«Lawrence J. Barkwell, David N. Gray, Manitoba Department of Justice, Manitoba Métis Federation, 77A Redwood Avenue, 408 McGregor Street, Winnipeg, ...»
• 34.8 of those with mixed custody dispositions; and • 38.0% of those receiving open custody.
Métis admissions to open custody since the implementation of the Young Offenders Act (1984-1987) exceed all non-Native admissions and Treaty Indian admissions when compared individually. Métis youth are also severely affected by mixed custody admissions (34.8% vs 17.4% for Treaty Indians, and 47.8% for non-Native). The percentage of Métis admissions to secure 128 Barkwell/Gray/Chartrand/Longclaws/Richard custody is only 8.7% less than the percentage of all non-Native admissions.
As one moves from diversion from court to more secure custodial sentences, Métis youths are more severely impacted.
Métis children are committed to youth institutions at twice the rate they are diverted from court. This is true for Native youth in general but nowhere are they more unfairly treated than in the pre-court process. In 1989, a survey by the Native Caucus of Probation Officers revealed that the remand cottages of the Manitoba Youth
Centre were basically full of Native youths:
• 92.8% of the girls held on remand were Native; and • 47.0% of the boys held on remand were Native.
A large number of secure and open custody beds are at the
Manitoba Youth Centre. The survey revealed:
• 87.5% of the girls and 55.5% of the boys held in the open case custody units of the Manitoba Youth Centre were Native; and • 100% of the girls held in secure custody at the Manitoba Youth Centre were Native.
There is good evidence that it is considered acceptable by correctional authorities to treat devalued people in a substandard fashion. Recently in Manitoba there were as many as 26 youths held in cottages designed to hold 15. This exceeds the Canadian Criminal Justice Association standards for minimum cell size by so Devalued People 129 much as to make a mockery of the standards. We believe that it is only because Native youths are without strong advocacy that this situation has not been brought to public attention and has been allowed to continue over the years. We believe that the effect of this overcrowding is a reinforcement of the devaluation. These youths can be clearly identified as a group that is primarily Native, and this situation has, we reiterate, the effect of devaluing these people as individuals. There is also a widespread belief - in both the Aboriginal and non-Aboriginal communities - that if the majority of those locked up were from a white, middle class family background the overcrowding would not be allowed to continue.
In Manitoba, and indeed across the country, there is great variation in designating open custody facilities. Of the 14 open custody homes throughout Manitoba, five are operated by Aboriginal families, two in Thompson, one in Gods Lake Narrows, and two in Winnipeg (normally licensed for two beds each). At the other extreme, four cottages within the grounds of the Manitoba Youth Centre and one cottage within the grounds of Agassiz Centre for Youth are designated as places of open custody.
There also appears to be considerable variation in the use of custody facilities. Recent Statistics Canada figures show that while Saskatchewan has only three juvenile girls serving custody sentences, Manitoba has 16 (almost all Aboriginal) in custody institutions, yet the two provinces have similar population bases and demographics.
In the case of the Manitoba Youth Centre, an appeal of an open custody disposition resulted in that designation being overturned in Re F v the Queen et al (1984).4 Subsequently, after some juggling of placements by the province, the Court of Appeal5 suggested that the Lieutenant-Governor in Council has authority to define what constitutes open custody, as long as the definition falls within one of the generic descriptions of the Young Offenders Act. As a result, the characteristics of a custodial sentence received by a youth may vary more according to where the youth lives than on the basis of the offence for which he or she has been convicted (Caputo & Bracken, 1988). Open custody placement is mostly dependent upon availability of governmental and non-governmental resources in a particular community and, further, a youth is more likely to receive culturally appropriate services if he or she is fortunate enough to be placed in an open custody home in the community.
The Native Caucus of Probation Officers (1989) assessed institutional programming for Aboriginal youth as inadequate and 130 Barkwell/Gray/Chartrand/Longclaws/Richard piecemeal, inadequately linked to the community, and providing education which is below community standards, all within a context in which there are few, if any, Native persons as staff.
The concerns of the Native Probation Caucus are borne out by a report of the Ombudsman of Manitoba to the Manitoba Legislature. He documented the following criticisms of youth
custody programming (1989:37-40):
1. The "Positive Peer Culture" program at Agassiz Youth Centre is geared to adolescents, yet approximately 30% of the population at the Centre is over of 18 years of age.
2. Given the diverse cultural backgrounds of the residents (high Métis and Indian), he questioned whether the program could meet the variable needs of the residents.
3. The Ombudsman questioned the use of quiet rooms and containment at Agassiz.
4. The report noted that the optimum Positive Peer Culture group size is 9 residents and one staff, whereas at Agassiz the ratio ranged from 13:1 to 15:1.
5. The report called for program review to determine the effectiveness and quality of the program being delivered.
6. The Ombudsman commented that the Agassiz school program was not affiliated with the local school division and appeared to be operating with a much lower budget than a public school.
The available resource materials and teaching aids were not comparable to those of a public school.
7. The Ombudsman expressed the opinion that the living units at Agassiz required maintenance and upgrading, and recommended that the Fire Commissioner's Office inspect the facility to ensure compliance with safety standards.
Métis parents have told researchers (University of Manitoba Research, Ltd, 1989) that they feel pressured to provide clothing for their children after the youths are committed to custody sentences, even though the parents' welfare issue is reduced after the youth is placed away from home. Youths report to MMF that they are required to purchase clothing and some toiletry articles out of allowances or earnings while serving their sentence. The alternative is to wear used institutional clothes (including used underwear).
Youths also complain that when their clothes are stolen or disappear, the institutions claim they can't guarantee security of personal possessions and the youths must replace these items themselves.
Devalued People 131 Youths also note that the institutions do not pay for phone calls to family or social workers, and they must either phone collect or pay for the calls at pay phones. It is clear that Aboriginal youth would be better served if large secure institutions had never been designated as places of open custody, and if there had been more dispersal of open custody beds by way of designation of open custody homes throughout the province.
The argument that these conditions apply to all youth, and thus race is not a factor, simply does not reflect the reality of the situation. First, as we have documented, there is a large overrepresentation of Aboriginal offenders in the justice system.
Second, the economic station of those affected makes the measures more drastic to most of the Aboriginal youth. This leads to the logical conclusion that the function, if not the purpose, of these rules and policies, is to further the devaluation process.
We note as well that a high proportion of the youths so jailed are entirely removed from their communities, which are in some instances 600 or more miles away. They are then placed in a restrictive and culturally foreign environment. They are placed in "open custody", which in fact is a very secure jail. All of these factors lead to greater, not to lesser, devaluation, and thus not be considered rehabilitative in any sense.
Métis youth and the system in general would have been much better served if the Department of the Attorney General of Manitoba (now the Department of Justice) had acted on the advice given by its own Research, Planning & Evaluation Branch (Latimer, 1986);
a) Too many young people become too involved in the criminal justice system for relatively minor offences.
b) The criminal justice process in Youth Court is markedly slower and more intrusive than in Adult Court.
c) Provisions in the Young Offenders Act intended to protect the rights of young accused are not being applied (eg.
Section 30, Review Board provisions).
d) Custodial rates under the new legislative regime have increased; the consistency of the application and intent of the provisions must be ensured.
Research done for the Manitoba Métis Federation (Manitoba Métis Federation Justice Committee, 1989) reveals that alternative 132 Barkwell/Gray/Chartrand/Longclaws/Richard measures are less frequently used for Métis youth than for others.
There is also provision in the Young Offenders Act, under Section 3(d), for no measures to be taken against youth for minor infractions and this Section is not being used at all.
The Manitoba Métis Federation submission to the Aboriginal Justice Inquiry (1989) documented the high custody rates for Métis youth and the lack of implementation of the legislative intent of open custody. The submission noted that provisions for intermittent sentences under the Young Offenders Act have never been implemented for youths in Manitoba. However, given current practice, they were of the opinion that intermittent sentencing would only widen the net for catching Métis youths.
Adults For adults in the provincial correctional system, the picture is
similar, as can be seen in Table 3:
Métis adults constitute:
• 13.19% of those on probation;
• 12.60% of adult jail admissions; and
• Although no remand figures are available, we believe that they parallel the youth experience
Institution and the Winnipeg Remand Centre do not fund, nor directly provide programs or services, exclusively for Native inmates. The mechanisms in place for the resolution of inmate complaints are infrequently used by Native inmates throughout the adult correctional systems. On the other hand, there appears to be a higher representation of Natives involved in disciplinary hearings compared to non-Native inmates. Correctional officials also report that Native inmates at the pre-trial stage are less likely to receive bail or to apply for bail under the current system (Attorney-General of Manitoba, Report to the Aboriginal Justice Inquiry, April, 1989).
These trends for the incarceration of Métis people are cause for grave concern. There is evidence that these problems will get much worse before they get better. The non-Native population of Manitoba, unlike the Native population, has experienced a declining birth rate and if the incarceration rates for Aboriginal adults (Métis and other Natives) follow what we are now seeing in youth corrections "the demographic changes alone would cause Native admissions to rise to about 80% of all admissions, while the absolute number of non-Native admissions could actually decline" (Hylton, 1981). Of particular concern is that 80% of the provincial corrections budget is spent on locking up people, a practice that seems to be disproportionately reserved for Aboriginal people.
Research indicates that each year the corrections allocation budget differs from actual expenditures by some $2 million.
Expenditures always come in higher, because the department obtains spending warrants during the fiscal year to cover cost overruns in institutions. This fact is only revealed if one closely examines the Public Accounts of the Province of Manitoba. The government agreement with Manitoba Government Employees Association requires them to put more staff on the floor at institutions as the inmate population rises. The same is not true for community caseload increases or for increased needs for open custody homes in the community.
The community based workers we interviewed deplored this policy as it skews the system to favour institutional dispositions while holding community expenditures down, in the face of rising demand. It is known that recidivism will increase as probation caseloads rise and less differential programming and supervision is available.
It is apparent that other major interest groups, such as government employees, are given a seat at the decision table, while at the same time the group most drastically affected are not even consulted. Indeed, many in the system believe their views to be 134 Barkwell/Gray/Chartrand/Longclaws/Richard inconsequential! In the words of the famous Métis rights activist Malcolm Norris, "To be ignored is more vicious perhaps than to be oppressed" (Dobbin, 1981:231). While the trends of increasing incarceration for Métis youth and adults are clearly documented within the correctional system, the Manitoba Métis Federation has never been provided with the data, nor consulted about the causes of the trends or possible methods of reversal.
It is instructive to note the degree to which this lack of community consultation and lack of resource development effects adult admission to custody for bail and probation violations. The
Solicitor General (1985:17) reported that in 1980 to 1982:
imposed by others, labelling as failure by the system, and meaningless dispositions), not only are Aboriginal people less devalued, but the success rate is in fact higher than the norm! It is noteworthy that Nova Scotia does not have such programming and Recommendation 17 of the Royal Commission on the Donald Marshall Jr. Prosecution was: "We recommend that the Government immediately proclaim the Alternative Penalty Act, S.N.S. 1989, c.2..." (1989).