Prisons (Legal Information for Indigenous People: National Edition)

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Legal Information for Indigenous
People: National Edition
This page is from
Legal Information for Indigenous
People: National Edition.
Contents
Acknowledgements and Foreword
Introduction
Rights and Protections
Know Your Civil Rights
Indigenous Justice Resources
Children and Families
Prisons
The Border
Indian Act
Income Security
Class Actions
Legal Descriptions
Plain Language Legal Education
Acronymns & Initialisms
Afterword
From
This wikibook is from
Bella Coola Legal Advocacy Program
v • d • e


"People sent to prison have rights.
Prison rights include peoples' Civil rights under the Canadian Charter of Rights and Freedoms.
Violations of Civil rights can occur during situations such as solitary confinement, involuntary transfers, parole suspensions, disciplinary hearings and more.
Prison rights also include Human rights, including the rights to be free from discrimination on the basis of race, national or ethnic origin, colour, religion, age, sex, gender identity and expression, sexual orientation, marital status, family status and mental or physical disability.
For example, prisons have "... a duty to accommodate your Indigenous spirituality to the point of undue hardship." This means that they must take steps to make sure that you can practice and participate in your Indigenous culture and spirituality. The only exception is where it would cause undue hardship on CSC, such as an unmanageable security risk."

- West Coast Justice Society, Prisoners Legal Services

 Pamphlet from West Coast Justice Society, Prisoners Legal Services: https://prisonjustice.org/pamphlets

CSC and your Rights

"When someone is sent out to prison, they come back at a whole other level. They have shame, a loss of identity. There is a stigma of having been in prison. Prison adds to the trauma. Prison is not a place for Indigenous people."

-Mary Brown, Heiltsuk Gvi-ilas Community Justice Program Coordinator*

* from "Decarceration through Self-Determination", p7, Prisoners' Legal Services, a project of the West Coast Prison Justice Society

These sections are meant to let people know:

  • what legal rights people in prison have
  • which laws create these rights
  • how people in prison and their families can assert these rights
  • what specific rights that Indigenous people in prison hold.

Correctional Services of Canada (CSC)

Federal corrections deals with people who have sentences of two years or more, while Provincial corrections handles those who have been sentenced for two years less a day, or less.

If you are sentenced to prison time, the CSC is in charge of how your time is managed. They can decide things like:

  • which prison you go to
  • your security level
  • transfers
  • punishment for rule violations

For most decisions the CSC has to give you reasons, typically in writing within 3-5 working days. If you don't agree with a decision made by the CSC, you can contest it using the CSC grievance process within 30 days.

The time limit for challenging decisions through judicial review (court) is 30 days after the rejection of your grievance. If your grievance is turned down, you can seek legal advice and assistance to explore the possibility of taking the matter to court.

In many provinces, there are groups that support prisoners and can check if the CSC is doing its best to limit restrictions on you and to make sure that your civil and human rights are respected.

West Coast Prison Justice Society booklets:


Indigenous-Specific Options

Indigenous Social History previously "Gladue" Considerations

If you are Indigenous, the CSC has to take into account the same Gladue principles in decisions about your incarceration as judges do during your trial. CSC must not consider your Gladue factors to assess your risk, unless doing so could decrease your risk level. If the CSC's reasons for a decision show that they have not considered your Indigenous Social History, or have done so inadequately, it is likely a reason for a grievance.

Help within prison for Indigenous people

Indigenous Liaison Officers:

  • provide leadership, cultural awareness, counseling and general services
  • serve as a link between you and your community
  • serve as a link between you and your Case Management Team, and should help communicate your cultural and spiritual needs with case management and correctional program staff

Indigenous Community Development Officers:

  • can help you find support in an Indigenous community for your release.
  • can help an Indigenous community make a release plan for you

Indigenous Community Liason Officers:

  • based in the community, not in CSC institutions
  • can give you support in the community
  • can help you connect with Indigenous community resources, ceremonies and events

Cultural Programming and Elders

The CSC must make sure that they offer culturally appropriate options, accommodate Indigenous spiritual practices where possible, and provide programs that are specific to Indigenous cultures. As part of these responsibilities, Indigenous Elders can help in various ways during an Indigenous person's time in prison.

You can ask for an Elder to help in a few ways.

  • Elders can make recommendations about how to incorporate traditional knowledge and practices into your correctional or healing plan.
  • Elders should be part of spiritual and cultural programs and services.
  • Elders can help you with things like parole hearings and informal disciplinary resolutions.

If you want to work with an Elder, you will need an Elder Review report (the Elders perspective of you based on traditional teachings). The Elder Review will become part of your Correctional Plan and guide CSC staff in supporting you and measuring your progress.

Serving your Sentence in an Indigenous Community

Transfers: Healing Lodges. Under section 81 of the CCRA, you could request a transfer to an Indigenous Healing Lodge, which certain Indigenous communities have established. These lodges are minimum security facilities that focus on Indigenous culture and healing. You can be accepted to a Healing lodge if you are classified as minimum security or "on a case by case" basis if you are classified as medium security.

There are currently only six Indigenous-led healing lodges across Canada, and there are very few available spots. To improve your chances of getting into a healing lodge, it is a good idea to participate in programs like Pathways programs or other cultural healing programs. It is also recommended to express your intention to apply for a transfer as early as possible, ideally when you first enter prison, so that it can be part of your correctional plan. Pathways is an Elderdriven intensive healing initiative based on the Indigenous Medicine Wheel, also known as the Four Directions Medicine Wheel. Pathways goes above and beyond the CSC services already available to all Indigenous offenders. It is for inmates who show genuine motivation and commitment to making emotional, mental, physical and spiritual changes.

In extremely rare cases, an inmate may be allowed to serve part of their sentence in an Indigenous community without a healing lodge. However, for this to happen, the community must have an agreement with the CSC and be able to provide the necessary programming and ensure both your safety and the public's safety.

Parole

Under Section 84 of the CCRA, Indigenous people in prison can request to serve their eventual conditional or statutory release in an Indigenous community, or in an urban area with the support and direction of an Indigenous organization. However, this requires the agreement of the Indigenous community. To facilitate this process, it is advisable to express your intention to serve parole in an Indigenous community to your institutional parole officer as early as possible, as the preparation can be time-consuming. You can raise Indigenous Social History also at Parole hearings. In addition to ISH, the Parole Board is obliged to consider systemic and background factors under their own policy, and in line with case law.

Explanation of Section 84 Process: https://www.csc-scc.gc.ca/002/003/002003-1011-en.shtml
CSC Website on Pathways Programs and Indigenous Programming: https://www.csc-scc.gc.ca/002/003/002003-1011-en.shtml

Indigenous Women

"The rate of mass incarceration of Indigenous people in Canada continues to rise, despite decades of calls to action to end this appalling trajectory. The latest statistics reveal that Indigenous people represent 5% of the total population in Canada, and 32% of people in federal prisons. Fifty percent of women in prison are Indigenous."
- Decarceration through Self-Determination, p7, Prisoners' Legal Services, West Coast Prison Justice Society*

 *Decarceration through Self-Determination: https://prisonjustice.org/wp-content/uploads/2023/04/Decarceration-through-Self-determination-w.pdf

In Canada, CSC operates five women's institutions, and a healing lodge for women. All women's institutions are multi-level. Most house women offenders classified at minimum-, medium- and maximum-security levels. The healing lodge, however, is only for women classified as minimum or medium security.

Kimisinaws (Cree term for Older Sister) work on the front lines of the correctional system. They are the primary, daily contact for women offenders at a Healing Lodge. They work at CSC's Okimaw Ohci Healing Lodge for Aboriginal women offenders on the Nekaneet First Nation near Maple Creek, Saskatchewan.

CSC has a Mother-Child Program that could allow for Mothers to have their children with them for a period of time. This is for Mothers who are classified minimum, medium or maximum but being considered for medium.

This is for mothers who are classified as minimum or medium. Mothers who are maximum security but who are being considered for medium security may also be considered for the mother-child program.

Advocacy in Prisons Designated For Women: Canadian Association of Elizabeth Fry Societies National Advocacy Line 1-800-637-4606
https://caefs.ca/advocacy-in-prisons-designated-for-women

Human Rights

While in prison, you have the same human rights protections as people outside of prison. Although being in prison limits your freedom and allows for certain search and seizure practices that wouldn't be acceptable in regular circumstances, the CSC must still ensure that your rights are protected to the fullest extent possible within the scope of their responsibilities and to not infringe upon rights unrelated to your incarceration.

If you believe that your human rights have been violated while in prison, you have options to address the issue. You can file a grievance using the CSC's grievance procedure. Additionally, you can submit a claim to the Canadian Human Rights Commission, although they often require you to go through the grievance process first. To support both processes, it is essential to make detailed notes about the incident, and to keep all documents relating to the claim.

The 11 grounds of discrimination under the Canadian Human Rights Act are:

  1. Race
  2. National or ethnic origin
  3. Colour
  4. Religion
  5. Age
  6. Sex (includes pregnancy, gender identity or expression, and sexual orientation)
  7. Marital status
  8. Family status
  9. Disability
  10. Genetic characteristics
  11. Conviction for an offence for which a pardon has been granted or a record suspension has been ordered.

See the Human Rights section for more details about Human Rights claims.

Trans Rights

If you are sent to prison and identify as a transgendered person, the CSC is obligated to make sure you have certain rights, and to have your needs met without being discriminated against because of your gender identity or expression. This includes the right to be treated with dignity, to live and work in conditions that are safe, and to be free from verbal harassment or violence because of your gender.

For more information about your rights as a Trans person in prison see "Trans Rights in Prison," produced by Prisoners' Legal Services, a project of the West Coast Prison Justice Society.

West Coast Prison Justice Society, Prisoners' Legal Services booklets:

Discipline

There is a list of 21 offences for which the CSC can impose disciplinary sanctions listed in section 40 of the Corrections and Conditional Release Act (CCRA). The CSC must also follow certain rules in imposing these sanctions:

  • The CSC has to try their best to solve the problem without going through a formal process. They do this by helping you and the staff, or the other inmate involved in the incident reach an agreement.
  • The CSC must tell you in writing about any charges within 2 days of it being made against you.
  • Your first hearing would normally (but not always) happen within 10 working days, and you must get at least 3 days notice of it beforehand.

The CSC has the power to determine whether the charge will be serious or minor.

  • Minor charges are dealt with by a hearing before the warden or their "delegate" (someone chosen by them). All the rights you have for a serious charge also apply to minor charges, with the exception of having a lawyer represent you.
  • "Serious" charges can stem from a wide range of offenses from security breaches, violence or repeat offenses to failed urinalysis tests, not following orders, possession of contraband, etc. When there are serious charges, there is a hearing in front of an independent chairperson and the hearing must be recorded.
  • You have a right to be at your own hearing, but if you seriously disrupt the hearing or the decision-maker believes you pose a threat to somebody at the hearing, they can take away this right. You can also choose to not attend the hearing.
  • At your hearing, your rights to bring evidence, call witnesses and question CDC witnesses are often up to the discretion of the Independent Chairperson.
  • If you say you are not guilty at your first hearing, you can ask for a delay to give yourself time to get legal advice or representation, gather witnesses and collect evidence.

You can argue against minor decisions by using the CSC grievance process. If it is a serious decision, you can challenge it through a judicial review, but make sure to apply within 30 days of receiving the decision.

Any decisions CSC makes in regard to indigenous people must consider Indigenous Social History (ISH). You can raise ISH factors at a disciplinary hearing. ISH rights extend to CSC decisions on pen placement, security level, parole, disciplinary sanctions, administrative segregation.

You do not have a right to have a lawyer at minor, disciplinary hearing, but Prisoner advocates and legal aid programs can help you get ready for your hearings. Indigenous people can request for an elder to help with the informal resolution process.

Structured Intervention Units

"Imprisonment may take away a prisoner's freedom, but it does not nullify a prisoner's right to equal treatment under the law, and it must never be allowed to sever the ties that link a prisoner to the brotherhood and sisterhood the Universal Declaration of Human Rights accords us all."
- Michael Jackson, QC, Justice Behind the Walls

 Justice Behind the Walls, by Michael Jackson, QC: http://www.justicebehindthewalls.net/book.asp?cid=1

Administrative Segregation

Also known as Solitary Confinement, administrative segregation was eliminated in 2019 and replaced with "Structured Intervention Units" (SIU's).

  • The CSC cannot use these units as a form of punishment; they can only place you in SIUs for safety reasons or in rare cases such as when investigating a crime.
  • Being placed in a SIUs is supposed to be a last resort, and your time in an SIU must be as short as possible. While there, you should have meaningful human contact with as few physical barriers as possible.
  • You should also be given access to programs and services that you need. This includes spending at least 4 hours outside your cell each day, with 2 of those hours allowing interaction with other people.
  • When you are placed in an SIU, you should get a mental health check within a day, and a medical professional should visit you every day. The mental health professional can recommend ending your time in SIU if it is harming your health.

Solitary confinement is harmful to mental health. If the CSC wrongly puts you in an SIU, keeps you there for too long, or does not provide what it is supposed to during your stay, you may be able to challenge the decision through an SIU review, grievance, application to court or human rights complaint.

It is a good idea to keep any documents relating to your time in an SIU and writing down what the CSC does and your time interacting with others during your placement. The CSC should give you written reasons for putting you in an SIU and keep records of your stay and the rules they give you. These records can help if you need to make a grievance, court application or human rights complaint.

For more information on the implementation of SIU's: https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2022-siu-iap/index-en.aspx
SIU Fact Sheet from CSC:

https://www.csc-scc.gc.ca/acts-and-regulations/005006-3003-en.shtml

Visitation and Transfers

Visitation

The CSC is required to give every inmate a fair chance to have visits without any physical barrier. This obligation can only be broken if there are safety concerns, in which case you should be allowed to visit with a glass barrier unless this also creates safety issues. The warden can also require the visit to be supervised if there is a safety concern, but this must be done in the least intrusive way possible.

If your right to a visit has been revoked, the CSC must tell you right away, and you have 5 days to argue against the decision. If they still say no, you can make a complaint or fill out a new visit application form with different details that may change the decision.

A private family visit (PFV) lets inmates have a private meeting with their family for up to 72 hours. The visits are usually allowed every 2 months. "Family" includes immediate family, a spouse or common-law partner, and other very close personal relationships. For Indigenous inmates, PFV rights also apply to extended family members such as grandparents, uncles, and aunts, even if they are not blood related.

Every inmate can have these visits, except if the CSC thinks they might commit family violence, already have permission to go with family without supervision, or are in a special handling unit.

Transfers

  • When deciding whether to move someone in prison, the CSC must consider access to programs that can help you, cultural needs, family access and the safety and security of everyone in the prison.
  • How easy it is for you to access programs that can help you, your cultural customs, your language, your family, and the safety and security of everyone in the prison. This helps make sure you are in a good place for your needs and everyone's safety.
  • The CSC can move inmates to a hospital, to a different prison or to a different location within a prison. They must let you know in writing why they want to move you. You can give your response to this move within 2 days.
  • Even if you do not want to move, they can still transfer you, but they must explain why. You can request an extension of up to 10 working days to provide submissions in response to an involuntary transfer. You can use their reasons to make a complaint or ask a judge to review the decision.
  • You can ask to be moved if you want to. They will tell you their decision within 60 days.

Conditional Release

There are four types of conditional release, which allow you to serve part of your sentence outside prison:

  • Day Parole allows you to leave the prison and live in a halfway house or institution. While on day parole, you have freedom during the day but you are required to return to the facility each night.
  • Full Parole means being released from prison, with certain conditions to follow until the end of your sentence, like staying away from drugs, taking part in programs, etc. When you reach your eligibility date for full parole, you are automatically scheduled for a parole hearing, which Elders and legal services programs can help with. Unlike day parole, full parole allows you to live in the community without returning to a halfway house each night, unless that is a condition of your full parole.
  • Escorted temporary absences let you leave prison with CSC staff supervision for rehabilitation, medical appointments, administrative tasks and other reasons. These absences can last up to 5 days, and if the commissioner approves, up to 15 days, or unlimited if it is for medical reasons.

Unescorted temporary absences (UTA'S) are absences without supervision. They are granted for various reasons, including allowing you to work through a work release program, attend medical, administrative and rehabilitative appointments, or to have short visits with your family.

For more information on the types of conditional release, and for guidance on the parole hearing process and how to prepare for one, see:
https://prisonjustice.org/wp-content/uploads/2019/01/Federal-Conditional-Release-2018_1.pdf

Health Care

The CSC is responsible for giving you necessary healthcare during your time in prison. This includes both physical and mental healthcare, as well as treatment for addictions.

The CSC also needs to offer reasonable access to non-essential healthcare.

The CSC also has to consider any health conditions, including mental health conditions when making decisions about things like transfers and which cell you are placed in. If CSC doesnt fulfill these responsibilities, you might have a reason to file a grievance.

The quality of healthcare must be as good as what is available outside prison. The CSC has to respect the professional judgment and decision-making of the medical professionals and your right to make choices about your treatment. If you get poor treatment, you can make a complaint about the medical professional to the medical college they belong to. If you believe that you have been denied your right to proper health care because you are Indigenous then you could have the basis for a human rights complaint.

For more information on filing complaints to medical colleges, see:
https://prisonjustice.org/wp-content/uploads/2023/07/Medical-College-Complaints-2023.pdf

Resources

There are resources for people in prison, and their families.

"People are often in prison because of issues related to poverty, colonialism, mental health or drug use. Prisons often exacerbate these issues, exposing people to violence and harsh treatment, isolation, poor medical care, and other violations of their rights."

- West Coast Justice Society, Prisoners' Legal Services

Prisoner advocacy groups are in most provinces. These groups can help you see if the CSC is taking reasonable steps to ensure you are restricted as little as possible and that your civil and human rights are being met.


Book Programs



© Copyright 2024, Bella Coola Legal Advocacy Program (BCLAP).


v • d • e
Acknowledgements and Introduction
Rights and Protections
Know Your Civil Rights
Indigenous Justice Resources
Children and Families
Prisons
The Border
Indian Act
Income Security
Class Actions
Resources & Closing Remarks
Retrieved from "https://wiki.clicklaw.bc.ca/index.php?title=Prisons_(Legal_Information_for_Indigenous_People:_National_Edition)&oldid=59501"