What Kelly Canadian’s lawsuit says about the faults in Canada’s prison system

In September 2016, during a months-long incarceration at the North Slave Correctional Complex (NSCC) in Yellowknife, then-inmate Kelly Canadian says an employee invited him into his office—alone and unsupervised, away from security cameras. Over time, as Canadian told the local paper, Yellowknifer, the tone of these visits shifted: He says that during one encounter, the employee asked him for oral sex. The employee and Canadian had dozens of encounters—even after Canadian was released from the jail—all of which Canadian says he was coerced to participate in.

These claims are part of the basis of Canadian’s $1.25 million lawsuit against the territorial government (represented by the commissioner of the Northwest Territories)—a case that’s shedding light on the ongoing challenges LGBTQ2 Indigenous people can face in the country’s criminal justice system. Canadian, the 27-year-old plaintiff, is an openly gay member of the Chipewyan First Nation. In his suit, filed in the Supreme Court of the Northwest Territories in February, Canadian claims the staff member at NSCC sexually assaulted him during periods of incarceration between February 2016 and May 2017. None of the claims have been proven in court.

A statement of defence from the commissioner filed in June says if the alleged abuse occurred, the staff member “was acting entirely on his own without the knowledge or acquiescence of the commissioner,” and was “acting entirely outside the scope and authority” of his role at NSCC. It also calls the damages in the statement of claim “excessive, exaggerated and remote in law.”

Steven Cooper, the lawyer representing Canadian in the suit, says they expect the case to “bring to bear public pressure on the system.” (Canadian did not respond to interview requests for this article. Cooper said his client would not be speaking to media at this time, saying the matter is “now in the court’s hands.”)

For LGBTQ2 people, incarceration happens at a disproportionate rate. Based on a 2011-2012 national inmate survey by the Williams Institute in the U.S., the incarceration rate for self-identified lesbian, gay and bisexual people was three times that of the general adult population. When coupled with other intersections of identity—like race and ethnicity—those rates are even higher. The study also found that sexual minorities are more likely to experience mistreatment, harsh punishment and victimization within the U.S. prison system.

No one tracks those numbers in Canada. But when it comes to Indigenous incarceration, the statistics are alarming: While Indigenous people account for less than five per cent of the Canadian population, according to the Office of the Correctional Investigator Annual Report they made up 26.4 percent of Canada’s prisoner population in 2016.

Canadian knows these problems inherent to the criminal justice system far too well. “He really does want the system to change for everybody in custody,” Cooper says of his client, “but particularly those like him in vulnerable groups—whether that’s Indigenous people, of which there’s a ridiculous number to this day in various forms of custody, or LGBTQ people.”

“They’re important to him. That is his essence—those two groups are his essence.”

Canadian had a difficult upbringing. He was born in Yellowknife in 1992 and lived between the homes of family members, foster families and treatment centres in Yellowknife and Fort Smith, then later in Alberta and British Columbia. He says he was sexually abused while in foster care. When he returned to the Northwest Territories at the age of 18, he crashed on friends’ couches or at the Salvation Army.

Canadian completed high school up to Grade 10, but didn’t feel accepted because of his sexuality, so he dropped out. He later completed some high school courses through an adult education program; an instructor remarked that he was “intelligent, hard-working and always kind and caring to people when he is in a stable environment.” Court documents also say Canadian has struggled with addiction, and he has been diagnosed with Fetal Alcohol Spectrum Disorder (FASD) and Attention Deficit Hyperactivity Disorder (ADHD).

For inmates like Canadian, Cooper says being incarcerated creates a vulnerable situation where they are unable to escape abuse if it occurs. “It’s among the worst categories of abuse, because you can’t get away,” he said. “No different than residential school, you can’t get away—[authorities] have complete and utter control over you.” According to the suit, Canadian has “suffered acute and irreparable psychological, emotional and spiritual harm and other severe impairments” due to the abuse at NSCC. It says this includes social anxiety issues, mental distress and anguish, recurrent flashbacks of the incidents, aversion and resentment toward correctional settings and an inability to trust authority figures.

Sexual assaults have occurred in other Canadian prisons and jails. Recent examples include accusations from three inmates at the Nova Institution for Women in Truro, N.S., that they were sexually assaulted by a male correctional officer. And in B.C., Roderic MacDougall has been accused of sexually assaulting at least 200 inmates over his 21-year career as a guard at several correctional facilities in the province.

National statistics obtained by the Georgia Straight in 2014 also suggest assaults in Canada’s prisons may be a growing problem. The reported number of sexual assaults rose from three in 2003-04 to a peak of 15 in 2010-11, before declining to eight in 2012-13. Further reporting by the Edmonton Journal found there were 48 reported sexual assault allegations in federal prisons between 2013 and 2018.

While not all provinces and territories collect this information, the Northwest Territories does. The Edmonton Journal found there were three reported sexual assault allegations in the territory’s correctional institutions between 2013 and 2018. All were investigated by RCMP leading to one charge being laid.

Jennifer Metcalfe, executive director of Prisoner’s Legal Services, a legal aid clinic for federal and provincial prisoners in B.C., says the power imbalance between correctional staff and inmates is extreme, and can be abused when there isn’t enough external oversight. She also notes that prisoners tend to have higher rates of childhood trauma, including sexual abuse.

“For someone who’s already experienced abuse in their history, it can be significantly re-traumatizing and really affect someone’s ability to trust obviously the people that have power over every aspect of their lives,” she says. “Having a system that allows them to be sexually abused by the people who are supposed to be charged with their care is not going to result in them being rehabilitated.”

Cooper says that’s something his client has experienced. He says Canadian is “obsessed with what happened to him…He’s scared of these people. He’s scared of people in their position. So while there’s a lot of very good people in the correctional service, they are all tainted by the experience that Kelly had because he sees them in the same light, he doesn’t know who to trust.”

Canada has a long history of LGBTQ2 criminalization. The country’s first known criminal trial addressing lesbian assault took place in Yellowknife in 1955, when Willimae Moore was charged with indecently assaulting a woman after trying to kiss her. The two women were typists in a government office, but Moore mistook their friendship for romance. The day after the attempted kiss, the colleague reported it to their boss, who turned over a love letter Moore had written, as well as her typewriter, to the RCMP. Stipendiary magistrate John Edward Gibben found Moore’s letter to be “an invitation to commit acts of lesbianism” and a “hostile act.” Moore was convicted and sentenced to three months incarceration at the RCMP guardroom in Fort Smith. She was acquitted when the appeal court judges were divided and left Yellowknife following the trial.

The last Canadian to be prosecuted, convicted and imprisoned for being gay was also in the Northwest Territories. In 1965, while being interviewed about a suspicious fire, Everett Klippert, a mechanic in Pine Point, told investigators that he had had sex with four men. The following year, Klippert was charged with gross indecency and was labelled a dangerous sex offender. His appeals to the N.W.T. Court of Appeal and Supreme Court of Canada were dismissed. Though his case led to the reformation of laws related to the criminalization of homosexuality three years later, Klippert wasn’t released until 1971; Prime Minister Justin Trudeau offered him a posthumous pardon in 2017.

The experiences of many LGBTQ2 prisoners are grim. A report based on a 2014 survey of 1,118 respondents by Black and Pink, a prison abolitionist group in the U.S. that supports LGBTQ2 and HIV-positive prisoners, found that queer and trans people were six times more likely to be assaulted than the general prison population. It also found that while prisoners were more than three times as likely to have committed sexual assaults on LGBTQ2 prisoners than staff, 76 percent of respondents who reported being sexually assaulted by another inmate said staff intentionally placed them in situations where they would be at a high risk of being assaulted. And the vast majority reported experiencing discrimination and verbal harassment by prison staff, with more than a third reporting being assaulted by staff.

A spokesperson for the Correctional Service of Canada says it does not track the number of LGBTQ2 offenders. Similarly, a spokesperson for the Northwest Territories Justice Department said it does not keep data on the number of inmates who identify as LGBTQ2. It also said NSCC does not have specific policies for queer inmates, but there are policies for those who are transgender.

In late 2017, the federal government overhauled its policies for transgender inmates so that offenders are placed in correctional institutions based on their gender identity, if preferred, “unless there are overriding health or safety concerns which cannot be resolved.” Correctional staff must also use an offender’s preferred name and pronouns and take steps to maximize the confidentiality and privacy of information related to their gender identity.

But even those policies may be insufficient. “Research has shown that even placement based on gender identity is not sufficient enough to eliminate transphobic violence in jails and prisons,” Marcella Daye, a senior policy advisor with the Canadian Human Rights Commission, told the Standing Committee on Human Rights in January. Daye also said fears of inmates or staff harming a transgender inmate “should not be an easy out,” adding, “trans inmates, we know, do face violence both from other inmates and from staff.”

And transgender people who have been incarcerated also say they don’t feel safe in Canadian prisons. Trans PULSE, a community-based research project on the health of trans people in Ontario, conducted a survey of 433 trans people in the province in 2009-2010. It found six percent of respondents reported having spent time in a prison or jail presenting in their affirmed gender. Of those, two-thirds reported they did not usually feel safe in prison, two-thirds said they experienced hostility or verbal harassment and one-third reported experiencing physical violence related to being transgender.

The Prisoner Correspondence Project, which matches LGBTQ2 inmates with pen pals among other resources, says it has a little under 4,000 inside members across North America, with about 300 in Canada. “Gay rights movements often forget that queer people are being imprisoned all the time, and that they are, more often than not, the most vulnerable in our community,” Stevie Nadeau, a representative with the project, wrote in an email. “Sending mail to inmates is life-saving from outside as well as inside threats.”

Based on letters the project has received, Nadeau says mistreatment of LGBTQ2 inmates based on their gender or sexuality “is pretty common,” including “countless stories of abuse and violence, not just from other inmates, but from the prison staff as well.” She said queer and trans people describe being held in segregation against their will, usually in the name of protecting the inmate or to preserve institutional order. This, Nadeau notes, limits an inmate’s access to programs, services and employment opportunities in institutions. The United Nations special rapporteur on torture has also said that segregation, also known as solitary confinement, is “a harsh measure which is contrary to rehabilitation” and should only be used in very exceptional circumstances and for as short as possible.

Prior to Canadian’s suit, the N.W.T. government did take some action on his claims. A spokesperson for the territorial Department of Justice confirmed that a workplace investigation at NSCC into “the serious allegations made by Mr. Canadian” was completed. They also said the two subjects of that investigation are no longer members of the Corrections Service or employed with the government.

According to a March 2018 article by the CBC, Canadian filed a human rights complaint against NSCC while he was incarcerated in April 2017, claiming jail staff discriminated against him due to his sexuality. He alleged guards repeatedly harassed him and called him derogatory names including “faggot” and “cocksucker.” He also claimed that he was held in segregation longer than necessary because of his sexuality. While there, he says he requested an additional blanket but was told by a guard to “touch [himself] and [he] would feel warmer.”

According to the CBC, the complaint was settled out of court for $5,000, the details of which are not available to the public.

Indigenous people are overrepresented in Canada’s prisons and jails. Both Pam Palmater, a Mi’kmaq lawyer and professor, and Globe and Mail reporter Nancy Macdonald have called the country’s correctional institutions “the new residential schools.” According to Statistics Canada, in 2016-2017 Indigenous adults accounted for 28 percent of admissions to provincial and territorial correctional services, and 27 percent of admissions to federal correctional services, despite representing only 4.1 percent of the adult population. And the proportion of Indigenous adults admitted to custody has been trending upward for more than a decade.

Metcalfe says part of the solution is investing in Indigenous communities so they have self-determination when it comes to justice and corrections. “I think it’s time that we stop incarcerating Indigenous people in colonial prisons and really invest in communities so that Indigenous communities have the resources to heal from the trauma that Canada has imposed on them.”

Peter Harte, a long-time defence lawyer in the N.W.T., said that in his experience, trauma plays a large role in the circumstances that lead people to criminal action. “Trauma explains some of the aggression that we see, but it particularly explains the substance abuse and addictions issues that seem to be at the heart of what brings most people into court,” he said.

In the case of Indigenous people, this can include trauma from the legacies of colonization and the residential school system, which the Truth and Reconciliation Commission of Canada has described as cultural genocide. For more than a century, Canada’s policies on Indigenous people included seizing land, forcibly relocating communities, criminalizing cultural and spiritual practices and breaking up families. Research has detailed the severe and ongoing effects this has on the health and well-being of individuals, families and communities, which has been passed through generations.

Kelly Canadian’s lawsuit is not the first time an Indigenous person in Canada’s North has fought to hold the justice system to account. In 2017, Duke Beattie, from Carcross, Yukon, filed a civil suit against the Attorney General of Canada, the RCMP and two constables after he was assaulted by one of them while handcuffed in the backseat of an RCMP vehicle. In December 2018, a $600-million class-action lawsuit was also launched which claims the RCMP regularly use excessive force against Indigenous people in the territories.

There are also a number of cases where inmates have claimed mistreatment in one of the North’s correctional institutions. Michael Nehass, a Tahltan man who has been diagnosed with schizoaffective disorder, spent more than 2,000 days in remand at the Whitehorse Correctional Centre, almost entirely in solitary confinement. A Yukon Supreme Court judge also found the jail violated the Corrections Act when another inmate was kept in a separate living unit for more than 20 months in conditions akin to separate confinement without the safeguards. And prisoners rioted and one inmate even went on a hunger strike to protest the abysmal conditions at the Baffin Correctional Centre in Iqaluit, which have been documented by Canada’s Auditor General.

As for Canadian, his civil lawsuit is now in the hands of the court, and it will likely take time before it reaches its end. In an interview before the commissioner’s statement of defence was filed, Cooper said it may be settled out of court.

“I think that the facts are fairly obvious,” he says. “Given what I’ve seen in the media thus far and the clarity and the particularity with which Mr. Canadian gives his testimony, I don’t see a reason why this would go to trial.”