February 28, 2017
Hon. Marie France Lalonde
Ministry of Community Safety and Correctional Services
18th Floor, George Drew Building
25 Grosvenor Street
Toronto, Ontario M7A 1Y6
Dear Minister Lalonde,
Thank you for providing me with the opportunity to tour and speak with management, staff and prisoners at the Kenora Jail. As you may know, I was accompanied by part-time Commissioner Maurice Switzer, who is a citizen of the Mississaugas of Alderville First Nation.
I am writing today to provide you with a summary of what we learned. There are some issues that appear unique to the Kenora Jail that raise human rights concerns and warrant further consideration and action on the part of the Ministry of Community Safety and Correctional Services (MCSCS). I look forward to discussing these issues further at our upcoming meeting scheduled for early March.
Truth and Reconciliation Commission Calls to Action and Ontario Human Rights Commission Strategic Plan
The Ontario Human Rights Commission’s (OHRC) findings about the Kenora Jail must be understood in light of the following Truth and Reconciliation Commission (TRC) Calls to Actions:
30. We call upon federal, provincial, and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade, and to issue detailed annual reports that monitor and evaluate progress in doing so.
31. We call upon the federal, provincial, and territorial governments to provide sufficient and stable funding to implement and evaluate community sanctions that will provide realistic alternatives to imprisonment for Aboriginal offenders and respond to the underlying causes of offending.
34. We call upon the governments of Canada, the provinces, and territories to undertake reforms to the criminal justice system to better address the needs of offenders with Fetal Alcohol Spectrum Disorder (FASD), including:
iii. Providing community, correctional, and parole resources to maximize the ability of people with FASD to live in the community.
36. We call upon the federal, provincial, and territorial governments to work with Aboriginal communities to provide culturally relevant services
to inmates on issues such as substance abuse, family and domestic violence, and overcoming the experience of having been sexually abused.
Consistent with the TRC Calls to Action, the OHRC’s Strategic Plan 2017-2023 includes a focus on reconciliation, criminal justice, poverty, and education. We have made specific commitments to foster greater understanding of the impact of colonialism on Indigenous people, pursue accountability for systemic discrimination against Indigenous people, and address discriminatory practices in provincial corrections. Our visit to the Kenora Jail took place in this context.
Accommodation of Indigenous Spiritual and Cultural Needs
Prisoners at the Kenora Jail are a particularly vulnerable group. Management confirmed that over 90% of the prisoners at the jail identify as First Nations, many of them come from remote communities in Northern Ontario, and that for some English is not their first language. This creates unique challenges in terms of accommodating prisoners’ cultural and spiritual needs.
As described in the OHRC’s Policy on Preventing Discrimination based on Creed, the Ontario Human Rights Code (Code) requires that provincial correctional services accommodate Indigenous peoples’ spiritual beliefs and customary practices, including ceremonies and sacred customs. Failure to accommodate a person’s Indigenous spiritual belief or practice in a timely and appropriate way may be discriminatory under the Code.
Provincial jails also have an obligation to design services to be inclusive of prisoners who wish to practice their Indigenous spirituality or culture. This should include ensuring that staff have the necessary cultural competency skills to recognize and meet the creed-related needs of Indigenous peoples.
Despite these rights, there appears to be limited capacity to meet the spiritual and cultural needs of prisoners at the Kenora Jail. Most MCSCS staff that provide programming to prisoners, such as the chaplain, nurse, social worker, and rehabilitation officer do not identify as First Nations. There is only one Native Inmate Liaison Officer assigned to the jail: an Elder who speaks an Indigenous language and is employed by the Ne-Chee Friendship Centre. The Drug Education and Living (DEAL) program worker, who is also employed by the Ne-Chee Friendship Centre, identifies as Métis but does not speak an Indigenous language. Of the approximately 59 correctional officers employed at the facility, somewhere between 2 and 5 identify as Indigenous.
Every prisoner we spoke to at the Kenora Jail complained about irregular and insufficient access to cultural and spiritual programming and limited access to outdoor space for traditional ceremonies. We heard that programming offered by the NILO did not include smudging. One prisoner told us that access to spiritual programming was considered by management to be a privilege rather than a right.
The Kenora Jail and other correctional institutions with a high percentage of First Nations prisoners (such as the Thunder Bay Jail) would benefit from MCSCS’ support to develop a comprehensive strategy to prevent and address creed-related human rights issues.
This strategy should make sure that employment practices do not present discriminatory barriers with respect to recruiting and/or retaining Indigenous persons with the necessary skills to effectively and equally serve Indigenous prisoners. It should also consider physical infrastructure that is more conducive to Indigenous culture and spirituality.
In this regard, the design of the Meno Ya Win Health Centre in Sioux Lookout, which we also visited, is an inspiring model of inclusive design to meet the needs of Indigenous peoples.
Accommodation of persons with disabilities
The availability of health care resources, including psychiatric treatment, therapeutic support, and targeted programming, appears inadequate to meet the complex needs of the prison population at the Kenora Jail.
In my meeting with management and staff, the DEAL program worker and nursing manager advised that all of the prisoners currently housed at the Kenora Jail have either mental health disabilities, intellectual disabilities (including and especially fetal alcohol spectrum disorder (FASD)) and/or addiction-related issues. This presents a unique challenge that, again, likely requires a proactive approach to ensure that Code obligations to accommodate disabilities to the point of undue hardship are met.
For example, the jail does not have a full-time doctor or psychiatrist on staff. Instead, a psychiatrist visits twice per month, a community-based psychiatrist can be brought in “as needed”, and psychiatrists from the Royal Ottawa Mental Health Centre and other medical specialists can be consulted through remote access systems. This would appear insufficient on its face to meet the unique and individualized needs of over 175 prisoners, the majority of whom are Indigenous and would likely benefit from specialized community-based services. Indeed, given the population, MCSCS might consider developing a more therapeutic correctional model at the Kenora Jail.
Finally, management could only recall a couple of instances where prisoners were transferred from the Kenora Jail to the St. Lawrence Valley Correctional and Treatment Centre to obtain intensive treatment. They noted that the strict admission criteria and geographic location posed a barrier to such transfers.
Family and Community Disruption
Prisoners at the Kenora Jail face particular challenges in terms of ensuring family and community contact. First, many families cannot afford to travel to Kenora, especially if they are from a remote or fly-in community. Second, collect calls are often prohibitively expensive for families (costing hundreds or thousands of dollars per month) and rely on the family members having a land line (which is becoming less common). Third, there are no facilities for family contact visits, even if the prisoner has young children. Finally, upon release, prisoners may not be able to arrange for transportation back to their community and/or may not be accepted back onto their reserve due to stigma. These were concerns raised both by prisoners as well as community and family members we spoke to in the region.
Of course, while many of these issues are common across the provincial corrections system, they have a particularly negative impact on Indigenous prisoners and must be understood in the context of other colonial practices that have eroded First Nations peoples’ community and family bonds (i.e. residential schools, the 60s Scoop, and the over-representation of Indigenous children in state care). In reality, criminalization and imprisonment in a jail far removed from an Indigenous person’s traditional territory can permanently and irreversibly sever that person’s connection to their family, community and culture. Again, this raises human rights concerns about the disparate impact that pre-trial detention and imprisonment have on Indigenous people who are otherwise presumed innocent.
Bail and Remand
It is worth noting that it appears that many Indigenous prisoners at the Kenora Jail are remanded into custody after being charged with failure to comply with their conditional release order, and not necessarily due to a perceived risk to public safety. Some prisoners told us that they were remanded into custody after breaching bail conditions that required abstention from alcohol or drugs, despite the presence of an addiction.
Therefore, we welcome the Attorney General’s recent announcement to make more supports and supervision available to vulnerable, low-risk individuals who come into contact with law, including the development of a new, culturally-responsive program to provide supports to Indigenous people going through the bail and remand process.
There are 4 "official" segregation cells at the Kenora Jail. At least some of the prisoners housed in segregation appeared to be in serious distress and these cases warrant further attention in light of the Jahn v. MCSCS settlement requirements.
According to statistics received from MCSCS in August 2016, the jail has one of the lowest segregation rates in the province (10%). This is likely because management and staff have made considerable efforts to employ creative strategies to house prisoners with high needs in step-down or transitional units that allow gradually reintegration into general population. While we are generally supportive of such efforts, all prisoners that are not housed in general population must be considered “segregated” for legal and administrative purposes and benefit from the reviews and oversight afforded to those
Over-Crowding and Lockdowns
We understand that the Kenora Jail suffers from issues endemic across provincial corrections, namely, over-crowding, staff shortages, and related lockdowns. The jail was over-capacity on the day we visited, and staff advised that staff shortages and over-crowding are more acute in the summer months. In our letter dated August 3, 2016 to then-Minister Orazietti, we outlined our concerns in relation to over-crowding and the negative impact it can have on vulnerable prisoners.
Consistent with our mandate to report on the state of human rights in the province, and in the interest of transparency and accountability, we may make the contents of this letter public.
Thank you once again for providing me with the opportunity to visit the Kenora Jail.
Renu Mandhane, B.A., J.D., LL.M.
Ontario Human Rights Commission
cc: Honourable Minister Yasir Naqvi, Attorney General
Honourable Minister Dr. Eric Hoskins, Minister of Health
Grand Chief Alvin Fiddler, Nishnawbe Aski Nation
Grand Chief Francis Kavanaugh, Treaty #3
Chief Isadore Day, Chiefs of Ontario
Sylvia Maracle, Executive Director, Ontario Federation of Indigenous Friendship Centres
Howard Sapers, Independent Reviewer, MCSCS Correctional Transformation
Paul Dubé, Ombudsman
Patti Fairfield, Executive Director, Ne-Chee Friendship Centre