Recommendations

Numerous government reports and studies document the problems relating to accounta- bility in cases of police use of deadly force vis-à-vis Aboriginals.33_{The internal investiga-} tion process in these cases should be reformed or supplemented by a public and/or Aboriginal model, providing for a more robust public account and audit system.34_{An ex-} ternal civilian complaints process and an independent Aboriginal investigation board could also augment the aforementioned internal investigation procedures.35_{Establishing an Office} of Director of Public Prosecutions would be the most effective method of ensuring that complainants are not deterred from coming forward.36_{In addition, establishing investiga-} tive boards to implement recommendations through greater public and Aboriginal control of inquests can also serve as a form of external oversight. Video equipment should be used

30 Aboriginal Justice Inquiry of Manitoba, supra note 1.

31 See generally Indian Affairs and Northern Development, Gathering Strength: Canada’s Aboriginal Action Plan:

A Progress Report, Year One(Ottawa: Public and Services Canada, 1998). The government responded to the

recommendations of the RCAP by setting out the framework for government action, emphasizing a commit- ment to renewing a partnership with Aboriginal communities, and greater models of Aboriginal self-governance that are inclusive of Aboriginal traditions.

32 See generally Joyce Green,“From Stonechild to Social Cohesion: Anti-Racist Challenges for Saskatchewan”

(Paper presented to the Canadian Political Science Association, University of Western Ontario, 2-4 June 2005) at 7. The author stated that Neil Stonechild’s death and the investigation were the result of “a manifestation of structural and individual racism in institutional culture,” and that “the report documents the obdurate denial of this by especially the Saskatoon Police Force.”

33 See generally Recommendation on Policing, supranote 3.

34 See also John Hylton, “Canadian Innovations in the Provision of Policing Services to Aboriginal Peoples” (Re- search paper commissioned by the Ipperwash Inquiry, 2005); and Rick Linden, “Aboriginal Policing in Mani- toba: A Report to the Aboriginal Justice Implementation Commission” (Prepared for the Police Futures Group of the Canadian Association of Chiefs of Police, 2001).

35 See also Christie, “Ipperwash,” supranote 9 at 19, where the author states: “[W]ithout meaningful civilian oversight to address concerns about police practices, one can assume that many potential complaints go un- recorded.”

36 See generally Royal Commission on the Donald Marshall Jr. Prosecution(Halifax: Queens Printer, 1989), [Don-

ald Marshall Commission]. In addressing the need for balancing police accountability and independence, the

Commission into Donald Marshall’s wrongful conviction recommended the creation of a director of public pros- ecutions who would ordinarily be independent from the attorney general but could be subject to written direc- tives that would be published in the Gazette.

to record statements and police interactions in cases of deaths in custody. Aboriginal or- ganizations have suggested that the taping record the totality of each interview, including all introductory comments, explanations, and warnings given by the police, and including any formal statement or other comments that result.37

Establishing an SIU modeled after Ontario’s would provide greater accountability in the in- vestigations of civilian deaths implicating police officers. The Director of the SIU,who must not be a serving or former police officer, maintains the discretion to begin an inves- tigation.38_{The Aboriginal Justice Implementation Commission Recommendation on Polic-} ing called on the government to aid in the development of an SIU or similar independent review agency to conduct police complaints and implement an effective complaints system for Aboriginal victims of police violence or, in the alternative, for the families of victims of death in police custody.39_{The RCIADIC in Australia discussed six pertinent factors for un-} derstanding death-in-custody cases that provide a useful framework for a critical review of both the surrounding circumstances of the death and the subsequent investigation. These factors include the racial, ethnic, religious, and social background of the individual; the location of the death and circumstances surrounding the death; the cause and manner of death; the response from public authorities; the efficacy and accountability of an internal as opposed to an external investigation, and any disciplinary action advanced against the police officer alleged to have caused the death; and, finally, the difficulty for Aboriginal families in advancing a criminal investigations and/or civil lawsuit.40

IV. DE-RACIALIZING POLICING THROUGH RACE-BASED DATA

The most significant shortcoming of the Stonechild Inquirywas the failure to recommend a mandatory data collection system. There is currently no systematic compilation of data and statistical information about Aboriginal deaths in custody. These deaths need to be closely monitored through what Scot Wortley refers to as “race-based statistics.”41_The dearth of such statistics makes it more difficult for racialized individuals and Aboriginals to advance complaints of systemic racism by the police. The Ontario Human Rights Com- mission (“OHRC”) has stated that:

Numerical data that demonstrates that members of racialized groups are disproportionately represented may be an indicator of systemic or insti- tutional racism and the following factors may warrant data collection

37 See also Thomas Gabor’s report to the Office of the Correctional Investigator,Deaths in Custody(Ottawa: Of- fice of the Correctional Investigator, 2007). Video surveillance was identified as one of the issues raised in the findings and recommendations of boards of investigation and coroners following Gabor’s report.

38 Dianne Martin, “Accountability Mechanisms: Legal Sites of Executive-Police Relations-Core Principles in a Canadian Context,” in Margaret E. Beare & Tonita Murray, eds., Police and Government Relations: Who’s Call-

ing the Shots?(Toronto: University of Toronto Press, 2007) at 264. See also “Police Use of Force,”supranote

22.

39 See Recommendation on Policing, supranote 3.

40 See generally RCIADIC, supranote 15.

41 See “Police Use of Force,”supranote 22 at 25. See also Harris, “The Reality of Racial Disparity in Criminal Jus- tice: The Significance of Data Collection” (2003) 66 Law & Contemp. Probs.71.

and analysis: persistent allegations or complaints of discrimination or systemic barriers; a widespread public perception of discrimination or systemic barriers; data or research studies demonstrating discrimina- tion or systemic barriers; observed inequality in the distribution or treat- ment of racialized persons within an organization; or evidence from other organizations or jurisdictions that a similar policy, program or practice has had a disproportionate effect on racialized persons.42

While there have been numerous commissions and inquiries over the past thirty years, they have not addressed the underlying problems and concerns facing the Aboriginal com- munity. Hence, adopting the Commission’s recommendations on data collection, particu- larly where there is strong reason to believe the community is being marginalized due to systemic racism, would serve to raise “race awareness” among police. Wortley summarizes the current limitations of Canadian research of police violence vis-à-vis racialized groups as follows:

Canadian research on police violence has been greatly hindered by the fact that police services in this country do not routinely release official statistics on police shootings or other use of force incidents. Moreover, research on racial differences in police use of force is almost impossible to conduct because there is an informal ban on the release of any type of information that breaks down criminal justice statistics—including po- lice shootings—by civilian racial background.43

Some federal and provincial agencies have statistics about deaths in custody or reviews of police incidents. However some agencies rigorously avoid the identification of racial ori- gin, while others correlate racial origin for some statistics but not death statistics.44_Where statistical information on race exists, variations in the reporting and collection of data about racial origin make it problematic to develop a streamlined race-based model that could collect this data across the country and use similar tools for monitoring and evalu- ating purposes. As we will see below, streamlining is important due to jurisdictional and other differences across the country.

1. The Structure and Function of a Mandatory Data Collection System

Police services across Canada should report to a national data collection service that records the race, ethnicity, and/or ancestry of the deceased. A national archival data sys- tem would encompass the identification, classification, and collection of this information. Guidelines developed by Manitoba Justice for data collection and approved by the province’s Aboriginal community outline the following framework:

Ask the individual if he/she identifies himself/herself in being of Abo- riginal ancestry. If the individual affirms that he/she is Aboriginal, the

42 See supranote 5 at 1. The OHRC has also argued in this report and elsewhere that “statistics collected in an

appropriate manner on a periodic or on-going basis can provide an effective means of monitoring for and pre- venting social phenomena widely recognized as discriminatory such as profiling”…”on the basis of race…and “where problems are identified, data analysis can provide useful direction for remedies to ameliorate systemic dissemination as well as evaluate the success of such measures.” See generally supranote 3.

43 See “Police Use of Force,”supranote 22 at 7.

police officer should ask their status. Status would be identified as status (i.e. First Nations), non-status or Métis. If the individual declares him- self/herself as status, have them identify his/her band.45

This process would enable an assessment of how the information about racial origin is de- termined by police agencies, permit a detailed analysis of individual deaths, and establish a typology of patterns for these deaths. For comparative purposes, this data would allow the analysis of the data-reporting capacity of police forces, as the system could collect and identify which relevant information police agencies do and do not report. We now turn to some of the difficulties in collecting data in the following section.