The recent deaths of two Aboriginal men while in jail has brought the issue of Aboriginal deaths in custody as a form of systemic abuse to the mainstream consciousness - once again. Earlier this month, Commissioner Davies released his report on the inquiry into the, almost decade old, freezing death of Frank Paul. In his report, the Commissioner called for a civilian body to investigate the custodial deaths of citizens. See the discussion of Frank Paul Inquiry in the March 14, 2009 blog entry entitled “Alone and Cold: The Davies Commission Inquiry into the Death of Frank Paul”
By law, an inquest is required when a person dies while in custody. As noted in the Toronto Star article above, the senseless deaths of two young Aboriginal men who were trapped in cells during a jailhouse fire must be acknowledged by addressing the deplorable state of policing in the First Nations community.
After more than three years of waiting for answers, the families of the victims and the community are anxious to finally have an inquest go forward, said Toronto lawyer Julian Falconer, who is representing the family. The two men died in 2006 when fired engulfed the holding facility in Kashechewan First Nations, a fly-in community in northern Ontario.
According to Coroner Counsel Margaret Creal, witnesses are expected to testify that police frantically tried to free the men as smoke filled the building, but fumbled with unlabelled keys and were not successful.
"These are clearly deaths that never had to happen. The state and conditions of detachments in First Nations territories are deplorable,” said Falconer.
The discussion of Aboriginal deaths in custody should be understood in the broader context of the overrepresentation of Aboriginal people in the criminal justice system. The Aboriginality of the person is a significant factor, if not, the dominant factor in leading to their interaction in the criminal justice system and eventual death in custody. Studies, commissions and reports, including the 1991 Royal Commission into Aboriginal Deaths in Custody, have shown that too many of the deaths of Aboriginal people while in custody are as a result of police action or inaction.
While the factors that bring Aboriginal people into contact with the justice system is their disadvantaged and unequal position in wider society, arguably, the most significant contributing factoring leading to the high levels of death of Aboriginal people while in custody is the failure of authorities to exercise a proper duty of care.
The case in Kashechewan First Nations is not in isolation, as Julian Falconer notes in the above inquest, “red flags to governments, both federally and provincially, are on record dating years back yet these deplorable circumstances were allowed to continue."
Andrea Anderson (Windsor Law III)