A/HRC/54/31/Add.2 44. Concerns remain over the use of segregation, as almost half of prisoners held in isolation, as at 22 August 2021, were Indigenous. 37 The Federal Government officially abolished solitary confinement in November 2019 after provincial courts declared it unconstitutional, and replaced it with a new system comprised of structured intervention units. However, such units are being used more often and for longer than the maximum periods outlined in the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). An oversight panel38 found that isolated prisoners routinely were out of their cells for less than four hours per day.39 45. The National Inquiry into Missing and Murdered Indigenous Women and Girls identified several inequalities experienced by Indigenous Peoples in relation to policing, justice, and corrections, including: delays in court proceedings; discrimination and inequalities; discrediting of victim’s statements; and limited access to court services. Indigenous Peoples are often victims of racial profiling, arbitrary and discriminatory arrests, and excessive use of force by law enforcement that, in some cases, has resulted in death. The overpolicing of Indigenous Peoples, coupled with a lack of diversity and representation of Indigenous Peoples in the legal system, including among members of law enforcement, judges and lawyers, has significantly contributed to their overincarceration. 46. The Government of Canada has responded to these inequalities by instituting the Aboriginal Justice Strategy that currently has provided for 110 Indigenous justice programmes serving nearly 400 Indigenous communities across Canada. This bottom-up approach recognizes Indigenous Peoples’ jurisdiction over justice matters in accordance with their own legal traditions through arrangements with the provincial ministries. However, Indigenous Peoples reported that their legal orders were far from being equally included in the judicial system of Canada. 47. Other positive developments include the 2022 Criminal Code amendments to address systemic racism and the overincarceration of Indigenous Peoples. 40 Bill C-5 provides for the removal of mandatory minimum sentences for some offences that disproportionately affect Indigenous Peoples and brings back conditional sentences as an alternative to incarceration. 41 Furthermore, the decision of the Supreme Court in R. v. Gladue requires judges to consider the background circumstances of Indigenous offenders prior to sentencing. However, reports submitted to provide such background, known as Gladue reports, remain poorly understood and sometimes serve to reinforce stereotypes. 48. Section 81 of the Corrections and Conditional Release Act provides for incarceration alternatives, allowing Indigenous persons sentenced to federal custody to serve their sentences in their communities. The Special Rapporteur received reports that Indigenousoperated healing lodges created under section 81 are subject to the authority of Correctional Service Canada and its policies, that the Correctional Service Canada rarely authorizes applications by First Nations and Indigenous organizations to provide alternatives to incarceration and that Indigenous-operated healing lodges are woefully underfunded. 49. As a good practice, the Samson Cree Nation is developing a treaty-based restorative justice system known as Pamihowin, which includes a traditional courthouse, tribunal act, knowledge keepers and a police force. Indigenous Peoples have urged Canada to commence good faith negotiations with First Nations to develop a co-jurisdiction regime to respect the inherent jurisdiction of First Nations and to enable them to share equally in decision-making about their land. 37 38 39 40 41 10 Structured Intervention Unit Implementation Advisory Panel, “Preliminary observations of the operation of Correctional Service of Canada’s structured intervention units” (Public Safety Canada, 2021). See also CAT/C/CAN/CO/7, para. 14. See https://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/siuiap-ccuis-en.aspx. Structured Intervention Unit Implementation Advisory Panel, “Preliminary observations”. See https://www.justice.gc.ca/eng/trans/bm-mb/other-autre/c5/messages.html. See https://www.parl.ca/legisinfo/en/bill/44-1/c-5. GE.23-13374