WHAT: Statement to United Nations Human Rights Council by Indigenous and prison rights organizations in response to Canada’s Universal Periodic Review
WHEN: March 25, 2024
WHERE: 55th Session of the United Nations Human Rights Council, Geneva, Switzerland – live broadcast at https://webtv.un.org/en
Geneva, Switzerland – On March 25, 2024, Dene lawyer Jennifer Duncan is in Geneva to speak to the United Nations Human Rights Council on behalf of the Union of BC Indian Chiefs, the First Nations Summit, the BC First Nations Justice Council and Prisoners’ Legal Services. Duncan’s comments focus on Canada’s mass incarceration of Indigenous people, and call for a redirection of resources and authority from colonial prisons to Indigenous governments and organizations to decarcerate Indigenous people and build alternatives to address harm based on Indigenous legal systems and the UNDeclaration on the Rights of Indigenous Peoples. Duncan will also call for an end to solitary confinement and solitary-like conditions and for Canada to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
Ms. Duncan’s comments are in response to Canada’s Universal Periodic Review (“UPR”). The UPR allows United Nations member states to review the human rights records of their peers. Canada’s UPR took place at the meeting of the United Nations Human Rights Council in November 2023, when Canada was questioned by several states about the mass incarceration of Indigenous people. At the meeting in March 2024, Canada’s Final UPR Report will be adopted, including which recommendations Canada will support.
Written comments from the Union of BC Indian Chiefs, the First Nations Summit, the BC First Nations Justice Council, the BC Assembly of First Nations and Prisoners’ Legal Services are available here.
Unceded Coast Salish Territories (Burnaby, British Columbia) / Unceded Algonquin Territory (Ottawa, ON) — Today, the Congress of Indigenous Peoples (CAP) and Prisoners’ Legal Services (PSL) wrote to Correctional Service Canada (“CSC”) to raise the alarm about the warehousing of Indigenous people in the federal prison system and CSC’s role in perpetuating the mass incarceration of Indigenous people.
The letter highlights the case of Joey Toutsaint, a Dene man who has spent approximately 18 years in custody. The letter explains the extensive harms done to Mr. Toutsaint by the prison system, including through physical violence and long-term solitary confinement, and how these harms have prevented him from reentering the community, contrary to the legislative purpose of CSC.
The organizations called on CSC to convene an independent, Indigenous-led investigation into allegations of staff misconduct and abuse against Mr. Toutsaint, including allegations that officers at Edmonton Institution allowed other prisoners into Mr. Toutsaint’s cell to rape him when he was still a teenager, shortly after he first entered the federal prison system.
“While the government trumpets the importance of reconciliation, its policies continue to fill prisons with our people while authorities ignore shocking allegations of abuse,” says CAP National Vice-Chief Kim Beaudin. “Canada’s justice system is concrete proof that the policies that attempted to steal our cultures and youth are still alive and well.”
“Joey and other Indigenous people in prison do not need more CSC ‘intervention’. They have the right to healing in a restorative and culturally-appropriate environment”, said Jennifer Metcalfe, Executive Director of Prisoners’ Legal Services. “Conditions in CSC prisons are not safe or humane, and CSC is not preparing Indigenous people for reintegration into the community – instead, they are causing further harm and disconnection. That is why Prisoners’ Legal Services has called on Canada to redirect $1 billion annually from CSC to Indigenous governments and organizations to provide alternatives to prison for Indigenous people. $1 billion represents one-third of CSC’s annual budget, and a fair proportion of funding given that approximately one-third of people in federal prisons are Indigenous.”
Victoria, BC (Lək̓ʷəŋən traditional territories) – From Monday, February 12 until Thursday, February 15, 2024 the Canadian Human Rights Tribunal will hear the case of Nick Dinardo (they/them), a formerly incarcerated Two-Spirit and transfeminine member of the Piapot First Nation. Mx. Dinardo will argue that Correctional Service Canada (“CSC”) discriminated against them on the basis of race, religion, gender identity, and disability during their time in federal prison.
While Mx. Dinardo was in prison, correctional officers used violent force against them over 45 times. These uses of force included breaking their arm, pepper spraying them when they self-harmed, and shooting them with a rubber bullet in the face. The video footage of officers breaking their arm, which was obtained through a Privacy Act request, is available here: https://www.youtube.com/watch?v=k4fceEaLZh8&t=5s. Mx. Dinardo also spent extended periods isolated in the Structured Intervention Unit, for periods as long as 181 consecutive days.
Further, Mx. Dinardo faced significant harassment and abuse as a transfeminine person incarcerated in prisons designated for men. CSC repeatedly refused Mx. Dinardo’s requests to transfer to prisons designated for women. In their case, Mx. Dinardo is seeking systemic remedies to improve the lives of gender diverse people and people with disabilities in prison.
Jennifer Metcalfe, Executive Director of Prisoners’ Legal Services, says: “Mx. Dinardo’s treatment in federal prison is a national disgrace. We are inspired by their courage to take on CSC and fight for change.”
Nicole Kief, Policy Director of Prisoners’ Legal Services, says: “No one should suffer the kinds of indignities and abuses that Mx. Dinardo experienced in prison. The injustices raised in this case are systemic, and CSC must change its policies to comply with the Canadian Human Rights Act.”
For details on how to observe the hearing, please contact the CHRT:
Mx. Dinardo is represented by David Taylor, Christopher Trivisonno, and Maritza Woel of Conway Baxter Wilson LLP and Jessica Magonet of Prisoners’ Legal Services.
Unceded Coast Salish Territories (Burnaby, British Columbia) – Ed Speidel, an incarcerated person at Matsqui Institution represented by Prisoners’ Legal Services (PLS), was granted parole on September 28, 2023. In deciding to grant Mr. Speidel’s application, the Parole Board considered his serious health issues, including a diagnosis of end-stage lung disease, in determining that his release was warranted. PLS has spent the past 6 months fighting for Mr. Speidel’s release.
PLS will continue to represent Mr. Speidel in a Federal Court case against the Parole Board of Canada regarding the interpretation of s. 121(1) of the Corrections and Conditional Release Act with the goal of ensuring that all incarcerated people in Canada have the right to a parole review at any time if they are terminally ill, suffering excessive hardship, or if their confinement is seriously damaging their health. Currently, people in these circumstances may be subject to wait up to a year before the Parole Board will accept their application for parole, which is antithetical to the compassionate and humanitarian grounds underlying this provision.
Lisa Crossley represented Mr. Speidel at his parole board hearing as well as a previous unsuccessful application for parole by exception, before he was eligible for a regular parole review. “We are so relieved that the Board has finally recognized that Mr. Speidel does not pose a risk to the community. It shouldn’t have taken this long,” said Lisa Crossley.
Media contact:
Lisa Crossley, Staff Lawyer
lcrossley@pls-bc.ca
604-636-0470
Geneva – Today, Dene lawyer Jennifer Duncan is in Geneva leading up to Canada’s 4th Universal Periodic Review (UPR) Pre-Session to draw international attention to Canada’s continued mass incarceration of Indigenous people. Jennifer Duncan is voicing the calls of the BC First Nations Justice Council (BCFNJC), the BC Assembly of First Nations (BCAFN), the Union of BC Indian Chiefs (UBCIC) and Prisoners’ Legal Services (PLS) for an end to the mass incarceration of Indigenous people as part of the United Nations’ review of Canada’s human rights record.
Indigenous people represent 5% of the population in Canada but 32% of people in federal prisons. Half of all women in federal prisons are Indigenous. Indigenous people also spend more of their sentences in custody and are disproportionately exposed to the most punishing and damaging aspects of prison, including solitary confinement, and are over-represented in self-harm injuries and deaths by suicide in prison. Legal provisions that would allow Indigenous people to serve their sentences in Indigenous communities are under-funded and rarely used.
The UPR allows United Nations member states to review the human rights records of their peers. Canada’s UPR pre-session is on August 31, 2023, in advance of the review in Geneva in November 2023 at the meeting of the United Nations Human Rights Council.
The BCFNJC, BCAFN, UBCIC and PLS call on Canada to redirect one third of Correctional Service Canada’s approximately $3 billion annual budget – or $1 billion annually – to Indigenous governments and organizations to decarcerate Indigenous people in a manner consistent with the United NationsDeclaration on the Rights of Indigenous Peoples.
Kory Wilson, Chair of the BCFNJC states, “The status quo is untenable. Study after study, commission after commission – the conclusions are the same: the Canadian justice system is failing our people at every turn. The BC First Nations Justice Council asserts, in no uncertain terms, that the mass incarceration of our people is a human rights crisis. We ask that all levels of government engage in work that will ensure systemic change, advance our First Nations Justice Strategy and to see Indigenous communities, Elders, children, and families thriving in peace and security, their dignity and well-being supported by a trusted and representative justice system grounded in traditional knowledge.”
BCAFN Regional Chief Terry Teegee states, “The Canadian criminal justice system is a colonial institution designed to extinguish First Nations peoples and our inherent rights. This framework continues to create and maintain violence against our communities. The over-incarceration and well-documented mistreatment of First Nations individuals in custody are pervasive issues, and must be urgently addressed at all levels of government. In alignment with the United Nations Declaration on the Rights of Indigenous Peoples, Canada must work with First Nations to support self-determined approaches to wellness, community safety, and justice. Support from the international community is essential to holding the Canadian government to account for its oppressive and discriminatory treatment of Indigenous Peoples. Together, we can work towards a future where equity, respect, and dignity prevail for all.”
UBCIC Grand Chief Stewart Phillip said: “Canada’s archaic and racist prison system is guilty of genocide by the Convention on the Prevention and Punishment of the Crime of Genocide which came into force at the UN in 1951; the year we were legally allowed to potlach again. Canada has yet to be held accountable for committing genocide against Indigenous peoples in Canada and the Canadian government are so far behind in human rights, that they continually pour money into decrepit buildings and train people to enforce inhumane and barbaric forms of punishment and don’t bat an eye. Ahead of Canada’s review, we will be watching, and we will be working together to ensure that our inherent and human Indigenous rights are respected in Canadian-owned and operated prisons.”
Jennifer Metcalfe, Executive Director of PLS said: “We have heard countless stories of warehousing and abuse of Indigenous people in prison. Our client Joey Toutsaint, a member of the Black Lake Denesuline First Nation, was held for more than 2,180 days in solitary confinement and has reported that prison officers have repeatedly encouraged him to kill himself. The solution cannot be to invest more money in Correctional Service Canada prisons and initiatives, but to recognize Indigenous self-determination and redirect funding and authority to Indigenous governments and organizations to address violence and harm.”
[Warning, this post includes graphic violence that may be disturbing to some readers/viewers.]
Unceded Coast Salish Territories (Burnaby, British Columbia) – Today, Nicholas Dinardo, a Two-Spirit Indigenous person in federal custody, makes public a video of Correctional Service Canada (CSC) officers breaking their arm in an excessive use of force. You can watch the video here (there is no audio to the video):
Mx. Dinardo obtained this and other use of force videos after filing Privacy Act requests for them, and taking CSC to Federal Court when they failed to release them well after the expiry of legislative time limits.
The video depicts an incident from May 30, 2021 at Port-Cartier Institution, where guards broke Mx. Dinardo’s arm by twisting it violently behind their back, after kicking and pushing them into their cell. Mx. Dinardo did not receive an X-ray until several days after this incident, which confirmed their arm was broken. CSC’s own internal review of this incident characterized this force as unnecessary and disproportionate. CSC Commissioner Anne Kelly has convened a National Board of Investigation to investigate this incident.
Throughout Mx. Dinardo’s imprisonment, CSC officers have repeatedly used force against them. Mx. Dinardo has been attempting to obtain the videos depicting these incidents for years, placing their first Privacy Act request for use of force records in December 2019. In September 2022, they filed lawsuits in Federal Court to force CSC to grant access to their personal information, arguing that CSC’s delays and refusals have violated their rights under the Privacy Act and the Charter.
Mx. Dinardo has also filed two human rights complaints against CSC for discriminating against them on the basis of their Indigenous identity, gender identity, religion, and mental disability. These complaints are ongoing.
Mx. Dinardo says: “I am relieved to finally have these videos so the world can see the violence and injustice I have experienced in prison. But the struggle is far from over. CSC has only released a fraction of the records I requested and am entitled to. Our court case continues.”
Jennifer Metcalfe, Executive Director of Prisoners’ Legal Services, says: “Access to information and videos regarding the government’s use of violence against people in prison is essential if we are going to have a prison system based on transparency and accountability. These rare glimpses of state violence behind prison walls should outrage the public.”
Mx. Dinardo is represented in their Federal Court litigation by Adam Goldenberg and Connor Bildfell of McCarthy Tétrault LLP and Jessica Magonet of Prisoners’ Legal Services.
You can read more about Mx. Dinardo’s Privacy Act case and human rights complaints here:
