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

• Author: Mandy Cheema
• Position: Is a third year LL.B. student at the University of Windsor, Faculty of Law and will graduate this year
• Pages: 84-99

ARTICLE

MISSING SUBJECTS:

ABORIGINAL DEATHS IN CUSTODY, DATA

PROBLEMS, AND RACIALIZED POLICING

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

Manitoba.1

INTRODUCTION

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-

84 wAPPEAL VOLUME 14

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-

APPEAL VOLUME 14 w85

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

Justice].

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.”