A CRISIS OF CONSCIENCE: MISCARRIAGES OF JUSTICE AND INDIGENOUS DEFENDANTS IN CANADA.

• Author: Vijaykumar, Malini

INTRODUCTION

The criminal justice system failed Donald Marshall, Jt. at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal by the Court of Appeal in 1983. The tragedy of the failute is compounded by evidence that this miscarriage of justice could--and should--have been prevented, of at least corrected quickly, if those involved in the system had carried out their duties in a professional and/or competent manner. That they did not is due, in part at least, to the fact that Donald Marshall, Jt. is a Native. Royal Commission on the Donald Marshall, Jr., Prosecution (1) Nearly 30 years ago, the Royal Commission on the Donald Marshall, Jr., Prosecution ("Marshall Commission") explicitly acknowledged that a defendant's Indigenous (2) identity had contributed to his wrongful conviction. Despite the Marshall Commission's historic words, many Canadians are still unaware of this continuing pattern of systemic discrimination in the Canadian criminal justice system.

It is well documented that Indigenous peoples are highly overrepresented in Canadian prisons. The historic racial, social, cultural, and economic subjugation of Indigenous peoples by Canadian settlers has resulted in higher incidences of criminality among Indigenous populations. To assume this is the whole story, however, is to ignore a pressing truth: that Indigenous people are also at a higher risk of being wrongly arrested, wrongly convicted, and wrongly imprisoned. As this paper will explain, this increased risk stems from the systemic anti-Indigenous racism inherent in the Canadian criminal justice system, which manifests in various ways.

There is still very little Canadian legal literature on miscarriages of justice that focuses specifically on Indigenous accuseds. One notable example is Professor Kent Roach's recent comparative study of wrongful convictions of Indigenous accuseds in Australia and Canada. (3) Roach finds that these wrongful convictions likely stem from the structural inequality faced by Indigenous peoples due to colonialism. Such inequality worsens the contributing factors underlying wrongful conviction previously mentioned and creates new factors of which we may not be aware. (4) In this paper, I aim to continue this analysis in a domestic context and provide recommendations for reform and further research.

The use of the term "miscarriage of justice" as opposed to "wrongful conviction" is meant to convey a broader sense of the legal issues at hand, which encompass not only wrongful convictions but also over-charging of Indigenous accuseds, wrongful arrests and imprisonment, and wrongful denials of bail and parole applications. The social issues are, of course, even broader and merit their own investigation.

METHODOLOGY

The research question of this paper was shaped under the supervision of Amanda Carling, manager of Indigenous Initiatives at the University of Toronto, in her then-capacity as national legal education counsel at the Association in Defence of the Wrongly Convicted. At the time, I was a student at the University of Toronto, Faculty of Law. I am of a first-generation settler background and Amanda Carling is Metis.

In my primary source interviews, (5) I emailed each interviewee a list of questions before our meeting. These questions became jumping-off points for more organic conversations on each interviewees particular expertise. Each interview was different. Below is a sample of some representative questions:

* What manifestations of racism (overt or systemic) have you witnessed in our criminal justice system and what do you think should be done to remedy them?

* What, in your experience, is the incidence of self-representation or reliance on duty counsel with Indigenous accuseds?

* What sorts of language and cultural barriers exist in the Canadian courtroom when an Indigenous person is on trial?

* Do you feel non-Indigenous lawyers (including duty counsel) are adequately equipped to represent Aboriginal clients ? If not, is there any additional training or knowledge that you think could help them do a better job?

* How do these issues vary across bands or nations? How are they similar?

* Is there anything else you would like to share with me on this subject, or anything you feel I have missed?

In my secondary research, I drew on a number of sources including government reports, trial and appeal files of historical cases, national and international literature on miscarriages of justice, studies on Indigenous languages and cultures, and data from Statistics Canada and reports of government as well as non-governmental bodies.

I use these sources presently to discuss the heightened vulnerability of Indigenous people to the "classical" contributing factors (6) of miscarriages of justice, the existence of culturally specific contributing factors, and suggestions for reform made by the primary source interviewees. Throughout, I draw on the narratives and experiences of Indigenous people who have been wrongly arrested, convicted, and imprisoned by the Canadian criminal justice system, in the form of case studies. My aim in this paper is to provide a comprehensive domestic analysis while sparking further avenues of research and discussion.

RACISM UNDER THE CANADIAN CRIMINAL JUSTICE SYSTEM

The history of systemic discrimination against Indigenous peoples in Canada begins with the first experiences of colonialism and genocide, extends through the outlawing of cultural practices such as the Potlatch and Sundance and the corresponding cultural genocide perpetrated through residential schools and policies such as the Sixties Scoop, and continues in present-day Canada in various interrelated forms. One of its present-day manifestations lies in the Canadian criminal justice system's treatment of Indigenous peoples. The Indigenous population's modern experience with the Canadian criminal justice system has been described as a combination of under-policing and over-policing. (7)

Under-policing refers to the fact that crimes against Indigenous peoples, especially if they occur on reserve, are far less likely to receive police attention and media coverage than crimes against non-Indigenous peoples. The creation of the National Inquiry into Missing and Murdered Indigenous Women and Girls ("MMIWG") in September 2016 attests to this.

Under-policing also refers to the tendency of police to charge Indigenous women who call from the reserve to report domestic violence, rather than the partners who assault them: "If they come from the res, if they speak a language on the res, then the police believe who tells the better story," says Shelly Vanderhoef, former manager of the Aboriginal Courtwork Program and Aboriginal court worker at College Park Courthouse in Toronto, now program manager of the Ontario Aboriginal HIV/AIDS Strategy. (8) Because of this, crimes against Indigenous women in particular go uninvestigated and ultimately unsolved.

Over-policing, by contrast, refers to the fact that Indigenous peoples are more likely to be investigated by the police for crimes and therefore, more likely to be imprisoned as a result. The tendency of police to profile Indigenous suspects speaks to the fact that the police system, like the justice system, is a human institution prone to bias. As R.H.D. Head, former assistant commissioner of the RCMP, admitted in 1991: "[W]e have a racial intolerance within the force because, as products of a larger Canadian society, we enter its ranks with all the usual bias, prejudice and racism baggage that this society generates". (9)

In 2011, che Toronco Aboriginal Supporc Services Council released its reporr on che Indigenous population in Toronto. This was an unprecedented community-based research project investigating the issues faced by Indigenous peoples in urban communities. (10) In the report's criminal justice survey, 72% of respondents (Indigenous community members in Toronto) indicated that they believe the police racially profile Indigenous peoples and 63% of respondents indicated that they believe Toronto police ate more likely to lay more serious charges against Indigenous accuseds than against non-Indigenous accuseds. (11)

The stereotyping often continues post-arrest, once an Indigenous person is brought before the courts. Kent Roach notes that the problem often stems from underrepresentation of Indigenous peoples among juries, prosecutors, defence lawyers, and other members of the criminal justice system, combined with an overrepresentation of Indigenous peoples in prisons. (12) Such a skewed perception of Indigenous peoples provides fertile ground for stereotypes.

Christa Big Canoe, former legal advocacy director at Aboriginal Legal Services of Toronto (ALST), now senior counsel at the MMIWG National Inquiry, discusses the pitfalls of "appearing Aboriginal" in relation to a past client who pled guilty to driving under the influence. (13) The judge had been surprised by her Gladue submissions, Big Canoe says, because the defendant was not visibly Indigenous. At sentencing, the judge stated: "You seem to know better than your people", and handed down a relatively light sentence. "Had he been one of my other clients, and appeared 'more Native', if you can put it that way, I think he probably would've got a stricter sentence. Now that's just my assumption... but it's interesting how it works, how we have these assumptions based simply on the appearance of an Aboriginal person." (14) Jonathan Rudin, program director at ALST, adds:

When an Aboriginal person goes to court or is brought to court, they ate not just who they ate, they ate every stereotype and every bias that the judge and the Crown may have, and thete are many. And the defence counsel too, all three.... So you're always two steps back, you're dealing with this whole slew of unstated assumptions The systemic racism is so huge; it's just there all the time. (15) Although...