After various legal folks began commenting on R v Armitage, I decided to write a post. That post can be read here. In that post, I outline the obvious (well, what should be obvious) issues with R v Armitage which is the fact that an Indigenous person has to opt to remain in prison to receive help (instead of this help being available outside of prison).
The absence of this obvious issue in commentary reminded me of the quote that a past counsellor of mine once said in a public presentation on Indian Residential Schools, “It’s funny how Aboriginal [men & women] now learn their culture in a Federal institution when it was an institution that took it away.”
The Truth and Reconciliation Commission had several calls to action listed under the heading of “Justice.” The TRC, in one of their calls to action, writes, “We call upon the federal government to eliminate barriers to the creation of additional Aboriginal healing lodges within the federal correctional system.” There are several healing lodges that currently operate in Canada. These lodges are still managed by Corrections Services Canada (CSC) that operate under its guiding legislation which includes the Correctional and Conditional Release Act (CCRA). Specifically, s. 81 of the CCRA empowers the Ministry of Public Safety and Emergency Preparedness to enter into agreements with Aboriginal communities “for the provision of correctional services to aboriginal offenders.” Because CSC still manages these healing lodges, some of their policies still apply to prisoners especially as it relates to who can access these healing lodges and who cannot access these lodges.
For instance, the CSC, pursuant to the Corrections and Conditional Release Regulations (CCRR), assigns a classification to each prisoner. These prisoners, including Aboriginal prisoners, receive a classification of either minimum, medium or maximum security. Section 18 outlines these classifications in the CCRR. And under CSC’s policies, their policies only permit prisoners that receive minimum and medium security classification to be transferred to healing lodges. By implementing such a policy, the CSC views this step as minimizing risk and exposure. In the same report that outlines the CSC policies permitting only minimum and medium security prisoners to be transferred to healing lodges, the report states that these same policies impede ninety percent of Aboriginal prisoners from being transferred to a healing lodge.
The CSC’s classification system is obviously a contested one. Much of the time, the classification tends to over-classify Aboriginal women, despite the absence of a legitimate risk to staff and inmate. In other words, Aboriginal women are more likely to receive a higher security classification in the absence of any real or legitimate risk to inmates or staff. These same women may also receive a higher security classification for showing reluctance to participate in culturally irrelevant programming. When the Gladue sentencing principles were applied to my criminal justice experience, much of the programming was not relevant to my nation, which was due in part to geographic location (another barrier to accessing culturally relevant programming since many prisons are located far away from Indigenous communities). Nevertheless, should Aboriginal women really be the ones to bear the burden when it comes to inaccessible culturally relevant programming?
While some people may argue that the security classification system is broken, I propose that it is doing exactly what it has always intended to do: get rid of the Indian problem. The Indian Act came before the Criminal Code and it is through both pieces of legislation that legitimized the criminalization of Indigenous bodies to further the colonizer’s goals: access and exploit Indigenous lands. Though the TRC’s calls to actions are an important starting point, some of these calls to actions are lacking or perhaps, some of these calls to actions are also missing the point. This point being that part of the barriers that prevent healing lodges is the fact that they are still being managed by the CSC and the CSC has policies in place that prevent Aboriginal prisoners, especially Aboriginal women in the prison system, from accessing such support.
In that same breadth, however, I am cautious in calling for more support in a system that incarcerates a majority of already-marginalized folks, like Indigenous, Black, and Brown bodies.
On the topic of Indigenous prisoners, we see this increased incarceration of Indigenous people within the so-called “Aboriginal justice” or “restorative justice” approaches within the CSC. First, we see Indigenous folks opting to be placed into jail to access supports, like in the case of R v Armitage. Second, we see the CSC implementing policies which prevent Aboriginal prisoners from accessing s. 81 healing lodges and the TRC’s calls to action did not address this second point. Rather, the calls to action simply asked barriers to creating healing lodges to be eliminated instead of asking barriers preventing Aboriginal prisoners from accessing such lodges to be removed. Third, regarding so-called restorative justice approaches to sentencing, Aboriginal prisoners must plead guilty first before they can access such measures and the restorative justice approach only applies to an Aboriginal prisoner at sentencing (because, you know, god forbid, we consider implementing programs that prevent Aboriginal people from going into the prison system in the first place).
When I heard my past counsellor describe the prison system as “giving back” Aboriginal culture to Aboriginal peoples, especially when it was an institution (Indian Residential Schools) that took it away, that truth hit me like a ton of bricks. As someone who has experience in the so-called restorative justice system, as an offender, I struggle with communicating how “restorative justice” is part of the problem when it comes to addressing the over-representation of Indigenous people in the prison system. There is nothing restorative about forcing an Indigenous person to plead guilty to access cultural supports. There is nothing restorative about forcing an Indigenous person to opt to stay in prison to access cultural supports. And most certainly, there is absofuckinglutely nothing restorative about preventing ninety percent of Aboriginal prisoners from accessing healing lodges and even more problematic, there is nothing restorative about assigning higher security classification to Indigenous women in prison when no real or legitimate risk to other prisoners or staff is present.
We have to think beyond the prison system when it comes to healing our communities and we have to think beyond so-called restorative justice when it comes to healing individual community members including our women whose population count in prisons has grown by 112% over nearly a decade. We also have to think beyond so-called restorative justice especially when institutions like CSC work to implement policies that create more injustice than justice. We must question the institutions and the policies we hold up as helping and we must question whether the outcome and effect of the policies is something we want for the healing of our communities and for future generations. Because as Indigenous people know, not everything that is labelled “justice” actually delivers us justice.
 See D. Milward, “Sweating It Out: Facilitating Corrections and Parole in Canada through Aboriginal Spiritual Healing” (2011) 29 Windsor YB Access to Just 27 [Milward, “Aboriginal Healing”] at 40-47.