Copping to It

Pindar wrote that “human excellence grows like a vine tree.” His poetic project was to praise excellence, to trace its source in noble and enriching contexts and in good nurturing and to locate responsibility for it in society’s confirming associations. Our current instinct is not to place policing in this realm of lofty aspiration. Yet that is where it belongs. Helping create a peaceable society, being well trained in the heavy responsibilities of wielding the state’s coercive powers, being seen as keeping our social exchanges safe and fair and decent and reflecting human excellence in the face of others’ frailties and deviations: these are our hopes for policing. When the reality of policing becomes something else—bullying, intimidating, harassing, violent, racist and lawless—we do not shrug, quote Lord Acton and adopt an attitude of meek acceptance. We feel the outrage of violation and demand that details of the misconduct be uncovered. We ask that routes for better control of police be instituted. In other words, we hold commissions and conduct inquiries, wanting desperately to make policing and human excellence rhyme.

Commissions abound. The reports on the deficiencies of the criminal justice system as it is applied to Canada’s aboriginal population or, in the cases of Nova Scotia and Ontario, to blacks (to use the descriptor Elizabeth Comack uses in Racialized Policing: Aboriginal People’s Encounters with the Police) have poured out over the past quarter-century. These independent inquiries and investigations do not often pull punches, nor, in many cases, are there efforts to discredit them or resist their sad conclusions and reforming recommendations. There are exceptions to this, however.

In Toronto and Vancouver, answering complaints about police conduct seems considerably more energetic than the process of exposing bad policing; each criticism is answered by independent analysis designed to raise doubts that racism, or brutality, or bad judgement actually played any part in what seems often to be shockingly undisciplined and biased police practices.

When police try to blunt the force of these formal modes of accountability they adopt two exculpatory strategies: the adequacy of internal police investigation and the deployment of the convenient nostrum that improper and discriminatory police treatment is just the result of “a few bad apples”—a few bad apples that, one assumes, come from the orchard that infected the Catholic priesthood and Canada’s Indian residential school system.

But these police responses satisfy no one. Police carry a weighty moral burden and their misconduct is a form of oppression that frightens (or should frighten) everyone. The form of police misconduct that is most insidious is racism. It does not usually lead to mass arrests, or filmed violence, or whistle blowing from insiders or convincing exposure from vigilant defence counsel, or, sad to say, public shock over unexpected patterns of arrests or injuries. Independent inquiry after independent inquiry has pointed to police practices that can only be seen as reflecting race-based prejudice, as speaking to comprehensive disrespect for racial minorities, and as conveying the sense that such minorities are made up of people whose humanity is so little valued that their brutalization is an appropriate method of preserving order.

Among the depressing reports on police racism, the report of Justice David Wright into the death of Neil Stonechild in the context of his encounter with two members of the Saskatoon Police Force is particularly disturbing, if only because the near closure of the evidence was not quite enough to lead to prosecution. The Saskatchewan Prosecutions Branch did not prosecute because it felt the prosecutorial standard (the likelihood of obtaining a conviction) could not be met. Stonechild was a 17-year- old First Nation youth who was found dead in the winter of 1990, lightly clothed, his frozen body face down in the snow on barren, undeveloped land at the northern reaches of the city. The night that he was last seen the temperature was –28 degrees Celsius. Several days before his body was discovered Saskatoon police were called to deal with a ruckus in the lobby of a Saskatoon apartment building. Stonechild was ringing every apartment’s buzzer in an attempt to find his former girlfriend. That is all that is undisputed. The police claimed to know nothing about how his death occurred. Saskatoon police conducted a three-day investigation into Stonechild’s death and concluded that Stonechild had wandered to the edge of the city, had fallen down and had frozen to death. The notebooks from the police investigator were destroyed soon afterward.

But incriminating evidence began to accumulate. Some Saskatoon police officers concerned about the police handling of the case tried to raise their concerns with senior officers. Stonechild’s face had injuries consistent with it being smashed by handcuffs. The officers who responded to the call entered requests for Stonechild’s Canadian Police Information Centre data while reporting to the police dispatcher that they were unable to locate him. Later, the officers suffered from total amnesia and refused to submit to lie detector tests and, then, when one did, his answers registered as “deceptive.” Most significantly, a friend of Stonechild was stopped by the investigating police soon after the complaint and he saw Stonechild in the cruiser, in handcuffs, with a bloody face, looking terrified and shouting, “Jay, help me, help me. These guys are going to kill me.”

In due course, the RCMP conducted a two- and-a-half-year investigation that concluded that there was compelling evidence that Stonechild had been in police custody that night and had been injured by being struck on the face with handcuffs. The Saskatchewan minister of justice ordered an inquiry led by Justice Wright. Justice Wright concluded that the friend who had seen Stonechild in the police cruiser was truthful, but the police were not, and the evidence strongly suggested wrongful—or criminal—police conduct. Justice Wright found it impossible to conclude his report without lifting his eyes from the immediate context and reflecting on police-community relations. His conclusions, presented in muted terms, were damning.

In her study of racism in Canadian policing, Elizabeth Comack, a sociologist at the University of Manitoba, describes in detail this and other investigations, commissions and inquiries into police racism. In some instances these deal with the apparent mistreatment by police of racial minorities as a collective (as in the case of blacks in Toronto and aboriginal people in Saskatchewan and in Winnipeg’s inner-city communities). In many instances they deal with more specific police incidents such as the police killing of Matthew Dumas and J.J. Harper and the freezing deaths of Stonechild and three other aboriginal men in the custody of Saskatoon Police Services. Comack’s description of these instances, the police investigations that followed them and the judicial inquiries that were sometimes called is extensive. In fact, of the 230 pages of text in Racialized Policing, more than 180 of them are devoted to the details of incidents and the investigations that followed. It is hard to know if this is a criticism. To label these descriptions tedious is unfeeling (although the long methodological battles over proving, or disproving, racial profiling is definitely tedious). To consider the descriptions unilluminating is to ignore the moral and normative lessons of narrative. They are, however, presented by Comack with scant social analysis, as if they disclose their own significance.

But do they? The stories of death and denial of justice in police contacts with visible minorities present a staggering contrast with those enjoying white privilege. However, one would most certainly get an argument about this from members of the white underclass. And this raises the crucial question of the real drivers of the differing treatment of categories of persons by the police. The hopelessly naive view would be that good and bad persons— or, in the specific context of policing, offenders and non-offenders—get appropriately different treatment. It is hardly worth debating that privileged offenders are treated with more respect and with closer attention to the requirements of fair process than are non-offenders from disliked and disrespected minority communities.

The analytic tension that is worth exploring is whether Canadian policing’s callousness and brutality to some classes—blacks, aboriginals, sex trade workers and the drug dependent—is a matter of an internally constructed police culture of active disrespect for these groups or whether it arises exogenously from a broader social devaluing of the worth of some people. Comack has her view on this issue and it follows that of Justice Wright: it is that deep community division produces police racism.

For Comack, the purpose behind the social instrument of policing is the reproduction of order. At one level this is a truism. Insofar as social order is defined by the proscriptions of criminal law, police do, indeed, attempt to replicate criminal law’s notions of a well-ordered society. But she makes a deeper point. Social order is not just a matter of defining crimes; it is also about establishing social values. It is not just based on offences; it is conforming to social expectations. It is not just avoiding convictable deviance; it is living by conventions of thought and action. Under this sociological view of order, threats to it arise through mere social fear of difference, especially differences over values—values of purity, endeavour, relationships, economic value, dress and so forth. The sheer fact of difference in Canada’s aboriginal population—a difference that, perhaps, we too easily label as social dysfunction—licenses a strong popular disregard for the place and contribution of that population. According to Comack, this is the beginning (and, possibly, the end) of police indifference to the humanity, the needs and the entitlements of aboriginal people, whether or not they are actually offenders.

Comack buttresses her thesis of endemic Canadian disrespect for aboriginal peoples through reference to two other sources of this condition. First, she includes a history of the colonialist history of European settlement. Although her history is relatively extensive, it is too brief, too mono-lithic, to capture the nuances of the vacillations in this relationship between the periods of trust and mutual covenant and the simply disastrous policies grounded in cultural superiority, domination, destruction and, at its lowest point in the 20th century, eradication. But her conclusion is correct. Colonialism can destroy the cultural, social and political integrity of peoples and, thus, render impossible the desired conditions of mutual support, mutual respect and reconciliation.

Comack also points out the social conditions that many aboriginal people must endure: poor housing, poor schooling, exclusion from socially valued roles, poor health and poor health care, poor personal security and so on. These conditions should evoke compassion and a determination to extend care and mercy. In fact, they trigger blame, resistance to social investment and very low respect. Comack’s view is that it is not surprising if police fail to find a way to act generously and constructively in the face of these strongly negative social attitudes.

The irony of this thesis, then, is that police forces are not the engines of Canadian racism. They certainly do not confront and overcome it and, indeed, they act as its most effective carrier. But that racism is not a police construct; it is a condition of Canadian aboriginal/non-aboriginal relations that they reflect and reproduce—mere sperm and eggs to our country’s misguided and destructive parenthood.

However, one should not leave the topic of this book without returning to the question of whether there can be any nurturing of human excellence in Canadian policing. False optimism about progressivism in Canadian policing would be wrong if it were to be used to deny the concerns raised by Comack in her book. Yet her account is partial. In the past 20 years, there has been an explosion of developments designed to improve justice for distinct minorities, particularly for aboriginal communities. Community policing, police liaison in schools with large aboriginal student bodies, aboriginal police forces, special First Nations courts, special rules for sentencing, the development of community justice responses to offending, diversion programs, development of First Nations laws, tripartite agencies for responding to the social causes of disorder and so forth have become a major part of doing criminal justice in Canada. These reflect a determination to transform the criminal justice system from being criminogenic in aboriginal communities to helping construct healthy and well-functioning communities. While these developments have not produced the dividend of equality in criminal justice experience, it is discouraging to the reformers throughout the system if the treatment of racism in Canadian criminal justice ignores these innovations, efforts and hopes. Canada is not always a pretty society, and Comack is right to point out one of the ways that this is true, but it has its vine trees.