The following is a transcript from the presentation made by The Honorable Wally Oppal, K.C., to the Pacific Business & Law Institute – Indigenous Policing 2023 (June 1, 2023)
INDIGENOUS REPRESENTATION ON POLICE OVERSIGHT BOARDS
Before embarking on a discussion of Indigenous representation on oversight boards in policing, it may be useful to make reference to some general principles relating to police governance and oversight.
There are two principles that ought to govern policing in a social democracy that is governed by the rule of law. The first is that the police must be accountable to independent civilian authority. The second principle, which is equally important, is that the police must be operationally independent and free from political or other interference in their investigative duties.
In any democracy governed by the rule of law, police conduct must be examined by an independent transparent authority. Civilian oversight or review of police conduct allows public participation in the governance of policing. Moreover, the openness of the process enhances the credibility of the complaint process. In an era where the public rightfully demands accountability from their institutions, the police cannot be left to police themselves.
In Canada, each of the Provinces has some form or model to deal with public complaints of police conduct. Most allow some form of police participation in the process, however, the ultimate decision or finding is generally made by an authority independent of the police.
In British Columbia, the Office of the Public Complaint Commission is entrusted to receive public complaints and thereby review police conduct. The Commissioner is an Independent Officer of the Legislature who is clothed with a wide range of powers to monitor and review complaints of police misconduct. In British Columbia, the procedure for public complaints is governed by the Police Act RSBC 1996 c.376. The Act allows for complaints against municipal officers to be made directly by a complainant, or by a third party, who may otherwise be uninvolved in an incident to make a complaint. It is important to note that while three quarters of the Province is policed by the RCMP is not governed by provincial complaint process.
It is common ground that historically in Canada, the relationship between Indigenous people and the criminal justice system has been less than harmonious and often strained. Indigenous representation in the criminal justice system remains disproportionately high and anti-Indigenous bias is an ongoing concern and in critical need of attention. It has been said with considerable validity that oversight mechanisms as they exist have not been sufficient to address the unique dynamics of the Indigenous/police relationship in Canada.
Perhaps the most recent example that has been held as an example of anti-Indigenous bias relates to the police investigation in the well-known Colton Boushie case. The essential facts are not in dispute. In that case, a white farmer in Saskatchewan shot and killed Colton Boushie, an Indigenous youth, by shooting him in the back of the head while the Indigenous youth was on the farmer’s property. The farmer was acquitted of all criminal charges. However, the most controversial aspect of the police investigation involved the RCMP officer’s treatment of Mr. Boushie’s mother’s home to inform her of her son’s death. When the officers entered the residence, the first question they asked of her was whether she had been drinking. The officers questioned her sobriety. When the mother became emotional, the officers demanded that “she get it together”.
In March 2021, the Civilian Review and Complaints Commission (“CRCC”) completed their 3 year investigation into the RCMP’s conduct into the investigation. I pause here to note that the CRCC, a Federal body is entrusted to review the conduct of RCMP officers. The report described deficiencies in the crime scene investigation, including failing to preserve the vehicle in which Mr. Boushie was killed, an essential piece of evidence. As well, the RCMP neglected to send a member of the Major Crime Unit to the scene, which the CRCC noted was a major concern in the investigative process. Despite these concerns, the Commission concluded that the RCMP’s response was professional and reasonable. As well, the RCMP’s own internal review revealed that the force had destroyed records relating to the police communications on the night of the shooting. When asked about the destruction of those records, as reported by the Globe and Mail, the RCMP said that the records were destroyed 2 years after the case was closed, which was in accordance with the RCMP retention policy. It should be noted that at the time that the records were destroyed, the CRCC had already announced its intent to review the case and Mr. Boushie’s family had commenced a civil law suit against the RCMP.
It is not at all surprising therefore that at the conclusion of the jury’s verdict and the review of the police investigation that there were allegations of racism in the whole process.
The purpose of this discussion is to address the need for Indigenous participation in police oversight. There has been limited movement towards increased participation in the oversight process. The one encouraging exception to this general statement is that in Yukon, the government is actively engaged in building Indigenous representation and participation into its police oversight model. In 2010, the government of Yukon, the council of Yukon First Nations, and the RCMP M division, produced a report entitled Sharing Common Ground: Review of Yukon’s Police Force. The report made 33 recommendations, one of which called for a creation of the Yukon Police Council (“YPC”). The YPC was created in 2012. It is shared by the Deputy Minister, Yukon Department of Justice. The YPC is composed with 6 appointed members, three of which must be nominated by First Nations. The YPC produces an annual report which engages directly with communities regarding policing activities and reports to the Minister of Justice with policing priorities recommendations.
An implementation review of Sharing Common Ground and its recommendations was conducted in 2014. At that time, 85% of the 2010 report’s recommendations were either complete or were incorporated into active work plans. Included among the accomplishments listed in the report was an agreement with the Government of Alberta to allow the Alberta Serious Incident Response Team (ASIRT) to conduct independent investigations of police conduct in Yukon Territory. It should be noted that the ASIRT does not appear to have mandated Indigenous participation in its oversight initiatives.
One other accomplishment of note in the 2014 report was the Indigenous-led development of the Yukon First Nations History and Cultures Program, “to help police and other service providers better understand the communities in which they live and work.”
In 2022, the Government of Yukon announced that it would again be reviewing the implementation of the report’s recommendations. This review will be a joint effort by IRP Consulting, an Indigenous owned and operated consulting firm, and Vector Research in Whitehorse. No final report is available at this time.
In Canada, various jurisdictions have attempted to improve Indigenous/police relationship by introducing cultural sensitivity training for officers. The RCMP nationally have been involved in cultural sensitivity training, particularly as it pertains to Indigenous people. The Vancouver Police Board governance manual mandates orientation training in “Indigenous relations” for officers and the board of directors. More recently, the Vancouver Police Board indicated that it plans to take steps towards greater Indigenous participation in police oversight. In a mission statement, the board announced that it intends to engage with the VPD liaison for urban Indigenous peoples advisory committee. However, the committee’s website states that the committee is temporarily inactive “pending council approval of terms of reference in early 2023”.
In Yukon, a 2010 review indicated that a community’s level of satisfaction with police services generally depended on individual officers cultural sensitivities rather than structural factors. A significant impediment of police officers attempts to establish lasting relationships in Yukon was the high turnover. Often, officers who were inexperienced and unaware of the needs of the community. The result was Indigenous communities lack confidence in the police and there was no meaningful engagement in the internal system often out of fear of retribution.
The Province of British Columbia is undertaking a comprehensive review of its police system.
It is useful to make reference to the report from the Legislative Assembly of British Columbia, Transforming Policing and Community safety in British Columbia, which states the following:
“Systemic racism, which consists of organizational culture, policies, procedures, and practices that create and maintain the power of certain racial groups over others or reinforce the disadvantage of certain racial groups over others or reinforce the disadvantage of certain racial groups, exists in policing in British Columbia. This was evident in the experiences shared with us and reflected in the recommendations we received. Throughout our consultation. we heard about the lack of trust between many individuals. communities. and the police. particularly Indigenous and racialized communities. To rebuild trust. a significant shift in police culture is needed. Our recommendations aim to address systemic racism and the colonial structure of policing in a progressive. forward-looking manner.”
In conclusion, there is a clear and obvious need to address the historic and troubled relationship between the Indigenous community and the police. There is a clear need for reconciliation. One meaningful way of achieving reconciliation and accountability is to have an increased participation of Indigenous representation on police boards and on other oversight bodies.
I am indebted to Elan Hannah, Law Student at Allard School of Law, for her research in the preparation of this paper.