Aboriginal Prisoners in Segregation

The results of the prisoner survey confirmed what the Task Force had heard from the Native Brotherhood at Springhill and in other institutions that "the majority of [Aboriginal prisoners] were not permitted to have their ceremonial objects in segregation, and where there was access, staff did not show respect for these items. In addition, most institutions do not provide Aboriginal inmates in administrative segregation with access to cultural ceremonies such as sweat lodges" (Task Force Report at 53).

At one level, the denial of Aboriginal segregated prisoners from access to spiritual and cultural services can be seen as part of a systemic denial of rights, privileges and services of all segregated prisoners. However, for Aboriginal prisoners, the denial of access to spiritual and cultural programs and services takes on a special character because of the distinctive constitutional and legal rights of Aboriginal peoples, reflected in the provisions of the CCRA. The Task Force recommended that immediate action be taken to ensure access to spiritual leaders, Elders, Native Liaison Workers, sacred and cultural items as well as spiritual ceremonies, such as the sweat lodge. It further recommended that the CSC initiate a pilot project in an institution which has a high number of Aboriginal segregated prisoners, to evaluate whether alternatives to both voluntary and involuntary segregation of Aboriginal prisoners could be implemented, based upon distinctive Aboriginal concepts of restorative justice, as well as creative methods by which the segregation process could be made more respectful of the cultural and spiritual needs of Aboriginal prisoners. The need for such an initiative is captured in the following passage from the Task Force Report:

The Task Force believes that the reforms it is proposing, both in the form of an enhanced segregation review process and the experimentation with independent adjudication, will produce significant benefits for all offenders, both Aboriginal and non-Aboriginal. However, it is important to recognise that these reforms proceed largely from a non-Aboriginal perspective of justice.

As the Royal Commission on Aboriginal Peoples has documented in its report, Bridging the Cultural Divide: A Report on Aboriginal People and the Criminal Justice System in Canada, "there are distinctive Aboriginal concepts, of both the process and the substance of justice. Some of these concepts have already been applied in the form of "circle sentencing," where offenders, victims and members of the community in which the offence has taken place give judges their views regarding the appropriate sentence to be imposed on the offender. This is part of a process that is quite different from the typical court room procedure, dominated by lawyers. The National Parole Board has also conducted a number of parole board hearings in which Aboriginal Elders play an important role, and the process incorporates elements of an Aboriginal talking circle" . . .

As in other areas of the criminal justice system, the incorporation of Aboriginal conceptions of justice may yield significant benefits for all those involved. (Task Force Report at 64-5)

The spectrum of possibilities for an Aboriginal initiative are not difficult to imagine. In some cases, just involving the Elder in the decision making process can make a critical difference. An Elder’s understanding of the difficulties a prisoner is having, whether based upon events within the prison or in his family or community outside, can both help explain the prisoners behaviour which gave rise to need to segregate and help shape the appropriate response which does not require continuing segregation. There were many situations at both Kent and Matsqui during my research where a disciplinary or segregation based response only aggravated the underlying problem where, had the Elders been consulted, more constructive and long lasting solutions were within grasp. The case study of the sweat lodge incident at Kent in 1994 is probably the clearest example. Beyond the obvious initiative of involving the Elder in the segregation review process, there could be a parallel talking circle process involving those staff and prisoners whose participation would be necessary for a constructive resolution of the problem which led to segregation. In some cases this could also involve members from the community who play a role in and have an impact on the prisoner’s life. Working through such a process is much more time consuming than the five or ten minute segregation review hearing, but its ultimate benefits and the possibility of interrupting the cycle which may extend to many months of segregation are likely to be well worth the investment. In addition, as the Task Force pointed out in its Report, the pathways to conflict resolution charted by Aboriginal peoples may also hold valuable lessons in cases where non-Aboriginal prisoners are involved.

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