November 24, 2017 Ravi Kahlon, MLA Parliamentary Secretary for Multiculturalism & Sport Parliament Buildings Victoria, BC V8V 1X4 Email to: BCHumanRights@gov.bc.ca Dear Mr. Kahlon, Parliamentary Secretary of Multiculturalism and Sport Re: BC Aboriginal Justice Council Submission to Re-establish the Human Rights Commission for British Columbia The BC Aboriginal Justice Council (BCAJC) appreciates this opportunity to provide a written submission regarding the issue of re-establishing a BC Human Rights Commission (BC HRC). Thank you for the extension of the deadline for one week to accommodate the BCAJC submission. The BCAJC is a collaborative Indigenous council comprised of members appointed by the Native Courtworker and Counselling Association of British Columbia (NCCABC), the British Columbia Assembly of First Nations (BCAFN), the First Nations Summit (FNS) and the Union of British Columbia Indian Chiefs (UBCIC). The Council is focused on issues that Indigenous people face in navigating the justice system in British Columbia. As set out in our Terms of Reference, which has been endorsed by the First Nations in British Columbia 1, the BCAJC aims to address key issues and concerns that Indigenous people face with the justice system in British Columbia by examining and challenging approaches that contribute to the dual crisis of overrepresentation of Indigenous children and youth in government care, and the number of Indigenous men and women incarcerated. The BCAJC will productively engage with the government to advance effective strategies that can achieve better outcomes for our people in the justice system. 1 BCAFN Resolution 05(e)/2014; UBCIC Resolution 2015-02; FNS Resolution #0215.09; NCCABC Motion #143-01 1 // BC ABORIGINAL JUSTICE COUNCIL SUBMISSION
On September 7, 2017, the BCAJC and the Province of British Columbia signed a Memorandum of Understanding regarding the development of an Indigenous Justice Strategy with a focus on: 1. Reconciliation with Indigenous peoples; 2. Decreasing the overrepresentation of Indigenous peoples in the justice system; 3. Improving the experience of Indigenous people within the justice system; 4. Addressing violence against Indigenous peoples especially women and girls; 5. Engagement with Indigenous communities and organizations in a respectful and culturally appropriate manner; 6. Improving access to justice and justice services for Indigenous peoples; and 7. Designing services that provide Indigenous people with culturally relevant, flexible and userfocused processes. The BCAJC is currently working with the Ministry of Attorney General and the Ministry of Public Safety & Solicitor General to build a strategic action plan to inform the process for developing an Indigenous Justice Strategy. Priority Areas for the BC Aboriginal Justice Council as they relate to the BC HRC The BCAJC submits that there are consistent and ongoing infringements on the human rights of Indigenous peoples in BC. Two key areas where this is apparent are: Access to Justice for Children and Families; and Implementing Gladue Principles. Access to Justice for Children, Youth and Families Indigenous families experience widespread systemic discrimination and failures in the justice and child welfare systems that lead to a disproportionate number of Indigenous children and youth in care and incarcerated. The considerable barriers that infringe on Indigenous peoples human rights in justice and child welfare include existing mechanisms, policies, procedures and practices that contribute to: the staggering rates of Indigenous children being removed and placed into foster care; the graduation of Indigenous youth from foster care to the penal institutions; 2 // BC ABORIGINAL JUSTICE COUNCIL SUBMISSION
the perpetuation of violence against Indigenous women and girls; and the high rates of Indigenous people as victims of crime. These barriers have created a twenty-first century era of institutionalization of Indigenous people. The BC HRC should make it a priority to work with First Nations, led by the BCAJC, to investigate this systemic discrimination embedded within these systems and develop recommendations for necessary policy, program and legislative changes. Jordan s Principle was created after an Indigenous child died as a result of being denied medical care due to a jurisdictional dispute between Canada and the province of Manitoba over who would pay for the services. Under Jordan s Principle, the child s needs must come first and so the government department of first contact will pay for the service without delay or disruption. The BC HRC should support the full implementation of Jordan s Principle, and promote application of Jordan s Principle to all First Nations children (resident both on and off reserve). Implementing Gladue Decision Principles Not surprisingly, the excessive imprisonment of Aboriginal people is only the tip of the iceberg insofar as the estrangement of the Aboriginal peoples from the Canadian criminal justice system is concerned. Aboriginal people are over represented in virtually all aspects of the system. The Supreme Court of Canada recently noted in R. v. Williams, [1998] 1 S.C.R. 1128 [[1998] 3 C.N.L.R. 257] at para. 58, there is widespread bias against Aboriginal people within Canada, and [t]here is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system. (R. v. Gladue, [1999] 2 C.N.L.R. 252, para. 61) The Criminal Code of Canada was historically amended in 1996 to include for the first time a codification of sentencing principles to guide courts and judges in determining a fit sentence. The Supreme Court of Canada decision in Gladue 2 interpreted for the first time the new provision in s. 718.2(e) regarding the sentencing of Aboriginal offenders and directed that a judge must consider the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts. (para. 66). Gladue reports are personalized histories prepared for Indigenous offenders that outline their circumstances and mitigating factors for the court to consider during sentencing. These reports are intended to address some of the systemic factors that contribute to over representation of Indigenous people who are incarcerated. 2 R. v. Gladue, [1999] 1 SCR 688 3 // BC ABORIGINAL JUSTICE COUNCIL SUBMISSION
There is a chronic failure by our justice system to implement Gladue factors in Canadian courts. The program in British Columbia, as it is, is failing Indigenous people. It is dramatically underfunded and there are not enough trained Gladue writers to meet demand. As a priority, the BC HRC should work with First Nations, led by BCAJC, to develop concrete recommendations to overhaul the Gladue program to ensure that it is adequately funded and that Gladue reports are available to all Indigenous defendants. Observations and Recommendations The BCAJC views the reestablishment of a BC HRC as an important opportunity to act on the commitments made by the province to improve access to justice for Indigenous peoples in British Columbia. Towards this end, the BCAJC has four main areas of observation and related recommendations that the Council would like to raise with you for consideration and inclusion in your report for the Attorney General: 1. Moving beyond a complaint driven model; 2. Addressing systemic discrimination as they relate to human rights; 3. Ensuring formalized recognition for the rights of Indigenous peoples; and 4. Enabling improved cross jurisdictional advocacy. 1. Moving beyond a complaint driven model The BCAJC supports the BC HRC being set up as a commission that goes beyond being complaint-driven. While there will undoubtedly be the continued need to respond to incidents, if done correctly, the reestablishment of the BC HRC has the potential to provide a necessary challenge to the existing structures, programs, and models within our justice system that both overtly and covertly discriminate against Indigenous people and communities. The previous Human Rights Commission in BC, along with many Human Rights Commissions in other jurisdictions, were strictly reactive and only responded to complaints. In order to be effective, the re-established BC HRC must be a proactive body that goes above and beyond a strictly complaint-driven approach to human rights advocacy. There is a need for the BC HRC to engage in the development of programs that are equipped to proactively address issues, including issues relating to the right of access to justice for Indigenous peoples. The BCAJC contends that there are precedents to draw from in other jurisdictions while still acknowledging the need to build programs that are unique to the context in British Columbia. 4 // BC ABORIGINAL JUSTICE COUNCIL SUBMISSION
2. Addressing systemic barriers Indigenous people in British Columbia face systemic discrimination and racism that result in challenges and challenging circumstances in all aspects of life, which may include a higher likelihood of a need for access to justice. The BCAJC is adamant that the BC HRC needs to be equipped and be given the mandate to proactively address systemic discrimination facing Indigenous people and consider how to break down the resulting barriers. Examples from other jurisdictions, such as the Saskatchewan Human Rights Commission Equity Program support the development of plans to address systemic barriers to success. Saskatchewan Human Rights Commission: Equity Program This program offers support to organizations that are developing a plan to identify and address barriers to success for marginalized and minority groups. These plans may only address a specific minority group and, in some cases, that is relating to Indigenous training and/or recruitment. http://saskatchewanhumanrights.ca/ equity-site/policy-on-equity-programs 3. Formalized recognition for the Rights of Indigenous peoples The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the United Nations General Assembly on September 13, 2007, sets out a universal framework of minimum standards for the survival, dignity, well-being and rights of Indigenous peoples around the world. Premier Horgan, in his mandate letter to Attorney General Eby, has committed to fully adopting and implementing UNDRIP. The BCAJC submits there is a need to ensure that the rights of Indigenous peoples are formally recognized in the structures of the BC HRC. Indigenous people face infringements that are uniquely shaped by the history of colonization and persisting systemic failures, which are well documented in numerous reports and studies on Indigenous justice, both in the areas of child and family justice and criminal justice. Embedding recognition for the rights of Indigenous peoples explicitly into systems and structures of the BC HRC needs to be done in a meaningful way and New Zealand Human Rights Commission: Commissioner Appointment Criteria in the Human Rights Act 1993 In recommending persons for appointment as Commissioners... the Minister must have regard to the need for Commissioners appointed to have among them (a) knowledge of, or experience in,... (iii) the Treaty of Waitangi and rights of indigenous peoples: 5 // BC ABORIGINAL JUSTICE COUNCIL SUBMISSION
the BCAJC would be pleased to collaborate with the BC HRC on this work. The BCAJC is aware of examples across other jurisdictions, including in New Zealand, where efforts have been made to formally recognize the rights of Indigenous peoples within its structure. 4. Cross-Jurisdictional Advocacy The BCAJC recognizes that the BC HRC may not have the authority or influence to force cross-jurisdictional collaboration, but submits that the province should be working with the BC HRC across jurisdictions to advocate for solutions to the many cross-jurisdictional issues that impede access to justice for Indigenous people. Actively working to address and mitigate cross-jurisdictional disputes and/or challenges that infringe upon the rights of Indigenous people is seen by the BCAJC as a key opportunity for the BC HRC. Recommendations on the Role and Function of the BC HRC Recommendation 1: The BC Aboriginal Justice Council is involved in the development of the Terms of Reference for the BC Human Rights Commission. Recommendation 2: The BC Human Rights Commission is established with the mandate and the resources to research and provide recommendations on key issues, like the ones raised above, and to operate with efficiency. Recommendation 3: The BC Human Rights Commission is established with the appropriate funding structures in place to accompany its mandate, and Ministries and agencies within the government of the province of British Columbia need to be adequately resourced to implement recommendations from the BC Human Rights Commission. Recommendation 4: The criteria for the selection of the Commissioner(s) includes specific requirements for commissioners to demonstrate awareness of Indigenous issues, as well as specific requirements for Indigenous representation. Recommendation 5: The BC Human Rights Commission cooperates and collaborates with existing organizations that have a demonstrated shared mandate. 6 // BC ABORIGINAL JUSTICE COUNCIL SUBMISSION
We thank you for the opportunity to provide this written submission and look forward to our continued engagement in this process. Respectfully, BC Aboriginal Justice Council Doug White, Co-Chair of the BC Aboriginal Justice Council Nancy Sandy, Co-Chair of the BC Aboriginal Justice Council 7 // BC ABORIGINAL JUSTICE COUNCIL SUBMISSION