Learn how the Government of Canada is responding to the Truth and Reconciliation Commission's Calls to Action 25 to 42.
25. We call upon the federal government to establish a written policy that reaffirms the independence of the Royal Canadian Mounted Police to investigate crimes in which the government has its own interest as a potential or real party in civil litigation.
The Government of Canada reaffirmed the independence of the Royal Canadian Mounted Police (RCMP) in the exercise of police powers in criminal investigations in the mandate letter to the Commissioner of the Royal Canadian Mounted Police on May 7, 2018. Any directions provided by the Minister, pursuant to section 5 of the Royal Canadian Mounted Police Act may not include directions which interfere with the RCMP's criminal investigations. In addition, ministers may not attempt to influence in any way the conduct of specific criminal investigations.
Further, the courts have long confirmed that, when carrying out traditional policing duties, such as keeping the peace and investigating crime, police officers are not Crown agents or government functionaries (R. v. Campbell,  1 SCR 565). The existing legal framework, as set out by the Parliament in the Royal Canadian Mounted Police Act and supported by case law, is compatible with that principle.
The Government of Canada recognizes the concern raised about the RCMP disclosing documents collected during a criminal investigation when the federal Crown is also involved in civil litigation unrelated to the activities of the RCMP and the documents may be relevant to the conduct of the litigation.
However, in matters related to civil litigation against the Crown, the RCMP is part of the Crown and is treated as a federal government institution. When required by law, the Crown must list all documents that are in its custody, power, possession or control and relevant to the litigation. In that regard, a protocol entitled Principals to Implement Legal Advice on the Listing and Inspection of Royal Canadian Mounted Police Documents in Civil Litigation sets out the internal procedures to be followed when the RCMP possesses documents from criminal investigation files that may be relevant to civil litigation involving the federal Crown as a party.
The protocol enables the Attorney General of Canada to meet his obligations to list relevant documents, while ensuring that documents that may be privileged or that were obtained pursuant to a confidentiality agreement or a search warrant are adequately protected and appropriately dealt with.
26. We call upon the federal, provincial, and territorial governments to review and amend their respective statutes of limitations to ensure that they conform to the principle that governments and other entities cannot rely on limitation defences to defend legal actions of historical abuse brought by Aboriginal people.
On January 11, 2019, the Minister of Justice and Attorney General of Canada issued the Directive on Civil Litigation Involving Indigenous Peoples. The directive guides the Government of Canada's legal approaches, positions and decisions taken in civil litigation involving Aboriginal and treaty rights and the Crown's obligation towards Indigenous peoples. Litigation Guideline 14 states that limitations and equitable defences should be pleaded only where there is a principled basis and evidence to support the defence.
For example, the Government of Canada makes admissions of fact and admissions relevant to the establishment of Aboriginal rights and title where possible. This results in fewer issues in dispute and signals our respect for, and recognition of, Aboriginal and treaty rights.
Further, in several cases, the decision was made not to appeal or seek judicial review. This acknowledges the Government of Canada's responsibility to redress past wrongs. The Attorney General's 2016 Litigation Year in Review includes specific examples of where we took this approach.
27. We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.
The Government of Canada is not the lead on a response for Call to Action 27.
28. We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.
The Government of Canada is not the lead on a response for Call to Action 28.
29. We call upon the parties and, in particular, the federal government, to work collaboratively with plaintiffs not included in the Indian Residential Schools Settlement Agreement to have disputed legal issues determined expeditiously on an agreed set of facts.
The Government of Canada has committed to resolving Indigenous Childhood Claims Litigation outside of the courts. This commitment to reconciliation and resolution of claims of this nature has been demonstrated by the settlement of the Anderson litigation (Newfoundland and Labrador Residential Schools), the Prime Minister's apology to former students of the Newfoundland and Labrador Residential Schools, the appointment of James Igloliorte, a former student, as the Minister's Special Representative to lead healing and commemoration in Anderson, the Status Indians and Inuit Sixties Scoop settlement, the creation of Sixties Scoop Healing Foundation and the proposed settlement of the Mclean Indian Day School litigation.
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.
There are systematic issues in our criminal justice system that must be addressed. Too many Indigenous and marginalized people are caught in Canada's criminal justice system, both as victims and as offenders. Indigenous adults represent 4.1% of the total Canadian adult population but 27% of adults in federal custody (fiscal year 2016 to 2017).
The current circumstances faced by Indigenous peoples in the criminal justice system are inseparable from the historic and contemporary impacts of colonialism and the denial of Indigenous rights.
By working with Indigenous peoples to recognize and implement their rights, the Government of Canada is helping build a future where the wellbeing of Indigenous youth increases and interactions with the criminal justice system decrease.
This work includes supporting Indigenous self-governments in developing their own systems of justice that fall in coordination with federal and provincial governments. As part of the broader work of rebuilding Indigenous Nations, ways to partner with Indigenous peoples on the recognition and implementation of their justice systems are being explored.
On June 21, 2019, Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts, received royal assent. Bill C-75, among other things, will make changes to the bail system to ensure unnecessary and onerous bail conditions are not imposed and improve the jury selection system to increase transparency and help insure our juries represents our nation's diversity and enjoy the confidence of all Canadians.
Other initiatives are being undertaken to address the over-incarceration of indigenous Peoples, such as expanding the use of culturally relevant and effective processes within Indigenous communities, like restorative justice, and introducing a more transparent process for choosing federally appointed judges and establishing a more diverse judicial bench, so as to build confidence in our institutions.
Consultations with provinces and territories are taking place to develop more effective ways to measure the overrepresentation of Indigenous peoples at various stages in the criminal justice system. This will help better understand and address key issues related to overrepresentation.
The Government of Canada also invested in Indigenous community-based programs that support initiatives that have shown to reduce reoffending and address the root-causes of offending. Budget 2017 provided approximately $11 million in on-going funding for the Indigenous Justice Program, while Budget 2016 increased on-going funding for the Indigenous Courtwork Program by $4 million.
As tasked by the Federal Provincial Territorial (FPT) Ministers responsible for justice and public safety in November 2018, the FPT working group on Indigenous justice is working to establish a Pan-Canadian Strategy that accommodates jurisdictional and community differences. The Government of Canada is committed to ensuring that the criminal justice system keeps communities safe, respects victims and holds offenders to account.
As the Truth and Reconciliation Commission recognized, many of the ways to reduce the overrepresentation of Indigenous peoples will be found outside of the criminal justice system.
The work being undertaken in response to many other calls to action, such as those relating to housing, child welfare, health services and Fetal Alcohol Spectrum Disorder, will further contribute toward achieving Call to Action 30.
As such, close collaboration with Indigenous partners, provincial and territorial governments to align efforts, resources and data collection to address overrepresentation will continue.
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.
The Government of Canada is undertaking a broad review of Canada's criminal justice system to ensure that it is just, compassionate and fair and promotes a safe, peaceful and prosperous Canadian society. As part of this transformation, the Government of Canada is looking at how to better address the needs of Indigenous peoples who are disproportionately represented as both victims and offenders in the criminal justice system.
In 2016, the Government of Canada increased the annual funding for the Indigenous Courtwork Program from $5.5 million to $9.5 million. This program provides funding to help provincial and territorial governments deliver Indigenous courtwork services. As part of these services, Indigenous courtworkers assist Indigenous peoples involved in the criminal justice system by providing information and support as well as referrals to culturally relevant options, such as restorative justice and Indigenous community justice alternatives.
The Indigenous Justice Program received a permanent mandate with an ongoing investment of $11 million annually. The program supports alternatives to imprisonment for Indigenous peoples, such as restorative justice and community-based justice programs rooted in the unique traditions and cultures of each community. These programs are developed and led by Indigenous communities and aim to address the needs of victims and offenders. In 2016, an evaluation of the Indigenous Justice Program found that Indigenous peoples who completed a community-based alternative through the program were significantly less likely to re-offend than those who did not.
In 2017, the Indigenous Community Corrections Initiative with Public Safety Canada also received $10 million over 5 years. This program supports the development of community-based alternatives to incarceration, as well as the healing and rehabilitation of Indigenous offenders.
32. We call upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.
The Government of Canada is continuing its review of the criminal justice system including sentencing measures enacted over the past decade, as well as measures to enhance the use of restorative justice and alternatives to incarceration, and will continue to consult with key partners, including Indigenous peoples, lawyers, academics and other criminal justice professionals in order to assemble the best available evidence and guidance on this important issue.
33. We call upon the federal, provincial and territorial governments to recognize as a high priority the need to address and prevent Fetal Alcohol Spectrum Disorder (FASD), and to develop, in collaboration with Aboriginal people, FASD preventive programs that can be delivered in a culturally appropriate manner.
Prior to fiscal year 2017 to 2018, the Government of Canada had been investing $14.2 million, annually and ongoing through the Fetal Alcohol Spectrum Disorder Program to support First Nations and Inuit communities to prevent Fetal Alcohol Spectrum Disorder births and improve the quality of life of those affected by the disorder. Budget 2017 secured an additional $10.5 million over 5 years, with $3.7 million ongoing to expand the mentoring and community coordinator projects. As a result of this increased funding, by 2022 Indigenous Services Canada (ISC) will invest $17.9 million annually and ongoing. Fetal Alcohol Spectrum Disorder funding is part of a suite of community-based investments in Healthy Child Development that support access to a continuum of services aimed to improve health outcomes for First Nations and Inuit infants, children, families and communities. In addition, ISC continues to work with Indigenous partners and the Canada Fetal Alcohol Spectrum Disorder Research Network (CanFASD) to support knowledge generation and exchange.
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:
- Providing increased community resources and powers for courts to ensure that FASD is properly diagnosed, and that appropriate community supports are in place for those with FASD.
- Enacting statutory exemptions from mandatory minimum sentences of imprisonment for offenders affected by FASD.
- Providing community, correctional, and parole resources to maximize the ability of people with FASD to live in the community.
- Adopting appropriate evaluation mechanisms to measure the effectiveness of such programs and ensure community safety.
To transform the criminal justice system, the Government of Canada is examining measures to address the overrepresentation of vulnerable populations, including offenders with mental health and addiction issues. It is also working to address service gaps that exist in the criminal justice system for these vulnerable groups to improve access to supports, both for victims and offenders.
Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, would require that particular consideration be given to the unique circumstances of members of vulnerable populations when imposing bail conditions. Bill C-75 received royal assent on June 21, 2019.
In addition, Budget 2017 invested $5 billion over 10 years to help the provinces and territories make mental health care more accessible to all Canadians. This targeted investment has the potential to make a real difference in the lives of both Indigenous and non-Indigenous peoples in Canada.
35. We call upon the federal government to eliminate barriers to the creation of additional Aboriginal healing lodges within the federal correctional system.
Through engagement with Indigenous communities and organizations and other partners including the Office of the Correctional Investigator, the funding arrangement for Corrections and Conditional Release Act (CCRA) Section 81 Healing Lodges was identified as a key barrier to the operations and sustainability of Section 81 Healing Lodges. In 2017, Correctional Service Canada (CSC) strengthened the Section 81 funding arrangement to better support their operations and respond to the needs of Indigenous communities and organizations managing those Healing Lodges. The new funding formula provides fixed and variable payments that will equal to the negotiated daily rate. The fixed cost which is normally a 60% of the negotiated daily rate, is paid whether an offender occupies a bed or not. This allows the Healing Lodge to fund all its fixed recurring financial obligations of managing a facility. The variable cost which is normally the remaining 40% of the negotiated daily rate, is paid when a bed is occupied by an offender. This new funding formula which has been deemed fair and respectful by agreement holders, applies to all existing and new Section 81 agreements. It will allow Indigenous agreement holders to have access to funds that will ensure the effective operations of their Healing Lodges including adequately responding to the needs of Indigenous men and women offenders in their care and custody.
In addition, CSC has reviewed and is currently updating a number of its policies including Commissioner's Directive 541-2, Negotiation, Implementation and Management of CCRA Section 81 Agreements, to ensure timely assessment of Indigenous community applications for a Section 81 Agreement while strengthening how CSC processes the transfer of Indigenous offenders to Healing Lodges as part of their reintegration plans to the community. CSC is currently reviewing several Indigenous Community Expressions of Interest to enter into a Section 81 agreement with the Minister of Public Safety and Emergency Preparedness for the care and custody of Indigenous men and women offenders. CSC is committed to ongoing partnership with Indigenous communities through regular engagement sessions and an annual Healing Lodges' Executive Directors and Wardens strategic planning meeting where strategic discussions include collaboratively identifying any barriers and ways to remove them as CSC continues to nurture our long standing relationships with Indigenous peoples through the CCRA Section 81 since 1992.
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.
As part of its overall commitment to partnership in addressing the over representation of Indigenous peoples in custody and fostering the participation and engagement of Indigenous peoples in achieving public safety results, through the federal Budget 2017, the Government of Canada is providing $55.2 million over 5 years starting in fiscal year 2017 to 2018 and $10.9 million per year ongoing to Correctional Service of Canada (CSC). The 2017 federal Budget allocation is assisting CSC through its community reintegration initiatives to engage Indigenous communities and organizations through contracts to provide addictions treatment, trauma counseling, gang disaffiliation and life skills support.
In addition, CORCAN, a special operating agency of CSC is working closely with Indigenous communities in Alberta and Saskatchewan to enhance Indigenous offender access to employment opportunities in the community through offering additional on the job training in construction services, in particular as it relates to modular construction. This includes implementing CORCAN employment programs to develop offender's skills in construction related areas at the CSC operated Healing Lodges and institutions in the Prairie Region as well as having opened 2 community industries in fiscal year 2018 to 2019, with 1 in Saskatoon and another in Edmonton. These community industries provide transitional employment, on-the-job and vocational training to offenders being released from federal correctional institutions. In fiscal year 2019 to 2020, implementation will commence in both British Columbia and Ontario to provide additional opportunities for Indigenous offenders in those regions, culminating in the opening of community industries in Ottawa and Vancouver.
Budget 2017 also provided $10 million over 5 years to Public Safety Canada for the Indigenous Community Corrections Initiative to support the development of community-based and culturally-relevant projects with a focus on alternatives to incarceration and reintegration support for Indigenous offenders. A call for proposals was launched at the end of 2017 and selected projects began before the end of the fiscal year.
37. We call upon the federal government to provide more supports for Aboriginal programming in halfway houses and parole services.
Correctional Service of Canada (CSC) has strengthened its support for offenders in the community through the Aboriginal Community Liaison Officers in urban centres as resources with halfway houses to connect Indigenous men and women offenders to culturally responsive services in the community. Aboriginal Community Liaison Officers mobilize and partner with Indigenous community agencies to provide wrap-around services, like access to Indigenous community services that are critical to offender release, for Indigenous offenders just before and upon release including at halfway houses. Through the federal Budget 2017, CSC has increased the number of Aboriginal Community Liaison Officers to better respond to the needs of Indigenous offenders including increasing the participation of Indigenous peoples and the use of the Corrections and Conditional Release Act Section 84 release process.
Through the Budget 2017 allocation, Public Safety Canada is supporting the development of community-based and culturally relevant projects with a focus on alternatives to incarceration and reintegration support for Indigenous offenders. A call for proposals was launched at the end of 2017 and selected projects began before the end of fiscal year 2017 to 2018.
38. We call upon the federal, provincial, territorial, and Aboriginal governments to commit to eliminating the overrepresentation of Aboriginal youth in custody over the next decade.
The Government of Canada is pursuing a range of policy and program measures to address overrepresentation of Indigenous youth in custody.
To better respond to the needs of Indigenous youth who are in conflict with the law, it funds non-profit organizations, Indigenous organizations, provincial and territorial governments and others who work to improve the youth justice system. For example, our Youth Justice Fund currently provides close to $4 million for 11 Indigenous youth-focused projects.
In addition, the National Crime Prevention Strategy provides funding for projects that support innovative, culturally sensitive crime prevention projects. These projects support at-risk Indigenous youth, reduce offending and help build stronger, healthier communities.
In March 2017, the Department of Justice held a National Roundtable on the overrepresentation of Indigenous Youth in the criminal justice system. This roundtable brought together individuals from across the country with expertise in youth and Indigenous justice to discuss the problem and identify ways to reduce overrepresentation.
Participants identified administration of justice offences as a significant contributing factor to the overrepresentation of Indigenous youth in custody.
These offences consist of violations of court orders. This offence category can result in behaviour that would not otherwise be criminal being treated as an offence. For example, failures to attend in court when ordered or the breach of conditions on a court order are administration of justice offences.
On June 21, 2019, Bill C-75, An Act to Amend the Criminal Code, Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, received royal assent. Bill C-75 will make amendments to the Youth Criminal Justice Act to:
- further encourage the use of alternatives to charges for administration of justice offences, such as extrajudicial measures and judicial reviews
- ensure that the conditions imposed on a youth at the bail stage or at sentencing are only those necessary to address the offending behaviour and are required for criminal justice purposes
- limit the use of custodial sentences for administration of justice offences
It is anticipated that these proposed amendments would contribute to a reduction in the number of Indigenous youth incarcerated due to administration of justice offences.
In March 2019 2 roundtables were held with Indigenous youth from across the country to discuss their experiences and their thoughts regarding how best to address the overrepresentation of Indigenous youth in the criminal justice system. These roundtables provided a forum where Indigenous youth were able to articulate some of the key challenges they face in navigating the justice system. The resulting information from these engagement sessions will be used to support efforts to reduce Indigenous youth overrepresentation and better respond to the needs of Indigenous youth who are in conflict with the criminal justice system as both offenders and victims.
In addition, to support information sharing with subject matter professionals, a series of webinars were held featuring various guest speakers on topics related to the criminal justice system, such as, culturally appropriate programming, restorative justice, and Gladue reports.
As the Truth and Reconciliation Commission recognized, many of the ways to reduce the overrepresentation of Indigenous youth will be found outside of the criminal justice system. Work being undertaken in response to many other calls to action, such as those relating to child welfare, health services and Fetal Alcohol Spectrum Disorder, will further contribute toward achieving Call to Action 38.
39. We call upon the federal government to develop a national plan to collect and publish data on the criminal victimization of Aboriginal people, including data related to homicide and family violence victimization.
Statistics Canada, in collaboration with federal, provincial and territorial partners, has developed a comprehensive data strategy to collect and publish information on victimization of Indigenous peoples. The strategy includes collection of data reported by police forces and of information provided by Indigenous peoples on their victimization experiences.
Since 2014, police-reported homicide data on Indigenous peoples have been available through the Homicide Survey, which collects information on the Indigenous identity of victims and offenders. Going forward, Statistics Canada's annual homicide report will include analysis of homicides of Indigenous women and girls. This information will enable communities and those working in the criminal justice system to better understand and address the issues related to homicide victimization. In addition, Statistics Canada is expanding its other justice-related work to include information on Indigenous identity.
Understanding the nature and extent of victimization of Indigenous peoples is key to responding to issues related to safety and well-being. Statistics Canada's victimization survey, conducted every 5 years, responds to data needs by collecting information on victimization, whether it was reported to the police or not. Statistics Canada is currently exploring opportunities to identify options on how to have the voices of Indigenous peoples heard in the next survey collection cycle. In addition, in partnership with Status of Women Canada, Statistics Canada is developing a new gender-based violence survey covering First Nations people living off reserve and Inuit and Métis populations. This new information will provide insight into the impact of lifetime prevalence of physical and sexual violence among the Indigenous population in Canada, among other topics.
40. We call on all levels of government, in collaboration with Aboriginal people, to create adequately funded and accessible Aboriginal-specific victim programs and services with appropriate evaluation mechanisms.
The Government of Canada is committed to supporting Indigenous peoples and their families who have experienced crime and violence. Through the Justice Canada Federal Victims Strategy, it partners with provincial and territorial governments, community agencies and organizations to increase access to justice for victims and survivors of crime and give them a more effective voice in the criminal justice system.
The federal initiative was established in 2000 as part of the federal government's response to 1998 report of the Standing Committee on Justice and Human Rights: Victims' Rights – A Voice Not A Veto report and is grounded in the Canadian Statement of Basic Principles of Justice for Victims of Crime (2003) and the Canadian Victims Bill of Rights (2015).
In August 2016, 2 new victim service initiatives were announced to provide direct assistance to families alongside the National Inquiry into Missing and Murdered Indigenous Women and Girls. The Government of Canada provided funding to all provincial and territorial governments for the creation of Family Information Liaison Units, a new service to help families access available information about their loved ones from multiple government sources. This service builds on the existing victim service frameworks in each region.
In 2016, additional funding for Indigenous community-based organizations, non-governmental organizations and victim services was also provided to support the delivery of culturally-responsive and trauma-informed services for families of missing or murdered Indigenous women and girls. These community-based projects are developed and delivered by Indigenous community-based organizations that have extensive knowledge about how best to assist families.
All projects include an evaluation component to ensure services are meeting the needs of victims, survivors and family members of missing or murdered Indigenous women and girls.
41. We call upon the federal government, in consultation with Aboriginal organizations, to appoint a public inquiry into the causes of, and remedies for, the disproportionate victimization of Aboriginal women and girls. The inquiry's mandate would include:
- Investigation into missing and murdered Aboriginal women and girls.
- Links to the intergenerational legacy of residential schools.
The Commission of the National Inquiry into Missing and Murdered Indigenous Women and Girls delivered its final report entitled Reclaiming Power and Place, on June 3, 2019.
Building on the recommendations of the Commission's Interim Report, presented in November 2017, the report provides over 230 recommendations to governments, police services and the Canadian public to help address levels of violence directed at Indigenous women and girls and 2SLGBTQQIA people.
42. We call upon the federal, provincial, and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with the Treaty and Aboriginal rights of Aboriginal peoples, the Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in November 2012.
The Government of Canada is committed to a renewed nation-to-nation, government-to-government and Inuit-Crown relationship, based on the recognition of rights, respect, cooperation and partnership.
As part of the broader work of rebuilding Indigenous nations, it is exploring ways to partner with Indigenous peoples on the recognition and implementations of their justice systems. On May 14 and 15, 2019, as part of a dialogue entitled Exploring Indigenous Justice Systems in Canada and around the World, the Government of Canada brought together Indigenous nations, leaders, experts and partners, as well as provincial and territorial officials to engage on the recognition and implementation of Indigenous justice systems.
Justice Canada has leveraged the Recognition of Indigenous Rights and Self-Determination discussions tables led by Crown-Indigenous and Northern Affairs Canada to enable a discussion with Red Earth Cree Nation on an administration of justice arrangement. In April 2019, the Government of Canada announced with Red Earth Cree Nation a Memorandum of Understanding that will guide future negotiations and advance reconciliation.
In addition, the Government of Canada continues to negotiate administration of justice elements within comprehensive self-government agreements.