Canada is known for its variety of cultures, races and religions. For the most part, Canadian children are taught about Canada’s cultural mosaic, which means that the nation is considerate of different ethnicities, races and otherness, where self-identification and cultural variety are encouraged (Eriksen 119). This is the opposite to the United States of America which requires people to be Americans first and foremost. Canada is internationally commended for being a model of cultural diversity and anti-racist policies.
Despite Canada’s successes in cultural diversity and anti-discriminatory practices, racism and prejudice is still a significant issue. Institutional racism preys on minorities mainly through government policies and inaction. There are many ways that the criminal justice system marginalizes Aboriginal people. This essay will focus on racial profiling and in turn, over-representation in jails. Covert racism and racial profiling faced by Aboriginal peoples is a reflection of government policy and the courts, and public perception.
Canadian anthropologist Stanley Barrett stated that “racism has been endemic in Canada [and that] …the degree, scope, and persistence of the phenomenon lead to a single conclusion; racism in Canada has been institutionalized……racism that is intrinsic to the structure of society” (Barrett 41). Institutional racism can be explained as patterns that directly oppress groups based on their race; this can come from the government, courts or schools (www.cililliberty.com/institutional-racism). Within institutional racism lies structural racism which can be explained as interactions between institutions, policies and practices that maintain barriers to opportunity (www.giarts.org/article/structural-racism).
This type of racism is covert, which means that it is blatant and written into policy, such as the Indian Act. The abuses inflicted through the residential school system, race-based discrimination and injustice faced by Aboriginals involved in the Canadian justice system (Younging 42). The overt institutional racism and discrimination from the past has had a lasting and devastating effect on the Aboriginal communities.
Within the racialized hierarchy of Canada, Aboriginal communities still are ‘othered’ by an attempt to vindicate/excuse colonial actions that have left lasting harmful effects (Hogg & Turpel 188). In order to understand how Aboriginals are marginalized, which means to keep Aboriginals powerless within their society, and to understand their history of oppression, it is important to mention the Indian Act of 1867.
The British North America Act of 1867 was made to try to appease the Aboriginal peoples but also as a way to control them. The first acts passed were to ensure that the reserves were the responsibility of the Canadian Minister of Indian and Northern Affairs as well as the communities themselves (Younging 42). Unfortunately, the Act was also used to deny status Aboriginals the ability to vote (until 1960) as well as their right to sit on juries (Ibid).
In 1885, the Pass System in western Canada was introduced. This meant that Aboriginals could not leave their reserves without first obtaining a pass from their farming instructors allowing them to do so. Initially, the measures designed to protect reserve lands were abused to allow for settlement, farming or other non-Aboriginal uses of land, such as mining and forestry (LeBeuf 222). When the Aboriginal communities pressed for the recognition of their rights and to complain about the corruption and abuse of power within the Department of Indian Affairs, the Act was amended to make it a criminal offence for an Aboriginal to obtain a lawyer for the sole purpose of advancing their claim (Ibid 224).
To become Canadian citizens and gain the right to vote, Aboriginals had to agree to assimilate into Canadian culture and society. Overall, social policies and colonial laws lead to the depreciation of Aboriginal culture, the obliteration of Aboriginal individuality and their communities, and dependence on the Canadian government’s assistance (Monture-Angus 11). These policies and laws, over time, created powerlessness, dejection and cynicism among Aboriginal peoples, which lead to increased levels of crime and subsequent incarceration/imprisonment (Proulx 374).
Racial profiling is any action that relies on stereotypes, whether race, ethnicity, colour, religion or place of origin to single out individuals and treat them with more scrutiny (Ontario Human Rights Commission). This the use of profiling is a way for the policing criminality. Stanley Barrett, a Canadian anthropologist, stated that “racism has been endemic in Canada [and that]…the degree, scope, and persistence of the phenomenon lead to a single conclusion; racism in Canada has been institutionalized… racism that is intrinsic to the structure of society” (Barrett, 1987).
Aboriginal peoples that are subjected to racial profiling are policed, irrationally searched and excessively represented in the justice system (McGlade 9 & Proulx 388). When subjected to this, they have their autonomy ripped from them when they are unfairly searched, arrested forcefully, and detained in custody (McGlade 9 & LaPrairie (2) 8). In severe cases, some are shot as a result of being assumed as a threat based on their heritage. Racial profiling has had a long and shameful history in Canada with serious effects on surveillance, arrest and incarceration for Aboriginal communities. This promotes cynicism towards police and law enforcement among members of Aboriginal communities.
Though some reject that notion that racial profiling exists in Canada, others challenge that racial profiling is still very much part of the police tactic (Bahdi, Parsons & Sandborn 38). Ken Closs, the chief of police services in Kingston, recognizes it is commonly used (Ibid 40). This was reinforced in a study conducted in 2005, which found that Aboriginal men were stopped and questioned significantly more than other racial groups. Data showed that police were 1.4 times more likely to stop an Aboriginal person than a Caucasian person (Statistics Canada).
The public trust in institutions like law enforcement and the criminal justice system is the foundation to democracy and a harmonious society. The use of racial profiling completely erodes the public’s assurance in these institutions. Ultimately, it is Aboriginal peoples that are effected the most because it erodes confidence in the criminal justice system.
Continuously hindering this confidence, Aboriginals are immensely over-represented in the criminal justice system and that the treatment received is dramatically different from other racial communities (Bahdi, Parsons & Sandborn 54). Once Aboriginal offenders enter the system, they are confronted with a system founded on colonial regulations and practices that were made to alienate them (Ibid 35 & Proulx 392). The primary assumptions of the mainstream justice system is that crime is an offense against the state (Hogg & Turpel 191).
The Aboriginal system sees crime as an interpersonal offense and justice is restorative, which leads to culturally insensitive legal concepts and procedures (Ibid & Canada’s System of Justice). One of the main issues is that the justice system operates under a one-size-fits-all system of domination based on non-Aboriginal concepts of equality for everyone (Proulx 400).
A cornerstone in the sentencing of Aboriginals was a 1998 Supreme Court Case, R. v. Gladue, which advises courts to consider the background of the offender and make their judicial decisions accordingly. The Supreme Court decision explained that provisions are intended to lower the rate of Aboriginal offenders and to apply restorative justice while maintaining traditional goals of sentencing (SCC R v. Gladue). The Canada’s System of Justice reading describes the Aboriginal Justice Strategy which is a way to divert non-violent low-risk offenders from mainstream justice into restorative justice (Canada’s System of Justice 31).
Using this strategy, it emphasizes the person’s wrongdoing as a wrongdoing done to the community. It acknowledges that crime is “a violation of relationships between specific people and an offence against everyone” (Canada’s System of Justice 31). The approach emphasizes the victim healing and holds wrongdoers accountable and it also involves the community through sentencing circles (Canada’s System of Justice 36). This process begins once the offender has admitted guilt of a criminal act and they are given to their community to consider the nature of the crime, the harm is caused and the community makes a recommendation for a sentencing to the judge, who has the authority to agree and follow the recommendation or to ignore it and provide a different, and possibly harsher, sentence. (Ibid 7 & Perry 422).
These tactics are meant to help heal historic injustices such as dispossession of land and residential schools. The problem with sentencing circles and restorative justice is that it is up to judicial interpretation and there may be possible bias (LaPrairie (2) 11), Proulx 399). Carol LaPrairie states in the 1994 article, Seen but Not Heard: Native People in the Inner City, “that those most likely to be represented in prison populations come from the most disadvantaged segments of society” (LaPrairie (1) 12-13). With that, there should be less emphasis on cultural variance in the justice system’s process and more emphasis on unspoken causes of unemployment, dispossession of land, poor housing, poverty and lack of education.
Studies such as, the Manitoba’s Aboriginal Justice Inquiry (1991), the Royal Commission on Aboriginal Peoples (1996) and the Law Reform Commission of Canada (1991), “all found discrimination against Aboriginal people in criminal justice and massive over-representation of Aboriginal peoples in carceral institutions” (McGillivray & Comaskey 17). While they only represent 2.8% of Canada’s population, Aboriginals represent approximately 17% of the offender population (Statistics Canada). Male Aboriginals are incarcerated more than six times the national rate (Statistics Canada). For example: Micmaq Donald Marshall was exonerated, nineteen years after his conviction.
The Commission of Inquiry found prejudice against Aboriginal peoples and presumptions that Aboriginal peoples are prone to criminality resulted in his wrongful conviction (Royal Commission on the Donald Marshall, Jr. Prosecution). Simply, if Marshall had been white, there would have been a different outcome. Another example, in Radek v. Henderson Development Canada Ltd, the British Columbia Human Rights Tribunal found that the negative stereotypes of individuals lead to their victimization (Radek).
Racial profiling creates the sense of victimization which insults numerous sections of Charter, that guarantee against offensive actions of government and of the criminal justice system. Section 15 of the Charter ensures equality in the construction and application of law. It states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability” (Section 15.1, Charter of Rights and Freedoms).
Therefore, unequal treatment regardless of the intent is a violation/abuse of one’s protected right. “Canadian law stresses that decisions made on the basis of stereotypes subvert the integrity of any decision making process. Decision makers who labour under stereotypical assumptions cannot produce informed, accurate or just results” (Bahdi, Parsons & Sandborn 27). Racial profiling is ineffective in law enforcement and invasive to the Canadian Charter of Rights and Freedoms. The accusatory effects of racial profiling overshadow its supposed benefits in law enforcement and undermines Canada’s fundamental values. The perception that crime is on the rise, does not justify illogical assumptions by police and law enforcement which neglects human rights and violates the Charter (Ibid 36).
When law enforcement arrests individuals solely on their presumptions, they violate s. 15, that all are equal before and under the law, and s. 7, since individuals’ life, liberty and security interests are deprived, contrary to the values of fundamental justice (Charter of Rights and Freedoms). For example, March 9, 1988, J.J. Harper was stopped by a Winnipeg police officer, who had mistaken him for a car thief. Harper was shot and killed (Sawatzky). Harper had nothing in common with the suspect other than his Aboriginal identity. This is covert racism, the police officer assumed Harper was the suspect based solely on Harper’s race and ethnicity. These types of encounters with law enforcement disempowers Aboriginal communities that are subjected to racial profiling and creates mistrust between institutions of the state, and those communities.
As seen in the film, produced by Mitch Miyagawa, a Sorry State focuses on past and present treatment of Aboriginal peoples by the Canadian government (Miyagawa & Byrne). In 2006, Prime Minister Steven Harper made a formal apology to the Aboriginal peoples. But what did the apology actually do? Did it begin to make up for the terrible socio-economic conditions faced by many Aboriginal peoples? Is saying sorry enough? Can a word fix past atrocities and heal victims? No but it may have brought awareness.
This covert racism is a direct reflection of government policy and actions. Roy Maki an activist introduced in the movie stated that he was not looking for an apology but sought acknowledgement (Miyagawa & Byrne). As mentioned in this paper, racial profiling has had an extremely negative effect on Aboriginal peoples through “othering” in attempts to excuse colonial actions (Proulx 387). Further, the treatment of Aboriginal peoples that goes on today still violates sections of the Charter and in doing this, the democratic system is betraying its citizens. This is because if democracy was practiced properly, no one community would be racially profiled.
As read throughout this paper, racial profiling promotes stereotyping of both individuals and communities. If the government and criminal justice system would take action in using more of the Aboriginal Justice Survey suggestions of restorative justice and sentencing circles, there would be more compensation for past treatment. As we learn in the film, apologies are more about the future and how one can forgive the past and move forward to a better future. There is always opportunity for a better future. One start would be improved police and community trust with more listening and discussion and less prejudice and profiling.
