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.”
Prisoners’ Legal Services is looking for passionate, problem solving, empathetic and dedicated advocates for the rights of people in prison.
We are a small non-profit society providing legal services to people in federal and provincial prison in the province of British Columbia.
The legal advocate position involves providing advocacy regarding prison legal issues involving liberty rights, health care and human rights. This work is primarily done by telephone, fax and email. Advocacy on behalf of people in prison may involve summary advice, informal advocacy, providing written submissions and personal representation at tribunals.
Legal advocates have conduct of client files and are responsible for ensuring day-to-day tasks are scheduled and performed within relevant timeframes. The job involves reviewing and determining the legal merit of cases and determining the level of service to be provided. Legal advocates work under the supervision of a lawyer.
Legal advocates have a great deal of contact with people in prison, prison administrators and parole authorities.
This position may require frequent travel to prisons in the Lower Mainland and Fraser Valley. Access to a vehicle is essential. A CPIC clearance is required to visit prisons.
Basic Qualifications:
Post-secondary education in Law, Criminology, Social Work, Paralegal training or equivalent;
Strong verbal, written and interviewing skills; and
Experience in a legal environment or advocacy an asset.
Skills and Abilities
ability to be a strong advocate for disadvantaged clients, including those with low income, those with mental health disabilities, and those whose first language is not English;
ability to work well with others in a team setting;
ability to negotiate and find creative solutions to prisoners’ legal problems;
ability to exercise excellent judgment in matters of ethics and confidentiality;
ability to identify systemic issues and think strategically;
must have excellent communication and interpersonal skills, in particular in dealing with people in prison, lawyers, and prison and parole officials;
must be familiar with general software applications (e.g. MS Word, Outlook);
must be willing and prepared to assist those convicted of various crimes in a non-judgmental way; and
second language or demonstrated awareness of the cultural diversity an asset.
Salary: $60,975 (two and a half-year term with possibility of renewal) Closing date: September 1, 2023 Start date: ASAP
Interested applicants should submit a covering letter and résumé outlining how their qualifications meet the position requirements to:
We are committed to upholding the values of equity, diversity and inclusion and we welcome and encourage applications from members of groups who experience barriers to equity.
[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:
$1 billion represents the approximate amount of money CSC spends incarcerating Indigenous people each year, who represent 32% of people in federal prison. CSC’s annual budget is roughly $3 billion.
Decarceration through Self-Determination arrives at its recommendations through centring the voices of Indigenous people in prison, who are disproportionately warehoused in high levels of security, subjected to solitary confinement and uses of force, and prevented from accessing Indigenous-run healing lodges due to CSC’s racist security classification policies and risk assessments. The report also shines a light on the abuse of Indigenous people in prison, whose experiences are comparable to the treatment of Indigenous children in residential schools.
Among the report’s 18 recommendations, Prisoners’ Legal Services calls on Canada to end its delegation of powers to CSC to negotiate and set parameters on Indigenous-run alternatives to prison under s 81 of the Corrections and Conditional Release Act. Instead, it calls on Canada to fund Indigenous governments and organizations who wish to provide alternatives to prison, based on respect for the right to self-determination. The report highlights some of the inspiring work already being done by Indigenous governments and organizations who provide support to Indigenous people involved in the criminal legal system.
“The mass incarceration of Indigenous people in Canada violates domestic law, and international law against torture and colonial genocide. If Canada wants to honour Truth and Reconciliation, it must put an end to this practice, and implement real change by shifting funding priorities and respecting Indigenous law,” said Jennifer Metcalfe, executive director of Prisoners’ Legal Services, who is a white settler living and working on the unceded land of the Musqueam, Squamish, Tsleil-Waututh and Qayqayt Nations.
“Indigenous Peoples have always had systems of government, law and dispute resolution that, before colonization, worked to maintain a unified, respectful and just society. Indigenous people affected by prisons, Elders, and Indigenous governments and organizations doing this important justice and reintegration work know what is effective to repair harm in their communities,” said Karly Morgan, legal advocate at Prisoners’ Legal Services, who is a member of the Haida Nation.
Unceded Coast Salish Territories (Burnaby, British Columbia) – Today, Prisoners’ Legal Services (PLS) filed a human rights complaint on behalf of Fallon Aubee, a transgender Indigenous woman, against Correctional Service Canada (CSC).
Ms. Aubee is a residential school survivor who is currently incarcerated at Fraser Valley Institution for Women. She previously spent sixteen years in institutions designated for men, where she experienced physical violence, harassment, and sexual violence due to her gender identity.
Finally being able to live with other women has been very important for Ms. Aubee. However, CSC still refuses to recognize her gender identity in its electronic systems because she has not had gender-affirming genital surgery. The Offender Management System (OMS) and her electronic medical records continue to categorize her sex as “male.”
Ms. Aubee is challenging a CSC policy called Commissioner’s Directive 100 – Gender Diverse Offenders which states that an individual’s “sex” will be solely determined “by their current genitalia.” The policy further states that a person’s “sex code in OMS will not change unless the offender undergoes gender-affirming surgery involving a change to their genitalia.” The OMS database is available to a large portion of CSC’s approximately 18,000 staff members. Many other agencies also have access to OMS.
While Ms. Aubee has been cleared for gender-affirming surgery, she has a heart condition that could impact her ability to proceed with it, especially given the long wait-times for surgery. She has changed the gender marker on her birth certificate and undergone a legal name change, but continues to be classified as “male” by CSC.
Ms. Aubee states: “Seeing CSC continue to classify me as ‘male’ makes me feel like they are erasing my identity as a woman. Those four letters are a constant reminder that CSC does not view me as an equal to other women. Classifying me as ‘male’ also violates my privacy and dignity, since it reveals intimate details about my body in a very public way. I am challenging this policy not just for myself but for all transgender people in CSC custody.”
Nicole Kief, legal advocate for Ms. Aubee, states: “CSC’s policy relies on the incorrect idea that trans women who have not had gender-affirming surgery are not ‘real’ women. The view that trans people are always – or should be – progressing toward surgery is based on outdated theories of gender that pathologized and stigmatized transgender people. The policy undermines the dignity of trans people and puts their safety at risk by ‘outing’ them as trans.”
Emilie Coyle, Executive Director of the Canadian Association of Elizabeth Fry Societies, states: “The human rights of trans people were enshrined in our laws because there was a recognition that they must be protected. Ms. Aubee’s complaint helps us to understand how we can improve our practices to protect the rights of trans people who are incarcerated. Wherever we can evolve to better respect the dignity and humanity of some, the safer the world becomes for everyone. Ms. Aubee’s fight for dignity is a fight for the dignity of everyone.”
A copy of Ms. Aubee’s complaint can be found here.
Media Contacts:
Jessica Magonet
Staff Lawyer at Prisoners’ Legal Services
jmagonet@pls-bc.ca
604-636-0470
Nicole Kief
Legal Advocate at Prisoners’ Legal Services
nkief@pls-bc.ca
604-636-0470
Emilie Coyle
Executive Director at the Canadian Association of Elizabeth Fry Societies (CAEFS)
ecoyle@caefs.ca
613-316-6785
Ottawa, ON (unceded Algonquin Anishnaabeg Territory) – Today, Joey Toutsaint, an Indigenous person in federal custody, asked the Supreme Court of Canada to hear his case about unethical health care in prisons.
Mr. Toutsaint has been in federal prison for most of his adult life and has spent more than 2,000 days in segregation. In March 2019, a nurse went to Mr. Toutsaint’s cell door to give him medication, and when she refused to show him the empty medication packet, he swore at her and threatened to self-harm. The nurse then initiated a disciplinary charge against him, which could have resulted in up to thirty days of segregation as a penalty.
Mr. Toutsaint made a complaint to the Saskatchewan Registered Nurses’ Association (SNRA), arguing that the nurse violated her ethical duties to act in the best interest of her patient and to not participate in punitive measures. The SRNA dismissed the complaint without addressing the core health ethics questions it raised about the nurse’s role as a disciplinarian. The Saskatchewan Court of Queen’s Bench and Court of Appeal both dismissed Mr. Toutsaint’s case. He is now asking the Supreme Court of Canada to hear his appeal.
Mr. Toutsaint states: “Everyone, including people in prison, deserves respectful and ethical health care. How can I trust my health care providers if they are involved in punishing me?”
Pierre Hawkins, counsel for Mr. Toutsaint, states: “People in federal prisons are excluded from universal health care. Instead, their health care is provided by Correctional Service Canada, the same agency that incarcerates them. Given the dual loyalties of prison health care providers, people in prison face a unique and serious risk of receiving unethical health care.”
Dr. Martha Paynter, Assistant Professor of Nursing at the University of New Brunswick and the Director of Research for Wellness Within, states: “As nurses, we have an ethical duty to put our patients’ interests first. We must recognize the inherent harm of prison environments, the extreme stress prisoners experience, and do everything in our power to alleviate patient suffering and promote wellbeing. In general, nursing school curricula inadequately address the danger of dual loyalty in prison workplaces, and nurses are underinformed about their ethical obligations in these spaces. This case is an important teaching moment for the profession.”
Dr. Ruth Elwood Martin, Clinical Professor Emerita in the Faculty of Medicine at the University of British Columbia, states: “Health care providers working in prisons need support to provide trauma-informed, culturally safe and ethical care. And, as this case shows, health care regulators must not abdicate their duty to address important questions about health care ethics in prisons.”
Jessica Magonet, counsel for Mr. Toutsaint, states: “This case demonstrates the critical need for health services in prisons to be administered independently by health authorities. As long as prisons are in charge of health care, professional independence and ethics will be compromised.”
Mr. Toutsaint is represented in this litigation by Pierre Hawkins of the John Howard Society of Saskatchewan and Jessica Magonet of Prisoners’ Legal Services.
You can read Mr. Toutsaint’s leave application here.
Media Contacts: • Jessica Magonet, counsel for Mr. Toutsaint, at jmagonet@pls-bc.ca or 604-636-0470 • Pierre Hawkins, counsel for Mr. Toutsaint, at phawkins@sk.johnhoward.ca or 306-551-5605 • Martha Paynter, Assistant Professor of Nursing at the University of New Brunswick and the Director of Research for Wellness Within, at martha.paynter@gmail.com or 902-292-7082
