Canadian Lawyer

32 M A R C H 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m Liberal government has been committed to reforms within the correctional sys- tem. "We are reviewing all recent court judgments; we will identify any further and better ideas that need to be incor- porated in our reform package. But we have been proactive from the beginning and our work is already well advanced," said Bardsley in a statement released on behalf of the minister. The legislation introduced by the Lib- eral government to amend the regula- tions around solitary confinement was a positive start, suggests Lisa Kerr, a criminal law professor at Queen's Uni- versity in Kingston, Ont. and an author- ity on prison law. "For 30 years, no one has done a thing. No government has touched it," says Kerr, who also provided legal assistance to the BCCLA in the B.C. case. At the same time, the ruling by Leask makes it clear that, as the legislation stands now, it is "not Charter compli- ant," she explains. The external review provided for in the proposed legislation is not binding on the warden of a federal institution. As a result, there is only a "soft cap" on the maximum days permit- ted in solitary, notes Kerr. The review process is just one area where the proposed bill will have to be amended so that the solitary confinement framework does not breach the Charter, the law professor observes. She does not fault the Liberal government, though, for the way it is tackling the issue. "Govern- ments are complex things. You need the bureaucracy as well to move things for- ward," says Kerr. Corrections officials have been very resistant to change and she says the Liber- als are taking the right steps to try to get them onside. "In the history of prison reform, it is not helpful to come up with a new set of laws if you don't take the time to get institutional buy-in and try to ensure that the correctional officers on the ground will respect the rules," says Kerr. One of the central themes in reforms promised by the Liberal government has been to try to address inequalities fac- ing indigenous peoples, especially those within the criminal justice system. One of the many areas where they were impacted T he Canadian Human Rights Tribunal ruled in January 2016 that the more than 160,000 First Nations children on reserves were discriminated against because the federal government failed to provide anywhere near the same level of funding for child welfare services that existed off-reserve. The decision culminated a nine-year-long legal battle that began when Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, filed a complaint in 2007 against the federal government. The proceeding and all arguments before the tribunal took place while the Conservatives were in power. The day the ruling came out, a few months after the Liberals were elected, Indigenous and Northern Affairs minister Carolyn Bennett and Justice Minister Jody Wilson-Raybould issued a joint statement. "The Tribunal has made it clear that the system in place today is failing. In a society as prosperous and as generous as Canada, this is unacceptable. This Government agrees that we can and must do better," they pledged. The federal government did not appeal the ruling. However, the legal disputes continue over the implementation of what the tribunal originally ordered more than two years ago. "When the ruling came out, it was one of the best days of my life," says Anne Levesque, an Ottawa-based lawyer for the Caring Society. "We thought there was going to be real change." Since its initial decision, the tribunal has issued three non-compliance orders against the federal government. Primarily, the disputes involve the scope of the definition of Jordan's Principle, which is that when there is a government service available to all other children, the government of "first contact" should pay for this service for a First Nations child and seek reimbursement later if there is a dispute over jurisdiction. In a September 2016 ruling, the human rights panel noted that it had already issued an order for the federal government to move more quickly to address the funding inequality. "Deferring immedi- ate action in favour of consultation and reform at a later date will perpetuate the discrimination the First Nations Child Family Servi- ces program has fostered for the past 15 years," the panel wrote. Last spring, the tribunal issued a decision that faulted the federal government for trying to limit the scope of the panel's original ruling, such as applying it only to children with multiple disabilities. "Despite the findings in the Decision [January 2016], Canada has repeated its conduct and narrow focus with respect to Jordan's Principle," it wrote. This time, the panel issued a number of orders on how to assess and pay for services for First Nations children. The government filed a judicial review of this decision, although a settlement was eventu- ally reached among all parties, says Levesque. However, there is still an ongoing dispute over whether the federal government's long-term financial commitment complies with the tribunal's original decision. "Rather than taking action, it still says it needs to consult. This is a stall- ing tactic," says Levesque. "Discrimination is not a valid policy choice." For its part, Indigenous and Northern Affairs Canada says the government has worked diligently to implement the tribunal's orders. "Since 2016, more than 99% of the requests received under Jordan's Principle have been approved, totalling over 33,000 requests for services and supports. This includes mental health supports, medical equip- ment, speech therapy, educational supports and more," says Stephanie Palma, a spokeswoman for the department. — Shannon Kari INDIGENOUS CHILDREN-FAMILY SERVICES "IN THE HISTORY OF PRISON REFORM, IT IS NOT HELPFUL TO COME UP WITH A NEW SET OF LAWS IF YOU DON'T TAKE THE TIME TO GET INSTITUTIONAL BUY-IN AND TRY TO ENSURE THAT THE CORRECTIONAL OFFICERS ON THE GROUND WILL RESPECT THE RULES."

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