The Chair (Mr. Andy Fillmore (Halifax, Lib.)):
We'll come to order. Thank you very much everyone for being with us today.
We'll start as always by acknowledging that we're meeting today on unceded Algonquin territory.
We have guests today from the Office of the Auditor General. I'm very pleased to welcome Michael Ferguson, the Auditor General of Canada; Jerome Berthelette, assistant auditor general; and Joe Martire and Glenn Wheeler, principals.
Thank you for joining us today.
We have 50 minutes to spend with you today. I'd like to offer you 10 minutes to present collectively, however you would like to distribute that among yourselves. Then we'll move into questioning and finish 50 minutes from now.
I'll be holding up a yellow card when there's a minute left in the 10 minutes, and a red when we're right out of time. When we get into questioning, I'll be extending the same courtesy to our questioners and guests when answering. That way we can try to be fair with the time and get everybody out of here on time.
Thank you very much, and perhaps you would like to take the floor.
Mr. Michael Ferguson (Auditor General of Canada, Office of the Auditor General of Canada):
Mr. Chair, we're pleased to be here today to provide an overview of our role and mandate and to outline some key points from our past audit work that may be of interest to your committee.
Our office has a mandate to audit operations of the federal and territorial governments, and we provide Parliament and the legislative assemblies with independent information, assurance, and advice regarding the stewardship of public funds.
We conduct performance audits of federal departments and agencies, and we conduct annual attest audits of the financial statements of the government and of crown corporations. On a cyclical basis, we also conduct special examinations of the systems and practices of crown corporations.
For the three territories, my office reports performance audits directly to each legislative assembly. We also conduct annual audits of the financial statements of territorial governments and annual audits of territorial corporations.
In our performance audits, which we hope help the work of your committee, we examine whether government programs are being managed with due regard for economy, efficiency and environmental impact. We also look to see if there are means in place to measure the effectiveness of programs. Although we may comment on policy implementation, we do not comment on policy itself.
The Auditor General Act gives our office discretion to determine which areas of government to examine through performance audits. Our selection of audits is based on risks, significance and relevance to Parliament.
The performance audit process takes between 12 and 18 months to complete. The results of our audits are usually presented to Parliament twice a year, in the spring and fall.
In the past 15 years, the Office of the Auditor General has audited a broad range of federal programs and activities that affect First Nations and Inuit communities.
In 2011 we published a status report on the government's progress toward achieving the commitments it made to address recommendations from seven reports we issued between 2002 and 2008. Although we found that progress had been made in implementing some of our recommendations, we noted that many conditions and challenges faced by first nations communities had worsened.
For example, the education gap among first nations individuals and other Canadians had widened, the shortage of adequate housing on reserves had become more acute, and the presence of mould on reserves remained a serious problem.
Mr. Chair, that situation led us to consider some of the factors that inhibited progress.
In the preface to our 2011 audit report, we identified four structural impediments that we believed had negatively affected the delivery of programs and services to first nations individuals and communities.
The first impediment was a lack of clarity about service levels. The federal government supported services on reserves that were provided by provincial and municipal governments off reserves, such as education and drinking water. However, it was not always clear what the federal government was aiming to achieve because it had not clearly defined the type or level of service it committed to supporting.
The second impediment was the lack of a legislative base. Unlike similar provincial programs, the programs on reserves were not supported by legislation in such key areas as education, health and safe drinking water.
Instead, the federal government developed programs and services for First Nations on the basis of policy. As a result, the services delivered under these programs were not always well defined, and there was confusion about federal responsibility for funding them adequately.
The third impediment was the lack of an appropriate funding mechanism. The federal government used contribution agreements to fund the delivery of many programs on First Nations reserves. Often, the contribution agreements had to be renewed yearly, and it was not always certain whether funding levels provided to First Nations in one year would be available the following year. This situation created a level of uncertainty for First Nations and made long-term planning difficult.
The fourth and final impediment was the lack of organizations to support local service delivery. There were often no organizations in place—such as school boards, health services boards and social service organizations—to support local delivery of programs and services. In contrast, provinces had established such organizations. Indian and Northern Affairs Canada, now Indigenous and Northern Affairs Canada, had started to work with groups that represented more than one First Nation, but much remained to be done.
Mr. Chair, since 2011 we have audited several programs for first nations and Inuit communities, including the nutrition north program, policing programs, emergency management, access to health services for remote first nations communities, and the implementation of the Labrador Inuit Land Claims Agreement. We found that structural impediments continue to hinder effective service delivery. I should note, however, that we have not followed up on whether the recommendations made in these audits have been implemented. Currently we are conducting audits on first nation-specific claims and on the reintegration of aboriginal offenders.
For your convenience, we have attached to this statement a list of our most recent tabled federal and territorial audits, along with a brief summary for each. You will also note that in 2015 we tabled a report on the efforts of British Columbia first nations, Health Canada, and the Province of British Columbia to overcome the impediments in establishing the First Nations Health Authority in British Columbia. For example, the funding agreement between the federal government and the authority provides a level of funding certainty. It covers a 10-year period and includes an annual escalator to account for rising health care costs. In addition, the authority has increased support to local service delivery through training and expansion of access to electronic health services.
In addition, we identified two factors that contributed to the successful negotiation of the agreement. The first factor was a sustained commitment by leaders from first nations, as well as the federal and provincial governments, to the development of a new model for providing health services to first nations in British Columbia. The second factor was the decision by first nations to establish a single point of contact for negotiations with the federal and provincial governments.
Mr. Chair, if First Nations are to experience more meaningful outcomes from the federal funding of programs and services they receive, these structural impediments will have to be addressed.
Doing this requires the political leadership and will of all involved—the federal government, the First Nations leadership, and provincial and territorial governments.
This concludes my opening statement. We would be pleased to answer any questions the committee may have.
Mr. Michael Ferguson:
The reality is probably that different jurisdictions will be different. Essentially, what happened in British Columbia, as I understand it, was that, from a legislative point of view, it was more a matter of pointing to pieces of legislation that already existed and saying, “Okay, we are going to abide by that.” It wasn't that there was a new legislative base put in place. The B.C. health authority itself was sort of the organization for delivery, the delivery mechanism. Again, that was an obstacle that we identified didn't exist often, and there was a 10-year funding agreement put in place.
Again, fundamentally, we were looking at that from the point of view that they were able to overcome those obstacles. I'm going to put a lot of emphasis on those four obstacles that we identified in 2011, because I think those are the things that the government, when it's dealing with first nations issues, needs to make sure that it's getting past.
Where is the funding coming from? How certain is it going to be? Who's going to do the service delivery? What's the standard that we are going to deliver those services at? What is the legislative base for which people can expect to get those services? Those are the things that need to be concentrated on. Then, in addition to that, there needs to be the commitment on the part of all of the political people involved to try to move it forward.
In the B.C. situation, the other success factor we identified was the fact that British Columbia first nations put together sort of one point of contact for the governments, so that they knew who they were negotiating with and who was going to be able to speak for that side of the table.
Mr. Matt DeCourcey (Fredericton, Lib.):
Thank you very much Mr. Chair.
Mr. Ferguson, thank you very much for your presentation.
First, I'd like to say that it's an honour for me to have the opportunity to represent the riding of Fredericton and to follow in the footsteps of Andy Scott, who was the minister of Indian Affairs and Northern Development Canada when the Government of Canada signed the Kelowna Accord with the country's Aboriginal leaders.
It's important for me to think back to where we were 10 years ago, and be ready to embark on a partnership with indigenous Canadians and to make sure that we address some of the gaps that we still see 10 years later. I can tell you that, in my conversations with indigenous leadership in my community—and I have two first nation communities with strong leadership—they see some of the issues that you talk about, and they've seen it get worse over the last number of years. They've seen more unpredictability with their funding. They characterize it as smaller and smaller pots of project funding, as opposed to stable, long-term program funding.
You talk about the impediments of unstable contribution agreements and unstable funding agreements. You also talk about the impediment of a lack of a legislative base. I wonder if, through your audits and the work of your office, you've seen particular instances in which services were ill-defined, maybe due to the rolling back or shrinking of project allotments or programs over the last number of years.
Mr. Michael McLeod (Northwest Territories, Lib.):
Your statement, which addresses the levels of service and long-term and predictable funding, is certainly music to my ears. It is something that the aboriginal people have been saying for a long, long time. The only consistency we have seen in the last 10 years from the Conservative government has been cuts, cuts, and more cuts.
I come from the Northwest Territories. As you know, a lot of times the money that is allocated is rolled in with the Government of the Northwest Territories, and it becomes very blurry as to what is actually earmarked for aboriginal people. As we watch housing deteriorate to a point where the government is bringing in 10 trailers a year, I think, from Alberta, and that is our housing program, it becomes very concerning. We are reaching a housing crisis. We have our non-insured health benefit funding overdrawn. We recognize that the previous government has been off-loading to the provincial and territorial governments.
The Chair: You have one minute, Mike.
Mr. Michael McLeod: We can't afford it.
I'll just end there with a question that has been troubling me for some time now. Would you be able to look at how fair the funding for aboriginal people in the northern territories is, compared to the rest of Canada? We don't have dollars that are specifically earmarked. We don't have programs that come from Indigenous Affairs. We have high social issues across the territories.
Mr. Joe Martire:
As the Auditor General mentioned in his opening statement, in order to make movement in a lot of these files, there has to be the will and coordination among all three players.
For example, the policing program is funded 52% by the federal government and 48% by the provinces, and they have different types of agreements, which we talked about. We saw there that it's very important that these programs be coordinated.
When you talk about health services in remote communities, again, on that whole issue of the delivery health services to people in those communities, from the first nations' point of view, it's very important that they get the health services from all the players.
Coordination is a very important issue that has to be managed by all three parties.
Also, on the emergency management issue, there's provincial funding that takes place there, until an emergency is of such a magnitude that the federal government has to kick in.
In a lot of these programs, the federal government normally has the lead, but from the service delivery point of view, all three players have to be involved, and the services themselves are actually delivered by many first nation organizations.
Mr. Michael Ferguson:
I'll speak first to the audit mandate, and then I may look to one of my colleagues to talk about the child welfare issue.
Fundamentally, again, I think it's important for everybody to understand that under our legislation, we choose whatever we want to audit. Our audits are not dictated by any department or anyone else. We choose whatever it is that we want to audit. The way that we select audits is by doing what we call a strategic audit plan. We try to identify where the risky areas are. There are issues in first nations, so we have identified them as one of our priorities.
We do a lot of outreach. We have an advisory committee, for example, on aboriginal issues. We will get them together periodically to try to understand what people outside of government believe are the issues.
We have the work that we do in the three northern territories. From the point of view of the north and the aspect of services to the north, we're in the north a lot in each of those three territories.
Then we spend a lot of time working with all the departments involved to try to understand the issues and to try to set the priorities. One of the biggest challenges for us is figuring out where the risks are and what things need to be audited. We spend a lot of time trying to sort through that.
In terms of the child welfare, I'll ask Mr. Berthelette to provide you with more information on that.
Mr. Michael McLeod:
Once again I want to compliment you on some of the work you've done. It's really interesting, and I certainly will get copies of some of these documents to review further.
The one area I want to flag as a concern is the absence of fiscal arrangements. I'm from the Northwest Territories, and we've had quite a few land claims that have been settled. I think we have four large claims that have been concluded and signed off. The expectation would be that the tribal council or the aboriginal government would then move into the next stage of providing governance to its members. However, from my discussions after being elected to this position, I'm quickly realizing that many of the fiscal arrangements that were supposed to be part of the discussions have not moved forward, some going as far back as 2004.
The claim spells out the procedure for how both sides are supposed to work out the need and for providing programs, for land administration—all the different areas. The Conservative government in the last term decided to come out with a new policy, the harmonization policy, which brings forward a whole new set of rules that nobody expected and that would provide maybe one third of what the aboriginal governments need to govern their people, provide the programs, provide everything that's agreed to in their agreement for operations.
I'm wondering whether this is something you've looked at. I see you looked at the Labrador claim and its implementation and how that's working.
Mr. Michael Ferguson:
In terms of the audit we did on the Labrador Inuit lands claims agreement, I think maybe what would be relevant was that part of—I believe it was the fiscal arrangement agreement....
Under its agreement, the Nunatsiavut government had been given and taken on, I suppose, responsibility for housing within the land claims area, but there was no actual mechanism for them to access any funding for a housing program. There wasn't a specific federal program that existed for that, so there was a situation in which there was of a land claims agreement with a fiscal arrangement agreement that was saying that the Nunatsiavut government was going to be responsible for housing, but there was no way for them to deliver on that housing obligation and responsibility.
The other thing we noted was that there had been about a 10-year disagreement between the Department of Fisheries and Oceans and the Nunatsiavut government over access to shrimp quotas. There was never any resolution to that problem. The agreement included a dispute resolution mechanism, but that dispute resolution mechanism was never used to try to resolve the dispute.
To me, when we look to that Labrador Inuit lands claims agreement, I think there are a number of things in there that the government needs to learn from in making sure that when an agreement is establishing a responsibility and a first nations government is taking responsibility for something, it's understood how they're going to be able to live up to that responsibility. Also, when there is a disagreement that happens over the course of an agreement, both parties need to be confident that they can go to the dispute resolution mechanism and accept its end result.
I think there were a number of things in that audit that, perhaps, point out some issues that need to be dealt with in future land claims agreements.
Mr. Howard Sapers (Correctional Investigator of Canada, Office of the Correctional Investigator):
Thank you very much, Chairman, and thank you, committee members, for inviting us to appear so early in the session. I really appreciate the opportunity to provide this briefing and answer your questions.
Of course, I am joined by Dr. Zinger, executive director of my office, who will make some remarks within mine. Feel free to direct questions to either of us.
We're going to give you a background briefing on our role, mandate, and priorities. Then, with respect to the specific concerns of this committee, I'll try to highlight some of the gaps and challenges facing indigenous people in federal corrections today and point to some directions for reform.
The Office of the Correctional Investigator was established in 1973 on the recommendation of a commission of inquiry that looked into the bloody five-day riot at Kingston Penitentiary back in 1971. A main finding of the inquiry centred on the lack of an effective and impartial outlet to redress inmate complaints and grievances.
In 1992, the office's mandate was entrenched into legislation—part III of the Corrections and Conditional Release Act. It's interesting that the lack of an effective and expeditious grievance process continues to be a number one concern of the office.
Under part III of the CCRA, the office is mandated to conduct investigations into the problems of federal offenders related to decisions, recommendations, acts or omissions of the Correctional Service of Canada.
The office is an oversight, not an advocacy, body. Staff members don't take sides when resolving complaints against the Correctional Service. The office independently investigates legitimate complaints and ensures that federal offenders are treated fairly and in compliance with the legal and policy frameworks. We view corrections through a human rights lens and we make recommendations to the Correctional Service to ensure safe, lawful, and humane correctional practice.
My staff has complete and unfettered access to all federal facilities, CSC documents, staff, and offenders. I consider offender access to my office, including ensuring staff presence and visibility, to be a priority when fulfilling my mandate. Investigative staff regularly visit federal institutions to meet with both offenders and staff, and I can tell you they are a very busy group.
With respect to the issues and concerns of this committee, in January of this year, my office reported that the federal correctional system had sadly achieved an ignominious milestone, with 25% of the inmate population in federal penitentiaries now comprising indigenous people. That percentage rises to more than 35% for federally incarcerated women.
To put these numbers in some perspective, between 2005 and 2015, the federal inmate population grew by about 10%. Over the same period, the aboriginal inmate population increased by more than 50%, while the number of aboriginal women inmates almost doubled, being one of the fastest growing subpopulations in federal custody. My office estimates that indigenous people are incarcerated at a rate seven to ten times higher than the national average.
For young indigenous people, the criminal justice system has become what residential schools were for their parents and grandparents. In 2014-15, aboriginal youth between the ages of 12 and 17 accounted for 33% of all admissions to youth custody in Canada. Indigenous girls accounted for 44% of female youth admitted to custody last year. Unfortunately, many of these people find their way into the adult correctional system.
Dr. Ivan Zinger (Executive Director and General Counsel, Office of the Correctional Investigator):
Good afternoon, Mr. Chair and committee members.
Over the last decade, the Prairies region has led growth in the incarcerated population in federal corrections. It is now the largest region, both in geography and offender population. It also has the largest concentration of the Aboriginal inmate population in federal corrections. Today, 47% of inmates in the Prairies are indigenous. Some institutions in the prairie provinces can be considered “indigenous prisons”.
A history of disadvantage follows indigenous peoples of Canada into prison and often defines their outcomes and experiences there. Indigenous inmates are more likely to be classified as maximum security, spend more time in segregation and serve more of their sentence behind bars compared to non-Aboriginal inmates. Indigenous offenders are far more likely to be detained to warrant expiry or returned to prison for a technical violation of their release conditions.
Aboriginal people under federal sentence tend to be younger, less educated and more likely to present a history of substance of abuse, addictions and mental health concerns. A recent file review of the social histories of indigenous women offenders indicates that over half of the women reporting having attended or having had a family member attend residential school. With respect to childhood events, two-thirds of their parents had substance abuse issues, and 48% of the file sample had been removed from the family home. Almost all of the women's files indicated the existence of previous traumatic experiences, including sexual and/or physical abuse, as well as substance abuse problems.
The latest year-end performance and accountability report for Aboriginal Corrections prepared by the Correctional Service indicates several areas that require improvement in reducing the gap in correctional results and outcomes between Aboriginal and non-Aboriginal offenders.
For example, in spite of faster entry into correctional programs and higher program completion rates, indigenous offenders are still being released later and revoked much more often than their counterparts.
The percentage of indigenous offenders receiving day or full parole on first release is declining, while the percentage of indigenous offenders released on statutory release is increasing. Last fiscal year, nearly 70% of all indigenous persons released from a federal penitentiary were by statutory release.
Parole hearings and decisions are much more likely to be withdrawn or waived for indigenous offenders.
Challenges continue to exist in the application of Aboriginal social history in significant decisions affecting indigenous offenders, including segregation, security classification, penitentiary placement and return to the community.
Mr. Howard Sapers:
In September 2013, my office released an investigative report called “Risky Business”. It looked at the most prolific self-injuring women in federal custody. We found that aboriginal women who engage in chronic self-injury have a distressingly similar profile. Most were a victim of physical or sexual abuse. Most had spent their childhood in group homes and foster care. They were estranged from their families and had little, if any, existing social supports at the time of their incarceration. Many had spent time in a mental health or a psychiatric institution prior to their term in federal custody.
Reflecting the growing seriousness and urgency of the issues facing aboriginal people in federal corrections, in March 2013 my office released “Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act. It was tabled as a special report in Parliament, one of only two special reports in the more than 40-year history of my office. The report looked at specific aboriginal provisions of the Corrections and Conditional Release Act, which were designed to enhance aboriginal community involvement in federal corrections and address the overrepresentation of aboriginal people behind bars. At the time of that act, that overrepresentation was around 17%. It's now 25%.
I can't finish this in the time allotted, but I'll do my best.
More than 20 years after its enactment, we found some troubling gaps between the law and practice. For example, since 1992 only four agreements under this authority had been concluded between the government and aboriginal communities. There were no healing lodges operated by aboriginal communities in northern Canada, Ontario, Atlantic Canada, or British Columbia. We also found limited understanding of aboriginal people's culture and approaches to healing within federal corrections. There are also funding and contractual limitations that impede work and access to elders. Insufficient attention is paid to the urban realities and demographics of aboriginal people in conflict with the law.
The previous government's response to my report and its 10 recommendations was disappointing and not at all responsive to the findings and recommendations of “Spirit Matters”. Overall, while acknowledging the problem, the position taken was largely to defend the status quo. The history of the tabling of this special report and the nature of the response it generated are both quite interesting. I'd be happy to elaborate on its history during the question and answer period, if it's of interest to the members.
The problems I've discussed demand focus and sustained attention, and a real commitment to change and reform. This is why I continue to call for the appointment of a deputy commissioner for aboriginal offenders to ensure an indigenous perspective and presence in correctional decision-making. Movement on this issue, which goes to corporate focus and political direction for federal corrections, is simply long overdue.
Some very important calls to action are contained in the Truth and Reconciliation Commission's final report that pertains to corrections. First is the call for the elimination of the overrepresentation of aboriginal people and youth in custody; second, the implementation of community sanctions that will provide realistic alternatives to imprisonment for aboriginal offenders; third, the elimination of barriers to the creation of aboriginal healing lodges within the federal correctional system; fourth, the enactment of statutory exemptions from mandatory minimum sentences of imprisonment for aboriginal offenders, particularly those affected by fetal alcohol spectrum disorder; and fifth, reduction in the rate of criminal victimization of aboriginal people.
These are ambitious goals. We should be under no illusions. Confronting and repairing the harm visited upon aboriginal people as a result of colonialism and restoring a relationship among equals will not be easy. Ending the cycles of intergenerational violence and abuse and discrimination that bleed into our prisons will require deliberate and sustained action.
Mr. Randall Garrison (Esquimalt—Saanich—Sooke, NDP):
It's good to see Mr. Sapers and Mr. Zinger again. As the NDP public safety critic and vice-chair of the public safety committee, I've had the privilege of hearing your testimony many times.
I'd like to start by thanking you for the work that you and your office have done to identify issues of special concern about the treatment of first nations people in our correctional system. Since you've been appointed, you've been particularly attentive to this problem. Your two special reports, which you mentioned, I really recommend to all the members, the 2013 report, “Spirit Matters” and also “Risky Business”.
What's important to me is that both of those highlight the social factors and historical context that underlie the relationship between first nations people and the justice system. Of course, that was recognized in the Gladue decision, and it's now a legal requirement that those circumstances be taken into account.
In your presentation, you mentioned the five recommendations of the Truth and Reconciliation Commission, and I guess I'd start by asking, how, other than by implementing the Gladue principles, you can accomplish these five recommendations. Is there any other alternative?
Mr. Howard Sapers:
Gladue and subsequent rulings by the Supreme Court, like Ipeelee, are absolutely essential to making progress.
The Correctional Service of Canada has a responsibility to use a Gladue lens in correctional decision-making. What we see, though, is that it happens a little haphazardly. One piece of research that the Correctional Service conducted for itself, I think indicated that in 98% of the case files they reviewed, there was attention paid aboriginal life history. Therefore, there was some documentation that the decision-makers had looked at the life history of the individual before them. That would suggest they had looked at that through a Gladue lens.
However, there was really no conclusion at all that their consideration of the aboriginal person's life history had translated into any kind of differential decision-making, or any mitigation. That's the problem. What the court perceived would be something that would lead to restraint in the imposition of a sentence or a lengthy period of incarceration or difficult conditions of incarceration has, in correctional practice, translated into just the opposite.
Certainly, there is a fear that those same factors don't mitigate and don't lead to restraint. In fact, they lead to just the opposite. Those factors lead to higher security classifications, longer times in custody, delays in release, etc.
Mr. Howard Sapers:
Thank you. I wish there were a brief answer to that.
I don't want to mislead this committee in any way. My expertise is not on indigenous justice systems. I can tell you that we see hope and opportunity in more community involvement, more cultural involvement, more elder involvement, more spirituality, more opportunities for reconciliation, a more restorative approach, and more engagement of the broader community.
We know that the best chance for these folks, once they are enmeshed in the criminal justice system, is to get disentangled from it as quickly as possible, to be returned to the community as soon as safely possible, and to be given the supports they need in the community to avoid those same criminogenic issues they were facing at the time of their index offence. That's dealing with a whole host of variables.
We know that's also tied into things like safe and affordable housing and vocational training and employment opportunities and educational opportunities—all of those other things that are well beyond the mandate of a correctional investigator.
Dr. Ivan Zinger:
Perhaps you'll let me comment on this.
I think personally that if I were asked to pick only one performance indicator on whether the actions of the Government of Canada were improving the situation of aboriginal people in Canada, I would take the incarceration rate. Let me tell you that in social sciences, it's very rare that you have an actual linear relationship between time and a particular event.
Thirty years ago, 10% of the federal inmate population were aboriginal. Twenty years ago, it moved up to 15%. Ten years ago it was 20%; and now we're at 25%. If the government can actually stop or, even better, reverse that trend, it will mean that it has made some gains in other areas, such as social, economic, cultural, and political rights, and that you will have seen better employment, better education, better health care, better self-determination. I think this is where the government should focus its attention, so as to see that whatever it's doing, more of the same will not reverse the trend.
My prediction is that it will be at 30% soon.