Treatment of Aboriginal Young Offenders

                           

In 1980, I attended the 6th United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Caracas, Venezuela as one of the speakers. My speech at that Congress was about my concerns of abuses being committed against young offenders in correctional facilities in the United States. After my speech, the American delegation asked permission to respond to my speech. They were given permission to give their response. A representative of the delegation told the other delegates representing their nations at that conference that his delegation didn’t disagree with what I had said about the abuses taking place in the US and added that my suggestion that the UN create a bill of rights for young offenders should be accepted. He then said that the American delegation would be bringing in a resolution the following morning instructing the Secretariat of the Justice Branch of the UN to conduct a series of studies around the world for the purpose of drafting up such a bill of rights. The next day, their resolution was passed by all the nations attending the Congress. Five years later, my proposed bill of rights for young offenders that was renamed as the United Nations Standard Minimum Rules on the Administration of Juvenile Justice and also as the Beijing Rules, was passed by the UN General Assembly in November 1985.

I had hoped that the Rules which were to improve the lives of young offenders worldwide would end the abuses against young offenders everywhere but those hopes were dashed. In 2005, I addressed the 11^th UN Congress held in Bangkok in April of that year and pointed out that some of the private organizations in the United States that operated young offender correctional facilities were still abusing many of those in their care. I recommended that those facilities be closed.

The following year, I gave the same speech in Lima, Peru and again in Brussels, Belgium and later in Salvador, Brazil in 2010.   A number of the states in the US in fact did close those offending facilities and a similar facility housing young offenders in Canada was also closed.

During the period of development in Canada, particularly towards the end of the 19th century, there was considerable difficulty in effectively dealing with the problems of many of Canada’s young people.

Much of their behavior was disruptive and many were arrested for crimes, sexual immorality and truancy. Unfortunately for a great many of them, much of their conduct continued well into their older years. As a result, there are still extremely high proportions of young offenders in Canada’s correctional facilities in our current era. Present sentencing laws do little to alleviate this problem or indeed to lessen the numbers of these young offenders in Canada’s correctional facilities.  Social reformers pressed both federal and provincial governments to pass legislation that would ensure that these unfortunate children received better treatment by society, at home, in school, in the workplace and in correctional facilities.

When I was the Program Director of a large young offender facility for boys in Alberta in 1956, I was shocked to see that corporal punishment was inflicted on the boys if they misbehaved. The corporal punishment involved the strapping of their hands and the strapping of their posteriors. But then, strapping and whippings of male prisoners was common in those days. Such punishments officially ended in Canada in 1975 and now physical punishment anywhere in Canada; be it in the home or at school or elsewhere is forbidden by law.       

The rest of this article is going to be on the problems facing aboriginal young offenders in Canada.

In the 19th century, the Canadian government believed that it was desirable and that it had a responsibility to see to the education and care for aboriginal children in Canada. The government thought that the best chances for success for the young aboriginal children was to teach them English and get them to adopt Christianity and Canadian customs. Ideally, the government had hoped that the children would eventually pass their newly adopted lifestyle on to their own children and that their native traditions would diminish, or be completely eliminated in the next few generations. Educating the children was a good idea but as we all know now, changing their customs was a colossal failure.

During the latter 1950s, while I was working my way across Canada during that time, I worked in three Indian residential schools in Canada—one in Saskatchewan, one in Manitoba and one in Ontario as the senior supervisor for all the boys in those schools. Only the school in Saskatchewan permitted the Indian children to speak their own language when communicating with one another and further, on one day a week, they could participate in Indian ceremonies. The other two schools and as far as I know, in all the other Indian residential schools, the children were forbidden to speak their own language or participate in Indian ceremonies upon the threat of punishment.

Further, by removing the children from their homes, they didn`t learn what family life was really like and as a result, a great many of these children when they were older, failed in their relationships with their spouses and children when they had families of their own. In the year, 2011, nearly half of children under the age  of 14 in foster care in Canada were aboriginal children. Of the approximately 30,000 children that were in foster care in Canada, as many as 14,225 of the children were aboriginal. This supports my position that the relationships between the spouses and children of Aboriginals still continued to fail.

  

Now we all know that if someone is employed, there is less reason to commit crimes. A recent Canadian federal report that probed the quality of life among Canada's aboriginal peoples showed that the income gap between aboriginal and non-aboriginal is glaring but it’s not quite as bad as it used to be. Unemployment however is generally much higher for aboriginals, especially for aboriginals living on reserves. The unemployment rate for aboriginals is roughly double the rate for the rest of the people in Canada.      

As of February 2013, as much as 23.2% of the federal inmate population in Canada’ penitentiaries are aboriginal.  That is shocking when you consider that in that same year, Aboriginal people were only 4% of the Canadian population.     How did Canada fail them?                                                                             

To answer that question, we have to go back at a time when their parents were residents of Indian residential schools. They got a good education, of that there is no doubt. Many of them attended nearby public schools when they entered middle and high school. Unfortunately, a great many of them were sexually molested by staff members in the residential schools and in one case, even by the principal of one of those Indian residential schools who sexually abused the children in his care.

But what was really sad about the fate of these young people attending those Indian residential schools was when they reached the age of 16, at the end of the school year, they were turfed out of the residential schools and left on their own after that. To the shame of most Canadian employers in the communities where the Indian residential schools were located, they refused to hire these young men and women and as a result, the majority of them had to beg for money or commit thefts and other crimes such as prostitution in order to survive. Most didn’t choose to live in their original reservations because they hadn’t learn how to hunt and trap for a living and many felt as if they were strangers in their former Indian villages so they returned to the communities where the Indian residential schools were located.  

These unfortunate aboriginal young people were later to become the parents of children who became young offenders as they grew older. Nothing saddened me more when I lived in Winnipeg, then when I saw former aboriginal residents in those schools where I had I worked, begging on the streets. Their education got them nothing.                                                                                                                   

Child maltreatment is an enormous problem in North America. For example, approximately two million Americans reported that they were “beaten up” by a parent during their childhood. Canadian researchers have also found that 20%-30% of young children have been sexually abused. These were the kind of problems that a great number of aboriginal children in the Indian residential schools had to face.        

Child maltreatment has been linked with a host of problems such as neurological disturbances, psychiatric problems, interpersonal problems, conduct disorders and the perpetuation of future child abuse. Further, recent research contends that there is an association between child maltreatment and antisocial and/or aggressive behaviour. Some adolescents continue antisocial behaviour throughout their lives, even when some of them marry and have children of their own. It shouldn’t be a surprise to anyone that many of the children of parents who attended Indian residential schools in Canada are showing the same traits that their parents developed.                                                                                                  

Aboriginal children are more likely to be raised by younger immature parents than non-aboriginal children. Compared to non-aboriginal children, a far greater proportion of young aboriginal children under the age of 6 are raised in low-income families. Substandard living conditions, unfair and unequal opportunities, unequal education, chronic high unemployment, hunger and inadequate housing generate the frustration and anger of aboriginals that leads to offences and criminal activity committed by them. As a result, many of the fathers are sent to prison which exacerbates the problems inherent in their families. Single parent homes (generally mothers) result in a depletion of income and control over the children in those homes. Poverty and neglect are the mainstays of crime among children, especially aboriginal children.                                                                      

The Juvenile Delinquents Act (JDA) in Canada brought about a dramatic departure from earlier practices. The Act created a new legal status: a “delinquent. It established separate courts and correctional programs for delinquent youth, and it articulated a new legal philosophy that differed in important respects from the methods used in the adult criminal justice system.

                                                           

 Children who were seven years and older were believed to be sufficiently mature enough to come under the jurisdiction of the JDA. The upper age limit, however, was allowed to vary from 16 to 18, at the option of each province. After considerable discussion and consultation, the Young Offenders Act (YOA) was passed by Parliament in 1982 and came into effect in 1984. The Juvenile Delinquents Act was repealed that same year. The new Act created uniform maximum and minimum ages in all of Canada for determining those to be dealt with in the youth justice system. Only those who had attained the age of 12 came under the jurisdiction of the Youth Court. Those under 12 were deemed to be incapable of fully forming the intent necessary to be held criminally responsible for their acts. Instead, they were to be dealt with pursuant to provincial child welfare legislation. In terms of the maximum age, the YOA stipulates that those under 18 years of age will be treated as young offenders. Those who are 18 or over 18 are subject to the provisions of the adult system. While the JDA dealt with violations of the Criminal Code, other federal and provincial statutes, municipal by-laws and other “vices,” the YOA is more clearly concerned with criminal law. It covers only those young people charged with specific offences in the Criminal Code and certain other federal laws.                                                                                    

Particular concern has been expressed about the impact of the Young Offenders Act upon aboriginal youth. In fact, some observers argue that the deficiencies of the Act are so significant that even the guiding principles should be modified to take into account the special needs and concerns of aboriginal youth. Compared to non-aboriginal youth, Aboriginal youth are over-represented in Ontario correctional facilities at a much higher rate than aboriginal adults.                            

Judges in young offender courts need to have a special and different approach with respect to the sentencing of aboriginal young offenders. Crucial to this approach would be the provision of information that the judge can use to craft the type of restorative sentence contemplated by the decision of the Supreme Court of Canada in R. v. Gladue that was decided with respect to older aboriginal offenders. The criminal courts that deal with older aboriginal offenders have a number of specific resources available to it in its work. One of the most important resources is the presence of a Gladue caseworker who writes Gladue reports, providing the sentencing judge with valuable information on the life circumstances of the offender and also possible recommendations for sentences that can address the problems that have brought the individual before the court in the first place. The Gladue decision is not a sentencing discount decision.

The Gladue decision requires judges to approach the sentencing of an aboriginal offender in a different manner. Crucial to this approach is the provision of information that the judge can use to craft the type of restorative sentence contemplated by the Supreme Court’s decision. Unfortunately, outside of the Gladue courts and the recent expansion of the Gladue caseworker program by Aboriginal Legal Services in Toronto, judges in other courts were generally not getting the information they required to make their decisions more meaningful to aboriginal offenders before those courts.                                           

Aboriginal court workers have been in place in Ontario since the 1970s. In the 1990s, both levels of government (federal and provincial) began funding aboriginal justice programs that were specifically aimed to take Aboriginal offenders out of the criminal justice system and have them dealt with in more culturally appropriate and meaningful ways. In Ontario, Legal Aid has also funded some of these programs. In Toronto, the Aboriginal Persons Court was established in 2001. The court has a number of specific resources available to it in its work. One of the most important aspects of its service is the presence of a caseworker who provides the sentencing judge with valuable information on the life circumstances of the offender and also possible recommendations for sentences that can address the problems that have brought the individual before the court. I believe that a similar system to the Gladue system should be used in courts that deal with young non-aboriginal offenders also.

However, the Gladue system won’t apply in any cases where there is a minimum sentence to be served such as for murder, certain sex offences and crimes involving guns.

Sentencing an aboriginal young offender who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience in more advanced ways of living, such as in cities; a lengthy term of incarceration may be particularly unduly harsh when served in an correctional facility environment which is foreign to him and which is dominated by inmates and correctional officers who have lived in a more modern world and have little understanding of the culture and society to which the young offender previously came from. This would be even more extremely harsh for young aboriginal young offenders who had spent all their young lives on reservations.

The young offender courts focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole by promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and making an attempt on the part of the offender to rehabilitate or heal him or herself. The concept of restorative justice involves some form of restitution and reintegration into the community. In the cases involving aboriginal offenders, be they adults or young offenders, the judge can order the Aboriginal offender to face his or her victim in a relaxed setting such as an Indian circle inside his or her reservation. Facing the victim and community is for some offenders more frightening than the possibility of a term of imprisonment and yet it yields a more beneficial result in that the offender may become a healed and functional member of the community rather than a bitter offender returning to the community after serving a term of imprisonment.

Aboriginal offenders in Canada; be they adults over 17 or young offenders who have ties with their families in Indian reservations are given this option of being sentenced by such an Indian circle by their judges in many cases when the crimes they committed are not very serious crimes. The judges also are present during the proceedings in those circles.                                                                                                            

To solve the problem of criminal activity by aboriginal young offenders is not easy. The real cause of this delinquency is poverty suffered by the families of these young offenders. This problem applies to both aboriginal and non-aboriginal young offenders alike. For example, 1.1 million children in Canada are under fed because of low family income. The poverty rate for aboriginal children in Canada is 40% compared with only 15% of non-aboriginal children. Canada’s rank in poverty compared to  35 developed countries is 24.                                                              

Children who are underfed act out when they are hungry. Adults need to eat less frequently than children, since as they get older; their metabolism slows down in their bodies. Children also burn more calories than most adults because their activity levels are higher. For this reason, hungry children are often difficult to deal with. Among low-income children, those classified as “hungry” show an increase in them being anxious, irritable, aggressive and conducting oppositional behavior in comparison to their more fortunate peers.                                                        

One-parent families (usually the mothers) acerbates the problem because many of those mothers have to work to feed their children and therefore they have less incentive to control their children when they are tired when by the time they return home.

It follows that those aboriginal children who are hungry and aren’t parented properly and who hang about with similar children that suffer from the same problems they have—that is what turns them into young offenders.                         

Alas, the problem that is encumbered by aboriginal young people is far greater in Canada that we ever envisioned. In the province of Manitoba alone, there are as many as 10,000 young people who do not live in their parent’s homes in which 90% of them are aboriginal children. It is for this reason that the province has placed them in hotels and group homes. The children kept in hotels have no-one to supervise them so they are free to run amok. This kind of situation is a recipe for the festering of juvenile crime.

I believe that if these problems facing young aboriginal children are not solved, then we will see more of them being arrested, charged, convicted and sentenced for crimes they otherwise would not have committed if we had solved the problems facing them. Furthermore, Canada simply doesn’t have the facilities to house that many incarcerated young offenders, be they aboriginal or non-aboriginal. That being the case, what is Canada going to do with them? More importantly, what should Canada do with them?