October 1, 2007.|
|55 or over||1,7||7,3|
The age pyramid for the Native correctional population is shown in Figure 2. Like the average age already mentioned, the age pyramid clearly shows that Natives are slightly younger than non-Natives. Around ages 40 to 45, the proportion of Natives becomes comparable to the that of non-Natives, whereas as of age 46, the proportions are less among Natives. It goes without saying that the age intervals after age 45, which are more frequent for non-Natives, contribute to the difference in the average age of the two groups.
The analysis of the pyramid also shows bimodal distributions, that is, two subgroups are more numerous compared with the others. For Natives, this bimodality shows the larger presence of adults aged around 22 to 29 and adults aged around 34 to 39, whereas for non-Natives, the groups concerned are those aged around 22 to 27 and around 36 to 45.
Figure 2 Age pyramid for the Native correctional population and the non-Native correctional population, Québec 2007-2008 (%)
Usual language spoken
At the time of placement with the Services correctional services, 34% of Natives said they spoke only French, 28% only English, 6% both languages and about a third some other language (Table 5). It is mainly the Cree and Inuit (more than half of each group) who speak neither French nor English. (Table 20 - Summary of the characteristics of Natives persons in the correctional system, by First Nations)
The declared language is not necessarily the mother tongue. It is likely that several Natives initially declare French or English even though they still speak their mother tongue, so as to make accommodations to the languages used in the correctional system. The comparison of Natives and non-Natives deserves our attention. A large majority of non-Natives (84%) say they are unilingual Francophones, whereas 60% of Natives do not speak French.
The results show that language may be an obstacle for a large proportion of Natives in the Québec correctional system. Such findings require us to acknowledge and facilitate bilingualism of staff who are in contact with the Native correctional population and that we ensure that services are provided in in Native languages, mainly for Inuit and Cree offenders, who are the must affected, or that we are able to call on the services of interpreters, as is already the practice in the Canadian correctional services (Ministère de la Justice du Canada, 2008).
|Nombre||1 729||48 837|
|Français et anglais||6,0||8,5|
Civil status and dependents
Natives have family responsibilities more often than non-Natives. Thus, 47% of Natives live in a conjugal relationship (37% are in a de facto union and 10% are married), compared with 26% of non-Natives (Table 6). Many more Natives declare dependents (45% compared with 18% of non-Natives), and the number of persons declared is larger.
Table 6 - Distribution of the Native correctional population and the non-Native correctional population by civil status and number of dependents, Québec 2007-2008 (percentage) Elements considered Natives Non-Natives Single 48,7 65,8 De facto union 36,5 20,9 Married 9,8 4,6 Separated or divorced,6 8,2 Widowed 0,4 0,5 Total (number) 1 727 49 171
|De facto union||36,5||20,9|
|Separated or divorced||,6||8,2|
|Total (number)||1 727||49 171|
|Three or over||20,2||3,8|
The DACOR database does not contain any specific data on the last year of schooling completed by offenders and accused at the time of their placement. It contains only the grade level begun or completed.
More than 95% of Natives affirm have begun or completed secondary school (83%) or primary school (13%) (Table 7). A smaller proportion of Natives than non-Natives have undertaken college or university studies.
In Portrait de la clientèle correctionnelle du Québec 2001, Robitaille et coll. (2002) find that 63% of Québec’s correctional population had not gone further than secondary IV. That result leads us to believe that the majority of Native and non-Natives followed by the Services correctionnels in 2007-2008 had not completed their secondary schooling. The same situation is found in the federal Native correctional population (LaPrairie & al., 1996a; Moore & Trevethan, 2002; Moore, 2003).
|Schooling undertaken or completed||Natives||Non-Natives|
|1Another source suggests that the majority of those at this level have not completed their secondary studies.|
Region of residence
About half the Native correctional population lives in the Nord-du-Québec region, 13% in the Côte-Nord region and 10% in the Abitibi-Témiscamingue region. Slightly more than a quarter of Natives live in other regions of Québec. Non-Natives live, for the most part, in the Montréal and surrounding regions (Table 8).
It goes without saying that place of residence depends on the First Nation. The Inuit and Cree live mainly in the Nord-du-Québec region; the Innu, mainly in the Côte-Nord regions; and the Algonquians, mainly in the Abitibi-Témiscamingue region. As for the Attikamek, they are found in the Mauricie, Lanaudière and Saguenay–Lac-Saint-Jean regions (Table 20 - Summary of the characteristics of Natives persons in the correctional system, by First Nations.
The rural or urban character of the place where Natives live is a factor that has been studied many times to explain their criminalization process. By examining the map produced in 2007 by Indian and Northern Affairs Canada Les nations amérindiennes et inuites du Québec, we see that the Cree, Inuit, Innu, Naskapi and Attikamek live in non-urban regions. On the other hand, the Mohawk, Abenaki, Algonquian and Huron live along the Québec-Windsor axis, nearer major urban centres. This is a major difference between Québec Natives and those in the vast region of the Canadian Prairies. In Québec, the majority Natives live far from major urban centres, whereas in the Canadian Prairies, a great majority of Natives live in an urban setting (LaPrairie 1994). According to the same source, more offences are committed by Canadian Natives who live in urban centres.
It must be noted, however, that the urbanization of Aboriginal peoples is a constantly changing situation in Québec. In coming years, the current phenomenon could greatly change the portrait of Native persons under the jurisdiction of the Services correctionnels. For example, the study made by Siggner & Costa (Statistics Canada, 2005) indicates that between 1981 and 2001, the Native population living in Montréal increased from 7,830 to 11,085, that is, an increase of 42% in 20 years. A study made by LaPrairie (1995) of Native persons living in various Canadian cities shows that living conditions (unemployment, violence, homelessness, etc.) in urban settings make them very vulnerable.
- In a correctional population of 51,814 individuals in Québec 1,734 say they are of Native origin, which represents 3.3% of Québec’s correctional population, whereas they account for only 1.2% of the general population.
- The Inuit are the most overrepresented in the Québec correctional system, making up 31% of the Native correctional population, whereas they make up only 12% of the Québec’s total Native population.
- 88% of the Natives under the jurisdiction of the Services correctionnels are men, which is comparable to non-Natives.
- The Native correctional population is slightly younger than its non-Native counterpart, with averages ages of 33.2 and 36.2, respectively.
- The usual spoken language of Natives if very different from that of non-Natives: 60% of the former do not speak French, whereas 84% of the latter speak only French.
- Natives are more likely to live in a conjugal relationship than non-Natives and have more family responsibilities.
- Natives, like non-Natives have not completed their secondary schooling.
Sociojudicial characteristics related to Native persons in custody
This section describes the incarcerated Native population, first in terms of its sociojudicial characteristics (offences committed, violence and abuse problems, length of sentence) and then in terms of characteristics related to placement by the Services correctionnels. The latter mainly concern admissions, average population in custody and time in custody.
The three sociojudicial characteristics discussed here are given for all Natives in custody in 2007-2008, whether or not they were admitted on or after April 1, 2007, or before.
A person may be tried for several criminal offences in a single case. Figure 3 shows the most serious offence category for which Natives have been convicted. In decreasing order of seriousness, here are some examples for each of the eight categories: (1) offences against the state (riot, obstructing justice), (2) offences against the person (assault, aggravated assault), (3) offences against property (theft, breaking and entering), (4) other offences under the Criminal Code (failure to comply with an order, failure to comply with a condition, promise or undertaking), (5) offences related to operating a motor vehicle (hit-and-run, impaired driving), (6) offences against federal laws other than the « Criminal Code » (importation of narcotics), (7) offences against Québec laws (deliberate non-payment of fines) and (8) offences against municipal by-laws (failure to comply with sanction or disposition). A more detailed list of offences is shown in Figure 4.
Offences against the person are far ahead of the other offence categories among Natives: 43% of them are incarcerated for that reason, with the majority being incarcerated for assault and 4% for sexual assault. Offence against property are in second place: 21% of Natives have committed at least one such offence, which in half the cases, was breaking and entering. Other offences under the « Criminal Code » (than those listed in the table) are in third place, accounting for 16% of Natives. About 5% of Natives have violated the law with respect to each of the following classes: offences against criminal laws other than the Criminal Code (always related to drug and narcotics offences) and municipal by-laws (for example failure to comply with a sanction or disposition).
The offences committed by non-Native persons are more diversified than those committed by Native persons. Among non-Natives, offences against property are in first place (28%, with larceny in first place, then breaking and entering), followed by offences against other sections of the « Criminal Code » (24%). About 15% of non-Natives have committed offences in several categories: crimes against the person, offences related to operating a motor vehicle and offences related to federal laws other than the « Criminal Code ».
Figure 3 : Categories of offences committed by incarceration Native and Non-Native, Québec 2007-20081
1The figure excludes persons sentenced to two years or more (because of combined sentences or having the status of “penitentiary”).
Offence categories also vary according to First Nation (Table 20 - Summary of the characteristics of Natives persons in the correctional system, by First Nations). Although offences against the person are the most frequent for all five First Nations, they account for 55% of Inuit and, at the other extreme, 34% of Innu. Offences against property are in second place for Algonquian (33%), Attikamek (22%) and Inuit (19%), but in third place for Innu and Cree (14%). Generally, offences committed by Inuit and Algonquian are less diversified, but more diversified among Cree and Innu, with Attikamek in the middle.
Figure 4 - Sub-categories for offences committed by incarcerated Native and non-Natives, Québec 2007-20081 (percentage)
1The figure excludes persons sentenced to two years or more (because of combined sentences or having the status of “penitentiary”).
Problems of violence and abuse
During the reception process for an offender at a detention centre or in a professional correctional services office (and occasionally at another time), correctional service officers or other staff members assign reference codes based on criteria related to the nature of the offence. There are four such codes, and they identify certain specific problems with respect to the charges on which the offender was convicted.
Among Natives in detention, 18% have spousal abuse problems (Table 9). Sexual abuse is far behind, with 4% of Native convicts having committed that type of offence. Two percent of Natives have physically abused children and none of them have abused seniors.
Natives are three times more numerous, proportionally, than non-Natives in having a problem related to spousal violence, twice as numerous in having sexually abused someone and about four times more numerous in having shown a behaviour of physical abuse of children.
Spousal violence seems to be the only problem that differentiates the First Nations from one another. Inuit offenders are more often incarcerated for spousal violence offences (37%) than offenders from other First Nations (10% to 13%, according to the First Nation).
|1The table excludes persons sentenced to two years or more (because of combined sentences or having the status of “penitentiary”).|
|Physical abuse of children||1,8||0,4|
|Physical abuse of seniors||--||0,1|
The data on offences committed by Native persons incarcerated in Québec point in the same direction as the data from various Canadian studies, which show a greater involvement for Natives compared with non-Natives in offences against the person (LaPrairie, 1996a). However, the results show that a large proportion of offences against the person, particularly among Inuit offenders, seem to be committed in the context of spousal violence and only a very small proportion in a context of sexual abuse.
Length of sentence
The length of sentences given to Natives is shown in Figure 5. Almost a quarter of Natives (24%) receive a sentence of less than one month, 39% between one month and six months less a day and 20% between 6 months and one year less a day. Finally, 17% of Natives receive a sentence of between one year and two years less a day. On average Natives are sentenced to longer terms of incarceration than non-Natives, with terms of 171.6 days and 138.2 days, respectively.1.
Note that the length of sentence decrease if we consider only persons “admitted” in 2007-2008 (a full year): it is then 127.6 days for Natives and 103.4 days for non-Natives.
The average sentence length may be up to twice as long for offenders from one First Nation than for those from another First Nation. The longest sentences are received by Inuit offenders (235.1 days on average), then Algonquian (189.5 days) and Attikamek (157.9 days). The shortest sentences are given to Innu (125.9 days) and Cree (110.8 days), who receive overall shorter sentences than non-Natives (Table 20).
Figure 5 : Length of incarceration sentences of less than two years for Native and non-Native convicts, Québec 2007-20081
1The number in brackets indicates the limit on the number of days, taking into account that 2008 was a leap year.
Sociojudicial characteristics of Native women offenders
Slightly less than a third (32%) of Native women offenders were convicted of offences against the person, and 22% were convicted for offences against property (see Table 21). About one Native woman offender in 10 was incarcerated for violation of a federal law other than the « Criminal Code » (always related to the law on drugs and narcotics); the same proportion was convicted for violating municipal by-laws and finally, 18% of Native women offenders were convicted for other offences under the Criminal Code. The average length of sentence for incarcerated Native women in 2007-2008 was 114.5 days, compared with 76.8 days for non-Native women offenders.
Placement characteristics of incarcerated Native persons
Admissions in 2007-2008
From April 1, 2007, to March 31, 2008, 977 Native persons were among the 1,260 admissions to Québec detention centres, which represents 3.1% of the total admissions. More than two thirds of the Natives were admitted only once during the year; 22% were admitted twice; and 10% were admitted three or more times. The average number of admissions for Natives was 1.5, which is comparable to the average for non-Natives (1.4 admissions).
In 2007-2008, 86% of Native persons were admitted with the status of accused (interim detention), of which number 4% had received a federal sentence and were awaiting transfer to a penitentiary. Native persons in custody are slightly more numerous, proportionally, than non-Native persons to have the status of accused, but are less numerous in being admitted to an intermittent sentence (Table 10).
|1Prisoners who will be transferred to a penitentiary also have the status of accused.|
|Accused (interim detention)||81,7||75,7|
|Convicted: continuous sentence||12,1||11,9|
|Convicted: intermittent sentence||2,3||6,0|
|Total (en nombre)||1 260||39 550|
|Total (en pourcentage)||100,0||100,0|
Table 11 shows the number of admissions by detention centre. Almost three quarters of Natives (73%) are admitted to one of four centres: Amos (28%), Saint-Jérôme (18%), Sept-Îles (16%) and Roberval (11%).
In terms of admissions by centre, Natives account for 42% of all admissions to the Amos Detention Centre, 30% to Roberval and 50% to Sept-Îles.
The data on admissions vary according to First Nation (tableau 20 . nuit account for 28% of admissions, Innu and Cree for around 20% each and Algonquian and Attikamek each account for around 12% of admissions. With respect to status upon admission, Inuit persons are the most numerous to be admitted as accused (91%), followed by Attikamek persons and Cree persons (88% each), then by Algonquian persons and Innu persons (79% each).
Finally, the majority of Algonquian and Cree are admitted to the Amos Detention Centre and the majority of the Innu are admitted to the Sept-Îles centre. As for Inuit , slightly over half are admitted to the Saint-Jérôme centre and 21% to the Amos centre. Attikamek admissions are more dispersed, in the Roberval, Saint-Jérôme and Trois-Rivières centres.
The centres in which convicts and accused are admitted are not necessarily those in which they serve the entirety of their sentence (if sentenced), because as we will see later, several persons are transferred during their period of detention.
|Centre||Natives (number)||Natives (percentage)||Non-Natives (number)||Non-Natives (percentage)|
|1 Among the 127 Native women admitted in 2007-2008, 83 were admitted to a centre other than Maison Tanguay or the women’s division of the Québec centre. Having the status of accused, women admitted to men’s centres generally stay there for only a few days until released or transferred to a women’s centre, as the case may be.|
|Québec – Women's division1||7||0,6||385||1,0|
|Québec – Men' s division||13||1,0||4,107||10,4|
Average daily incarcerated population (ADIP)
The average daily incarcerated population (ADIP) is the average number of incarcerated persons present each day in a detention centre; it is determined based on the number present at 11:59 p.m. In 2007-2008, the ADIP for Natives was 189.7, which represents 4.3% of Québec’s total ADIP.
Figure 6 gives data on the ADIP for Natives from 2003-2004 to 2007-2008. During that period, the ADIP increased from 152.3 to 189.7 Natives, which represents a 25% increase over a five-year period. From 2003-2004 to 2007-2008, the ADIP for non-Natives increased by 18%. Data on admissions and the ADIP over a longer period would be needed before any conclusion could be drawn that there has been a greater increase in the incarceration rate for Natives than for non-Natives.
For the total Québec incarcerated population, four main factors can explain the increase in the ADIP. One of them is the constant decline in the average population on day parole. Two other factors are the constant increase in the number of accused in detention centres and the number of persons who waive parole. A final factor is related to new federal legislation aimed at increasing the severity of the system, for example the « Act to amend the Criminal Code (conditional sentence of imprisonment) » (S.C. 2007, ch. 12), whose objective is to restrict conditional sentences.
Figure 6 - Number of Natives in the average daily incarcerated population as of 2003-2004, Québec 2007-2008
Figure 7 shows the distribution of Natives in the ADIP according to First Nation. With 77 persons incarcerated on average each day, Inuit make up 40% of the Native ADIP. Innu are in second place with 16% of the ADIP, followed by Algonquian (13%), Cree offenders (12%) and Attikamek (11%).
Figure 7 - Number and proportion of Natives in the average daily incarcerated poplation, by First Nation, Québec 2007-20081
1. The sum of the proportions 100%.
Figure 8 shows that the Amos and Saint-Jérôme centres have custody of around 50 Natives, on average, each day. Those centres are followed by the Baie-Comeau and Roberval centres with ADIPs of 21 and 15, respectively.
Because of the differences in custodial capacity from one centre to another, the picture is somewhat different when we examine the proportion of Natives in the ADIP of each centre. The proportion is larger in Sept-Îles (56%) and Amos (49%), then in Baie-Comeau (26%), Roberval (24%) and Saint-Jérôme (12%).
Figure 8 - Number and proportion of Natives in the average daily incarcerated population, by detention centre, Québec 2007-20081
1. The proportions correspond to the number of Natives divided by the total number of offenders in each centre. Therefore, the sum of the proportions exceeds 100%.
The comparison of the number of Natives in the ADIP of each centre with the proportion that they represent in each centre is interesting. Although the Sept-Îles centre has an ADIP of only 5.3 Natives, they represent more than half the local ADIP. The same phenomenon is found, in a smaller proportion, in the Roberval and Baie-Comeau centres. The phenomenon can be explained in part by the size and geographic location of the centres. This type of information may be very useful for implementing cultural awareness programs adapted to the specific local realiti
Transfers and appearances
Among the persons admitted to detention in 2007-2008, almost twice as many Natives than non-Natives (42% versus 23%) are transferred from one centre to another (Table 12). Natives are also transferred a greater number of times than non-Natives: 12% of Natives are transferred twice and 13% three or more times. Significant differences exist between the First Nations (Table 20, Summary of the Characteristics of Native Persons in the Correctional System, by First Nation, Québec 2007-2008). Around two thirds of Inuit are transferred at least once, as are half the Innu and slightly more than a third of the Algonquian. Attikamek and Cree are transferred in a proportion of 21% each.
It is important to point out that Inuit detainees are in a unique situation that explains their higher transfer rate. Experience has shown that Inuit detainees are most often admitted to the Saint-Jérôme centre (53% in 2007-2008). If they are admitted as accused, most of them will then be transferred to the Amos centre until their first appearance, because Amos is closer to the itinerant court that has the responsibility to transport the detainees for their appearance in the judicial district where the offence was committed. Thereafter, the Inuit return to the Saint-Jérôme centre, if convicted or the Amos centre of they remain accused or they will go home if released. As for the high rate of Inuit transfers, it is for the most part due to the fact that the Innu of the Côte-Nord region are generally admitted to the Sept-Îles centre, which is small, and then transferred to Baie-Comeau.
DACOR data makes it possible to know the reasons why Native detainees are transferred from one centre to another. The three main reasons are related to their need to appear in the judicial district where the offence was committed (41% versus 32% for non-Native detainees), overpopulation in centres (27% versus 32% for non-Native detainees) and return to a detention centre near their place of residence at the end of their incarceration (21% versus 14% for non-Native detainees). Finally 11% of Native detainees and 22% of non-Native detainees are transferred for other reasons.
Native detainees are also more numerous than non-Native detainees to appear before the courts during their period of incarceration (81% versus 73%). This situation is explained by the greater proportion of Native detainees than non-Native detainees admitted in the accused status, because it is the accused who are summoned to appear. Inuit detainees and Cree detainees are the most numerous to have appearances during their incarceration (86% each), followed by Attikamek detainees (80%), Algonquian (77%) and the Innu detainees (72%).
|Three or more||13,4||4,5|
|1Appearances of accused persons.|
|Three or more||26,5||24,3|
|Total (en number)||1,260||39,550|
Breach of discipline
Natives were slightly more numerous than non-Natives (11% versus 9%) to have been put on report for a breach of discipline in 2007-2008. More than half the persons concerned were put on report only once (Table 13). The proportion of Natives put on report for breach of discipline varies somewhat from one First Nation to another, rising from 9% for Attikamek detainees to 14% for Algonquian detainees.
|Number of breaches||Natives||Non-Natives|
|Three or more||1,5||1,8|
|Total (en number)||1,260||39,550|
Temporary leaves and various absences
A temporary leave is a measure that allows an incarcerated person, who meets certain conditions, to temporarily leave a detention centre for specific purposes. Seven types of temporary leave are provided for by law: medical, participation in activities of a social reintegration support fund, spiritual activities, humanitarian activities, family visits, social reintegration (sentences under six months) and preparation for parole (sentences of six months or more).
Natives are around two times less numerous than non-Natives (10% versus 19%) to have had at least one temporary, overnight leave of absence from a centre during their period of incarceration (Table 14). Natives who have had such a leave of absence also have less days of leave than non-Natives.
Algonquian and Cree are more numerous (16% each) to have temporary leaves, followed by Attikamek and Innu (10% each), whereas only 5% of Inuit take such leaves. Since Inuit are most often incarcerated in Saint-Jérôme, that is, far from their families, it is not surprising to find that they are underrepresented in terms of temporary leaves.
Natives are around four times less numerous than non-Natives (3% versus 11%) to have had at least one day of “other leaves” with overnight permission during their period of incarceration. Such leaves include, for example, escorted outings for hospitalization. Innu are more numerous than persons from the other First Nations to have other leaves (9% versus 3% or less for the other First Nations).
|Number of days||Temporary leaves||Other leaves|
|1The table includes temporary leaves and overnight leaves. It covers persons released in 2007-2008 without regard to their date of admission.|
|From 1 to 7||7,4||1,0|
|From 8 to 30||8,3||2,7|
|31 and over||3,0||7,3|
|Number of days||Temporary leaves||Other leaves|
|1The table includes temporary leaves and overnight leaves. It covers persons released in 2007-2008 without regard to their date of admission.|
|From 1 to7||7,4||1,0|
|From 8 to 30||8,3||2,7|
|31 and over||3,0||7,3|
Length of incarceration for convicts and accused
The length of incarceration in a detention centre is defined as the period spent in a centre from the date of admission to the date of release. Among Natives sentenced to a continuous sentence, 40% stay less than one month in a detention centre; 43% stay for a period from one to six months less a day, whereas 17% stay in a centre for six months or more (Figure 9). The average length of incarceration for Natives sentenced to a continuous sentence is 92 days, which is about 40% more than for non-Natives (66.3 days)2.
2 Here are some additional statistics to describe the length of incarceration for persons sentenced to a continuous sentence: for Native offenders and non-Native offenders, the median is 53 and 23 days, respectively, and the standard deviation is 108.3 and 97.1, respectively.
Inuit have by far the longest period of incarceration (141.6 days on average), followed by Algonquian and Attikamek (around 87 days each). The length of incarceration for Innu (63 days) and Cree (54.6) is less than that for non-Natives.
Figure 9 - Length of incarceration in a detention centre for Natives and non-Natives sentenced to a continuous sentence, Québec 2007-20081
1The figure covers persons released in 2007-2008 regardless of their date of admission.
Figure 10 shows the length of incarceration in interim detention, that is, where persons have the status of accused. In this report, an accused is a person who is admitted to a detention center or a courthouse cannot leave and is waiting to be tried or for the results of trial.
Less than half of Native persons (46%) are incarcerated under this status for one week or less, 34% for 8 to 30 days and 20% for a period of 31 days or more. In 2007-2008, Native persons stay longer in interim detention than non-Native persons, the average being 24.8 days and 21.7 days, respectively.3 .
3 Here are some additional statistics to describe the length of incarceration in interim detention: for Native persons and non-Native persons, the median is 8 and 4 days, respectively, and the standard deviation is 64.9 and 65 days, respectively.
Inuit persons stand out from Native persons from other First Nations by remaining in the status of accused for 39 days on average. For the other four First nations, the period varies from 17.1 to 26.5 days.
Figure 10 - Length of incarceration for Native persons and non-Native persons, Québec 2007-2008
Characteristics related to the placement of Native women
In 2007-2008, 214 distinct Native women were incarcerated, which represents 3.5% of all women detainees in Québec. Native women account for 127 admissions, that is, 3.1% of all women admitted in Québec. Slightly over a third of Native women offenders are admitted to Maison Tanguay (29%) or to the women’s division of the Québec Detention Centre, whereas the majority is held in men’s centres. Thus, 25% of Natives are admitted to the Amos centre, 17% to the Roberval centre and 10% to the Hull centre. In 86% of cases they are admitted with the status of accused.
Note that the admission of women to men’s centres affects both Native and non-Native women. Those centres always have a small section (one or more cells) reserved for the admission of accused women. The latter stay for only a few days, until released or transferred to Maison Tanguay or the women’s division of the Québec Detention Centre.
The ADIP for women was 11.3 in 2007-2008, which represents 4.9% of the ADIP for all women detained in Québec (229.3). During the preceding four years, the ADIP for Native women remained around 10. Their proportion in the female incarcerated population declined slightly between 2003-2004 and 2006-2007 (from 5.5% to 4.6% in four years). In total, 43% of Native women are transferred during their incarceration and 16% are summoned to appear before a court. Furthermore, 11% of Native women are put on report for a disciplinary breach, and the same proportion receive temporary, overnight leaves.
If interim detention is excluded, Native women sentenced to a continuous sentence stay for 54.9 days in a detention centre, on average, compared with 34.3 days for non-Native women. The length of interim detention is 10.9 days, on average, for Native women versus 12.2 days for non-Native women.
- In 2007-2008, 977 Natives were among the 1,260 admissions to a detention centre, which represents 3.1% of all Québec admissions. The Native ADIP is 189.7 detainees, which is 4.3% of Québec’s total ADIP.
- Between 2003-2004 and 2007-2008 (a five-year period), the ADIP for Natives increased from 152.3 to 189.7, which represents in increase of 25%. During the same period, the increase observed for non-Natives was 18%.
- Natives are mostly incarcerated in the Amos, Saint-Jérôme, Baie-Comeau, Roberval and to a lesser extent, Sept-Îles centres.
- Natives are transferred in a proportions almost twice as high as non-Natives, mainly because of the particular situation of Inuit offenders.
- Natives commit les diversified offences than non-Natives, mainly offences against the person (43%), followed by offences against property (21%).
- Natives are given longer sentences than non-Natives, with lengths of 171.6 and 138.2 days, respectively.
- Whether as convicts or accused, Natives stay in detention longer than non-Natives. The length of incarceration for Natives is 92 days as convicts and 24.8 days as accused.
- Incarcerated Inuit have a more severe sociojudicial profile than persons from the other First Nations. The account for 28 % of admissions and 40% of the Native ADIP. They are the most numerous to have committed offences against the person (55%) and to have a problem of spousal violence (37%). Consequently, they are given longer sentences and stay in detention for a longer period.
- Although they are not necessarily more numerous in terms of the ADIP and admissions, Algonquian and Attikamek persons appear to be from the two other First Nations with the most severe profile. Their most frequent offence category is offences against the person (41% for each group); the length of their sentence and stay in a centre is the longest, after Inuit offenders.
- Native women account for 3.1% of all women admitted in Québec and for 4.9% of the women’s ADIP at the provincial level. Compared with non-Native women , Native women offenders are given longer sentences of incarceration and stay for a longer period in interim detention. However, their length of interim detention is slightly shorter than that of non-Native women.
1 Here are several additional statistics to describe the length of incarceration: respectively for Native and non-Native offenders, the median term is 92 and 61 days and the standard deviation is 188.4 and 177.3.
Sociojudicial characteristics of Natives under community supervision
This section covers offenders who were under community supervision for at least one day in 2007-2008. We describe the number of sentencing and correctional measures for which they are under supervision. We conclude with the average number of persons under supervision each month according to office (point of service).
Total number of sentencing and correctional measures
In 2007-2008, 1,328 Natives accounted for 1,628 placements under community supervision, whether for sentencing or correctional measures. Natives accounted for 4.7% of the 34,790 placements in Québec (Table 15).
|Type of measure|
|Natives (number)||Autochtones (percentage)||Non-Natives (number)||Non-Natives (percentage)|
|Conditional sentence of imprisonment||312||19,9||7,551||24,7|
|Hours of community service||541||no data||8,392||no data|
|Natives (number)||Natives (percentage||non-Natives (number)||non-Natives (percentage)|
|Temporary leavefor social reintegration of preparation for parole||20||35,1||1,006||38,2|
|Total number of community placements|
|Natives (number)||Natives (percentage)||non-Natives (number)||non-Natives |
|Sentencing and correctional measure||1,628||no data||33,162||no data|
In 2007-2008, 1,571 Natives were under community supervision for a sentencing measure, which represents 4.9% of all persons subjected to that type of measure in Québec. Supervised probations are more numerous, involving 1,259 Natives, which represents 5.2% of all supervised probations in Québec. Supervisions for conditional sentences of imprisonment affected 312 Natives, which represented 4.0% of persons subjected to that measure in Québec. Therefore, Natives are overrepresented in Québec for sentencing measures.
Almost a third of placements (n = 541) included a request for supervision for hours of community service; that is an optional condition imposed by the courts in the case of a probation order or a conditional sentence of imprisonment.
Figure 11 shows the distribution of sentencing measures according to First Nation. The three most numerous groups under supervised probation are Inuit (35%), Cree (21%) and Algonquian (16%), whereas the three most numerous groups for conditional sentences of imprisonment are Inuit (48%), Cree (18%) and Innu (14%).
Figure 11 - Distribution of supervised probations and conditional sentences of imprisonment for Natives, by First Nation, Québec 2007-2008
In 2007-2008, 20 Natives were supervised for a temporary leave for social reintegration or preparation for parole, which represents 1.9% of the persons with temporary leaves in Québec. In addition, 37 Natives were on parole, which represents 2.2% of the persons on parole in Québec. Natives were therefore underrepresented in terms of correctional measures, if we consider that they accounted for 4.3% of incarcerated persons. Our data does not make it possible to know whether the underrepresentation of Natives is due to the fact that these measures are refused more often for them or whether Natives make fewer applications than non-Natives.
In spite of the limited number of Natives on parole, we show in Table 18 of most category for the most serious offence committed. Half of Natives on parole committed offences against the person and 31% committed offences against property.
|1Because of the small number of Natives, the category “Other offences” includes all other categories: offences against the state, offences related to operating a motor vehicle, etc.|
|Offence against the person||50,0||10,8|
|Offence against property||30,6||28,6|
|Federal laws not under the Criminal Code||13,9||37,3|
Number of Natives under community supervision, by office
Table 19 gives the average number of Natives under supervision each month, by office (point of service) according to the Direction des services professionnels correctionnels (DSPC). Community supervision is generally carried out closer to a Native offender’s place of residence than supervision during detention, mainly in the case of Inuit offenders.
In 2007-2008, DSPC offices supervised, on average, 719 Natives each month for community supervision measures. The Nord-du-Québec DSPC makes more than 300 follow-ups a month in its offices in Kuujjuaq (131.5), Kuujjuarapik (121.8) and Baie-James (96.5). The Côte-Nord DSPC ensures supervision for 120 Natives a month, mainly in its Sept-Îles office (107.4). The Abitibi-Témiscamingue DSPC supervises slightly over 80 Natives a month, almost 50 of whom are assigned to the Val-d’Or office. Two other offices supervise a good number of Natives, that is, the Roberval office (47.4) and the Chandler office (31.2).
|1Offices that supervise, on average five or fewer Natives a month.|
4. Issues, challenges and ways forward
The purpose of this chapter is to propose ways forward to guide thinking and the development of correctional initiatives with respect to Québec’s Natives. To achieve that purpose, we must first recall the main facts in this 2007-2008 profile of the Native correctional population and report on the ministerial initiatives undertaken to date to meet the difficulties experienced by Natives in the custody of Québec correctional services. The ways forward proposed remain, however, dependent on the nature of the data analyzed in this report. More granular information will be necessary to better understand the criminalization process of Native persons.
4.1 Recalling the main analytical findings
The first important fact that must be pointed out is the overrepresentation of Natives in the Québec correctional services. Although Native persons make up only 1.2% of the province’s general population, they represented 3.3% of Québec’s correctional population in 2007-2008, that is, distinct persons placed at least once under the jurisdiction of the Services correctionnels for supervision in detention or in the community. More specifically, Inuit are the most overrepresented (31% versus 12% in the general population), followed by Attikamek (11% versus 7%), whereas Cree and Algonquian are only slightly more present in the correctional population than in the general population. Innu have the same weight in both populations.
With respect to the distribution of offenders by First Nation, Amerindians make up slightly more than two thirds of the Québec Native correctional population, whereas Inuit make up slightly less than a third. The reasons that may explain the overrepresentation of some First Nations in the Québec correctional services could be explored.
The 2007-2008 sociodemographic profile of the Native correctional population informs us on general living conditions. More than 70% of Natives (72%) live in the North or on Québec’s Western border (Nord-du-Québec, 49%; Côte-Nord, 13%; Abitibi-Témiscamingue, 10%). In terms of family, slightly less than half the Native correctional population lives in a conjugal relationship (46%) and a similar proportion declares having at least one dependent. It appears likely that the majority of Natives under the jurisdiction of the Services correctionnels have not completed their secondary schooling.
Natives who are unable to speak French are still as numerous. More than 60% speak English (28%) or a language other than French or English (32%). The linguistic barriers faced by Native persons in the Québec justice system have been pointed out several times in the past. Although several experts have already recommended the implementation of permanent programs to provide judicial interpreters Native persons who are incarcerated or under community supervision, it appears that the problem has hardly changed since that time.
Data on the judicial profile of Natives show that they represented 3.1% of admissions to detention in 2007-2008 and account for 4.3% of the current Québec incarcerated population. The incarcerated Native population is mainly composed of Inuit (40%), followed by Innu (16%), Algonquian (13%), Cree (12%) and Attikamek (11%).
Natives are mainly incarcerated for offences against the person (43%), mostly assaults (33%) and more rarely, sexual aggressions (4%). These results correct, at least for the provincial correctional level, the idea that Inuit are incarcerated for problems related to sexual abuse1. In second place for the most frequently committed offence is breaking and entering. If we take into account the distribution of offences by First Nation, the results show that Inuit are the most numerous to commit offences against the person (55%), followed by Attikamek (42%), Algonquian (41%), Cree (39%) and Innu (34%).
When incarcerated,19% of Natives are having problems related to spousal violence, which is three times more frequent than among non-Natives. The proportion reaches 37% for Inuit , but does not exceed 13% in each of the Amerindian First Nations. These data suggest that several offences against the person are the sign of broader social problems than the spousal and family violence that we find in some of Québec’s Native communities, particularly in Inuit communities.
The categories of offences committed by Natives, added to the high level of spousal violence, are without a doubt elements that contribute to explaining the longer sentences given to Natives and, consequently, the longer stays in detention centres.
For transfers, the results indicate that almost twice as many Natives than non-Natives (42% versus 23%) are transferred from one detention centre to another during their period of incarceration. More specifically, two thirds of Inuit are transferred at least once, as are half of Innu and slightly more than a third of Algonquian. In light of that fact, it appears that the geographic isolation of come communities is a disadvantage for Natives with respect to institutional transfers and explains in large part the differences observed between First Nations.
For community supervision measures (sentencing measures and correctional measures, Natives account for 4.7% of all supervision carried out in Québec. They are overrepresented in sentencing measures such as supervised probation and conditional sentences of imprisonment (4.9% of the total number of persons under supervision for those two measures). Inuit offenders alone account for 35% of those on probation and 45% of those with conditional sentences. However, Natives are underrepresented in paroles and temporary leaves (2.1% of the total number of persons under supervision for the two measures). In this regard, there is underrepresentation because Natives account for 4,3% of the total number of incarcerated persons.
The overrepresentation of Natives is difficult to explain for the two sentencing measures. One element of explanation is probably section 718.2e of the Code Criminal, which provides that sentencing judges must take into account all available sanctions other than imprisonment, particular in the case of Natives. Other research could be carried out to obtain more exact reasons in this regard.
As for the underrepresentation of Natives in correctional measures, we are led to assume that the high proportion of offences against the person, combined with taking into account victims in the family and living environment, lead those who render decisions to withhold parole and temporary leave (for social reintegration or preparation of parole) from Native detainees. As for the other types of temporary leave (family visits, religious activities, etc.), the distance between the place of residence of numerous Natives and the detention centre explains, in part, why many of them do not take advantage of the privilege. Other studies would be necessary to find out whether Natives are less interested having correctional measures or whether such measures are granted less often, particularly because of the lack of resources facilitating social reintegration in Native communities.
1A more extensive examination of offences, using data from the plumitif (clerk of court’s record), for example, would be desirable in the future to validate these first results on sexual aggressions.
4.2 Government responses to the challenges and issues related to the Native correctional population
In the last two decades, several scientific research studies as well as national and Québec commissions of inquiry have shed light on various problems faced by Native persons in the Canadian and Québec justice systems. As a result of that work, several persons have proposed avenues for reflection and solutions in the form of recommendations aimed at mitigating the perverse effects of the administration of justice for Native persons. Over recent decades, this question has shown itself to be problematic for various reasons. One of the main reasons is the difficulty for the various researchers and stakeholders to reach a consensus as to the nature of the problems faced by Native persons under the jurisdiction of federal and provincial correctional services and the solutions that should be implemented.
Building on these various experiences, the Gouvernement du Québec has, in recent years, undertaken consultations and negotiations with some Québec First Nations to adapt correctional services to the needs of their communities.
Begun in August 2006 and based on the Sanarrutik Agreement, negotiations in the area of justice between the Inuit and the Gouvernement du Québec concluded that the Gouvernement du Québec would invest funds to prevent criminality, promote community safety, provide assistance to victims of crime and improve correctional services for Inuit. A committee of experts was given the mandate to make recommendations aimed at better adapting correctional programs and services for the Inuit population.
Signed in 2007, the Agreement concerning the administration of justice for the Cree between the Gouvernement du Québec and the Grand Council of the Cree (Eeyou Istchee and the Cree Regional Authority (CRA) provides for funding to improve correctional measures and the administration of justice on Cree lands. The Cree communities have thus chosen to prioritize the construction of several courthouses in their communities and to facilitate the hiring of Cree professions (as elders, social workers and social reintegration officers) at the Amos Detention Centre and on their lands.
The main developments contemplated for the Inuit in the Côte-Nord region are the construction of a community residential centre, hiring Innu staff at the Sept-Îles Detention Centre and the implementation of specialized services adapted to the needs of Inuit offenders.
Since the end of the 1990s, various services have been provided to Québec’s Native correctional population. Thus, there has been posting of probation officers specifically trained to work in the Baie-James and Nunavik regions, as well as the hiring of Inuit community reintegration officers and the implementation of the Makitautik Community Residential Centre in the Nord-du-Québec region. The purchase of places in the federal Waseskun Healing Centre is an initiative of the Québec Ministère de la Sécurité publique.
For several years, a program has been in operation so that Native detainees can receive visits from elders. The Qajaq program was therefore set up to combat problems related to violence. Finally, future arrangements for detention centres to receive significant numbers of Natives should include spaces specifically reserved for them.
4.3 Relationships between the analytical findings and prioritized ministerial strategies
The development of initiatives to culturally adapt correctional institutions (in particular by hiring Native staff, calling on elders for healing ceremonies, access to traditional food, the creation of Native correctional programs, etc.) is an interesting approach to the extent that Native persons could continue to be in touch with their culture when they are in custody. However, such measures must be introduced and administered with caution so that they will not be interpreted by non-Native persons as undue privileges. In this respect, it would be appropriate to repeat exchanges with the other Canadian provinces that have set up, as long as 15 years ago, in some cases, such initiatives
4.4 General principles and way forward
It is reasonable to believe that the development of judicial and correctional infrastructures in Native communities will facilitate Native self-determination in the area of justice. However, such initiatives will have to be assessed to determine to what extent they reduce high incarceration rates for Natives in correctional institutions and to what extent they will, indirectly, affect on fundamental social problems.
If we want to defuse the criminalization process of Québec Native persons and thereby act on their rates of overrepresentation in penal institutions, it will be imperative to develop measures that will act upstream from the correctional services, like the measures found in current agreements between the Gouvernement du Québec and some Native communities. We are referring, for example, to the implementation of community prevention programs in the areas of spousal and family violence (particularly for Inuit persons), abuse of all types and anger management. In the same way that it is applied with adult offenders struggling with alcohol and drug abuse, the addition of legal requirements to participate in the activities of centres for violent men could be a promising approach for intervention. Although our data do not cover alcohol and drug abuse, we believe that programs addressing that problem are indicated since the existence of that problem is known in Native settings. To that could be added the development of programs to prevent criminality among Native youth (for example, the Nunavik youth development program involving hockey) or the creation of recreational and educational infrastructures that would meet the objectives described in current agreements signed with the Inuit and the Cree.
Other measures could also be contemplated inside the correctional services. For example, a program could be provided for correctional staff to increase their awareness of the historical and cultural realities of the Aboriginal peoples, to dispense some correctional services in Native languages, to ensure that Native persons have access to an interpreter (particularly Inuit and Cree persons) and to provide Native spirituality and healing programs inside the correctional institution that receive the largest number of Natives.
In addition to these various initiatives, there is the need for Québec research in the area of correctional services for Natives. As we have indicated in the first two chapters of this report, Québec research is almost non-existent although a large number of questions and problems could be addressed. This profile of the Native correctional population should be a springboard advancing research in this area.
This study is the first to trace a sociojudicial profiles of the entire Native correctional population under the jurisdiction of the Services correctionnels in the Québec Ministère de la Sécurité publique. Its purpose is to better understand the correctional population and its specificities in order to recommend correctional services and intervention methods that will better facilitate the social reintegration of Native offenders. In that regard, we consulted the Canadian criminological works to benefit from the expertise of others, including the work produced by the Correctional Service of Canada in this area.
Criminological research on Aboriginal people began in 1967 with the Laing survey, which was the first to observe the overrepresentation of Natives in the Prince Albert penitentiary, in Saskatchewan. Confirmed in a large number of studies over the last 40 years, the overrepresentation of Natives in penal institutions has generated a large amount of work aimed at explaining the phenomenon based on models focusing on individual and cultural factors or models focusing in structural and historical factors. Models of the first type are aimed at building Native accountability and empowerment with respect to overrepresentation in penal institutions, whereas the second type emphasizes instead the domination-based relationships experienced by them in their contacts with the dominant society and the justice system.
The models based on individual and cultural factors emphasize the inadequate living conditions in Native communities (e.g., alcohol abuse and underschooling), as well as the inability to adapt to the norms and values of the dominant society. The more numerous models based on structural and historical factors, emphasize that factors such as the precarious living conditions of Aboriginal people (including the high level of violence and criminality in some communities) are both consequences and reactions of Aboriginal people to the underdevelopment of their communities. Other models point to the role of European colonization, which resulted in rapid social change in Aboriginal communities, a degree of social disorganization, a loss of traditional roles in the family, an economic dependence of Aboriginal people and a disruption of their traditional justice system. Finally, the inequality of Aboriginal people in the face of political, economic and social powers, as well as the resulting discrimination, in particular in the legislative area, are other models that use structural and historical factors to explain the more widespread commission of crime by Aboriginal persons than by non-Aboriginal persons.
At the beginning of the 1960s, other questions related to criminality among Aboriginal people were studied by Canadian government researchers. Among the subjects studied, we can mention Aboriginal police forces, crime prevention in Aboriginal communities, the administration of justice among the Inuit in the Nord-du-Québec region, the combat against sexual aggressions, healing circles and the treatment of substance abuse among drug and alcohol dependent offenders.
In response to the difficulties experienced by Native persons in the justice system, both the federal and provincial governments set up several commissions of inquiry and study groups. The Law Reform Commission of Canada (1976) contributed to amendments the Criminal Code in 1976 that made imprisonment the last recourse, particularly for Natives. The Québec Comité d'étude sur l'administration de la justice dans le Nord québécois (1972) published its report under the title « The Administration of Justice Beyond the 50th Parallel », which, two years later, led to the creation of the Québec itinerant court for the Inuit, Cree and Naskapi regions. Those are some examples showing the influence of these studies on the policies and laws that are, little by little, improving the justice system for Aboriginal people.
In addition to commissions of inquiry, the federal government has implemented several measures to improve justice in Aboriginal environments. They include programs to raise the awareness of justice system employees to Aboriginal realities as a way of reducing prejudicial attitudes and measures facilitating the hiring of Native staff in the justice system (staff indigenization). In addition there have been restorative justice projects, such as healing circles, and participative justice projects, such as sentencing circles, that make connections with traditional Aboriginal conflict resolution methods, Aboriginal healing lodges, correctional programs specifically for Natives and the Aboriginal Courtwork Program.
Measures like those implemented by the federal government also exist in Québec for the indigenization and empowerment of polices forces since around 1978, as well as the Native Para-Judicial Services of Québec, since 1981. In addition to recent political agreements on justice signed by the Gouvernement du Québec and some First Nations, the Ministère de la Sécurité publique has, since the end of the 1990s, implemented specific correctional services for Natives.
The 2007-2008 sociojudicial profile of Québec’s Native correctional population has made it possible to determine that 88% of the population was made up of men, that the average age was 33.2 years, that the majority of Natives had not completed their secondary schooling, that 60% were unable to speak French and that almost half were living in a conjugal relationship.
In 2007-2008, Natives represented 4.3% of Québec’s total correctional population, which confirms that there is overrepresentation in Québec like that observed in the other Canadian provinces for several years. Offences against the person, which accounted for 43% of the offences committed by incarcerated Native persons, were the most common offence category, which is also the case for Native persons incarcerated in Canadian penitentiaries. Spousal abuse was more predominant than sexual abuse in the offences against the person. The second most numerous offence category was offences against property (21%). The length of sentences received by convicted Natives was 171.6 days, on average, whereas the time actually spent in a detention centre was almost two times shorter at 92 days, on average. The time spent in detention with the status of accused was 27.4 days, on average.
Native persons were also overrepresented among offenders under community supervision in 2007-2008 with respect to sentencing measures (supervised probation and conditional sentence of imprisonment), but were underrepresented with respect to correctional measures (parole and temporary leave).
The sociojudicial profile of the Native correctional population differs from that of its non-Native counterpart in several respects: Natives are somewhat younger, much less able to speak French, much more frequently live in remote regions and have more family responsibilities. The offences committed by Native persons are less diversified than those committed by non-Native persons, mainly because of the large number of offences against the person committed by Native persons. Spousal violence is a problem that is much larger among Natives than non-Natives. Furthermore, transfers from one detention centre to another affects many more Natives and non-Natives. However, the two groups are comparable in terms of disciplinary breaches. Natives receive longer incarceration sentences than non-Natives, and spend twice as much time, on average, in a detention centre. Natives exercise less often their parole and temporary leave rights.
Several differences found based on First Nation made it possible to qualify the results. Inuit offenders are proportionally more affected than persons from other First Nations by overrepresentation in penal institutions. They also have the most serious sociojudicial profile in terms of offences, sentences and length of detention.
The results of this sociojudicial profile of Natives suggests that types of correctional services could be developed, by facilitating community involvement, in the five most concerned detention centres (Amos, Saint-Jérôme, Roberval, Baie-Comeau and Sept-Îles) and the DSPC offices in the same regions and in the Nord-du-Québec region. In this regard, we can consider raising the awareness of staff to the historical and cultural realities of Aboriginal people, implementing programs on spousal and family violence (particularly for Inuit offenders), anger management, Aboriginal spirituality, the participation of elders, etc.
Canadian experience seems to show that the overrepresentation of Native persons in penal institutions is a complex problem that requires solutions not only in the justice system but also in the general living conditions of Aboriginal people, so that certain communities can regain their hope and dignity. Because of engagements made in recent years by the Québec Ministère de la Sécurité publique to some First Nations, several actions should follow to improve their justice system. Those engagements relate to both prevention and the development of new infrastructures, services and correctional programs.
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