Evaluation of the Aboriginal Justice Strategy

4. Findings

4.1. Relevance

4.1.1. Continued Need for AJS

The AJS was created in 1991 to address the disproportionate rate of victimization, crime and incarceration among Indigenous people in Canada. The Strategy supports Indigenous community-based justice programs that offer alternatives to the MJS that reflect local Indigenous culture and values. Documents reviewed for the evaluation indicate a continued need for the AJS. Indigenous people continue to be overrepresented as offenders in the MJS, including both the provincial/territorial and the federal correctional systems.

Indigenous adults are overrepresented in admissions to provincial/territorial correctional services, as they accounted for a little over one-quarter (26%) of custodial admissions in 2014-15, while representing 3% of the Canadian adult population Footnote 7. Indigenous adults also accounted for 22% of admissions to federal custodial sentences in 2014-15. This was even more pronounced for Indigenous women who accounted for a higher proportion of female admissions to provincial/territorial sentenced custody (38%) and federal sentenced custody (31%) than did Indigenous males (24% of provincial/territorial and 22% of federal admissions).

Correctional admissions data also demonstrate a disproportionate number of Indigenous youth (ages 12-17) entering the system Footnote 8. Indigenous youth comprise 7% of the youth population, yet records show that in 2014-15 there were over 5,700 Aboriginal youth admitted to correctional services in nine jurisdictions, representing 33% of admissions. This overrepresentation was found to be particularly true for Indigenous females Footnote 9. For example, although only 7% of the male and female youth populations in Canada are Indigenous, in 2014-15, Indigenous female youth comprised 44% of all female youth in the correctional system, while Indigenous male youth comprised 29% of all male youth in the correctional system Footnote 10. Moreover, sentencing principles in the Youth Criminal Justice Act mandate that courts consider alternatives to custody, particularly in the case of Indigenous youth. However, in 2014-15, 52% of Indigenous youth admitted to correctional services were admitted to custody, whereas the comparable figure for non-Indigenous youth was 42%. Conversely, 48% of Indigenous youth were admitted to community supervision compared to 57% of non-Indigenous youth. Footnote 11

The literature also suggests that efforts through the Youth Criminal Justice Act and Gladue Footnote 12 guidelines have not had the intended effects. Although rates of incarceration for both Indigenous and non-Indigenous youth have decreased since 2003, the drop has been much more significant for non-Indigenous offenders, meaning that rates of Indigenous overrepresentation continue to be an issue Footnote 13. Indigenous youth are overrepresented not only in custody, but also in secure detention (remand or custody while awaiting trial) and community dispositions (supervision by probation) Footnote 14.

Indigenous people, in particular women, are more likely to be victims of crime as well. Data from various sources show that Indigenous people are overrepresented as both offenders and victims of crime: “One in three (30%) Indigenous people reported that they or their household had been the victim of at least one of the eight crimes measured by the General Social Survey in the 12 months preceding the survey Footnote 15. In comparison, fewer than one in five (19%) non-Indigenous people reported that they or their household had been victimized. The differences between Indigenous and non-Indigenous people were most pronounced for break-ins and sexual assaults, with the rates for Indigenous being more than double those for non-Indigenous people” Footnote 16.

Violent victimization rates were especially high among Indigenous people and Indigenous women in particular. In 2014, the rate of violent victimization among Indigenous women (220 per 1,000 people) was double the violent victimization of Indigenous men (110 per 1,000 people), triple the rate of non-Indigenous women (81 per 1,000 people), and over triple the rate of non-Indigenous men (66 per 1,000 people) Footnote 17. Indigenous people are also nearly twice as likely as their non-Indigenous counterparts to be repeat victims of crime.

Community Perspective

The evaluation asked AJS CJWs about the nature and extent of criminal justice issues in their communities. FPT justice officials were also asked about whether the conditions remained to demonstrate an ongoing need for alternative Indigenous justice approaches. Both of these groups indicated strong support for the continued need. In addition to the demonstrated, ongoing issue of overrepresentation of Indigenous peoples in the MJS, KIs also mentioned the need for collaboration between the federal and provincial governments to adequately address the need to reduce Indigenous overrepresentation.

Among CJWs, a majority said that discrimination/bias in the justice system was an issue to a large or very large extent (74%), that there were still gaps in services in general, and particularly gaps in services that focused on healing and reconciliation, and that there were still high rates of crime and victimization in Indigenous communities. FPT government KIs pointed to their awareness of recent data on Indigenous overrepresentation (such as the recent report from the Canadian Centre for Criminal Justice Statistics), and to their own observations of ongoing issues or overrepresentation in Indigenous communities, as the basis for their belief that there is a continued need for programs and services that provide alternative justice approaches.

Demand for Funding

Continued need is also reflected in the level of demand for AJS funding. The AJS supports approximately 200 community-based justice programs across the country, and with very few exceptions, those programs have been in continuous operation since they first received funding in the 1990s. Approximately 9,000 clients (offenders, victims, and other community stakeholders) are referred annually to AJS programs from over 750 communities across Canada, including urban, rural and northern communities, both on- and off-reserve. The AJS has been unable to consider new programs/communities because of the short-term and unstable nature of its funding and a concern about setting expectations for future funding that could not be assured. Further, in recent years, the Community-based Justice Programs Fund has focused on government priorities such as violence against Indigenous women and girls, regional gatherings and training.

Applications to the Capacity-Building Fund from communities both with and without an AJS-funded program have been steadily well above available funding year after year. On average, more than 25% of all applications (a total of 103 applications) could not be funded during the evaluation period even though they met program criteria, and that proportion was as high as 30% in 2013-14. The reasons for the high percentage in 2013-14 included the fact that AJD was in a program renewal period; this was a period of workforce adjustment and no other departmental program funds were available that year. In the evaluation period, funding for capacity-building projects totaled about $4.6 million. If we assume that the dollar value of unfunded applications was similar to the value of the funded applications, this would mean that there was additional demand valued at more than $1 million in the period.

Although in some years the AJD was able to fund projects beyond its available envelop through a Deputy Minister-approved transfer of funds from other program sources, the extent of unfunded applications has still been high. The fact that this additional funding has been approved reflects the Department’s recognition that there is a need worth addressing.

Demand is also indicated by regular contacts to the program from communities seeking funding to expand existing community-based justice programs, or to start new ones. For example, KIs and survey respondents indicated a host of emerging justice needs, which could be addressed by the AJS:

  • need to identify and share training and best practices regionally and nationally;
  • need for involvement in family violence and violence against women;
  • need to address Gladue recommendations;
  • need for more services and supports for victims of crime;
  • need for reintegration services after individuals complete sentences;
  • need for more programming or specific programming for vulnerable groups (e.g., offenders with disabilities such as Fetal Alcohol Spectrum Disorder and youth);
  • need to address recommendations from the Truth and Reconciliation report;
  • need for policy work/advice; and
  • need for support in working out agreements and getting cooperation from the MJS.

Together, these indicators suggest that there is a substantial number of communities looking to address overrepresentation through alternative community-based justice programs.

4.1.2. Alignment with Government Priorities

The ongoing failure of the MJS to meet the specific needs of the Indigenous population and acknowledge Indigenous perspectives was noted in the 2005/2006 Annual Report of the Office of the Correctional Investigator Footnote 18. It has been, and continues to be, a priority for the federal government to encourage culturally appropriate alternative justice measures within Indigenous communities. A number of federal initiatives, including the AJS, ACW, and First Nations Policing Program (under Public Safety Canada) have been implemented to address these concerns.

The federal government has taken steps aimed at improving the lives of Indigenous people on-reserve. The 2012 Speech from the Throne noted that the Canadian government will “continue to work in partnership with Aboriginal peoples to create healthy, prosperous, self-sufficient communities” Footnote 19. The previous administration was committed to promoting justice, in particular by supporting victims. Canada’s Economic Action Plans during this period proposed measures to continue to reduce violence against Indigenous women and girls, protect and support victims, and provide law enforcement and the justice system with the means needed to protect communities and promote justice Footnote 20. Specifically, the Economic Action Plan 2012 proposed $11.9 million for the Family Violence Prevention Program in 2012-13. Canada’s commitment to supporting Indigenous communities is also highlighted in Budget 2013, which announced a total of $872 million in investments for Indigenous and northern communities. This was aimed at allowing them to participate more fully in Canada's economy and benefit from its growth. Of the total investment, $11 million was directed towards the AJS in 2013-14 Footnote 21.

In 2015, Indigenous issues, use of restorative justice, and reducing incarceration became greater priorities and, by extension, the role of the AJS. The 2015 Speech from the Throne directed the government “to renew, nation-to-nation, the relationship between Canada and Indigenous peoples, one based on recognition of rights, respect, co-operation and partnership” and to “work co-operatively to implement recommendations of the Truth and Reconciliation Commission (TRC) of Canada” Footnote 22. The TRC’s Call to Action #30 seeks to “eliminating the overrepresentation of Aboriginal people in custody”. This extends to Action # 31, which discusses how sufficient and stable funding is needed so alternatives to imprisonment can be provided to Indigenous persons:

“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.” Footnote 23

In addition to this, several priorities in the Minister of Justice and Attorney General of Canada’s 2015 Mandate Letter directly relate to the AJS, as the Department’s only community-based Indigenous justice program. These include addressing gaps in services to Indigenous people and reviewing changes in the criminal justice system and sentencing reforms; and increased use of restorative justice processes and other initiatives to reduce the rate of incarceration amongst Indigenous Canadians.

Finally, as a result of the role AJS’ community-based justice programs have in holding offenders accountable, the AJS was identified as one of the federal government’s responses to violence against Indigenous women and girls Footnote 24.

4.1.3. Alignment with Departmental Strategic Outcomes

The AJS aligns with the Department’s strategic outcome to provide "a fair, relevant and accessible Canadian justice system". This strategic outcome is a shared responsibility among a broad range of players, including Parliament, the judiciary, federal departments and agencies, partners in provincial, territorial, and municipal governments, a broad range of non-governmental organizations and stakeholders, and ultimately all Canadians.

The AJS meets the Department’s 2016-17 Expected Results by providing “a justice system that responds to the needs of Aboriginal people by providing culturally relevant information and services” Footnote 25. According to current departmental plans and priorities, the Department’s mission is “to ensure a more accessible, equitable and efficient justice system for Canadians” Footnote 26. AJD’s Standard Operating Procedures indicate that “in achieving its broad policy objectives, the Programs Branch uses a variety of grants and contributions programs to test various approaches to improve Canada's justice system, to contribute to policy development, and to support its mandate. Through partnerships with non-profit organizations, community organizations, cities, provinces and territories, as well as other federal departments, just to name a few, the Department collaborates with others to deliver targeted support for Canadian children, youth, Aboriginal people, victims” Footnote 27.

4.1.4. Alignment with Federal Roles and Responsibilities

The federal government holds the policy mandate for Indigenous justice, while the administration of justice in most areas is the responsibility of the provinces and territories. The AJS is delivered in a manner consistent with this constitutional division of powers, in that the Department co-funds the delivery of community-based justice programs in the area of Indigenous justice. KIs, including provincial and territorial justice officials, agreed that the Government of Canada has the responsibility for First Nation, Métis and Inuit justice because of its responsibility for Indigenous people and of the shared jurisdiction in the area of justice. A majority of provincial officials said that the federal government should take on an even bigger role in this area than it currently does because of the extent of the problem of overrepresentation. Roles proposed for the Department, in addition to providing support to bolster the existing program or creating new programs to increase reach, included:

  • supporting collaborations and partnerships with other departments (e.g., RCMP);
  • ensuring better coordination of all Indigenous programs within the Department;
  • providing support to increase buy-in from the MJS at the local level (e.g., participating in discussions or negotiations with local law enforcement, Crown, RCMP);
  • providing mechanisms to ensure best practices and lessons learned could be shared nationally;
  • having AJD Regional Coordinators provide training, support and mentoring to build capacity; and
  • establishing a set of possible core competencies for CJWs to help guide AJS programs in their efforts to hire and provide training.

4.2. Performance – Achievement of Expected Outcomes (Effectiveness)

4.2.1. A Justice System that Responds to the Needs of Indigenous People by Providing Culturally Relevant Information and Services

This outcome is composed of a few elements. The first element concerns whether or not available AJS programs and services are culturally appropriate and of sufficient quality to constitute a response to the needs of Indigenous people. The second is the degree of accessibility to those services, including their availability and their linkages within the communities and with the MJS.

Cultural Appropriateness

The AJS is designed to be very flexible, allowing and enabling communities to develop justice-related programs and services in keeping with local needs and tailored to local cultures and traditions. Some Indigenous communities are comprised of more than one culture (e.g., Prince Albert Grand Council includes 16 First Nations, some of which are Cree, Saulteaux or Dene), each with their own unique cultures and traditions. KIs indicated that they believe cultural relevancy is inherent in the AJS design because the programs are determined and delivered by the communities. More than 73% of CJWs surveyed indicated that their programs were being adapted to fit the needs of their communities, provided culturally relevant community-based justice alternatives to the MJS, and reflected values of healing and reconciliation. Crown and police representatives were less positive about how culturally appropriate the existing programs were: only 33% of Crown representatives and 21% of police force representatives felt that the community-based justice programs were helping address the issue of a lack of culturally appropriate services and supports for Indigenous people. This could be due to a number of factors, such as the need to increase access to cultural services and Elders and a lack of cultural understanding on the part of the MJS. Those involved in the six programs that were the focus of case studies, including some community members and program clients, emphasized that the cultural components of the programs are what makes them more effective and relevant than MJS options.

The programs’ flexibility encourages both cultural relevance and a wide variation in types of programming, including prevention, pre-charge diversion options, alternative sentencing approaches, and reintegration programs, such as wilderness camps with a spiritual component. For example, one of the community-based justice programs, the United Chiefs and Council of Mnidoo Mnisig, accepts pre- and post-charge diversions and provides advice on sentencing to youth and adult band members. The program also employs traditional law principles of accountability, healing, and making amends in order to develop a plan of action for offenders who have accepted responsibility for their offences. The twelve-session victim empathy program incorporates Anishinabe justice principles and approaches. The Indian Youth Friendship Society in Thunder Bay, Ontario, operates an Indigenous Community Council Program that is a diversion program for Indigenous youth and adults. It offers culturally appropriate and meaningful conditions, such as treatment, therapy, ceremonial and other traditional activities. The Aboriginal Legal Services program based in Toronto provides Gladue services for Indigenous offenders in the Waterloo, Wellington and Sarnia regions. Gladue reports are prepared to assist the court in taking into account the unique circumstances of Indigenous defendants when determining sentencing.

Program Quality and Value

AJS and provincial/territorial justice officials working with Indigenous communities indicated that there is considerable variation in the quality of the programs, with some viewed as very strong and well organized and others requiring improvement. Stakeholders highlighted a number of factors that influence program quality:

  • the ability of communities to supplement AJS funding from community resources to expand and enhance programs and services;
  • the level of training and experience of program managers and staff, which is seen as varying considerably;
  • staff turnover, which is viewed as frequent due mainly to the short-term program mandate and uncertain renewals, along with relatively low-pay scales;
  • a lack of resources for systematic, ongoing training of CJWs and other service providers;
  • a lack of recognized core competencies for the various types of programs and services, resulting in a reported wide variance in the experience, training and abilities of CJWs; and
  • contingent on buy-in from referral sources, particularly the police and Crown, who must use discretion when determining whether they will send a file to the community-based justice program or not. Much of this is based on their awareness and confidence in the community-based justice program to adequately address the matter at hand.

These factors are often capacity issues, which AJS has attempted to address through its Capacity-Building Fund, but this is limited in terms of resources and the ability of Regional Coordinators to provide support and mentoring to build capacity at the community level. These views are echoed in literature that points to inconsistency in Indigenous-specific program offerings (as a result of staff shortages, overworked staff, and staff turnover) and a need for program development in several areas Footnote 28.

Positive views on the quality and value of community-based justice programs by most CJWs were echoed by a small sample of program clients interviewed as part of the case studies. They talked about how important the cultural and spiritual elements were to their experiences with the programs, and how transformational these had been. A mother of one youth client in Ontario indicated that since having her child participate in one of the Anger Management programs, she have seen a significant improvement in the youth’s overall attitude to life and respect within the household. The youth is now more likely to speak to the parent regarding how he is feeling, and therefore contributing to more positive relationships and preventing further outbursts. In another case, a client served by the Métis Justice Institute in Manitoba had been dealing with domestic violence from a partner and was referred to victim services through the program. The victim has found that the services have helped her gain control of her life again. She was set up with a therapist and referred to appropriate services. Another client from Eastern Canada had a plan of action that included a letter of apology and volunteering time in the community. Through participation in a community-based justice program, the client did not receive a criminal record, and to this date has not repeated his involvement with the justice system and is reportedly viewed as a positive influence in the community.

However, CJWs recognize that there is work to be done to establish better linkages with MJS officials and to demonstrate to those officials that the programs offer viable alternatives.

Program Accessibility

Community members living outside their home communities, including major urban centres, might be referred back to programs in their home communities. However, in some regions, including Saskatchewan, an adult offender file cannot be referred back to his/her home community.

The offender is expected to be served by the program located in the community where the offence occurred and where the victim resides, if such a program exists. The purpose is to reinforce accountability to the community where the offence took place, and to ease the burden on the victim – rather than have the victim travel to the offender’s home community, the offender must travel to the victim’s home community.

There is little doubt that the AJS has contributed greatly to the creation and support of community-based justice programs, and by helping to put the programs in place, has enhanced the response of the MJS to Indigenous needs in that respect. However, many other communities continue to exist without access to community-based justice programs in spite of the departmental objectives, and further highlight the gaps in coverage indicated in previous sections, as well as the repercussions of these gaps. The AJD is currently examining the issue of unserved and underserved communities with a view to identifying their numbers and locations.

In assessing the contribution of the AJS, most KIs expressed the view that in AJS-supported communities, the MJS offered an alternative and more positive set of options for Indigenous people referred to the programs. However, they almost uniformly raised the issue of “coverage”, pointing out that many Indigenous communities, and therefore many Indigenous people, do not have access to such alternatives and are left to work within the existing MJS.

Referrals

When a person who is eligible for AJS programs first enters the MJS, he/she has three main ways to access AJS programs: “Community referrals” where community members make self-referrals or are referred by a community agency including schools; “Pre- and Post-charge” referrals which can come from the Crown, police or judges; and “Reintegration” which can come from corrections officials. Many residents of communities with access to community-based justice programs do not access those services because referrals do not take place. According to all the sources consulted for the evaluation, problems with referrals from the MJS are a primary barrier to the success of the AJS.

The challenge in examining referrals is to understand how many Indigenous people entering the justice system are not referred, and why. The evaluation did not have access to definitive information in this regard, but the recidivism analysis, the survey of Crown and police and a separate survey of CJWs all help shed some light.

Referral information was provided from seven of the eight programs included in the recidivism analysis conducted for this evaluation. In those communities, Crown, police, court and the Department of Fisheries and Ocean made up 98.8% of all referrals to AJS programs. Community members’ referrals were at 0.4%, and self-referrals accounted for 0.8%. When comparing the referral sources between the participant and comparison groups, there were no significant differences. This highlights that most referrals (almost 99%) come from police, Crown, the courts or other government officials. If they are not making referrals, access to the AJS programs would be severely restricted.

The decision to refer to an alternative community-based justice program is discretionary unless mandated by the court. When agencies refer to such a program, it is reasonable to infer that they consider the programs to be suitable alternatives to the MJS, and that a degree of collaboration exists such that they are aware of the community-based justice programs and trust their quality. Survey results indicate that police and Crown do not divert all eligible individuals to community-based justice programs as an alternative to charges being laid, and that some officials do so very little if at all. It is unknown in how many cases police decide to give unofficial warnings to individuals for minor offences, and how many of those individuals end up in community-based justice programs through other means.

The evaluation included a survey of police and Crown serving Indigenous communities (often not exclusively). About 50% of Crown respondents and 68% of police said they were “a little”, “to a small extent” or “somewhat” aware of community-based justice programs in their area of responsibility. This alone demonstrates limitations to the likelihood of referrals. The same respondents were asked how often they refer Indigenous cases that are eligible. Sixteen percent of Crown and 40% of police said “almost never”, and another 25% (Crown) and 33% (police) said they refer less than half the time in eligible cases. Crown were more likely to report referring cases all the time or almost all the time (41%) compared to police (13%).

Among police who said they never or almost never refer, the most common reason given is that they did not believe that community-based justice programs were an appropriate alternative (42%), that cases were not eligible Footnote 29 (27%), and that there was a lack of services or supports of particular types in the community to refer people to (26%). The percentages for Crown representatives were similar: 50% said they did not refer because they felt the programs were not appropriate alternatives, 29% said no cases were eligible, and 26% mentioned staff turnover in the CJWs position as a barrier.

The figures for non-referrals do not necessarily indicate that the programs are considered of low quality, although capacity issues were highlighted in some cases. As one survey respondent explained, “the needs of the accused are far greater and immediate than what a particular community is able or willing to address”. Some respondents provided specific explanations such as that the program in their area is often in flux due to changing staff (or is currently inactive), or that the program appears to be disorganized and poorly run. Other reasons for lack of referrals ranged from lack of awareness of the programs, lack of understanding of need for alternative programs, to other barriers such as services not covering specific types of offences or offenders. A few police/Crown survey respondents indicated that if they knew more about the programs or if the programs covered more offences or provided more services for different types of offenders, they would be more likely to refer individuals to the programs.

On the other hand, 20% of police and almost half of Crown attorneys responding to the survey said they often refer people to the programs, predominantly because they recognize that they are more culturally appropriate and they believe there is a greater likelihood that participants will not reoffend. CJW survey respondents were asked about referral rates, and their assessments of referral frequency were close to those of the police and Crown respondents, indicating that they had a good idea of how often MJS stakeholders actually referred eligible individuals to their programs. One of the strongest variations in views between CJWs and police representatives was the perception among CJWs of the prevalence of discrimination against Indigenous people in the MJS – few police identified this as an issue. According to KIs, both the reality and the perceptions of discrimination may be hindering positive working relationships, and may contribute in some cases to reducing the likelihood that MJS stakeholders will refer to alternative community-based justice programs. This may indicate that more awareness-raising on Indigenous cultural values and systemic discrimination is required, as well as increased knowledge and awareness of the legal expectation that alternatives are to be considered, and how the community-based justice programs can provide culturally appropriate alternatives for Indigenous peoples.

Departmental and justice officials interviewed concurred with CJWs surveyed that referrals were a significant hurdle in some communities. They said that the discretionary nature of referrals in most cases is a barrier, and that establishing a positive and trusting working relationship with police and court officials requires knowledge and skills that not all CJWs have, and even with experienced people, these relationships are built over time. A number of factors were identified as creating challenges in building good working relationships with the MJS, including high staff turnover (CJWs, police and Crown), insufficient resources to allocate to that aspect of the job, an inherent lack of trust that has to be overcome, a lack of guidance from senior police and Crown managers at the national, regional and local levels to advocate for greater use of alternative programs, and variations in program quality.

4.2.2. Federal Policy that Addresses the Overrepresentation of Indigenous People in the Canadian Justice System

Policy Advances

The main policy advance in recent years cited by observers has been changes to the Criminal Code to recognize how unequal life chances contribute to offending and victimization among Indigenous people, and to recognize the value of sentencing alternatives. The Supreme Court expanded recognition of these factors in its Gladue ruling Footnote 30. But while courts are expected to apply Gladue principles in sentencing, there is limited funding available from the Department for the provision of services to prepare Gladue reports to guide sentencing. Gladue programs exist in some courts, including some in Ontario funded through the AJS, and some community-based justice programs provide Gladue report services on an ad hoc basis. FPT interview and case study respondents highlighted the lack of meaningful enforcement of Gladue principles.

Six recent AJS-funded programs do provide Gladue-related services. For instance, under the Community Based-Justice Fund, the United Chiefs and Councils of Mnidoo Mnising Gladue Caseworker Program provides Gladue services for Aboriginal offenders in the Manitoulin District, with the objective of reducing the overrepresentation of Aboriginal offenders in the prison system. Aboriginal Legal Services of Toronto Inc. has a funding agreement with the Department to manage the Gladue Caseworker Program. The Program provides Gladue services for offenders in the Waterloo, Wellington and Sarnia regions. The Indian Youth Friendship Society also has a funding agreement through AJS to manage the Gladue Services Program in Thunder Bay, Ontario. All three of these programs assist the court in taking into account the unique circumstances of Aboriginal defendants when determining sentencing Footnote 31.

Gladue-related Capacity Fund projects in the evaluation period include:

  • Siksika Nation: The Siksika Nation Gladue Report Writer Training Project coordinates and hosts a two-day training workshop on Gladue report writing for members of the Aboriginal and mainstream justice serving communities.
  • Council of Yukon First Nations: The Gladue Training and Mentorship Project supports the Yukon Community Justice coordinators and courtworkers to gain skills and knowledge of the Gladue principles and practices, and to assume greater responsibility for providing the courts with Gladue Reports.
  • Council of Yukon First Nations: The Yukon Gladue Research and Resource Identification Project collects and analyzes data specific to Yukon's current ability to offer and support non-custodial sentencing options to Aboriginal offenders pursuant to s.718.2e) of the Canadian Criminal Code. The Project also develops materials to help judges, lawyers, Aboriginal courtworkers and CJWs in the nine Yukon AJS-supported programs.

Although these projects provide evidence that some Gladue-related services are being developed and implemented, according to KI respondents and case study observers, they represent exceptions to the norm.

Need for Greater Coordination

In examining federal policy related to overrepresentation, the evaluation looked at activities including cross-government collaboration and integration, and any results of these activities in terms of legislation or other policy outcomes. An important context for this examination is the realization among many justice officials at all levels of government and in Indigenous communities that overrepresentation is a problem requiring a multi-faceted solution. Enhancements to the justice system, such as increased access to diversion and Indigenous programs, may be able to moderate the extent of overrepresentation, and community-based justice programs can make a positive difference for individual clients. However, according to available literature Footnote 32 and to all the sources drawn upon for this evaluation, governments and communities will need to adopt a more integrated and holistic approach to affect a significant decrease in overrepresentation and to make a lasting difference. Health and mental health services, child and family services, cultural and spiritual leaders, law enforcement, criminal justice and correctional services will need to work closely together with community leaders to address underlying problems while minimizing harm in response to criminal behaviour.

The Department has a number of policy areas and programs that are intended to contribute to a responsive and fair criminal justice system. These include the AJS, Federal Victims Strategy, ACW, Legal Aid, and the Indigenous Law and Criminal Law Policy groups. Within the Department, there have been recent efforts to better coordinate these related policy and program areas, but there is still room for improvement. For example, some KIs indicated there were still opportunities to collaborate and share information within the Department and with other departments and agencies at the national level. At the operational level, there is considerable crossover and some confusion over responsibilities, and this is seen as requiring management attention nationally.

Interviews and case studies pointed to situations where CJWs are performing some of the functions of courtworkers and provincial probation officers, and other situations where disagreements are occurring among these same functional areas over mandates and responsibilities. It is unknown how widespread these problems are, but they are known to departmental managers, and solutions are currently being discussed or in the process of being implemented. For example, the AJS ACW collaborative working group has a mandate to identify:

  • common objectives and possible collaboration of ACW and AJS to improve program services and efficiency;
  • ACW and AJS needs for which the respective programs identify a benefit in working together; and
  • recipient needs, within and beyond the ACW and AJS programs.

Across federal departments/agencies, there is reportedly recognition of the holistic nature of Indigenous justice issues and the need for greater coordination, as well as optimism about the federal government’s approach to working with Indigenous communities. But coordination remains at an early stage of development, with department and agency mandates reinforcing a silo approach. For example, in the last year, there have been efforts in the Department to work with the RCMP to more systematically make use of AJS alternative programs at the local level. Two pilots of an initiative are currently underway to maximize opportunities for the pre-charge diversion of Indigenous offenders, in concert with the RCMP (NHQ and regional detachments), provincial/territorial partners and Indigenous organizations. The goal of the initiative is to develop an approach in the respective jurisdictions, which will increase diversions and provide models for potential replication across the country.

  • In Nova Scotia, the RCMP, Nova Scotia Department of Justice, Mi’kmaw Legal Support Network, and the Department have worked together to review pre-diversion rates over the past five years, and develop and implement a strategy for improving numbers province-wide. In response, an information campaign has been developed and is currently being rolled out at all 52 RCMP detachments across the province through co-presentation by representatives of the RCMP, Nova Scotia Department of Justice, and Mi’kmaw Legal Support Network. Importantly, the RCMP has committed to a percentage increase year-over-year in pre-charge diversion rates, starting in April 2016, to be monitored through to March 2019. In support of this initiative, “RJ icons” are being installed in all RCMP car desktops to provide immediate access for officers to information on restorative justice policy, procedure and contacts. It has also implemented the practice of a monthly review of pre-charge diversion statistics, followed by quarterly reports to senior officials on results.
  • In Manitoba, the RCMP, Manitoba Justice, and the Department have worked together to develop a Manitoba-specific strategy to increase pre-charge diversions. It is agreed that the RCMP will be piloting activities in the communities of Dauphin and Winnepegosis, Opaskwayak Cree Nation, and Pine Creek First Nation. Discussions are currently underway with the Manitoba Métis Federation, the Manitoba Keewatinowi Okimakanak, and the Southern Chiefs Organization, respectively, as the AJS-funded community-based justice programs associated with the sites. The intention is to involve the Indigenous organizations in further planning and seek their comments on a draft information package. Working in concert, the group is developing a strategy and complete information package so that presentations can be rolled out for RCMP detachments and communities by fall 2016.

Representatives of the FPT justice departments meet periodically as members of the AJS FPT WG. A prevailing view among KIs was that although FPT WG discussions were useful and important, the ideas that emerged did not appear to lead to policy and program changes. KIs pointed to the fact that the AJS FPT WG is not part of the Department’s structure of committees of senior officials, and therefore has no effective mechanism through which to move its ideas forward or make decisions.

The Indigenous justice policy function has resided outside the AJD in recent years, and the focus has been on comprehensive lands claims, specific claims, self-government and other rights-based issues, as opposed to community-level programming. There has been very limited research or policy support from the Indigenous Law and Criminal Law Policy groups in developing enhancements to Indigenous community-based justice policy and programming. AJD is not able to take on a greater policy function because the most immediate concern has historically been a short-term mandate and frequent preparation for renewal.

4.2.3. Indigenous Communities are More Involved in Local Justice Administration

This outcome is premised on the belief that putting in place locally delivered programs and services will result in communities having greater control over the administration of justice for their people, within the limits of the Criminal Code and sentencing legislation. The evaluation found that in communities with AJS community-based justice programs, there are alternative programs in place that have been accessed by about 9,000 individuals annually. As section 4.2.5 describes in more detail, an analysis of recidivism rates indicates that program participants are about 40% less likely to reoffend than those eligible but not participating, and that this effect carries over well past the time of the offences in question (at least eight years, which is the limit of the analysis). The programs have proven in many cases to be successful in reducing recidivism and improving the lives of participants. The evaluation found that because most referrals to these programs and services come from police and court officials, decision-making authority still rests with those making the referrals. Community control over justice administration is therefore limited in scope, but once the referrals are made, the community gains considerable control in how the cases are managed.

In participating communities, there is a recognized increase in community involvement in the administration of justice, directly related to the degree of success in establishing relationships with the MJS. Where programs are in place and being used by the MJS, CJWs and other community participants point to the use of healing circles, sentencing circles, culturally and spiritually based programs and community forums as representing a meaningful adaptation of the administration of justice to local needs.

Case study respondents described a prevailing perspective in their communities that when a community member commits a crime, it is the whole community that suffers, and the whole community needs to be part of the solution. This was exemplified in Elsipogtog First Nation, where the program’s healing plans are developed through consultations by a justice committee that is composed of cultural representatives and highly regarded leaders within the community. Another case which exemplifies community ownership is a referral from Elsipogtog Victim Services, for a victim of domestic abuse. The victim had noted that since the incident, she has felt a tremendous amount of support from the program, alongside members of the community who are aware of her situation – resulting in a feeling that the community is working together to heal this person - a powerful feeling. Punky Lake Wilderness Camp Society also has a justice committee composed of community representatives from the seven participating communities. They also provided examples of the importance of community ownership of issues through the use of a healing circle to solve an ongoing long-standing historical conflict between two communities. Through collaborative efforts from the MJS and the program, the two communities were brought together to implement restorative justice frameworks. This was in response to realization on the part of the communities that for the restorative model to work, they had to all take responsibility for each other. Their programs in that context represent an acknowledgement of this perspective within the MJS response. Case study respondents also indicated that there is a ripple effect of involvement among community members, and a strong identification with the programs as “theirs”. CJWs said that this identification often results in more public trust in the administration of justice.

Barriers to Community Involvement

However, there are barriers to increased community involvement. There are gaps in services and many communities do not have access to AJS programs. Among those that do, there is sometimes a reluctance to refer clients to them by the MJS, as outlined in the section on referrals above. As well, CJWs say they have too large a caseload and too many responsibilities to be able to do outreach in the community to the extent that they would like. Managing their core functions is often all they can handle, unless funds are available for additional workers from other sources. There is a heavy reliance on Elders and community volunteers, and often little time to engage them as effectively as they would like. This concern was echoed by FPT justice officials, who noted that funding for the programs has increased only modestly, and at times has reduced over the history of the program, in the face of increasing costs and increasing caseloads for some programs Footnote 33.

Interview and survey respondents offered a number of ways that community involvement in the administration of justice could be enhanced. First and foremost was the need for greater training of CJWs to help them do their jobs as effectively as possible. The limited funding available for capacity building is one of the factors contributing to this gap. This is in spite of high demand for training, information-sharing activities, and sharing of best practices. Training derives primarily from the Capacity-Building Fund, one-time contributions or grants for only a small number of communities each year, and AJD officials acknowledge that often the more advanced communities are successful in obtaining the funding because they have greater proposal writing experience.

There is a perceived value among CJWs and FPT justice officials in bringing CJWs together for training and information exchange, especially to enable less developed programs to learn from more experienced ones. Several KI respondents raised the issue of the value and economy of larger national conferences in place of smaller groupings of programs. AJD funds annual regional gatherings of CJWs through the Capacity-Building Fund and on an ad hoc basis, regional officials bring CJWs together for workshops, but these are infrequent. Several provincial justice officials pointed out that although CJWs operate in parallel with MJS officials, such as probation officers, courtworkers and victim assistance workers and have comparable roles, they receive much less support than their counterparts in terms of training and core competency management, pay scales and work benefits. KIs felt that the integrity of the community-based justice programs could be increased by remedying some of these issues.

FPT officials also pointed to the lack of an ongoing mandate and stable AJS funding year by year. In a program that is indeterminate in duration or funded for a five or ten-year period, funding recipients are able to make long-term plans, offer stable employment to managers and staff, and allocate time to put in place effective management strategies. The AJS has not been able to offer the funded communities this kind of stability. Frequent turnover among CJWs (especially frontline staff) is seen by most observers as an inevitable consequence. Their point of view is that this state of affairs often prevents communities from being able to offer an alternative justice response that is well integrated with the MJS.

Some Promising Approaches

From the sources of information for this evaluation, a number of practices were identified as having potential to improve the ability of communities to successfully administer alternative justice processes. Some of these have to do with the way that communities plan and implement their programs and services. One example is the implementation of community-integrated case management strategies, such as “hubs” in Elsipogtog First Nation in New Brunswick, and similar integrated approaches being developed at the Kwanlin Dun First Nation in the Yukon. The “hub” is an evidence-based, collaborative problem solving approach originating in Saskatchewan. It draws on the combined expertise of relevant community agencies to address complex human and social problems before they become policing problems.

Another example is a resource database (funded by the Capacity-Building Fund) that provides access to over 650 service providers that have been vetted by the Manitoba Métis Federation, which their staff indicated they can access and refer clients to services much more efficiently than before.

Also viewed by participants as an important element of effective programming is a strong link between community-based justice programs and the local Indigenous government. This is in place at Elsipogtog and Kwanlin Dun, and is inherent in the programs operated by provincial or regional organizations, such as the United Chiefs and Council of Mnidoo Mnising, the Manitoba Métis Federation and the Saskatchewan Tribal Council.

A key message from CJWs is the importance of broad community engagement in designing and maintaining community-based justice programs, and that this derives primarily from promoting recognition of offences as a community problem rather than an individual one. Related to that is the idea of integrating community-based justice programs into a broader community governance approach that includes a range of policy and program areas. In one case study, Elsipogtog First Nation, the broad governance approach described above means that individuals involved with the law are treated in a similar fashion to those with other health and social problems through a more holistic approach. In that same community and at Kwanlin Dun, a reserve-based court is being negotiated so that all related programs and services can be directly tied to the formal court process. This approach parallels recommendations on government support for community-based justice where the need has been identified for a cross-government, better coordinated approach.

Another innovation that appears effective for multi-community arrangements is the careful documentation of:

  • case files for each community it serves;
  • interventions and their results;
  • lists of services and service providers available;
  • files with training that have been developed (e.g., training on how to organize and run effective healing or sentencing circles, how to get community buy-in); and
  • descriptions of best practices.

This written information can then be shared across sites and with any new CJWs such that training, best practices and community engagement materials developed in one site can be used in other sites. The Saskatoon Tribal Council program also uses a coordinator to develop and share resources across all communities it covers, which is considered cost effective. The coordinator then serves as a repository for knowledge of communities and interventions but also trains any new CJW and supports them as they learn the role, shortening the time it takes for them to be comfortable in the role while the director of the program can focus time on outreach and advocacy.

A number of successes were identified through the AJS case studies associated with promising alternative approaches to justice. Programs have developed community-driven plans to ensure the victim, the community and family are satisfied with decisions and outcomes (e.g., Elsipogtog, Punky Lake Wilderness Society, United Chiefs and Council of Mnidoo Mnising). Several success stories provided by AJS programs spoke of a healing circle including apologies to the community, while another developed an isolation and personal wellness plan to ensure the offender was accountable for his actions and willing to work on himself. Overall, the outcomes have reportedly been positive and offenders have been able to access diversion from the MJS and into the community for healing decisions. Footnote 34

These types of enhancements are viewed positively, but they can be a challenge for many communities that have limited resources beyond what the AJS and the provinces and territories provide. The Saskatoon Tribal Council has found it effective in the past to have a presence at court to quickly identify and approach potential clients, thus decreasing reliance on referrals from MJS representatives. However, as demand for services increased and AJS funding remained stagnant, this service was discontinued and more individuals reportedly fell between the cracks. KIs consulted for this evaluation were clear that broader access to alternative justice programming and substantial improvements in program quality and effectiveness are not possible with existing resources. To the contrary, rising costs and demand for services with stagnant resources are viewed as likely to weaken effectiveness.

4.2.4. Relevant Indigenous Cultural Values are Reflected in the Canadian Justice Administration

The intention of the AJS is that community-based justice programs offer alternatives to the MJS that reflect local cultural values, and that the MJS will recognize the suitability of these programs and refer clients to them. We saw in section 4.2.1 that the AJS has succeeded in supporting community-based justice programs in many communities and that these programs are viewed by CJWs and community leaders as reflecting local Indigenous values. We also saw that some MJS officials recognize the value and validity of these programs as culturally appropriate alternatives, but that many do not, and that referrals from the MJS are a real challenge to the success of the community-based justice programs.

The existence of community-based justice programs provides an opportunity for the MJS to reflect Indigenous cultural values, with success in some communities and the beginnings of progress in others. Where the programs are not as advanced (often when they lack resources from their communities and rely solely on AJS funding), MJS recognition and referrals are less frequent. And of course, in communities without AJS-funded programs, there is reason to believe that the justice system does not reflect Indigenous cultural values.

Case study participants and some comments accompanying survey responses indicated that there is a perceived divide between the MJS and the kind of justice delivered by community-based justice programs. The focus for most communities is to provide a way to reconnect with their culture and traditions, as a key component of the path to greater individual and community well-being. The assumption is that the MJS will never provide such opportunity, so the most that can be hoped is that justice is increasingly administered by the communities themselves, either through referrals or by establishing courts in the communities themselves. Evidence for this evaluation indicates that there remains considerable room for improvement in having the MJS reflect Indigenous cultural values.

4.2.5. Reduced Crime, Victimization and Incarceration Rates in Communities with Funded Programs

Overrepresentation

It is anticipated that successful AJS programming will help to reduce crime and victimization and will help to reduce the number of Indigenous people taken into custody through the MJS. However, there are many factors beyond community-based justice programming that work against that outcome, including poverty, unemployment, high rates of victimization Footnote 35, poor living conditions in Indigenous communities, health and mental health issues associated with intergenerational trauma, and a MJS that can be insensitive to these factors. As discussed earlier in this report, Indigenous people are overrepresented in correctional facilities Footnote 36.

Correctional services statistics indicate that there has been a reduction in adult Indigenous custodial admissions between 2010-11 and 2014-15 (see table below). However, the percentage decrease in adult custodial admissions among Indigenous adults (20% over the five years) is less than the percentage decrease among adult non-Indigenous admissions (22%).  Ultimately, the issue of overrepresentation continues with Indigenous adults, representing approximately 26% of all adult admissions, while only representing 3% of the Canadian adult population.

Table 4: Indigenous Adult Custodial Admissions to Provincial and Territorial Correctional Services, 2010-11 to 2014-15
  2010 - 11 2011 - 12 2012 - 13 2013 - 14 2014 - 15 % decrease
Indigenous Adult Admissions 64,285 66,819 52,011 51,668 51,463 20%
Non-Indigenous Adult Admissions 185,834 184,153 155,812 148,897 145,336 22%
Total Adult admissions Table note i 250,119 251,972 207,823 200,565 196,799 21%
% of Indigenous Adult Admissions 26% 26.5% 25% 26% 26% 0%
Table note i

The table does not include admissions where the Indigenous identity was unknown.

Return to table note i referrer

Sources: Statistics Canada, 2016, Cansim Tables 251-0022.

With regards to Indigenous youth, there has been an even more significant decrease in admissions to provincial/territorial correctional services (both custody and community services) between 2010-11 and 2014-15. However, the decrease was not as pronounced as non-Indigenous youth (45% compared to 54%). The following table also indicates that the representation of Indigenous youth in provincial/territorial correctional services has grown from 29% in 2010-11 to 33% in 2014-15, even though the overall number of youth admissions to correctional services has decreased (51%) during this period.

Table 5: Indigenous Youth Admissions to Provincial and Territorial Corrections Footnote 37, 2010-11 to 2014-15
  2010 - 11 2011 - 12 2012 - 13 2013 - 14 2014 - 15 % decrease
Indigenous Youth Admissions 10,411 10,578 7,667 6,853 5,718 45%
Non-Indigenous Youth Admissions 25,519 22,715 16,471 13,802 11,739 54%
Total Youth admissions Table note ii 35,930 33,293 24,138 20,655 17,457 51%
% of Indigenous Youth Admissions 29% 32% 32% 33% 33% 0%
Table note ii

The table does not include admissions where the Indigenous identity was unknown.

Return to table note ii referrer

Source: Statistics Canada, 2016, Cansim Tables 251-0012.

Although there is no direct causal evidence, FPT government efforts to reduce reliance on custody as a sentencing option and to provide viable alternatives such as AJS programming may be contributing to this improvement.

Incarceration and victimization data in specific communities are not known, so comparisons between AJS-supported communities and those with no such programs are not possible. However, the evaluation did examine recidivism rates among individuals who were referred to AJS-funded community-based justice programs and services, comparing those who attended the programs against those who were referred but did not participate. This analysis was a repeat of similar recidivism analyses conducted for three previous AJS evaluations, and a summary of the analysis is presented in Appendix D.

AJS Influence on Recidivism

Individuals participating in AJS-funded programs are significantly less likely to re-offend than those referred but did not participate. The analysis used a Cox Regression to compare the program and comparison groups of offenders. Table 6 below shows the annual comparative figures for each year after program completion up to eight years. Participants were 43% less likely to re-offend than non-participants  after one year and remained substantial at 37% after eight years, suggesting that in a high proportion of cases the community-based justice programs are having a lasting positive impact on the lives of those individuals who participated. These findings are very close to those reported in the 2011 AJS evaluation and in the two earlier evaluations.

Table 6: Recidivism Rates
Time after Program Completion Table note iii Cumulative % of Offenders who have Re-offended Likelihood of Participant Group to Re-Offend Over Comparison Group (%)
Participant Comparison Likelihood Each Year (%) % Difference Year 1 Versus Year 8
1 year 11.9 20.7 -42.51 -43%
2 years 17.6 29.8 -40.94  
3 years 20.4 34.1 -40.18  
4 years 23.0 38.0 -39.47  
5 years 24.7 40.5 -39.01  
6 years 26.7 43.2 -38.19  
7 years 28.1 45.3 -37.97  
8 years 29.6 47.3 -37.42 -37%
Table note iii

The period of study was for anyone referred to one of the AJS programs participating in the study between 2004 and 2012.

Return to table note iii referrer

Note: Recidivism rates are fitted from the Cox Proportional Hazards Model and are based on the average characteristics of the national sample: number of prior drug convictions (mean=0.2), number of prior violent convictions (mean=1.2), number of prior non-violent convictions (mean=2.1), and age (mean= 30).

These findings are supported by the perceptions of CJWs and some police and Crown who refer to the programs, and by participants in the case studies, all of whom consider that the alternative, culturally relevant programming offers a more effective way to help many offenders than the MJS. This means that approximately 9,000 individuals who participate in AJS-funded community-based justice programs each year have access to programs that offer a real opportunity for change. In participating communities, the AJS is succeeding in helping to reduce crime, incarceration and victimization by reducing recidivism rates.

Program Completion

There are a number of factors that influence a participant’s ability to complete the program. According to CJWs surveyed, having positive peer associations (79%), a bond with family (72%), being a youth (69%), being employed (62%), and having housing stability (62%) were considered some of the biggest factors helping a person succeed in a community-based justice program. Police and Crown representatives surveyed reported similar results; however, they found age a less influential factor (49%). Police reported housing stability to be very important (89%), whereas it was considered less important for Crown representatives (57%). Other important factors included having positive relationships with CJWs, having strong support from others, demonstrating maturity/motivation, as well as having a safe, positive environment. Specific to youth are issues around isolation once they leave the communities to participate in the programing. Youth often find it difficult to participate and complete the programs without the support from their families and other support systems Footnote 38.

In terms of the programs themselves, CJWs surveyed indicated that the most important factors contributing to participants’ success included a recognized and established program to refer people to, availability of different types of services (for example, programs with a spiritual component, or those that offer pre-charge diversion), as well as the level of contact and interaction within the programs. Having a safe and positive environment was also considered an important aspect of Indigenous culturally specific programming.

Other Success Factors

The success of the program and its ability to generate improvements in the community were also seen as being influenced by factors internal and external to the program. For example, perceived barriers to improvement included high turnover of CJWs and a lack of services to refer individuals to, as well as a lack of collaboration with other support services, such as education, to offer seamless support. In addition, outcomes were influenced by other crises in the community including housing and drug use, the level of support received from the MJS, and the overall quality of life/opportunities in the community such as employment levels Footnote 39.

However, observers consulted for the evaluation also cautioned that there remains a great deal to be accomplished to improve the overall situation for Indigenous people in conflict with the law and for the communities they live in. The evaluation found that a majority of Indigenous communities do not have access to alternative community-based justice programs of the type supported by the AJS. Even in communities supported by the AJS whose programs are considered successful by FPT justice officials, crime and victimization are still serious problems, and in one case study, community perceptions of safety by CJWs and other justice officials had deteriorated in recent years despite success for some individuals. Their perception of the value of the AJS, aside from the clear benefit to participating individual clients and their families and communities, was expressed as “how much worse it would have been without the programs”. Case study participants emphasized the challenge of recovering as communities from many years of discrimination and systemic abuse, and the fact that the AJS, while important and beneficial, is just one component of a larger and broader effort that is required.

4.2.6. Safer and Healthier Communities

The AJS seeks to help make communities safer and healthier by supporting community planned and delivered alternative justice programs and services. Together with other measures, the Department seeks to support a fair, relevant and accessible justice system (a strategic outcome for the Department as a whole). The high degree of overrepresentation of Indigenous people among Canadians in conflict with the law and in custody is widely understood to relate both to ineffective MJS responses and to a range of root causes related to Indigenous health and wellness. AJS programs typically address cultural and spiritual aspects of the lives of clients, with a view to addressing those root causes and helping individuals towards a healthier path of life. Family and community members and victims of crime are often included in the administration of justice, and as the offenders take responsibility for their actions and undertake to make amends, the community as a whole is seen to be healed as well.

In the previous sections, the extent of the AJS contribution to improved conditions in Canada’s Indigenous communities has been examined and found to be substantial in many participating communities. Individuals participating in AJS-funded community-based justice programs were found to be about 40% less likely to reoffend than offenders who were referred but did not participate in the programs. Virtually all CJWs surveyed believe the AJS-supported programs are leading to increased community health and safety, with about half of them (54%) saying this is the case to a large or very large extent. All case study respondents, including some program participants, pointed to the benefits in terms of spiritual renewal, reconnection with culture and traditions, reconciliation with victims and the broader community, to individuals who participate in community-based justice programs, and to the fact that a high proportion who participate fully are able to stay out of the justice system in the future and get involved in more productive lifestyles. They also point to positive outcomes for victims of crime by having them involved in the solutions, and often by having their losses recovered in some fair way.

At the same time, participating communities and the other evaluation sources recognize that the AJS is not the whole solution, that crime, especially related to alcohol and drug abuse, continues to be a huge problem, and that the communities are not as safe as they should be. Given the breadth and depth of the problem the AJS seeks to address, and given that a majority of Indigenous offenders do not have access to AJS programs, safer and healthier Indigenous communities remain a work in progress.

4.3. Performance – Demonstration of Efficiency and Economy

As per the Treasury Board 2009 Policy on Evaluation, the evaluation included an analysis of the efficiency and economy of the AJS. This involved KI interviews to assess whether there are alternative ways to deliver the Strategy to increase its effectiveness; analysis of resources to determine how they were used; analysis of the operational efficiency of the Community-Based Justice Fund and Capacity-Building Fund; and an analysis of recidivism rates and cost implications on the MJS.

Economy

An analysis of economy focuses on inputs and whether they are optimized (or minimized). Economy is achieved when the cost of the resources that are used approximates the minimum amount needed to achieve the expected outcomes. This analysis examined the relation between planned and actual expenditures for the AJD, which is the responsibility centre within the Department for the administration and delivery of the AJS.

Table 7: AJD Allocated Resources and Expenditures for the AJS 2012-2016
  Salary Table note iv O&M Gs&Cs Table note v Total
AJD Allocated Resources $7,027,782 $2,472,145 $50,551,752 $60,061,679
AJD Expenditures $3,345,281 $580,871 $49,929,778 $53,855,930
Difference (Amount not Spent) $3,682,501 $1,891,274 $621,974 $6,195,749
% Not Spent 52% 77% 1% Table note vi 10%
Table note iv

Salary expenditures adjusted to include only those associated with the management of Gs&Cs. Chief Financial Officer costs, corporate costs and evaluation costs were excluded.

Return to table note iv referrer

Table note v

Demand for funding exceeded available funds by a considerable margin throughout the evaluation period. In 2015-16 an additional $250K was allocated from the Programs Branch using available funds from other programs.

Return to table note v referrer

Table note vi

The 1% not spent was due to a small number of communities not being able to spend all of their contributions in particular funding streams.

Return to table note vi referrer

Source: Department Financial System

Table 7 indicates that during the reference period (2012-2016), a total of $54M was spent by the AJD on the AJS, an amount 10% less than the $60M allocated (budgeted). The ability of the AJD to fully expend resources identified through TBS authorities was impacted by a number of government-wide and departmental spending limitations and reallocations (e.g., travel and staffing restrictions, Deficit Reduction Action Plan which led to a $2M cut, and workforce adjustment). For all of these reasons, AJD only spent $54M of the $60M allocated. As indicated in the table, most of the unspent funds were taken from salaries ($3.3M spent vs. $7M allocated).

The fiscal restraint had an impact on human resource management within the AJD. It resulted in hiring freezes and difficulties in recruitment at various times. It also meant that the program had a reduced presence in the regions, and Regional Coordinator and Program Analyst positions were reduced and consolidated. In practical terms, a key result was that the bulk of regional staff time was spent managing program funding agreements, rather than performing important AJS program development functions and supporting communities in their implementation of programs and services.

AJS relations with the provinces and territories are positive and collaboration is taking place at the national and regional levels, but this is greatly limited by heavy demands on FPT staff with limited staff complements. Some provincial and territorial respondents felt that the Department could do more work to encourage collaboration with the MJS, including working with the RCMP to encourage diversion as an accepted practice, and working with provincial officials to encourage more routine Crown acceptance and use of community-based justice alternatives. AJD officials, including Regional Coordinators, have found themselves unable to take on these functions beyond existing levels because of budget cutbacks and the need for employees to focus with regular frequency on program renewal rather than on program enhancements or planning activities Footnote 40.

In section 4.2.2, it was noted that there is a shared understanding at the FPT and local levels of the need for a more holistic approach to Indigenous justice, and that there is important work for the Department to undertake in fostering stronger cross-departmental and multi-disciplinary collaborations. With AJD officials focusing attention on program renewal and without a longer-term commitment to the AJS with sufficient policy and regional-level resourcing, these enhancements have not yet been possible.

Operational Efficiency

Operational efficiency can be defined as the extent to which the costs of producing program outputs are reasonable. In the context of this evaluation, operational efficiency was assessed by calculating the administrative costs associated with the Gs&Cs, and the factors explaining this ratio. The total salary and O&M expended by the AJD to administer the two Funds Footnote 41 between 2012 and 2016 was estimated to be $3,258,706 ($3,926,152 x 83% Footnote 42).

Given that Gs&Cs commitments made by the two AJS Funds in this period was $49,929,778, for each administrative dollar spent (salary and O&M), $15.32 of AJS funding was made available to support Indigenous communities.

The total operating costs (the amount of salary and O&M spent to administer the AJS Funds and to support communities through Gs&Cs) was $53,188,484. The administrative costs expressed as a percentage of total operating costs were:

  • $3,258,706 (AJD salary and O&M) / $53,188,484 (total operating costs) x 100 = 6%.

The administrative efficiency ratio (salary and O&M as a portion of Gs&Cs) awarded was:

  • $3,258,706 / $49,929,778 = $0.06.

This means that for every dollar invested in Gs&Cs, the Department spent $0.06 in administrative costs to support the delivery of the two Funds. Although a systematic comparison with other federal Gs&Cs programs is beyond the scope of this evaluation, the $0.06 in administrative costs per dollar of Gs&Cs, the resulting efficiency ratio, is modest considering that the components of the two Funds involve a significant amount of interaction with funding applicants and recipients to process and monitor the Gs&Cs Footnote 43.

Qualitative evidence indicates that the ratio of administration costs should be assessed in light of the structure of the AJD, which is a decentralized program. According to interviews and administrative data, although regional delivery involves costs of staffing the regional presence, there are net benefits. It allows AJD regional staff to work more closely (in person in many instances) with provincial representatives at the regional level. Regional staff also have direct linkages with service providers, allowing AJS to have a regional and local perspective, including awareness of unique regional and community realities. It has the added benefit of providing the Department as a whole with presence on the ground and a center of regional expertise that the Department can draw on. Direct linkages with providers allow a more adapted delivery to communities, including risk-based project monitoring. Case study respondents clearly indicated that they appreciated the regional presence of the program, and provincial/territorial representatives consider it critical to the AJS’ success, particularly in fostering relationships with the MJS and in troubleshooting communities with challenges in implementing effective programs. In this context, the AJS’ administrative cost ratios are deemed acceptable.

This type of regional presence is unique within the Department, but regionalized delivery of community-based justice programs is common practice for Indigenous programs in other federal departments such as Indigenous and Northern Affairs Canada (INAC) Footnote 44 and Health Canada, with differing levels of departmental involvement and support.The AJD has been the main point of contact for community engagement and is considered by the program to be one of the best departmental models to build nation-to-nation relationships.

Service Standards

The Department has a set of service standards Footnote 45 for Gs&Cs which covers the AJS. The degree of achievement of service standards is another indicator of efficiency. Table 8 below outlines the percentage of time that the AJD met the departmental service standards in the administration of Fund projects.

Table 8: AJS G&C Service Standards Achievement (2012-2016)
Fiscal Year Percentage of time the Acknowledgement Standard was met Percentage of time the Funding Decision Standard was met Percentage of time the Payment Standard was met Table note vii
2010-11 94% 99% no data available
2011-12 89% 91% no data available
2012-13 97% 90% 85%
2013-14 91% 95% 95%
2014-15 94% 90% 78%
Average 93% 91.5% 86%
Table note vii

Payment service standards is based on a random sample of projects.

Return to table note vii referrer

Between 2010 and 2015, the AJD met the service standards between 86% and 93% of the time. In total, in comparison to other departmental funding programs, performance results were similar for the five years. Provincial and territorial officials reported a high degree of satisfaction with the administration of the AJS.

Allocative Efficiency

The focus of allocative efficiency is to examine the relationship between resources spent and the outcomes achieved, that is, whether the resources consumed were reasonable for the outcomes achieved in light of the activity's context and priorities. The evaluation assessed the allocative efficiency of the AJS by assessing the costs avoided by MJS courts by referring offenders to AJS community-based justice programs Footnote 46. The MJS was used for comparison as it is the only alternative for the majority of AJS-funded program participants.

AJS Costs

The costs of AJS-funded programs were calculated based on the amounts allocated from the Department and cost-shared contributions from the provinces and territories for the 2014-15 fiscal year. Total program spending was averaged over the recorded number of clients for each program during the fiscal year. The following definitions were used in estimating the costs per client of AJS-funded programs:

  • Costs for AJS-funded programs were defined as the total funds allocated to programs from FPT governments, including administrative costs of the program, in 2014 dollars. The total allocations were $25,591,255 Footnote 47.
  • Clients were defined for the purposes of this analysis as offenders referred to an AJS-funded program who participated whether or not they successfully completed the program. The total number of clients was 9,039.

MJS Court Costs

For comparative purposes, the costs of the MJS were also calculated. Recognizing that the main point of diversion from the MJS for participants of AJS programs is the courts, spending including court expenditures, legal aid and prosecutions were used to determine the costs of the MJS ($1,650,268,754). Policing and corrections costs were excluded from this analysis. The following definitions were used in estimating the costs per client of the MJS:

  • Court costs were defined as the total court expenditures processed in courts in 2014-15 ($455,886,823). The total number of criminal cases processed in courts in 2013-14 was then projected for 2014-15 ($393,295). The total court costs per total criminal cases resulted in an estimated cost of approximately $1,159 per case in 2014 dollars.
  • Prosecution costs were defined as the total federal and provincial expenditures related to processing Criminal Code offences ($837,950,931). The total number of criminal cases processed in courts in 2013-14 was also projected for 2014-15 ($393,295). The total prosecution costs per criminal case were estimated as $2,131 in 2014 dollars.
  • Legal aid costs were considered to be the sum of all provincial and territorial legal aid plans' direct legal service expenditures in the areas of criminal law in 2014-15 ($356,431,000). The number of cases receiving legal aid was calculated as the total number of approved criminal legal aid applications for all provincial and territorial legal aid plans ($311,158). The average legal aid cost per criminal case was therefore calculated to be approximately $1,145 in 2014 dollars.

To the greatest extent possible, only the costs that would differ between the AJS-funded community-based justice programs and the MJS were compared. Policing costs were excluded from analysis, as these costs are often the same whether an offender is referred to an AJS program or proceeds through the MJS. Post-sentencing costs were also excluded as no data on how sentencing differed between AJS program participants and offenders in the MJS was available. Additional community-based justice program costs were also excluded.

AJS and MJS Cost Comparison

Costs per participant in the MJS were taken as the sum of the court, prosecution and legal aid costs per case, which totaled approximately $4,435 in 2014-15, while the mean of the average cost per participant of the AJS programs in 2014-15 was $2,831. Therefore, AJS provided immediate savings to the MJS in the amount of $1,604 per program participant ($4,435 - $2,831) or $14,498,556 for the full cohort in 2014-15 ($1,604 x 9039).

Although there were some methodological limitations (see Appendix D) in the comparative cost analysis, the AJS community-based justice programs are a cost-efficient alternative to the MJS. This is especially true when considering the future cost savings to the MJS produced by AJS programs through reduced rates of recidivism on the part of program participants. Since the recidivism study found lower rates of recidivism among AJS-funded program participants than the comparison group, the cost savings of the AJS to the MJS extend into the years beyond program participation.

Present Value and Future Cost Savings

The present value, in 2014 dollars, of the longer-term (eight-year period of study) cost savings associated with the AJS were calculated based on the rationale that the differences in the participant and comparison groups' rates of re-offending result in fewer instances of AJS-funded program participants being involved in the MJS in the future, which reduces the amount of required future court, prosecution and legal aid expenditures. To estimate the value of these cost savings, the incremental reduction in the average recidivism rates between program participants and the comparison group were calculated each year for eight years following program participation. Table 9 presents these incremental reductions in recidivism rates. The incremental reduction in the yearly recidivism rate can then be calculated as an average cost savings to the MJS each year over the eight-year period in question, for each AJS-funded program participant. Since the recidivism study found the program participants in the study were 8.8% less likely to re-offend after one year than the comparison group, and the average cost per case in the MJS was estimated at $4,435, the cost savings per program participant, in 2014 dollars, one year later would be:

$4,435 × 8.8% = $390

The following table provides the cost savings per program participant in each of the eight years following program participation.

Table 9: Incremental Reductions in Recidivism Rates of AJS Program Participants and Resulting Cost Savings
Time After Program Completion Cumulative Percentage Who Have Re-Offended Incremental Percentage Who Have Re-Offended Cost Savings Per Program Participant to the MJS Each Year (2014 $) Discounted Cost Savings Per Program Participant to the MJS Each Year (2014 $)
i = 8%
Participants Comparison Group
1 year 11.9 20.7 8.8 390.30 361.39
2 years 17.6 29.8 3.4 150.80 129.29
3 years 20.4 34.1 1.5 66.53 52.81
4 years 23.0 38.0 1.3 57.66 42.38
5 years 24.7 40.5 0.8 35.48 24.15
6 years 26.7 43.2 0.7 31.05 19.56
7 years 28.1 45.3 0.7 31.05 19.56
8 years 29.6 47.3 0.5 22.18 11.98
Present value of cost savings per AJS-funded program over eight years: 659.68

Finally, the total present value (in 2014) of the eight years of cost savings per participant was calculated using the cost savings per participant per year, and the TBS-accepted real social discount rate for federal cost-benefit analysis of 8% per year. The following formula for calculating the present value was applied:

cost of savings equation
Equation - Text Version

The figure shows the present value formula of the cost savings of the AJS Program. The numerator is the future value, the cost savings per program participant to the mainstream justice system each year; divided by the denominator, one plus the social discount rate to the power of the n, the number of years of cost saving. The summation symbol shows n equals eight years as the upper limit of summation, and the social discount rate of i set at 0.08, or eight percent.

Using this formula, the present value of the cost savings per AJS-funded program participant over the eight years following program participation was $660 Footnote 48, while the cost savings achieved the year of program participation was $1,604 Footnote 49, for a total present value of savings of $2,264 Footnote 50.

As AJS-funded programs served thousands of participants each year, these cost savings per participant would contribute to much greater total savings. As an example, in 2014-15, 9,039 clients were served by AJS-funded programs. Assuming the present value of the cost savings per participant to the MJS over eight years is $2,264, the total savings of one year's cohort to the MJS (e.g., 2014-15) would be:

$2,264 × 9,039 = $20,464,296 Footnote 51

This suggests that, in 2014-15, approximately $20.5M in present and future cost savings to the MJS were achieved through AJS-funded programs. As the costs of AJS-funded programs, numbers of clients served, and reductions in participant recidivism rates tend to remain relatively steady over time, it is reasonable to assume that the future cost savings incurred each year would be similar.

In summary, given that the AJS offers cost savings greater than its costs when clients move from the MJS to community-based justice programming, and that clients of AJS programs have reduced recidivism rates and other life benefits, there appears to be little question that the federal government’s investment in the AJS has a net benefit from the point of view of efficiency.

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