Tuesday, March 24, 2009

Inquest hears state of policing in Aboriginal communities is ‘deplorable’

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)


  1. Aboriginal deaths in custody: the mystique of jails is a part of the problem

    This inquest into the custody deaths of these men is further evidence of two primary issues: first, that there needs to be better scrutiny of jail conditions; second, the need for more initiatives for Aboriginal policing. See, https://webmail1.uwindsor.ca/Session/20163-8O3Ugl3bVLbAWOkmZf9c/bye.wssp. While an automatic inquest is held when an individual dies in a holding cell, there needs to be a greater duty of care when peace officers, extending but not limited to, police officers and jail guards, fail to meet the required standard of care required of peace officers. What are the appropriate parameters regarding a peace officer’s responsibility to properly discharge their duties? The problem is that jails and prisons are, for the most part, hidden from the ordinary view of the public and thus, remain a mystique. The appropriate measures to avoid these kinds of deaths require greater scrutiny of holding cells, and more generally, jail/prison conditions. Further, video surveillance of each cell should be mandatory; this video evidence would provide clear footage of the parameters of the cell and any and all interactions with peace officers.

    While this incident is troubling, many in the Aboriginal community are not all that surprised and have been advocating changes for First Nations police detachments for many years now. The incident raises the broader macro-issue of Aboriginal policing on First Nations reserves. Herein lies the problem: the issue is one of self-government. While Aboriginal communities would like to wholly control or have greater control over policing their communities on the reserves, provincial and federal governments have been reluctant. Lack of accountability and delivery of police services continue irrespective of the numerous commissions, reports and studies making similar recommendations. In Closing the Gap: Policing and the Community (1994), in a section devoted to Aboriginal policing, then judge and current Attorney General of B.C. Wally Oppal made 26 recommendations specifically in relation to the Aboriginal community. The recommendations included, but were not limited to the following: the development of Aboriginal policing models and improved procedures, communications, recruitment, and training in other police forces. Other commissions and inquiries, such as the Aboriginal Justice Inquiry of Manitoba (1991) have all highlighted similar problems with respect to policing Aboriginal communities. Greater cultural sensitivity training with respect to Aboriginal-police interactions would de-escalate situations where there is a confrontation or substantial likelihood or perceived threat of a confrontation. A policing model and framework, the structure of which reflects active Aboriginal input and involvement and Aboriginal traditions, will enable optimal and safer policing. Unfortunately, the most significant commonality among the various commissions and reports is that most of the recommendations that are made are not subsequently followed by the various levels of government. Almost twenty years after the report was released, governments have not persistently and actively implemented the Aboriginal Justice Inquiry’s core principles for Aboriginal policing.

    This latest inquest into the custodial deaths of civilians illustrates the need for greater transparency and clearer guidelines of jail and prison conditions. The inquest comes on the heels of Commissioner Davies report on the death of Frank Paul, an Aboriginal man who was also placed in a holding cell just hours before his death. Commissioner Davies recommended a broader interpretation of what constitutes a death in custody, which Davies stated should include the following: “a death in a police department jail cell, a death resulting from an officer’s use of force or motor vehicle, or a death arising from some other form of police interaction with the deceased.” While circumstances of police custody deaths will not be limited to the foregoing, the Commissioner has recommended for an expansive framework to the circumstances, situations and police actions that result in the custodial deaths of civilians. And of course, Commissioner Davies recommendations are accessible through his report.

  2. While I agree with the above post, it is yet another commission, another inquest, and the call for adequate oversight mechanisms in prison systems that still remains to be seen.

    What happened in Kashechewan is linked to what’s happening in the broader social context- not just the in the boundaries of the law, but the context of human rights. We are seeing an attack on poor people, on racialized groups, on anyone who does not fit into the mainstream paradigm, and, in turn, we start to see these same individuals as criminalized, and imprisoned.

    As mentioned in the Toronto Star article, these deaths were inevitable. The state and conditions of detachments in First Nations territories are unacceptable. It has been reported that the holding facility in Kashechewan First Nations did not have a fire extinguisher, smoke alarms and/or sprinklers. This is a community that is burdened by high unemployment, and is only accessible by plane for most of the year.

    Angela Davis said that imprisonment has become a response to many of the problems that burden people who are ensconced in socio-economic cages. These problems often ‘disappear’ from the public view when people are relegated into a specific space.

    In general, the removal of Aboriginal children from their homes, either by residential schools or adoption, the consequent loss of languages and cultures, as well as the low economic status, low levels of formal education and over-representation of Aboriginal people in the correctional system can be traced back to the colonial and paternalistic legislature by the Canadian government. It is within this context that Aboriginal deaths in custody need to be addressed. In short, prisons are increasingly being used as a substitute for social services for people.

    There needs to an independent oversight/watchdog to bring the intimate voices to the outsides, and hold law enforcement authorities accountable. Framed by the political demands of Aboriginal communities for self-government, and fuelled by the failure of the criminal justice system, (both as victims of violence and as defendants in the court) government studies, reports, and royal commissions have documented the over-representation of Aboriginal people from arrest to incarceration. Studies, some better than others, have addressed the specific needs of Aboriginal people in terms of cultural and historical understandings, namely, the inherent rights of Aboriginal people to self-government and self-determination.

    Federal and provincial governments have been under pressure to address the serious inequalities and discrimination of policing Aboriginal communities. There have been a number of policing reforms, dating back to 70’s, undertaken to improve Aboriginal police relations and the quality of police services that are delivered to Aboriginal communities, such as cross-cultural training programs, and the ‘indigenization of policing’. Many of these reforms failed. Arguably, these reforms were proof that the government’s underlying goals of assimilation has never truly been abandoned. As it stand, the best solution to Aboriginal police relations rests in the acknowledgement of self-policing in the context of self-government.

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  4. For those of you that are interested in participating in this dialogue, I am presenting on this very topic at the Civil Liberties Symposium next Friday, April 3, 2009, on Panel 3 (1:45-3:15 pm), at the Law Faculty Conference Room.

    The title of the paper and presentation is:
    “The Dispossessed: Deaths in Prison Custody, Prison Conditions, and Correcting Corrections in Canada.”

    I hope to see you there. As the posts on this topic reflect, deaths in custody is a timely topic and there is indeed a sense of urgency.