Missing Subjects: Aboriginal Deaths in Custody, Data Problems and Racialized Policing

AuthorMandy Cheema
PositionIs a third year LL.B. student at the University of Windsor, Faculty of Law and will graduate this year
By Mandy Cheema*
CITED: (2009) 14 Appeal 84-100
With so much discrimination occurring against our people, it is oen
amazing how accepting we are of our situation. We know that without
tolerance there can be no justi ce. Without understanding there cannot be
justice. Without equality there can be no justice. With justice we can
begin to understand each other. With justice we can work and live with
each other. Aboriginal people want a judicial system that recognizes the
native way of life, our own values and beliefs, and not the white man’s
way of life.
— Elijah Harper, speaking before the Aboriginal Justice Inquiry of
Years aer Elijah Harper spoke before the Aboriginal Justice Inquiry of Manitoba,Abo-
riginal people in Canada continue to be entrapped by a criminal justice system that fails to
recognize their native way of life. It is a system characterized by Aboriginal over-incarcer-
1. Manitoba, Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Jus-
tice Inquiry of Manitoba: The Justice System and Aboriginal People, vol. 1 (Winnipeg: Queen’s Printer, 1991);
Manitoba, Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Jus-
tice Inquiry of Manitoba: The Death of Helen Betty Osborne, vol. 2 (Winnipeg: Queen’s Printer, 1991) [collec-
tively, Aboriginal Justice Inquiry of Manitoba]. The Government of Manitoba established this inquiry after
numerous incidents of violence directed towards its Aboriginal population.
* Mandy Cheema is a third year LL.B. student at the University of Windsor, Faculty of Law and will graduate this
year. She has a Bachelor of Arts (First Class Honours) in political science from Simon Fraser University and a
Master of Arts in political science from Simon Fraser University. The author would like to thank Professor David
M. Tanovich at the University of Windsor, Faculty of Law, for being an inspirational role model and for his com-
ments, guidance, and encouragement on this paper. The author would also like to thank the Board of Appeal,
especially Ashley Ridyard. Finally the author would like to thank Mary Ellen Turpel-Lafond for her comments as
external reviewer, and the numerous Aboriginal organizations in British Columbia for contributing their useful
insight and comments.
ation in prisons and discriminatory bail, trial, and sentencing outcomes.2While these are
the common manifestations of interactions between Aboriginals and law enforcement o-
cials, they are symptomatic of the broader systemic problem: an institutionalized failure to
respond to the numerous other Aboriginal Canadians who have been missing subjects.3In
spite of the fact that there have been numerous police-related incidents of Aboriginal
deaths, there remains a dearth of data in the role race plays in the police use of excessive
force, specically in cases of death while in police custody.4e lack of data broken down
along racial and ethnic lines makes it challenging to assess the number of Aboriginals killed
in police custody and to make a comparison with their non-Aboriginal counterparts. A
partial solution in monitoring police activity over racialized groups is to mandate a na-
tional policy where all police agencies across jurisdictions have a legal responsibility to col-
lect data based on the race and ethnicity of individuals who die as a result of police contact.5
e foregoing thus informs the analysis in this paper, which considers two questions: First,
do more Aboriginals die as a result of being in police custody than do non-racialized
groups? Second, if this is the case, can this reality be explained by the existence of systemic
institutionalized racism, or is this higher rate better explained by greater contact of Abo-
2 See David M. Tanovich, “The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the
Canadian Criminal Justice System” (2008), 40 S.C.L.R. (2d) 655 [Tanovich, Whiteness]. The author advances
the argument that twenty-f‌ive years after its adoption, the Canadian Charter of Rights and Freedoms has had
very little impact on ameliorating racial injustice in the criminal justice system. However, in R. v. Gladue,[1999]
1 S.C.R. 688 at paras. 58-65 (as per Cory and Iacobucci JJ.), the Supreme Court recognized the institutional fail-
ures of the criminal justice system, specif‌ically making reference to bail and sentencing provisions for Aborigi-
nals. R v. Gladue provides for a different sentencing regime for Aboriginal offenders, in which the sentencing
judge has the obligation, under the Criminal Code’s section 718.2 (e) sentencing provisions, to take into ac-
count historical marginalization of Aboriginal people in Canadian society.
3 See Aboriginal Justice Inquiry of Manitoba, vol. 2, supra note 1 at 91 where the Commission observes that
“Aboriginal peoples have experienced the most entrenched racial discrimination of any group in Canada.” See
also the discussion of the relevant literature in the following: Amnesty International, Stolen Sisters: A Human
Rights Response to Discrimination and Violence Against Indigenous Women in Canada (AI Index
20/003/2004, October 2004) online: Amnesty International
; Saskatchewan, Report of the Commission of Inquiry
into Matters Relating to the Death of Neil Stonechild (Regina: Queen’s Printer, 2004) [Stonechild Inquiry];
Saskatchewan, Final Report of the Commission on First Nations and Métis Peoples and Justice Reform: Legacy
of Hope: An Agenda for Change, vol. 1 (Regina: Queen’s Printer, 2004); Royal Commission on Aboriginal Peo-
ples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice Canada (Ottawa: Minis-
ter of Supply and Services, 1996) [RCAP]; Aboriginal Justice Inquiry of Manitoba, vol. 2, supra note 1;
Aboriginal Justice Implementation Commission, Recommendation on Policing, (Winnipeg: Queen’s Printer,
1991); Alberta, Task Force on the Criminal Justice System and Its Impact on the Indian and Métis People of Al-
berta, Justice on Trial (Edmonton: Province of Alberta, 1991); Jonathan Rudin,“Aboriginal Peoples and the
Criminal Justice System” (Research Paper Commissioned by the Ipperwash Inquiry) online: The Ipperwash In-
quiry ch/index.html> [Aboriginal Peoples and Criminal
4 For further detail on the role race plays in death in police custody cases, see infra note 8. See also Kent Roach,
Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice (Toronto: University of Toronto
Press, 1999) at 222-32, 256-58, in which the author similarly argues that Aboriginals have been subjected to
racial prof‌iling, most clearly in the West. See generally Stansf‌ield, infra note 8 at 117: “[A] study in Toronto
found that of the seven fatal police shootings in that city during 1978-1980, 28.6% of the victims were racial
minorities. Also, in a study of fourteen police shootings in Toronto during 1988-1992, 28.6% of the victims
were racial minorities.”
5 See generally Ontario, Ontario Human Rights Commission, Policy and Guidelines on Racism and Racial Dis-
crimination, (June 9, 2005), online: Ontario Human Rights Commission
[OHR Policy & Guidelines]. The Ontario
Human Rights Commission (“OHRC”) has taken the position that the failure to collect data where it is war-
ranted is not only an institutional failure, but also dispositive of the issue of wrongdoing: “[A]n organization
that chooses not to collect data in situations where data collection is warranted may not be able to make a
credible defence that it did not discriminate.”

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