The Justice System and Aboriginal People
The Aboriginal Justice Implementation Commission
Report of the Aboriginal Justice Inquiry of Manitoba
In this chapter, we examine the central theme of policing in Aboriginal communities, and what should be done about it. We begin by stating seven strategies which we believe must undergird future policing policy, and then examine the need for new approaches to recruiting, training and supervision of police forces in Manitoba. Next, we examine the actual state of policing in Manitoba and make specific recommendations concerning each police force. A detailed examination of the current Provincial Police Act and the Law Enforcement Review Agency then provides a framework for recommendations which will affect the entire structure of policing in Manitoba. TOP
The History of Police-Aboriginal Relations TOP
During the Inquirys hearings, we heard a large number of complaints about police services to Aboriginal people. It quickly became clear to us that Aboriginal-police relations in Manitoba are in a very poor state. We heard evidence that this was true in rural areas, cities, remote communities, and even in some communities served in part by an Aboriginal police force. Much of the suspicion and hostility which Aboriginal people feel toward the police is rooted in the history of this province and in the troubled relationship between Aboriginal people and the Royal Canadian Mounted Police.1
For the most part, the decision to create the forerunner of the RCMP, the North-West Mounted Police, came about because of the impending entry of the North-West Territories into Confederation in the 186970 period. Prime Minister Sir John A. Macdonald foresaw the problems associated with having such a large territory, populated primarily by Aboriginal people, within the jurisdiction of the Dominion without a strong Dominion presence.
While Macdonalds first initiative was to enter into treaties with the Indians so as to be able to settle large numbers of new immigrants upon the land, part of his initial plan also included the establishment of a federally controlled police force. The establishment of the force did not proceed very quickly, however, until after the Cypress Hills Massacre of 1873 in what is now Saskatchewan, when American whisky traders murdered several Assiniboine Indians. At that time, the federal inability to monitor and control the relations between Aboriginal and non-Aboriginal people became apparent. At the same time, the need to prevent other, similar outbreaks was paramount if Indians were to willingly surrender their interest in the territory. There was no doubt that controlling the whisky trade required a police deterrent and the NWMP was selected to provide it.
The federal government, however, also had other objectives in mind for the Mounted Police. Lorne and Caroline Brown, in their study of the Mounted Police, state:
After the formation of the NWMP the repressive government policies which we discussed in Chapter 3 began to take effect. Although the force did not make the policies, it was the main instrument employed to carry them out. The police were responsible for moving Indians to reserves and for keeping them there, and they were intimately involved in administering treaties and Indian affairs generally. Whenever an Indian agent felt the need for assistance in enforcing government policy regarding Indian people, he called upon the Mounted Police. Indian children who ran away from residential schools were sought and returned by NWMP officers. Indian adults who left their reserves without a pass from the Indian agent were apprehended by the Mounted Police.
It is difficult to obtain reliable documentary evidence of the Indian view of the Mounted Police, because the views of Indians on the matter were seldom recorded. Indian people do appear to have been grateful to the Mounted Police for suppressing the whisky trade and for helping to prevent a recurrence of outrages like the Cypress Hills massacre. However, the fact that the force represented the interests which were rapidly destroying the Indian economy and way of life, and that the force was frequently called upon to protect those same interests, led to a state of ongoing tension between the police and Indian nations across the West.
During and after the North-West Rebellion of 1885, any positive feeling that may have existed between the Mounted Police, the Metis and most of the Indian population in the Manitoba and Saskatchewan region came to an end. The police were not the cause of the rebellion, and, in fact, the evidence seems to be that they repeatedly warned the government that unrest and well-founded grievances might lead to open rebellion if concessions were not forthcoming. However, when the government did not respond and rebellion eventually did break out, the Mounted Police had little choice but to participate along with regular military forces in suppressing it.
They were also faced with the responsibility of apprehending and meting out punishment to the rebels. Eighteen Metis and 30 Indians were apprehended and convicted. Louis Riel and eight Indians were executed. Riel was hanged in Regina following his trial, but the Indians were executed publicly in the Mounted Police stockade at Battleford, Saskatchewan. The government encouraged Indians from nearby reserves to witness the execution, as it was held that such a tragic spectacle would be an emphatic deterrent against a repetition of such offences.3 The grim resolve of the government was reiterated to Aboriginal people throughout the West.
The consequences of Mounted Police actions were far-reaching:
It seems clear that this early history has had an effect upon the relationship between Aboriginal people and the RCMP ever since. Memories of such treatment linger in many communities.
That history has also coloured the perceptions Aboriginal people hold of other police forces in the province. The impact of past wrongs has been reinforced by the negative experiences of today. We heard testimony that police-Aboriginal relations in the city of Winnipeg are not good. We heard complaints about the police refusing to follow up on allegations of assault. We heard of Aboriginal people being stopped on the street or in cars for no reason. Those arrested were afraid of the police and many reported being beaten by police officers. The large number of complaints which we received points to a problem of considerable magnitude concerning how Aboriginal people are treated by Winnipeg police.
There were notable exceptions to the pattern of mistrust. We heard of excellent relations between Aboriginal people and police officers in some Manitoba Aboriginal communities. These positive relationships seem to have developed when officers had remained in an area for some considerable time and where they had become involved with the community. TOP
Policies and Strategies for Aboriginal Policing TOP
There can be little question that the present arrangements satisfy few on either side, and frustrate many. From a positive perspective, there is general agreement among major police forces that they should be taking special initiatives to improve their relationship with Aboriginal people. However, what they should be doing is the issue; Aboriginal people and non-Aboriginal police forces generally do not agree on the most appropriate solutions to the problems.
Our recommendations are based upon seven strategies:
We believe that the adoption of these strategies will improve the quality of policing for all Manitobans and, in particular, for Aboriginal people. TOP
Simultaneous Realities: Over- and Under-Policing TOP
Police services are provided to Manitoba communities under a variety of arrangements, which are detailed later in this chapter. The RCMP function as the provincial police force, providing services to rural areas, to Indian reserves and to all but eight smaller municipalities. RCMP services in Aboriginal communities may involve the employment of special RCMP constables hired under the now-discontinued Native Special Constable Program. The Dakota Ojibway Tribal Council Police Force provides policing services to eight reserves in southern Manitoba. Band constables hired directly by Indian bands, under a program of the Department of Indian Affairs and Northern Development, provide basic policing services to a number of reserves, while special constables serve 12 Metis communities. Brandon and Winnipeg have created their own police forces, using powers granted to those cities through their own acts of the Legislature.
Aboriginal Manitobans believe they are being provided with inappropriate levels and quality of policing. The most frequent complaints were that police force members are not in touch with the culture and needs of the Aboriginal communities they serve. Many communities feel that service is unavailable when needed. Aboriginal people see a large gap between the community and the police, a gap which cannot be bridged as long as the community is unable to exert some control or guidance over the police who are present in it. In effect, this is experienced as both over- and under-policing.
Over-policing generally results from the imposition of police control on individual or community activities at a level unlikely to occur in the dominant society. Under-policing usually results from a lack of preventive and supportive police services. While the possibility of simultaneously experiencing these two problems may appear unlikely at first, both arise because police forces are not under Aboriginal community direction, and likely do not know community priorities or cultural assumptions. TOP
Complaints of over-policing focus on the perception that Aboriginal people are singled out for enforcement action and subjected to stereotyping by police forces. Many who appeared before us complained about being stopped on the street or on a country road and questioned about their activities. We heard complaints that Aboriginal people are charged with offences more often than their white counterparts. They may also be charged with a multiplicity of offences arising out of the same incident. Many such charges are never proceeded with, and appear to be harassment. We believe that many Aboriginal people are arrested and held in custody when a white person in the same circumstances either might not be arrested at all, or might not be held.
We were given an example of such stereotyping by an Aboriginal girl in Winnipeg. She told us that her boyfriend had been stopped by police simply because he was running down a city street to meet her. The sight of an Aboriginal man running apparently provided the police officer with a cue for action. The police officers attitude and reaction were stereotypical and discriminatory. TOP
Others who appeared before us complained of under-policing, with some people lamenting the fact that they saw the police only when they came to their community to make an arrest. The police were not present on a day-to-day basis to prevent crime or to provide other police services to the community.
Most modern policing is based upon patrol car responses, using a radio dispatch system. Many northern Aboriginal communities have limited telephone service and road access. A number have no resident police detachment. This means that police assistance can only be obtained during the daytime by contacting the nearest RCMP detachment and requesting assistance. At night, all phone calls from northern Manitoba are routed through Thompson, an even less direct process. This means that even the swiftest response time frequently must be measured in hours or, occasionally, days. This is not adequate and would not be tolerated in southern non-Aboriginal communities of a similar size. In short, Aboriginal people are expected to use nonexistent telephones to call non-resident police, who are unlikely to attend within a reasonable time. Just as important, the residents of many communities complained that the police did not enforce local by-laws against the importation of alcohol to the reserve, thereby contributing to the level of social disorder in the community.
Complaints of over- and under-policing are deep-rooted and stem from the police taking a narrow view of their role. This view emphasizes crime investigation to the exclusion of a broader approach, which might better address the underlying problems facing many Aboriginal communities and involve the community in the policing process. Appropriate corrective measures must be based upon a fresh understanding of the nature of the police function itself. TOP
The Role of Police in Society TOP
Aboriginal people view the police as representatives of a culture which is vastly different from their own. Their encounters with police are framed by a history of cultural oppression and economic domination, during which use of Aboriginal languages, governments, laws and customs was punished by laws developed by the same legal structures police now represent. While todays police cannot be blamed for the historical circumstances of Aboriginal people, they need to better understand the context which affects every encounter with them.
The word police, like the related words politics, polity, political and polite, lies at the heart of societys self-understanding, and is derived from the Greek words polis and polites, which mean city and citizen. Our politics and political systems speak of how we govern ourselves. Polity tells us of the structures and processes of nations, provinces and communities. Politeness defines the ways in which we would wish to encounter each other, although, of course, we do not always do so. Hence, police can be understood as a social structure which a community puts in place and mandates to enforce the political decisions of society.
Philip Stenning, writing for the Law Reform Commission of Canada, suggests that even as late as 1860, this original understanding of police remained: the system of laws and regulations which bind a community together. A municipal manual of the day noted:
For those of the dominant social, economic and cultural group, the need for such a police and the later development of police forces to enforce this framework of laws are welcomed as a source of support and security. Most citizens rarely encounter the police, and when they do, neither they nor the police perceive the encounter as particularly threatening. The law generally works for the dominant group, frequently to protect its interests and assets.
We heard a litany of complaints and examples indicating that many, if not most, Aboriginal people are afraid of the police. They consider the police force to be a foreign presence and do not feel understood by it. They certainly do not feel that the police are in any sense their force, that police operate on their behalf, or that the police are in any significant manner subject to a corresponding Aboriginal influence in their communities.
Encounters between Aboriginal peoples and police forces are not only cross-cultural in nature, but are made even more problematic by the economic underdevelopment and oppression of Aboriginal peoples, as our report has documented. It should come as no surprise, then, that these encounters frequently have adverse consequences for Aboriginal people.
We believe that the fundamental remedy to this problem is the creation of well-trained and well-equipped Aboriginal police forces, under Aboriginal direction, providing a full range of police services to Aboriginal communities. We also believe that a community policing approach is vital for the development of effective working relationships between communities and their police forces, and that Aboriginal police services will evolve naturally along the lines of what is becoming known as community policing, because of the structure and values of Aboriginal communities themselves. Only in this way can the original concept of police, as a support structure for a communitys system of laws and customs, be realized for Aboriginal communities. TOP
It is not widely known that the style of policing which has become dominant in North America in the latter part of this century was developed in response to problems of corruption and inefficiency which plagued many large American police departments. This new pattern was based upon two factors: the desire to remove the police from what were believed to be corrupting ties with the political leadership in the community; and the development of new police technology, including vehicles and radio dispatch systems. Control of the police was taken from local political organizations and centralized in the hands of police administrators. Department-wide standards were established in areas such as recruiting, training and patrol methods. Tasks that had been carried out by patrol officers were now handled by specialized central units.
Activities of a community service nature were dropped and were replaced by a new emphasis on crime-fighting. The job of the patrol officer became one of driving around the streets in a car, isolated from the citizenry, waiting for a dispatcher to call. Officers performances were judged, to a great extent, on the law enforcement statistics they generated. Activities which were not counted, such as citizen contacts, were not encouraged. Officers were frequently moved from one patrol area to another in order to keep them from developing ties with the community.
In the older system, citizens knew the police officers in their community. There was time to build relationships and networks, which could be of assistance in both prevention and resolution of crime. Under the new system, the citizens role also changed. They were discouraged from participating in their own protection and had little say in the kinds of services they received from the police. All the citizen had to do was call the dispatcher, and the police would soon arrive to take care of the problem in their own way. This process was quite successful in alleviating many of the problems which had developed in the previous era, and it became the dominant model of policing in much of the world. Even though the police in Canada did not have all the same problems as their U.S. counterparts, our police soon patterned themselves after the American departments. To a great extent, this is the way most departments are run today. The police are mainly reactive, responding to incidents as they are phoned in. While there is now some community input, this is typically limited to participation in crime prevention programs such as Neighbourhood Watch and Crime Stoppers, which are managed by the police.
This model of policing was not established on the basis of research showing its effectiveness, but, rather, as a response to problems with the earlier style of policing. It was not until the 1970s that research was done on the effectiveness of this new approach to policing. In general, this research was not encouraging. By the middle of the 1980s, a widespread movement toward community-policing had begun in most North American centres.
Community policing has six characteristics which give it a great deal of potential for improving the policing of Aboriginal people:
As well as enhancing the capability of the police to enforce the law and to maintain order, community policing can play a role in community development by mobilizing the resources of the community itself. This may involve a diverse range of strategies and activities, including community-based prevention programs, as well as alternative means of resolving disputes and dealing with offenders, utilizing a broad array of community support mechanisms.
Because it focusses on community problems and provides community members with a real say in policing, community policing is much more effective than traditional public relations programs for strengthening relations between the community and the police. An example of the sorts of effects that even the beginning of a community approach to policing can have was seen in our visit to Shamattawa.
Shamattawa had long had a reputation for being a community out of control, where crime, particularly juvenile crime, was rampant. When we held our hearings in the community in 1989, we were informed that the RCMP presence and the methods of policing which they applied in the community were believed to be responsible for a 48% drop in juvenile crime and a smaller drop in adult crime. The officer in charge of the detachment felt that this success was not simply due to the presence of the RCMP, but also to the efforts of the officers to get to know the community and its people. He pointed to the fact that detachment members patrolled on all-terrain vehicles with a trailer in tow, in which property, suspects or witnesses could be carried. Whenever the trailer was not needed for transporting such persons or items, the detachment members allowed young people to ride along on their patrols. If they happened to pick up a young person for having committed an offence, the passengers would be allowed to ride along while the young person was taken home or to the detachment. In these cases, the young people would tease or deride the one who had been picked up.
This anecdote does not represent a fully developed community policing approach. However, it is an example of what can be accomplished by even modest efforts in this direction.
The adoption of a community policing approach in Aboriginal communities also implies the need for a different style of training for Aboriginal, as well as other, police officers. Research has shown that police officers from minority groups who are trained and supervised in a traditional manner may act in the same way as white police officers.6 This should not be surprising, because minority police officers experience the same job socialization as their white peers. Providing different training to enable officers to adopt the new style of policing will be necessary if the goal of increasing sensitivity to Aboriginal concerns is to be met.
The RCMP have indicated that they believe that community policing should become the standard approach for all detachments. Chief Supt. L.J. Callens, in a paper delivered to a community meeting in Stonewall, noted that the force had instructed detachments to form permanent community consultation groups, representing to the extent possible the many social elements of the community.7
This new structure is intended to provide a permanent forum for police-community discussion of issues which are of concern to either group, and to develop strategies which can be used by the police, or by the community, or jointly, for crime prevention and early detection. Chief Superintendent Callens describes this as the development of a functional partnership, based on clear and open communication and the development of trust. He goes on to describe the new partnership as one of anticipation, based on the RCMPs view that change is so rapid that reactive policing approaches are insufficient.
In this new approach to policing, communities gain a longer term relationship with the officers upon whom they rely for police services and officers gain an intimate knowledge of the community they serve. However, in addition to regaining what may have been lost in the move to a reactive, patrol car style of policing, there are also new structures needed to ensure that consultation and communication become an integral part of the community-police partnership. Community policing places a high priority upon prevention and anticipation, rather than on reaction.
While we have stressed the desirability of Aboriginal control of forces policing Aboriginal communities, and later will emphasize the need for non-Aboriginal police departments to ensure that they have a greater proportion of Aboriginal members, neither of these important reforms will have a major impact if the police continue to follow their traditional patterns of community relationships. We believe that community policing is a vital strategy for enabling local residents to have a structured, open relationship with the police.
We recommend that:
Employment Equity Programs TOP
In addition to the adoption of community policing as an approach to the organization and delivery of services, we believe that any police force will be more effective if its members are representative of the community it serves. If the community is multicultural, the police force should have a similar multicultural mix of personnel. It is obvious that a force will be more effective if at least some of its members speak the language or languages of those with whom they have to deal. For example, it would be unthinkable to have only French-speaking police in an English-speaking community, or vice versa.
Employment equity (sometimes called affirmative action) programs are intended to correct imbalances that exist in the composition of employee groups. Aboriginal people are not represented on Manitoba police forces in proportion to their representation in the population, to say nothing of the proportion of persons of Aboriginal descent dealt with by the police. Neither the RCMP, nor municipal forces such as those in Winnipeg and Brandon, has sufficient numbers of Aboriginal members, or of any other visible minority, for that matter.
One way in which the police may begin to convince Aboriginal people of the sincerity of their efforts to improve relations with them is to ensure that Aboriginal people are substantially represented among the members of the force. In a paper prepared for the Inquiry, researchers Douglas Skoog and Irwin Barker say:
Advantages of Having Aboriginal Officers TOP
While employment equity programs should primarily be viewed as supporting the rights of minority group members to employment, there are also other sound reasons for adopting such a policy. Among these are:
Hiring sufficient numbers of Aboriginal officers will require a massive recruiting and training effort by Manitoba police forces. Later in the chapter, we will discuss specific hiring targets which Manitoba police forces should adopt.
We recommend that:
In making this recommendation, we know that the increased numbers will not ensure, by any means, that a significant percentage of police contacts with Aboriginal persons will be handled by Aboriginal officers. Given the realities of shift-scheduling and the numbers of contacts with the public, Aboriginal people will still frequently encounter non-Aboriginal officers. However, the benefits will be significant. An employment equity policy should be pursued. TOP
Imagine a situation in which the police of Manitoba were members of the Cree Nation, spoke the Cree language as a mother tongue, and were born into and formed by that culture. Further, imagine that they represented the power to enforce the economic and social customs of that nation, including laws of property, marriage and criminal offence. Imagine the bewilderment of the townspeople of a typical, southern Manitoba town, as they encounter these police officers going about their duties, speaking their own language. Imagine the bewilderment of the officers as they seek to understand the strange ways of the townsfolk. And imagine the possibilities for confusion, misunderstanding and misapplication of Cree laws and police procedures.
This imaginary world is, in fact, quite similar to the experience of many Aboriginal communities and of many Aboriginal individuals when they encounter non-Aboriginal police. The police function to enforce the norms, actions and wishes of the citizens from the dominant culture, which is alien to Aboriginal people. The resulting confusion on the part of Aboriginal people is frequently matched by the confusion and misunderstanding of the police. While neither group intends to confuse, misunderstand or offend, these are natural consequences of policing from a foreign culture.
Throughout our hearings, we heard many complaints about racist comments made by the police to members of the public and to Aboriginal police officers. We do not believe that most police officers intend to make racist or stereotypical remarks, but some do. The testimony of Dr. Neil McDonald in this regard was most revealing. Dr. McDonald is a consultant involved in the research, development and delivery of cross-cultural training materials for public and private agencies across Canada, including the RCMP Depot Training Centre in Regina and the Winnipeg Police Department. McDonald testified that:
Dr. McDonald testified about the negative racial attitudes exhibited in the Winnipeg Police Department recruit class of 1988, in which a number of recruits made very strong racist statements about Aboriginal people. He stated that recruits made statements such as:
Such negative and racist attitudes cannot help but affect the quality of police service. Officers must come to understand the devastating effects their remarks can have. Therefore, we believe that cross-cultural educational courses should be given to every member of each force. Cross-cultural courses for recruits should be enhanced and regular refresher courses should also be given to all officers, from the police chief down. Entrance tests should attempt to determine the presence of racial prejudice or intolerance within each recruit or officer and how those recruits and officers are likely to react to people with whom they deal. Any applicants displaying racist tendencies should be rejected.
Racist conduct can be addressed, to some extent, by a combination of carefully thought out, cross-cultural educational programs given to recruits and older officers alike, use of clear and consistent police procedures, and strong and unequivocal leadership. However, the strongest method of combatting racism is through a clear and unequivocal policy on the part of senior officers of not tolerating such behaviour and of formally disciplining those whose conduct implies overtly or covertly racist approaches to their duties.
We recommend that:
Even very good cross-cultural education programs cannot overcome the significant barriers between Aboriginal and non-Aboriginal cultures which are frequently produced by language differences. Probably one of the more perplexing issues which will arise in the course of dealing with Aboriginal accused concerns the admissibility of confessions. The rules relating to the admissibility of statements by accused persons have been developed to provide protection to an accused. Only those statements which are given freely and voluntarily, and with the full knowledge and appreciation of ones legal rights (including a full appreciation of the right not to give a statement), are admissible.
Despite these general safeguards, however, Aboriginal people, particularly those in remote communities and those whose primary language is not English, appear to have special problems in exercising their rights to remain silent and to refrain from incriminating themselves. Their statements appear to be particularly open to being misunderstood by police interrogators and, as a result, may convey inaccurate information when read out in court. Their vulnerability arises from the legal systems inability to break down the barriers to effective communication between Aboriginal people and legal personnel, and to differences of language, etiquette, concepts of time and distance, and so on. This matter has been considered in a number of courts, but perhaps the fullest explanation was given in an Australian court. This issue is so central to the role of the police in questioning suspects and taking statements that we quote in full the explanation given by Justice Forster in setting forth what are now called the Anunga Rules.
The Anunga Rules have now become almost universally applied throughout Australia in one form or another and have become part of the training manuals for police departments in that country. Much controversy arose, particularly from police authorities, when this decision was made, but the existence of the rules was strongly endorsed by the Australian Law Reform Commission in their report on the recognition of Aboriginal customary law in 1986.10
It is interesting that in Australia, where the treatment of Aboriginal people by police authorities has been the focus of international research and comment, and where the over-representation of Aboriginal people in the justice system probably exceeds the level in Canada, such an approach to the reception of statements by Aboriginal accused has been judicially mandated. We believe that it would be appropriate for Manitoba courts to adopt and apply the Anunga Rules, keeping in mind the differences between Canada and Australia.
We recommend that:
The recording of interrogations will give better protection to all parties, as well as be of assistance to the courts. By adopting these procedures and employing more culturally sensitive interrogation techniques, Manitobas police forces should be able to break down many of the barriers which exist in their dealings with Aboriginal people. TOP
Aboriginal people in Manitoba live in three types of settings: Aboriginal communities (either on reserves or in non-reserve areas), in communities with mixed populations and in the major urban areas. In a minority of reserves, Aboriginal police forces, such as the Dakota Ojibway Tribal Council Police Force, or special RCMP constables provide limited police services. In these communities, major crimes are investigated by the RCMP. Northern community constables provide services to Metis areas, with the RCMP also providing back-up services for major crimes. Eight smaller communities and Brandon and Winnipeg have their own municipal forces. The RCMP provides police services to the remainder of the province in their contracted role as the provincial police force. In this section, we will review and examine the police forces which serve Aboriginal people in these three settings. TOP
Policing in Aboriginal Communities TOP
A variety of Aboriginal policing programs have developed across Canada, usually with the primary purpose of involving more Aboriginal people as constables. This has been done either through trying to enlist Aboriginal people in existing forces, or through the development of what are essentially new police forces or auxiliary forces. Efforts have also been directed toward giving Aboriginal people some limited measure of control over policing functions within their communities. These programs have ranged from shared control with pre-existing agencies to complete control over a limited range of police functions in reserve and Metis communities. In no case does an Aboriginal community have full control over policing and provide a complete range of police functions to its community members.
There has been a clear policy within government departments in favour of using existing white police forces to police Aboriginal communities, rather than empowering and funding Aboriginal people to do the job themselves. The preferred solution of non-Aboriginal forces policing Aboriginal communities, such as the RCMP and the Ontario Provincial Police, has been to recruit Aboriginal officers and make other internal changes, rather than to encourage the development of police forces controlled and staffed by Aboriginal people. Even though such programs have been in operation for many years, they have not been successful in changing the reality that most Aboriginal communities are still policed by white officers.
We recommend that:
The difficulties encountered by Aboriginal people who come into contact with non-Aboriginal police forces frequently persist even with some Aboriginal special police programs. Some reasons for this will become clear as we review the Aboriginal policing programs now in place in Manitoba.
RCMP On-Reserve Policing
Our hearings indicated that, unfortunately, in many cases, the relationships between Aboriginal communities and the RCMP are seriously deficient. There are strong feelings of mistrust, if not hatred, directed towards RCMP members in some areas. Many police officers are seen as being arbitrary and antagonistic toward Aboriginal people.
In one Aboriginal community we visited, the hall was almost empty when we arrived. We were told that people from the community would not come as long as the police were in attendance. We asked the police representatives to leave and as soon as they had gone, the hall filled with local residents. This was a sad commentary on RCMP-community relations in that area. We were told that this obvious distrust had developed as a result of what was viewed as police harassment. There, and in other communities which we visited, actions taken by the police have resulted in diminished respect.
We were told, and we believe, that RCMP officers have taken advantage of Aboriginal people when questioning them. Some accused will say almost anything to get out and away from a frightening situation they do not understand. Many do not understand the cautions given by police, because of their difficulty with English. Such stories make obvious the need for the interrogation safeguards we discussed earlier in this chapter. RCMP members have told some people that they will be held in custody until they give a statement. Some are reported to have then given false statements, as that was seen as the only way to end police questioning.
We heard complaints in a great many of the communities we visited that accidents involving injury or death to Aboriginal people either were not investigated at all, or were investigated with less vigour than similar incidents involving white people. We heard of difficulties in contacting officers at all. Given these perceptions, it is not surprising that the police are held in low regard by Aboriginal people.
Each complaint heard by our Inquiry was examined and investigated by the RCMP. We received detailed reports of each investigation from Asst. Commissioner Dale Henry, Commanding Officer of D Division. In many, if not all, cases, Assistant Commissioner Henry also sent a copy of the report to the person who had complained to us. We believe that it was appropriate for him to have used the Inquiry and the complaints as an opportunity to attempt to improve communications with the Aboriginal communities. We commend him for taking that initiative.
In discussing their relations with the Aboriginal community, RCMP officers were open to suggestions as to how those relations might be further improved. The force appeared anxious to have more Aboriginal members and efforts have been made to recruit Aboriginal people, either as special constables or as regular constables. Officers saw the greater involvement of Aboriginal officers as necessary and as important to the force. Increasing the numbers of Aboriginal officers as full constables and in senior ranks is, perhaps, the most essential action which could be taken by the force in the immediate future. However, we also noted that while the policy of the force appeared to be to encourage more Aboriginal representation, there was no RCMP support for the establishment of independent Aboriginal police forces.
Our fundamental recommendation is that Aboriginal police forces take over the present RCMP responsibility for all police services in Aboriginal communities as soon as possible. The quality of RCMP services must also be improved. At the same time, it is essential to repair the damaged relationship between the Aboriginal community and the RCMP in order that mutual respect may develop once again.
While the RCMP receive the most extensive cross-cultural training of any Canadian police force, many Aboriginal people who are working in the system feel that this training does not properly prepare officers for service in the Aboriginal communities to which they are assigned. The same presenters believe that RCMP constables frequently bring their own cultural concepts with them and expect Aboriginal people to behave according to those concepts. They said that RCMP Aboriginal constables are often placed in the awkward situation of having to meet white police expectations and are not being given the flexibility to adapt their RCMP training to their knowledge of Aboriginal culture. We believe that additional training in cross-cultural issues, particularly relating to Aboriginal culture, is required, both for new constables and in the form of regular in-service training for all officers.
Those who appeared before us made many suggestions which would improve relations between the RCMP and the Aboriginal communities they police. For example, where there has been a death in a road accident or in some way other than by natural causes, the family and often the elected leadership in the community, acting on behalf of the whole community, are anxious to know that the matter has been fully investigated and what conclusions were reached. It was suggested that, in the future, reports with respect to this type of death be forwarded to the head of the family and to the chief and council. Where criminal charges have been laid, that information should also be made known, as should the eventual outcome of any trial.
When a crime is being investigated in an Aboriginal community, particularly by officers who do not live there, the elected leadership in the community should be made as aware as possible of the investigation. We can understand that there may be situations where that is not possible, due to the sensitivity of an investigation. Nevertheless, a greater effort to keep elected representatives informed should be made. Due to the limited nature of information that is provided, the statistical reports that are now provided to councils are of little value.
Providing complete information about problems in the community will go a long way toward improving relations, and also will create opportunities for ongoing contact and discussions between members of the local detachment and the community.
Detachment commanders and officers should meet with Aboriginal community leaders on a regular basis. One purpose of these meetings should be to have the officers become known to Aboriginal leaders. Another purpose should be to exchange information and concerns with respect to community problems and law enforcement. Improved communication and community involvement should be seen as key strategies to improving the Aboriginal communities relationships with the RCMP.
On a broader level, regular meetings should be held between the assistant commissioner and his or her staff, the Assembly of Manitoba Chiefs and the Manitoba Metis Federation. These meetings should provide a forum in which the chiefs and Metis leaders can express their concerns about law enforcement and hear from the assistant commissioner about his or her concerns.
We believe that the RCMP wishes to improve their relationships with the Aboriginal community, and that they have taken appropriate action in ending the Native Special Constable Program (which we discuss later), in developing initial standards for cross-cultural training and in setting national employment equity goals. We reiterate our belief that the first strategy in improving Aboriginal policing services is the development of Aboriginally controlled police forces. Such forces will need the support of the RCMP, as do many small, municipal non-Aboriginal forces in Canada.
We recommend that:
The RCMP Native Special Constable Program
To date, the largest Aboriginal policing program in Canada has been the RCMP Native Special Constable Program. The program was established by the RCMP in 1973 and is frequently referred to as option 3(b). While the program has now been ended, it provided some important experience to guide the future development of Aboriginal policing policy.
A major goal of the special constable program was to recruit more Aboriginal members at a time when a sufficient number of Aboriginal people could not be attracted through the regular recruiting and training process. Native special constables were to help regular RCMP members serve Aboriginal communities.
By 1989 there were 189 native special constables, 30 of whom worked in Manitoba. The program was funded by the Department of Indian and Northern Affairs and by the participating provincial governments. Special constables worked in RCMP detachments and were responsible to the detachment commander, not to the local band.
Recruits in this program had varied educational backgrounds and did not have to meet the same entrance requirements as regular members. Training took place at the RCMP Depot over a period of 16 weeks, compared to the 25 weeks for regular RCMP members. Recruit training was followed by six months of field training. Native special constables were given full peace officer status on and off reserves. However, the salaries they received were lower than those paid to regular constables and they were supposed to be assigned different duties from regular members.
We received some positive comments about the program during our visit to Little Grand Rapids. Tony Bittern, who was a member of the RCMP for 11 years and now works for the band, told of his experiences. He became the only special constable to be placed in charge of an RCMP detachment (Gods Lake). He was obviously very proud of his years in the RCMP and said the special constable program was a good one. He pointed out that the force did not have to introduce it and he commended it for adjusting its entrance qualifications so Aboriginal people could become officers.
In large measure, the strengths of the special constable program derived from the fact that it operated under the RCMP. As in most civil service jobs, there was considerable job security, and health and welfare benefits were similar to those of regular RCMP members. As part of a larger force, there were some opportunities for advancement, particularly as the special constables became regular members. However, there were also a number of problems with the special constable program, including the fact that the program was not controlled by local bands. The Aboriginal police officers were clearly under a great deal of stress and many left the force. Because special constables did not receive the full training program available to other recruits, they were not seen as full-fledged Mounties by other officers, or by those in the communities they served. The RCMP policy was to assign these constables to their home reserves, often leading to extreme local pressure on the individual. This method of assignment of special constables was severely criticized.
Former native special constables have also complained about the conduct of some other members of the force. Careless comments can suggest that the Aboriginal person is not considered an equal, or is not wanted in the force. Chief Enil Keeper of Little Grand Rapids was a special constable at one time. He spoke of being called names and being given the dirty jobs to do. He said he did not have the same privileges as the white officers. He was called Blood and his partner used to say things like, Come on, lets go and shoot another Indian. He was accused of being a faggot by one officer. He was also concerned about being part of a force where other officers abused Aboriginal people.
In 1990 the RCMP eliminated the Native Special Constable Program. In order to ensure that Aboriginal constables have the same status and opportunities as other members of the force, all newly enrolled Aboriginal recruits will now train to be full constables. Those who are currently special constables will undergo training to upgrade their status to full constable. As part of this new program, those who lack the minimum educational qualifications will be taken on the force and given up to two years additional training to enable them to achieve grade 12 equivalency. They may also spend some time working with the RCMP in their home communities to familiarize themselves with police work prior to attending the training depot. We commend the RCMP for recognizing some of the shortcomings of the former Native Special Constable Program and for taking steps to address these problems. However, as we discuss more fully in our report on the death of J.J. Harper, the grade 12 criterion for recruitment is an unnecessary impediment to the employment of Aboriginal people on police forces. We believe recruitment should be based on competency and job-related skills, rather than on educational attainment.
The Band Constable Program
The initial model for locally controlled policing on reserves was a program which was created in 1968 by the Department of Indian and Northern Affairs under Circular 34, and amended in 1971 under Circular 55. Indian bands on reserves are permitted to apply to the Department of Indian Affairs for funding to establish positions for constables, to be hired and supervised by band councils. Band constables report to council, typically through one of the council members who has police as his or her responsibility. The Department of Indian and Northern Affairs sponsors a two-week training program, but many constables have not received even this minimal level of training. Approximately 200 band constables are employed primarily in the Prairies and in Ontario, with about 65 in Manitoba.
The program was intended to provide limited local law enforcement services. The terms of Circular 55 allow band constables to supplement locally the senior police forces but not to supplant them. On direction from the Justice department, the RCMP performs security checks on names submitted by bands. The Minister of Justice can approve the carrying of firearms, if adequate training is provided. No such approvals have been given to date in Manitoba, although this matter is under discussion at the present time. In practice, then, band constables have limited independent authority, including responsibility for such issues as band by-law enforcement.
When working with the RCMP, band constables are used for their local knowledge of people and situations, to interpret and to assist in arrests. Those we spoke to or heard about had a good working relationship with the RCMP, which provides some on-the-job training.
Many band constables feel that they are not accepted and that their work is not appreciated by the communities they serve. During a visit to one remote community, we heard from a band constable in private. He was afraid to appear and speak in public for fear of losing his job. Nevertheless, he spoke well of his relationship with the chief and council, and spoke highly of RCMP officers with whom he worked. However, he should not be placed in a position where his employment is so tenuous that he is afraid to speak in public.
The band constable program is popular, in part, because of the combination of local control and steady funding through the Department of Indian and Northern Affairs. However, there are many problems with the program because of its inadequate training, poor pay and high turnover rates, which may be due to the fact that band constables have very low status in their communities and among other law enforcement personnel.
Despite the apparently good working relationships, we believe that a much greater degree of cooperation with the RCMP must be developed. Organized, on-the-job training should be given by the RCMP to the band constables, who also need better access to RCMP facilities and services. For example, they need to be able to use the local RCMP lockup facilities for arrests they make when no RCMP officer is in the community. Most importantly, they need both the training and authority to provide a fuller range of police services to their communities.
The Dakota Ojibway Tribal Council Police Force
The Dakota Ojibway Tribal Council (DOTC) Police Force was established in Manitoba in 1978 to deliver locally controlled police services to eight Dakota and Ojibway reserves. Establishing the force was seen as part of a move toward greater self-governance in other areas. The program is cost-shared between the Department of Indian and Northern Affairs and the Province of Manitoba on an 85% 15% basis.
The force of 25 constables is administered by a chief of police who reports to a police commission, which is recognized under section 26(1) of the Provincial Police Act. Members of the commission include chiefs of the participating reserves, as well as representatives of the provincial Justice department, the Department of Indian and Northern Affairs, the Solicitor General of Canada, the RCMP and the Manitoba Police Commission.
Detachments are located on the various reserves, each having a senior officer who reports to the deputy police chief located in Brandon. Recruits are trained in Regina at the RCMP Depot, in the same program which formerly trained special constables.
While DOTC constables have authority to enforce all legislation and statutes, their jurisdiction is limited to the DOTC reserves. DOTC police have primary responsibility for policing their communities, but call upon the RCMP for assistance in some situations, using a written protocol under which DOTC constables handle less serious offences, while major Criminal Code violations are reported to the RCMP.
The DOTC policing program has had mixed success. DOTC Police Chief Frank McKay said that:
Chief McKay felt that Aboriginal constables skills are much better in defusing a crisis in family conflict situations, handling them calmly, even-handedly and non-aggressively. An evaluation supported this view that DOTC officers were more successful at crisis intervention. It concluded that:
The evaluation also found tentative evidence that the presence of DOTC police led to a decrease in the numbers of reserve residents who became involved in the criminal justice system.
The national evaluation of 1983 concluded that the program should continue and that it is preferred to regular RCMP policing.12
Despite these positive evaluation findings, the program has had some difficulties. There have been serious concerns expressed regarding service administration, operations and funding. There has been high staff turnover. Community support has not always been strong and some dissatisfaction with the service appears to continue. Citizens expressed concerns about inconsistent or lenient enforcement practices of the police, especially with respect to driving and liquor offences. Difficulties have also been created when constables are posted to their home reserves.
A considerable amount of work remains to be done in the area of public education. Aboriginal police officers should be going into the schools to talk to young people about the law and the role of the police. If young people come to appreciate that the police are there to protect them and to enforce the laws agreed to by the community, not only will there be an eventual acceptance of the police, but young people may see the police as good role models and aspire to become police officers themselves.
In short, DOTC officers face similar problems to those of any smaller local police force. Aboriginal communities are not yet used to Aboriginal people being police officers. Constables based in their own community face pressures because they may be perceived to have joined the opposition, while those who work on other than their home reserves are criticized for being insensitive to local conditions.
Like all smaller forces, DOTC police need better training, support for their professional independence, and clear local accountability and understanding. We believe that the DOTC Police Force will also grow in effectiveness as it moves more and more towards a community policing model of service delivery.
We recommend that:
Many Aboriginal communities in the province have both Indian and Metis components. There is often an Indian reserve next to, or surrounded by, a community of non-status or Metis people. Neither group is now policed by the police force of the other.
Twelve Metis or non-status communities now have one or more police constables appointed by local community police committees under the Northern Affairs Act. These constables then apply for, and are usually granted, status under the Provincial Police Act as special constables, thereby attaining peace officer status under section 2 of the Criminal Code. Like band constables, these officers also suffer from a severe lack of training opportunities.
While we think it is ultimately preferable to have one force able to police a whole Aboriginal community, encompassing reserve and off-reserve land, we recognize that this may be difficult to achieve in the short term. Therefore, as long as municipal and northern constables continue, we believe it is vital to ensure that they are properly trained, equipped and supervised. These constables, once properly trained, should have wide jurisdiction and take over much of the work now being done by the RCMP.
We recommend that:
Our recommendations concerning the Aboriginal and Manitoba Police commissions apply also to non-status and Metis police forces.
The Police and Bootlegging
The illegal bootlegging of alcohol presents a particular problem in some communities. Aboriginal women pointed out to us how justice authorities have failed to deal adequately with the bootlegging taking place in their supposedly dry communties. They feel let down when the police fail to lay charges against a known bootlegging operator, or when a judge fails to deal severely with offenders. When police refuse to do spot checks of people coming off aircraft and walking or driving onto a reserve, Aboriginal people find this refusal difficult to understand and accept, especially when they hear of frequent roadside checks occurring in southern Manitoba. The bootleggers, they believe, are well known, yet nothing is done to stop them. The fines which judges impose, they say, can be made up in a few illegal sales.
If violence in Aboriginal communities is to be overcome, we believe that the problem of alcohol abuse must be vigorously attacked. Governments must begin to turn their attention and energies to the effects which the consumption of alcohol is having on Aboriginal communities and, in particular, on Aboriginal crime. There is a tremendous cost to society, due to alcohol abuse. Many Aboriginal deaths and suicides are alcohol-related, and hundreds of Aboriginal inmates would not be in jail now if it were not for the abuse of alcohol.
To begin with, the government, which has a direct financial interest in the income derived from alcohol, due to its role as the sole supplier, has an obligation, in our view, to deal more strongly with bootlegging in Aboriginal communities. As a first step, we suggest that limits be placed upon the amount of alcohol which an individual can purchase at any one time from a liquor or beer outlet. Any purchases in excess of that limit should require a special permit, obtainable only by persons who do not have a prior conviction for a bootlegging offence. Any applicant for such a permit must declare the purpose for the purchase, the ultimate destination, the place where the alcohol is to be consumed and the method of transportation.
The actual transportation of large amounts of liquor should also require a special permit from the Manitoba Liquor Control Commission. Common carriers who transport liquor without such a permit should be liable to penalties against their carrier licences.
Air transport authorities should also take action against the licences of air carrier licensees and pilots who transport large amounts of alcohol without special permit from the commission.
The RCMP should develop, in conjunction with local Aboriginal authorities, roadside checks designed to catch those engaged in the wholesale transportation of large amounts of alcohol. Obtaining information of such purchases from the Manitoba Liquor Control Commission by local detachments is possible, and should make those efforts both reasonable and feasible.
In the case of dry reserves, automatic checks of incoming cargo should occur to ensure that alcohol is not being brought in. Houses of known bootleggers should be made known to police by local officials, and surveillance operations instituted. If sufficient information exists upon which a warrant to search the premises can be obtained, then one should be sought.
We recommend that:
Policing in Non-Aboriginal Communities TOP
The RCMP, acting as provincial police, provide services in all parts of Manitoba. Much of what we have said about their role in Aboriginal communities applies equally to their role in serving Aboriginal people in non-Aboriginal communities. The RCMP are making efforts to attract a wider range of officers who reflect the ethnic composition of the communities they serve. As Aboriginal police forces develop, and the RCMP withdraw from regular policing in Aboriginal communities, regular liaison with Aboriginal leaders will become even more vital. Cross-cultural training will continue to be important, as will the development of effective and professional working relationships with Aboriginal police forces. These issues are addressed in other recommendations in this chapter.
The RCMP recognize the need for more Aboriginal officers. They have made some efforts at recruitment but, apparently, the problems encountered by some Aboriginal officers to date have deterred many Aboriginal people from applying. Even though the force has set targets to increase its Aboriginal representation, it has been unable to fill those quotas. We believe that if new targets are set to recruit substantial numbers of Aboriginal officers, some success will result, particularly now that the Native Special Constable Program has been eliminated in favour of full officer status for all Aboriginal recruits.
We recommend that:
It may be necessary to commence recruiting programs in schools so that more Aboriginal youth will consider a career in the RCMP and pursue their education with that option in mind. Students often lose interest in their education if they cannot see employment opportunities upon graduation. If pre-training upgrading programs are needed to bring older recruits to an acceptable entrance level, these can be provided under the new Aboriginal policing program.
Eight Manitoba municipalities now have their own police forces, formed under the Municipal Act. Constables in these forces have full peace officer status and carry weapons. We expect that as funding pressures mount on all municipal areas of Manitoba, the pressure to abandon RCMP contracts will grow. This will lead to the development of more local, small and, under current conditions, totally unregulated forces.
There are no standards regulating any aspect of activities of these forces. Not only are they not required to have cross-cultural training, they are not required to have training of any description. We view this as a serious matter, which could easily give rise to what is frequently disparaged as small town sheriff policing. We will discuss the need for a speedy resolution to these problems in our section on the Provincial Police Act. TOP
Winnipeg Police Department
Aboriginal people are greatly under-represented in the Winnipeg Police Department. In December 1990 there were 18 Aboriginal officers on the force, out of a total of 1,125 officers. Despite extensive public criticism about the lack of participation of Aboriginal people on the force, the department has been unable to increase Aboriginal recruitment. This was evident during Police Chief Herb Stephens testimony before us. He stated that the current test for acceptance is that if two applicants are considered to be equally qualified, preference may be given to an Aboriginal applicant. From what we heard about the selection criteria, we doubt that the present system will allow any Aboriginal applicants to be considered equal in every category.
A major impediment to the recruitment of Aboriginal police officers has been the departments requirement that recruits must have completed grade 12 in order to be accepted. Although this criterion has put Aboriginal people at a serious disadvantage, the Chief has been firm in his insistence that it must be retained to ensure a high standard of policing. Even when special initiatives have been taken to help recruits meet the departments criteria, increased Aboriginal recruitment does not result. The Core Area Initiative, a joint project of the federal, provincial and city governments, offered a Human Justice Training Program to assist members of minority groups to develop the skills necessary to find employment in police forces and other branches of the justice system. During the three years of the training program, only one of the 16 Aboriginal students who completed the course was accepted into the Winnipeg Police Department.
The departments present recruitment methods will not find many Aboriginal applicants. Because of the attitudes perceived to exist in the force, not many Aboriginal people are interested in applying for a position. Radical steps will have to be taken to engage the necessary numbers of Aboriginal police officers and to make them feel welcome in the force. It has been clearly demonstrated elsewhere that without hiring targets, employment equity programs are usually ineffective. We feel such targets are an absolute necessity in the Winnipeg Police Department. We strongly recommend that a substantial target number be set and that those numbers be filled without delay. Since Aboriginal people make up 11.8% of Manitobas population, the force must hire an additional 115 Aboriginal officers in order to reach a representative number of 133.
We believe too that the grade 12 criterion for recruitment should be eliminated. In its place, the department should adopt tests which better assess whether an applicant has the skills required to be a police officer. This matter is discussed more fully in our report on the death of J.J. Harper.
We have already noted the testimony of Dr. Neil McDonald in regard to the need for particular attention to be paid to cross-cultural education for recruits. His experience with recruit classes in Winnipeg shows the need to expand the provision of such training for the entire Winnipeg Police Department, and for the department to give leadership from the Chief on down in regard to cross-cultural policing issues.
Because of the involvement of the Winnipeg Police Department in the Harper case, we have dealt at length with recruitment issues affecting the department in that volume of this report. In that volume we make the following recommendations about the measures necessary to employ more Aboriginal people in the department.
We recommend that:
Brandon Police Department
Brandon is Manitobas second largest city and for Aboriginal people it is a key centre for services, education and employment. A substantial percentage of the work of the Brandon Police Department involves Aboriginal people who either live in the city or visit there from Aboriginal communities in southwestern Manitoba. Relationships between the Brandon police and Aboriginal people have been a matter of concern since at least 1971, when the Toal Commission examined complaints against the force brought by Aboriginal people. Those who spoke to us indicated significant continuing concerns about Aboriginal-police relations.
We believe that it is important that the City of Brandon play a leadership role in enabling Aboriginal people to receive appropriate police services in the city, and to support them in making the transition to living in an urban environment.
The Brandon Police Department, like others in Manitoba, has not achieved employment equity with regard to Aboriginal officers. Brandon has an additional problem in that it serves many Aboriginal people who are transient residents of the city and region, as well as its resident Aboriginal population. Because Brandon is a relatively small force of 72 members, proportional representation of 11.8% would require about nine Aboriginal officers. At present, there are three Aboriginal officers on the force. We believe that to achieve adequate coverage and availability of Aboriginal officers, a somewhat higher target should be set which is more representative of the actual work of the force.
Since our hearings were held, the Brandon Police Department has introduced an innovative cross-cultural training program with the support of the Secretary of State. Following a cross-cultural training session similar to those conducted by other departments, the Brandon police sent seven of their officers to reserves policed by the Dakota Ojibway Tribal Council Police Force. Each of the officers spent two days on patrol with a DOTC officer. During this period, they were encouraged to familiarize themselves with life on reserves and to speak with as many members of the community as possible.
The officers who participated in this program felt that this contact with Aboriginal life and culture would help them police Brandons Aboriginal community more effectively. The second part of the exchange involved DOTC officers patrolling in the city with members of the Brandon Police Department. We encourage this type of exchange program as an effective way of providing the positive contacts between Aboriginal and non-Aboriginal people which are necessary if the barriers between police and the Aboriginal community are to be reduced. In addition, we believe that the department should undertake a public relations program directed towards the Aboriginal people living in or visiting Brandon. This could be done in cooperation with the Brandon Friendship Centre.
We recommend that:
The Provincial Police Act and the Manitoba Police Commission TOP
Policing in Manitoba is regulated by the Provincial Police Act. This Act is extremely brief, containing only 29 sections, the first 14 of which contemplate a provincial police force which does not exist. Responsibility for provincial policing has been contracted to the RCMP under section 15(1). Sections 2225 of the Act provide for the appointment and duties of the Manitoba Police Commission, including a very lengthy description of the role of the commission. Matters covered include:
The commission, which has only two staff at present, has never had sufficient resources to carry out the range of duties specified in the Act. Hence, some delegation of duties to staff of the Justice department has occurred. The Law Enforcement Services Branch provides staffing to carry out some of the commissions duties in relation to crime prevention and supervision of local police forces, and provides support for the RCMP-Manitoba policing agreements. However, the commission remains formally responsible for these activities.
It is notable that no regulations exist under the Act to cover training or equipment standards. Some draft regulations are now being examined by government in the area of equipment. At present, a municipal constable can carry any weapon and can use equipment of any sort. A municipality may appoint a person without any training as a constable. Even if the appointed person has had some policing experience, there are neither provisions for, nor policies covering, periodic retraining. Manitoba has no police college, nor does it require constables to undergo training elsewhere. Apart from the RCMP, standards exist only in the larger municipalities such as Brandon and Winnipeg, which have developed their own training programs.
During our review, we became aware of the severe fragmentation of the authority to appoint constables through the various statutes which govern policing in Manitoba. The power to appoint police officers is found in at least five statutes, including the Provincial Police Act, the Municipal Act, the Brandon City Charter, the City of Winnipeg Act and, by implication, under the Northern Affairs Act.
The Manitoba Provincial Police Act broadly regulates the provision of policing services which are covered under the other Acts mentioned above, and provides the authority for contractual arrangements with the RCMP. However, RCMP regular and special constables derive their individual policing authority from the federal RCMP Act, and are not subject to any of the appeal or regulatory provisions of the Provincial Police Act. Eight municipalities have created police forces under the Municipal Act. Band constables derive their mandate from the Indian Act. Band constables of the Dakota Ojibway Tribal Council have authority as police officers because section 26(1) of the Provincial Police Act recognizes the DOTC Police Commission. Northern Community Special Constables provide limited services to about 12 Metis communities, and are appointed under very vague provisions of the Northern Affairs Act. It is doubtful whether, under that Act, they have any status as police constables.
Under an Order-in-Council, constables appointed by bands and municipalities under their respective statutes may be granted authority as special constables through section 9(1) of the Manitoba Provincial Police Act. Through this appointment, they are designated as peace officers and, thereby, have authority to enforce the Criminal Code and provincial statutes. This authority may be granted with some territorial limitations, such as the radius within which their authority extends.
Contrary to generally held perceptions, having the status of peace officer means that special and northern and band constables have identical authority to that held by a regular RCMP constable, or an officer of the City of Winnipeg or Brandon police departments. By administrative regulation, they may or may not carry firearms and they may call upon RCMP services for assistance with serious crimes, but their status as peace officers is the same as that of RCMP constables.
Manitoba compares poorly with other western provinces in its regulation of police activities. Each of these other jurisdictions has an Act which provides, among other things, clear definitions of relevant terms, limitations on the terms of appointment of police commissioners, powers to make regulations, powers to set and enforce wide-ranging standards for the selection and training of constables and the equipping of police forces, the establishment of a disciplinary code and ethical conduct codes, and the establishment of a police training facility. Manitobas Act provides few of the specific details of similar acts in those provinces, and no regulations currently exist to actually enforce the standards which the Act implies, but does not define.
The present lack of a clear mandate and the absence of relevant regulations in regard to police appointment, training and supervision create a potential danger to the security of Manitobans, particularly in areas not served locally by the RCMP. Three different Acts may be involved in the empowerment of any one officer. The confusion in regard to the source, scope and validity of the police powers of band and municipal constables is unacceptable.
We believe that it is vital to make major amendments to the Provincial Police Act, to provide a framework for the Manitoba Police Commission and for Aboriginal police forces and commissions formed by bands and tribal councils. We have reviewed a study of the Manitoba Police Commission by sociologist Rick Linden, which notes a wide range of concerns similar to our own,13 and we have also examined the policing statutes of Ontario, Saskatchewan, Alberta and British Columbia. We view the Manitoba Police Commission and the Law Enforcement Services Branch as essentially administrative support services, similar to those provided by a number of government departments. We believe that they should be given sufficient resources to allow them to carry out their responsibilities in regard to regulating and supporting police forces in Manitoba.
We further believe that the use of the terms special or band to designate some constables is inappropriate. All constables who are recognized under the Provincial Police Act become peace officers by virtue of section 2 of the Criminal Code. They have the same status as any other constable. Good practice may require that any force, including large, urban police systems, may sometimes wish to call upon the greater resources or experience of another force.
We recommend that:
Aboriginal Systems of Policing
Creating Aboriginal Police Forces TOP
We believe that the first priority for reform of policing of Aboriginal communities is to enable those communities to take full responsibility for police services. We believe that the legal mechanisms to enable this to happen immediately are already in place: the present Provincial Police Act provides for the recognition of police committees or commissions as they are formed. There was a specific amendment made to ensure that the Dakota Ojibway Tribal Council Police Commission is recognized. (s. 26(1)(d)) What is missing are the administrative will and funding from governments to make possible the creation of such forces in other Aboriginal communities. In this regard, we note that when Aboriginal forces take over from the RCMP, expenditures for RCMP services will decrease. Therefore, in the medium term, we would expect that turning over policing to Aboriginal communities will not be more costly than the present RCMP services. TOP
Creating an Aboriginal Police Commission TOP
As Aboriginally controlled police departments and regional or local police commissions become more prevalent in Manitoba, it will be desirable to establish a provincial Aboriginal Police Commission to support and coordinate Aboriginal policing. It is our hope that this structure will not lessen the interest and support required from each community, or reduce the sense of ownership that communities should have concerning their police forces. Functions of the commission might include the following:
Aboriginal police forces should adhere to appropriate province-wide standards and be subject to culturally appropriate province-wide regulations. The commission will also require a chief executive officer who might be called the Aboriginal Police Commissioner.
We recommend that:
There will be many other details to be considered and negotiated between Aboriginal communities and the provincial and federal governments concerning the operation of such a commission. TOP
An Aboriginal Justice College TOP
Throughout this report, we recommend a much greater level of involvement of Aboriginal people in the criminal justice system. We suggest that the present training for Aboriginal police officers be substantially expanded, through a division of the proposed Aboriginal Justice College. In addition to increased numbers of Aboriginal police, there will need to be training programs for court clerks, court administrators, court communicators or peacemakers, fine option clerks, probation officers, parole officers, custodial staff for local holding facilities and for jails, justices of the peace and Aboriginal judges. It may be possible, by agreement, to access basic police training through the RCMP Depot facility in Regina. However, it will also be appropriate to provide in-service and other training or pre-training of Aboriginal police through an Aboriginal Justice College in Manitoba.
We believe that such a college would be unique in Canada, and could well develop as a national resource for the training of Aboriginal justice system staff from other parts of the country. It could also develop the capacity to provide cross-cultural training to a wide range of non-Aboriginal staff from the justice systems of Manitoba, as well as other provinces. This matter will be more fully detailed in the final chapter. TOP
Public Complaints and Policing in Manitoba TOP
In our report on the death of J.J. Harper, we make recommendations concerning the need for independent investigations of serious incidents involving the police, especially those where possible criminal acts are alleged against the police, or where a person dies or suffers serious injury in an incident involving the police. The problems of actual and perceived conflict of interest are just too great to expect a police force to be seen as effectively and objectively investigating its own members. We made the following recommendations:
We recommend that:
We now turn our attention more generally to public complaints. These complaints can include any number of disciplinary defaults, including discrimination on the basis of race, failing to exercise restraint with a firearm, altering an official document, use of excessive force, use of abusive language, being discourteous or uncivil, and so forth. Whether the complaint is related to excessive use of force, death, or any other matter arising in the course of police-citizen relations, the complainant and the officer both want to know that they will have a chance to be heard, to be dealt with fairly by an independent adjudicator and to have effective remedies available. The nature of the complaint does not change this need.
During our hearings, we received numerous complaints about police conduct. In many of these cases, the person bringing the complaint to our attention either had not brought the complaint to the attention of existing complaint agencies at all, or had found the process completely unsatisfactory. In addition, during the course of the Inquiry, it became clear that many people are not aware of how to file a complaint against the police, because our office received numerous telephone calls from individuals wishing to know how they could have their complaints addressed.
In Manitoba, there are two main processes for dealing with police complaints: the RCMP Public Complaints Commission and the Law Enforcement Review Agency (LERA), which deals with complaints against all municipal police forces in Manitoba.
There is a different process for the Dakota Ojibway Tribal Council Police Force and for special constables appointed under section 9 of the Provincial Police Act, cap. P150, C.C.S.M. In these cases, the Manitoba Police Commission is involved. TOP
The Law Enforcement Review Agency TOP
LERA was created in February 1985 and is governed by the Law Enforcement Review Act, cap. L75, C.C.S.M., which provides that any person who feels aggrieved by a disciplinary default allegedly committed by any member of a police department may file a complaint. A disciplinary default is defined in section 29 of the Act and includes such matters as assault, being discourteous and a variety of other improper acts. Section 30 prescribes penalties ranging from admonition to dismissal. Under the LERA Act, the commissioner of LERA is an officer of the Manitoba Police Commission.
The Law Enforcement Review Agency includes a commissioner and a Law Enforcement Review Board. The board decides upon the validity of complaints against police officers and, within certain limits, the penalties to be imposed against them. The board is composed of a presiding officer and a deputy presiding officer, both of whom are to be lawyers, at least two other persons who are or have been police officers and at least three laypersons. All members are selected by the government. Three persons sit at each hearing. Those to sit at a given hearing are to be chosen sequentially as their names appear on a list prepared by the presiding officer at the beginning of each year. A board member who is a present or former police officer may not sit at a hearing into the conduct of a member from his or her own present or former police force.
LERA is assisted by two investigators employed by the Law Enforcement Services Branch of the Manitoba Department of Justice and by a lawyer from the Justice department. Every complaint goes through a number of stages before it gets to a hearing and most cases are resolved in one way or another before reaching the board.
When a complaint is filed, it is investigated by the commissioner, who then decides whether the complaint falls within the jurisdiction of LERA. The commissioner has the authority to dismiss the complaint if he or she is satisfied the complaint is frivolous or vexatious, or does not fall within the range of misconduct in section 29. If a complainant disagrees with dismissal of a complaint by the commissioner, the complainant can appeal to the Manitoba Police Commission.
Once the commissioner has decided not to dismiss the complaint, it proceeds to the next step: informal resolution. Under the Act, the commissioner is required to seek informal resolution. When a complaint is informally resolved, no record of the complaint is placed on the officers file and there are no consequences to the officer. Between 1985 and 1989, 119 complaints were informally resolved. In addition, complaints are frequently withdrawn, including 126 cases between 1985 and 1989.
Cases do not proceed to formal consideration if the officer admits a disciplinary default. In such an event, the LERA commissioner asks the police chiefs opinion about the severity of the incident and the service record of the officer. The commissioner then recommends a penalty. If the officer agrees with the penalty, it is imposed. According to LERA annual reports, it is rare that an officer admits wrongdoing.
If a complaint proceeds past these preliminary steps, it goes to the board for hearing. The complainant has the burden of proof and must present the case personally, or with the assistance of his or her own lawyer. The case must be proved beyond a reasonable doubt, while in Ontario the test is clear and convincing evidence. The Act prohibits the name of the officer from being made public until the board has made a decision, or the officer admits committing a disciplinary default.
Even if a case is proved by the complainant, the maximum penalty to be imposed is decided upon in advance of the hearing by the commissioner after consulting with the officers chief of police. The complainant, the officer and the board are excluded from this process.
If a complainant wishes to appeal a decision of the board, the complainant can appeal to the Court of Queens Bench for a review, but only on a question involving the jurisdiction of the board or a question of law.
The annual reports of LERA list the complaints it has received and how they were dealt with.
Complaints Received and Dealt with between 19851989
Obviously, the vast majority of complaints received by LERA do not proceed to a hearing. Between 1985 and 1989, only 7.1% of all files which were opened were ultimately heard by the Law Enforcement Review Board.
There are a number of problems with the way LERA is currently operating. We believe the LERA process is not as independent as it should be, because the commissioner and police chief have too much influence in resolving complaints and in selecting the penalty to be applied, while the board has too little. The board should have the discretion to determine the appropriate penalty.
The process is not as open as it should be. The board has discretion to keep proceedings private, but there are no statutory guidelines as to how that discretion is to be exercised, other than as the maintenance of order or the proper administration of justice requires. (s. 24(11)) Further, we are concerned that LERAs annual reports do not provide enough information about its activities. In particular, the annual reports do not say how many board hearings find in favour of the complainant, how many penalties have been imposed or the nature of the penalties. LERA does not describe the process of informal resolution (the nature of complaints informally resolved, or how the matters were resolved), comment on the number of withdrawn complaints, or comment on the number or nature of dismissed complaints.
The LERA process is not as effective as it could be, primarily because the authority of the board is too restricted and the authority of the commissioner too broad. The standard of proof is too stringent and the penalty procedures are too limited. As well, there is concern that it does not have sufficient resources for investigations, quick decisions and resolutions of complaints. According to LERA annual reports, the majority of complaints take more than three months to complete and many take more than nine months.
The process does not provide complainants with sufficient assistance in presenting their complaint. Complainants often appear without counsel and are ill-prepared to lead evidence at a formal hearing. This is all the more difficult when the police officer is represented by counsel at no cost to the officer. Once LERA has decided a case should be presented to the board, it should have its own counsel present the case.
In light of the above problems, we believe that this public complaints process should be significantly changed. Before we proceed to making recommendations, we will consider the RCMP complaints process. TOP
RCMP Public Complaints Commission TOP
The 1976 Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure within the RCMP, which recommended appointment of a police ombudsman, noted that:
Instead of the appointment of an ombudsman, the RCMP Public Complaints Commission was established in 1988. We regret to say that we are not impressed with the new procedures of the RCMP for dealing with public complaints. If the ultimate goal is to provide an effective mechanism whereby a person may complain about police conduct, the procedures now in place are neither realistic nor appropriate.
The RCMP Public Complaints Commission was established in response to two separate public inquiries into the conduct of the RCMP: the Marin Commission of 1976, which examined the issue of public complaints, and the Macdonald Commission of 1981, which examined certain RCMP activities.
The Public Complaints Commission is established under Part 6 of the Royal Canadian Mounted Police Act. The commission is composed of a chairperson, a vice-chairperson, one member from each jurisdiction in Canada that uses the RCMP for provincial policing, and not more than three others. Members are chosen by the federal government, after consulting with each provincial government. Members may not be current RCMP officers. The commission is based in Ottawa.
A person wishing to lodge a complaint about the conduct of an RCMP officer can notify any member of the force, a local detachment or the new commission. If the complaint is received by the commission, its first step is to refer the complaint to the RCMP. At that point, the complaint will likely be referred to the local detachment of which the officer whose conduct is called into question is a member. The detachment then does an investigation by having an officer visit the complainant to discuss the complaint. When he appeared before us, the chairperson of the Public Complaints Commission, Dr. Richard Gosse, confirmed that it might be the very officer complained against who is sent to speak to the complainant.
We find this first step in the process to be totally inappropriate. Certainly, if a member of the public complains about the services or conduct of a lawyer or doctor, the professional society does not dispatch the lawyer or doctor in question to speak to the person, nor do they send someone else from the same office to investigate.
During our Inquiry, we heard from a woman who, several years ago, wanted to complain about the improper conduct of an officer towards her. She was shocked to find that in order to lay the complaint she had to attend at the officers detachment to fill out a form. This left the impression with her that the process would find in favour of the officer at every step. She gave up and did not pursue what sounded to us like a valid complaint.
The new complaints process does not get any better at the next stage. To carry the complaint further than the local RCMP investigation, the person has to write the commission again. If that is done, the commissioner looks at the complaint and can do one of a number of things. He or she can decide that the RCMP investigation was satisfactory and do nothing further, or ask the RCMP to investigate further. He or she can write a report on the matter to the minister, have staff do a further investigation, or institute a hearing to consider the complaint. Even though we are critical of the RCMP complaints process, it does have at least one positive feature. During hearings, officers against whom complaints have been brought can be compelled to testify.
A report will then be prepared and sent to all parties, including the minister and the commissioner of the RCMP, making findings and recommendations. The commissioner of the RCMP can choose not to follow the recommendations. All he or she has to do is notify the Solicitor General and the chairperson of the complaints commission of his or her decision. There is no appeal. There is no mechanism whereby an aggrieved citizen can require a hearing. The system is not independent, because the RCMP have such an overwhelming influence over the entire process, including power to dismiss the complaint, control of the conduct of the investigation and power to disregard the findings of the commission.
We find the process not to be in the public interest. Rather, it appears to be a process designed to protect the RCMP and to leave all its decisions to its own officers, at one level or another.
Obviously, the RCMP public complaint process is seriously flawed. Its officers are remote from Manitoba, and particularly from Aboriginal communities for whom even Winnipeg seems distant. It promises to be a slow, private process. We are not aware of how many complaints have reached an actual hearing. We recommend that the present RCMP public complaints process be replaced by a public (non-police) agency which has its own investigative staff capable of investigating public complaints in an independent manner. TOP
New Approaches to Hearing Public Complaints TOP
We recommend that the Law Enforcement Review Board be reconstituted as an independent civilian agency to review complaints against all police. The recent report, Police-Challenge 2000, A Vision of the Future of Policing in Canada, from the federal Department of the Solicitor General, 1990, stresses the importance of public accountability and effective handling of public complaints.
The report discusses opposition by police forces to public complaint mechanisms, citing the example of the Metropolitan Toronto Police Associations wholehearted effort to undermine the position of the Public Complaints Commissioner.16 The report mentions the historical failure of the police to vigorously and openly investigate allegations of misconduct as the reason for the establishment of formal mechanisms to deal with complaints.
Britain has its own Independent Police Complaints Authority. Their 1987 annual report states the importance of such mechanisms.
Ontarios response to the problem of complaints against the Toronto police during the 1970s was to create the Office of the Public Complaints Commissioner in 1981. This office was established so that a civilian agency would conduct investigations. If the commission is satisfied a complaint has merit, it then assumes the responsibility of taking conduct of the case and presenting it before an independent civilian board of inquiry.
Like Manitoba, Ontario has had its own recent controversies with police-related shootings, particularly the shooting of black persons. These shootings gave rise to the Ontario Race Relations and Policing Task Force of 1989. The task force said:
In July 1990 another Ontario task force, this time the Osnaburgh-Windigo Tribal Council Justice Review Committee, also reported. This committee had the mandate of reviewing and making recommendations about the state of the administration of justice in a tribal council area in northwestern Ontario. Recommendation 32.6 calls for the development of a system of investigating citizen complaints against the police which would ensure the independence and objectivity of the investigator.19
On December 31, 1990 Ontario proclaimed its new Police Services Act. This Act makes wide-ranging recommendations concerning policing principles, organization, monitoring and public complaints, and, among other things, applies the Toronto complaints system to the whole province. Throughout the Act, the importance of public input and public accountability is stressed.
Before the new Act came into effect, outside police forces were brought in to conduct investigations in some cases. This was found to be an inadequate solution. It is true that the appearance of independence is enhanced when an outside police force is asked to investigate particular situations, but the appearance of independence is still compromised when police investigate police, especially when police forces must work so closely together on a day-to-day basis to provide good policing.
The Ontario commission has a staff of investigators, half of whom are civilians and half of whom are former police officers. Former police officers are not allowed to investigate complaints against their former police forces. The Act also creates new procedures to ensure that investigations are conducted in a fair and independent manner, with review and monitoring by the commission.
If the commission takes the view that the complaint is justified, it presents the case to a board of inquiry and does not require the complainant to carry the financial burden of legal costs. (s. 95) The commission has engaged a number of lawyers to act for it, but now has its own staff lawyers.
A board of inquiry consists of three persons to hear each case, one lawyer and two laypersons. One of the laypersons is selected from a list of names provided by the Ontario Police Association, while the other is from a list provided by the Ontario Association of Municipalities. The lawyer is from a list provided by the Attorney General. Ontario used to require that complaints be proved beyond a reasonable doubt, but this has been changed to proof that is clear and convincing, which is thought to be a standard somewhat less stringent than the criminal standard. (s. 97) The board has full powers to impose penalties, including dismissals.
During the period since 1981, during which the board dealt only with cases concerning the Toronto police, there have been 65 hearings, with 23 cases resulting in findings of misconduct against police officers, and two police officers have been dismissed from their jobs. The Toronto Police Association chose, as a matter of policy, to appeal every decision against a police officer to the Ontario Divisional Court. Only two decisions were modified on appeal.
We believe a process similar to the one now in place in Ontario should be implemented in Manitoba. The process should strive for independence, openness, fairness, effectiveness and accountability. The government should also consider whether a process similar to the one for the police would be appropriate to deal with complaints in other parts of the justice system, including complaints about prison treatment, lawyers, judges, social workers and civil servants. We heard many complaints during our hearings in all these areas. It is clear there needs to be a greater effort by all concerned to demonstrate to the public, and especially Aboriginal people, that their complaints will be fully and fairly dealt with, no matter what component of the justice system is involved.
We recommend that:
It is both appropriate and desirable that wherever possible, Aboriginal communities receive police services from Aboriginal police forces. We believe that Aboriginal police forces, properly trained and with full jurisdiction, would substantially relieve the RCMP of the need to serve remote communities.
Good working relationships and close cooperation between Aboriginal police forces and the RCMP are vital. There will be cases where, for a variety of reasons, the local police will find it appropriate to call upon the RCMP. The RCMP should make their forensic and technical services available to Aboriginal forces.
We believe it is important to establish a good relationship between police forces and Aboriginal people. The objectives of our recommendations are to foster the establishment of effective Aboriginal police forces, staffed with officers who will be sensitive to Aboriginal people, and to improve the manner in which non-Aboriginal forces serve Aboriginal people. Such forces, using a community policing approach, will provide services which are culturally appropriate and support the deep commitment to justice which was frequently raised with us by Aboriginal presenters. TOP
|Manitoba Government Home Page||
Back to Table of Contents