Leaders from Robinson-Huron treaty are now calling on provincial and federal governments to negotiate settlements rather than risk ongoing litigation which could take at least a decade.
« We’re prepared to sit down and negotiate a settlement, » said Mike Restoule, Chair of the Robinson-Huron Treaty Litigation Fund.
Restoule says the group of twenty-one First Nations in northeastern Ontario have written to Greg Rickford, Ontaro’s Minister of Energy, Mines, Northern Development and Indigenous Affairs, and federal Crown-Indigenous Relations minister Dr. Carolyn Bennett requesting negotiations to address treaty issues which date back to 1850.
« It’s been a long journey since this grievance was brought forward and it would be really nice if the governments of the day would agree to sit down and discuss the settlement with us, » he said.
A spokesperson for Crown-Indigenous Relations Minister Carolyn Bennett says the ministry is reviewing the decision, but are open to « discussions » with First Nations who were part of the legal challenge. (CBC)
Governments reviewing decision; Ottawa open to ‘discussions’
In a statement the Government of Ontario said it’s reviewing the recent decision.
Ottawa, meanwhile acknowledges « honouring the treaty relationship […] is key to advancing lasting reconciliation. »
A spokesperson for Bennett said the department is reviewing Friday’s decision, but « Government of Canada remains open to discussions with the interested parties. »
That’s something David Nahwegahbow— one of the lawyers representing the Indigenous plaintiffs— believes is the best path forward.
« As Justice Hennessy outlined [in her ruling], it’s harder to achieve reconciliation and an adversarial process which is why negotiations are the preferred venue for coming to terms with this decision and implementing this decision, » Nahwegahbow said.
Batchewana Chief Mike Sayers said sitting in negotiation is « true reconciliation. »
« Sitting at a meaningful table that’s really founded on culture and openness and understanding of each other’s way of life and knowing that we need to reconcile this, » Sayers said. « We don’t want to have the future generations having these confrontational discussions way down the road when we have an opportunity right now based on this decision to get as much mileage as we can out of it. »
David Nahwegahbow, one of the lawyers for the First Nations part of the Robinson-Huron Treaty says he hopes the federal and provincial governments will opt for negotiations rather than continued litigation. (Kari Vierimaa/CBC)
Battle over treaty rights has wider implications: lawyer
The recent victory for indigenous leaders of the Robinson-Huron Treaty territory also impacts a separate claim by two First Nations in the Robinson-Superior Treaty territory.
The Robinson-Superior claim was launched several years before the Robinson-Huron treaty claim was initiated.
The court has decided to try them both together, while compensation or declarations from each case will remain separate.
Their claim— launched years before the Robinson-Huron Treaty claim— deals with similar language around the escalator clause which exists in both treaties.
« The decision, while it talks about the principles that underlay the treaty relationship and which ought to be the basis on which the augmentation occurs, doesn’t say what the amount is and it recommends that the parties negotiate that amount, » Nahwegahbow said.
« It does talk about duties on the Crown which will assist us in coming to a determination of that amount. »
Nahwegahbow said while the specific aspects of the decision related to the treaty language can only be applied to the Robinson-Huron and Robinson-Superior treaties, he adds the aspects that contributed to the decision will be significant for future cases.
« The court in this case said when determining the Indigenous perspective it’s important to look at Indigenous laws, important to look at the long history of the relationship between the Crown and Indigenous nations which was one of the allies rather than subjects and that’s a very important component in this case, » he said.
A coroner’s inquest will begin in Ottawa later this month for Cleve Gordon (Cas) Geddes and another is likely to take place next year for Justin St. Amour — two young men with mental illnesses who both spent time in segregation in the Ottawa-Carleton Detention Centre, and then hanged themselves in the Ontario-run jail.
From these inquests, juries will most likely make recommendations that have been made before, including not placing people with serious mental illness in segregation.
“They keep making recommendations but the province just keeps ignoring them,” said Paul Champ, the lawyer representing the Geddes and St. Amour families. “It’s a tragedy that keeps on rolling.”
Last month, the Ministry of Community Safety and Correctional Services quietly posted an unprecedented volume of data on 3,086 inmates who spent time in segregation in Ontario jails over a two-month period earlier this year. It was part of a five-year-old settlement in an Ontario human rights case, in which Champ represented former inmate Christina Jahn.
The good news is that there is now robust data that tracks vulnerable Ontario inmates placed in segregation. The bad news is nothing much has changed in five years. In fact, it has grown worse for people with mental illness, Champ said.
“In these overcrowded, understaffed jails, an inmate who presents with serious mental health problems is handled in the only way they know how, which is placing them in segregation,” Champ said. “There are more people with mental illness in segregation, and that is just inexplicable to me. The province has to respond.”
The numbers are grim.
Nine inmates captured in the review of segregation placements for the months of April and May had been held for a year of consecutive days in segregation, or longer. Of those, four had a combination of mental health and suicide risk and watch alerts. A fifth had a mental health alert.
Of 3,998 placements in segregation, 778 were for periods longer than 15 consecutive days, a threshold beyond which the United Nations said segregation should be banned because of the proven psychological damage it can cause.
Half of the inmates had mental health alerts on their files and more than a third had a suicide alert.
The Ontario Human Rights Commission has reached out to the government and expressed its concerns with what the new data reveals.
Chief rights commissioner Renu Mandhane, who prompted public outcry two years ago when she discovered inmate Adam Capay had been in segregation in a Thunder Bay jail for more than four years, said nothing has changed. But she credited the government for meeting its obligation and releasing the data, which has been anonymized.
“It is the most complete picture that we have of the circumstances of individuals held in segregation,” said Mandhane, who wants the government to commit to a plan to deal with vulnerable inmates.
“What are their plans to address the long-term cases? Are they contemplating things like hard caps or prohibitions in certain classes of prisoners? We haven’t got a clear commitment from the government on that.”
In response to questions from the Star, ministry spokesperson Brent Ross said in an email that the “ministry and its staff work diligently to find alternative housing solutions for individuals who are declining to leave conditions constituting segregation.
“These can include moving an inmate to an institution where they feel more comfortable being out of segregation conditions; working to acclimatize an inmate through the use of behavioural contracts and slowly bringing the inmate out of segregation for longer periods; educating inmates about the advantage of step-down units in the hope they will choose to transition to that type of housing; and working with the inmate to identify the reasons they prefer to remain in segregation.”
In response to a request from the Star, the ministry separately released data on the racial makeup of Ontario jails for the same period as the segregation data. This allowed the Star to compare placements to baseline jail populations.
In 17 of 24 institutions, the proportion of segregation placements for white inmates was greater than their share of the jails’ overall populations, and in seven jails the difference was greater than five points.
For 15 of 24 institutions, the proportion of segregation placements for Indigenous inmates was also greater than their share of the jails’ populations, but only three had differences greater than five points. Jails in Kenora and Thunder Bay saw a lower proportion of Indigenous inmate placements compared to their overall population.
With minor variances, the proportion of Black inmates was in line with the proportion of segregation placements for Black inmates.
Another Star analysis of those in segregation, which compares the number of placements to lengths of placements by race, shows that in two Ontario jails Black inmates are kept in segregation for longer periods.
At Maplehurst Correctional Complex, Black inmates represented 17.5 per cent of placements, but 26 per cent of the total length of segregation time. At the Toronto East Detention Centre, Black inmates represent 41.6 per cent of placements and 49.6 per cent of total length.
Indigenous inmates in jails in northern Ontario show the opposite trend: the Star found they made up 32.5 per cent of placements but represented 16.4 per cent of the total length of time in segregation. Conversely, in the same north region, white inmates represented 60.9 per cent of placements and 78 per cent of length.
The ministry’s Ross told the Star the “length of stay in conditions constituting segregation varies according to the individual and can be affected by a number of factors, including mental health, perceived vulnerability and injury. At no time is an individual’s ethnic or racial background considered grounds for placement in conditions constituting segregation.”
The inmate held in segregation for the longest continual period was in for 598 days, at the Central East Detention Centre in Lindsay. The data shows him to be white, in his early 40s and with a mental health alert. Three other of the nine inmates held in segregation for a year or longer were also at that jail.
Another of the nine, a male Muslim inmate in his 30s, was in segregation for 469 days at the same Ottawa jail where St. Amour and Geddes were housed.
St. Amour, 31, died Dec. 8, 2016, in hospital after hanging himself. He had serious mental health issues, likely schizophrenia, and had spent time in segregation, Champ said.
Geddes, who had schizophrenia, ended up in jail after a call for help. Geddes had stopped taking his medication, and his father was worried, Champ said.
“The police show up and he got really belligerent with them, which is what a guy with schizophrenia does,” Champ said. He was arrested for uttering threats to police.
In court, Champ said it was obvious to everyone that Geddes was mentally ill and he was ordered to undergo an assessment at Royal Ottawa Hospital. There were apparently no beds available, and he was sent to the detention centre and placed in segregation, Champ said.
“Seven days later, he’s still there, and he hung himself,” Champ said. Geddes died on Feb. 10, 2017. The inquest into his death begins Nov. 26 in Ottawa.
“There is no end to it,” Champ said. “At least now we can’t say that people don’t know what the scope of the problem is.”
Sigrid Geddes is preparing to testify at her little brother’s inquest. Known by his nickname Cas, he was the youngest of six siblings and was an “amazing human being,” she said.
“He was loved by everybody he came in contact with,” Sigrid added, describing Cas as handsome, charming, funny and a hard worker.
When he got sick in his early 20s, “no one could believe it,” Sigrid said. He was addicted to marijuana, she said, noting that schizophrenia and cannabis do not mix well.
Jail, she said, is no place for people with mental illness, let alone placing them in segregation.
“If you want to talk about basic human rights, this is a health issue,” she said, adding she hopes more education will “put pressure on the government to have a little bit more holistic care for people.”
Spokesperson Ross said the ministry has made “significant progress” on meeting the conditions of the Jahn settlement since the beginning of the year, when a consent order was signed. An independent expert on human rights and corrections has been appointed to assist with implementing the order and an independent reviewer is in place to monitor the ministry’s compliance.
The definition of segregation was also revised from being a specific area in a jail to a “condition of confinement where any inmate is physically isolated and confined anywhere in an institution for 22 hours or more per day,” said Ross.
Jim Rankin is a reporter based in Toronto. Follow him on Twitter: @Jleerankin