Last week, I got an email on a listserv for the Canadian Prison Lawyers Association, a reminder about a survey, where the Parole Board of Canada (PBC) was asking for participation in a questionnaire about diversity and systemic racism. Their description: “This engagement seeks to understand how the criminal justice system, specifically in the area of conditional release, can be more responsive to the needs of Indigenous, Black, and other Racialized offenders with the goal of improving their experiences and outcomes.”
My reaction on the list: “Honestly, when I see initiatives such as these, it just outrages me. I don’t believe that PBC has made any honest effort at actually working to include anti-racism in decision-making for release of Black and Indigenous prisoners. I believe they perpetuate systemic racism…” Engaging in such efforts as a survey about systemic racism risks creating the appearance of change, or the impetus for change, when meaningful change in not being made.
Black and Indigenous people remain overincarcerated compared with their presence in the Canadian population. The Guide for the questionnaire acknowledges the statistics: “Black people make up 3.5% of Canada’s population but 9.8% of the federal inmate population. Indigenous people make up 4.9% of Canada’s population but 30.4% of the federal inmate population.” These numbers are made up of a disproportionately high rate of Black and Indigenous People going into prison and a disproportionately low rate of Black and Indigenous people getting out. Decisions refusing to let people out are made by the PBC.
The Guide spends a lot of time covering how the parole board appointments have improved in their representation of Women, Indigenous and visible minorities. But it’s hard to see these quantitative changes being anything more than tokenistic, as is the survey. Focusing on Indigenous people for now, the problem is the results are unacceptable when viewed through an anti-racist lens. In the Guide, the PBC notes that full parole release rates are only 26% for Indigenous versus 40% for Caucasian people. The fundamental flaw is in the decision making, which is every bit as embroiled in colonial thinking as before.
One key piece of colonial thinking can be found in the Parole Board of Canada Decision-Making Manual. In the description of the hearing process, the PBC notes that an Indigenous person may obtain the assistance of an Elder for a hearing. This has been a very important support that Indigenous people have had to fight for, but the problem is in the power dynamics. The manual states that the role of the Elder is to, “provide Board members with information about the specific cultures and traditions of the Indigenous population the offender is affiliated with, and/or Indigenous cultures, experiences, and traditions in general. If requested by the offender, the Elder may incorporate Indigenous cultural protocols/ceremonies into the hearing (e.g. saying a prayer).” Most importantly, they conclude this section by saying (my emphasis), “The Elder may advise the Board members with respect to cultural and spiritual factors during the deliberation stage of the hearing. The Elder is not involved in the decision-making process.” This is textbook tokenism: presence and even participation, but no power. And there is no corrective. Indigenous prisoners do not have the right to have an Indigenous person – who is attentive to their background experiences of systemic racism and the necessity of community reconnection to reconcile – actually sitting on the PBC panel making the decision for their release. To top it off, Elder assistance was shut down in May 2020, allegedly due to COVID-19, in a decision that one elder, Albert Dumont, rightly called “extremely racist’, as no alternatives were considered. The program only resumed months later, after pressure.
Another example of the embedded racism of the correctional system as a whole, of which the PBC forms a part, is found in the Corrections and Conditional Release Act (CCRA)(my emphasis):
79.1 (1) In making decisions under this Act affecting an Indigenous offender, the Service shall take the following into consideration:
(a) systemic and background factors affecting Indigenous peoples of Canada;
(b) systemic and background factors that have contributed to the overrepresentation of Indigenous persons in the criminal justice system and that may have contributed to the offender’s involvement in the criminal justice system; and
(c) the Indigenous culture and identity of the offender, including his or her family and adoption history.
Exception — risk assessment
(2) The factors described in paragraphs (1)(a) to (c) are not to be taken into consideration for decisions respecting the assessment of the risk posed by an Indigenous offender unless those factors could decrease the level of risk.
This leads to a very problematic set-up. Addressing the noted background factors does not presumptively reduce the level of risk that an offender poses to the community. The burden is on the Indigenous prisoner to demonstrate how Indigenous programming to address these factors actually reduces their risk level. This is a racist approach that is out of touch with the Supreme Court of Canada’s (SCC) rulings on the necessity of taking Indigenous background experiences and systemic factors into consideration in sentencing decisions. In R v Gladue in 1999 and R v Ipeelee in 2012, the SCC made very clear that there was both overrepresentation of Indigenous people in prisons and that judicial notice had to be taken for reasons for such overrepresentation, including the trauma of residential schools, displacement, systemic impacts of colonialism, and all their effects. Obviously, PBC decisions are not “sentencing” decisions, but they do impact the actual length of time a punitive jail term will continue. The Federal Court in Twins v Canada applied Gladue and Ipeelee principles to a PBC decision. So, the ball has already been rolling on this subject.
But in many ways, all that SCC and Federal Court law and any other precedents are beside the point. The point is that the PBC is claiming that it wants to be better at addressing systemic racism and, supposedly, the over-incarceration of Indigenous people. If they are sincere, they have to confront the fact that release decisions are not being made in an anti-racist manner, which would have resulted in better release rates for Indigenous people. One of the big problems is likely some level of denial that their entire system is dysfunctional for leading to ant-racist results. In their Guide, they state, quite arrogantly in my opinion, “Board members make decisions that are free of bias or prejudice based on race, age, national origin, gender, religion, sexual orientation, disability, socio-economic status, or other personal abilities, characteristics or beliefs.” If that was the case, why release the questionnaire to ask for recommendations for change?
A truly sincere attempt to address the deeply rooted and systemically racist problems with the PBC’s decision-making would have them also examine their relatively uncritical acceptance of information provided to them from the Correctional Service of Canada (CSC) for PBC hearings. There has been concern from prison advocates and lawyers across Canada – and much more from prisoners who live it – that CSC has unjustly rated Indigenous people as being a higher security level than white counterparts (see Ewert v Canada); that they are stereotyped as being part of security threat groups, the “drug subculture”, problematic associations, and any other negative label in the CSC toolbox, and cannot shed the label for the duration of their time inside, despite all their efforts and programming. Efforts by prisoners to have incorrect file information corrected are very difficult. Particularly for Indigenous people, the PBC should have to investigate allegations independently if an Indigenous prisoner contests CSC’s “facts” about them.
Changes in the CCRA, the PBC manual and all other laws, regulations and policies that are implicated in perpetuating systemic racism must be made immediately, and the PBC needs to work towards actually releasing Black and Indigenous people to confront their overincarceration. They don’t need another survey to tell them this.