EVADING RACISM - [email protected]

EVADING RACISM: COMMISSIONS AND INQUIRIES INTO THE RELATIONSHIP BETWEEN THE CRIMINAL JUSTICE SYSTEM AND

ABORIGINAL PEOPLES IN CANADA

A Thesis

Submitted to the Faculty of Graduate Studies and Research

In Partial Fulfillment of the Requirements

for the Degree of

Master of Arts

in Sociology

University of Regina

by

Cora Paige Sellers

Regina, Saskatchewan

July 2006

Copyright 2006: C.P. Sellers

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.

EVADING RACISM: COMMISSIONS AND INQUIRIES INTO THE RELATIONSHIP BETWEEN THE CRIMINAL JUSTICE SYSTEM AND

ABORIGINAL PEOPLES ik CANADA

A Thesis

Submitted to the Faculty of Graduate Studies and Research

In Partial Fulfillment of the Requirements

for the Degree of

Master of Arts

in Sociology

University of Regina

by

Cora Paige Sellers

Regina, Saskatchewan

July 2006

Copyright 2006: C.P. Sellers


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Library and Archives Canada

Bibliotheque et Archives Canada

Published Heritage Branch

395 Wellington Street Ottawa ON K1A 0N4 Canada

Your file Votre reference ISBN: 978-0-494-20233-3 Our file Notre reference ISBN: 978-0-494-20233-3

Direction du Patrimoine de I'edition

395, rue Wellington Ottawa ON K1A 0N4 Canada

NOTICE:The author has granted a nonexclusive license allowing Library and Archives Canada to reproduce, publish, archive, preserve, conserve, communicate to the public by telecommunication or on the Internet, loan, distribute and sell theses worldwide, for commercial or noncommercial purposes, in microform, paper, electronic and/or any other formats.

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The author retains copyright ownership and moral rights in this thesis. Neither the thesis nor substantial extracts from it may be printed or otherwise reproduced without the author's permission.

L'auteur conserve la propriete du droit d'auteur et des droits moraux qui protege cette these.Ni la these ni des extraits substantiels de celle-ci ne doivent etre imprimes ou autrement reproduits sans son autorisation.

In compliance with the Canadian Privacy Act some supporting forms may have been removed from this thesis.

While these forms may be included in the document page count, their removal does not represent any loss of content from the thesis.

Conformement a la loi canadienne sur la protection de la vie privee, quelques formulaires secondaires ont ete enleves de cette these.

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CanadaReproduced with permission of the copyright owner. Further reproduction prohibited without permission.

UNIVERSITY OF REGINA

FACULTY OF GRADUATE STUDIES AND RESEARCH

SUPERVISORY AND EXAMINING COMMITTEE

Cora Paige Sellers, candidate for the degree of Master of Arts, has presented a thesis

titled, Evading Racism: Commissions and Inquiries into the Relationship Between the

Criminal Justice System and Aboriginal Peoples in Canada, in an oral examination held

on May 3, 2006. The following committee members have found the thesis acceptable in

form and content, and that the candidate demonstrated satisfactory knowledge of the

subject material.

External Examiner: Dr. Jim Mulvale, Department of Justice Studies

Supervisor: Dr. John F. Conway, Department of Sociology and

Social Studies

Committee Member: Dr. K. Murray Knuttila, Department of Sociology and

Social Studies

Committee Member: Dr. Robert M. Stirling, Department of Sociology and

Social Studies

Chair of Defense: Dr. Gary Tompkins, Department of Economics


UNIVERSITY OF REGINA

FACULTY OF GRADUATE STUDIES AND RESEARCH

SUPERVISORY AND EXAMINING COMMITTEE

Cora Paige Sellers, candidate for the degree of Master of Arts, has presented a thesis

titled, Evading Racism: Commissions and Inquiries into the Relationship Between the

Criminal Justice System and Aboriginal Peoples in Canada, in an oral examination held

on May 3,2006. The following committee members have found the thesis acceptable in

form and content, and that the candidate demonstrated satisfactory knowledge of the

subject material.

External Examiner: Dr. Jim Mulvale, Department of Justice Studies

Supervisor: Dr. John F. Conway, Department of Sociology and

Social Studies

Committee Member: Dr. K. Murray Knuttila, Department of Sociology and

Social Studies

Committee Member: Dr. Robert M. Stirling, Department of Sociology and

Social Studies

Chair of Defense: Dr. Gary Tompkins, Department of Economics


Abstract

Incidents that highlight injustices towards Aboriginal people have held the interest

of the public and media sporadically across the decades; and governments have

reluctantly responded. These incidents have been characterized by extreme interpersonal

or systemic injustices against Aboriginal people. Governments have responded by

appointing commissions and inquiries. However, these inquiries and commissions have

tended to direct attention to the elements of the criminal justice system that relate to the

incidents, or to the impacts of socio-economic disparity on Aboriginal communities that

result in social problems.

This thesis will analyze the racism against Aboriginal people as an ideology that

facilitated the processes of colonialism and continues to perpetuate the oppression of

Aboriginal people. This ideology is also the underlying factor in the critical incidents

that have come to the attention of governments and the public because they appear to

provide a justification. Commissions and inquiries have either been unable or unwilling

to address the underlying racism to date, particularly by misunderstanding the essential

features of racism.

Racism is not the result of cultural misunderstanding, although that is how it is

often presented. Evidence that a cultural sensitivity or diversity approach to addressing

racism is insufficient can be found in the climbing crime statistics in Aboriginal

populations. The key to addressing racism is to challenge the ignorance that is fostered

and protected by white privilege. However, this approach is complicated by the fact that

racism is not necessary a conscious and intentional attitude. In order to bring it to

consciousness, there must be honest attempts to address racism as it really is. These


Abstract

Incidents that highlight injustices towards Aboriginal people have held the interest

of the public and media sporadically across the decades; and governments have

reluctantly responded. These incidents have been characterized by extreme interpersonal

or systemic injustices against Aboriginal people. Governments have responded by

appointing commissions and inquiries. However, these inquiries and commissions have

tended to direct attention to the elements of the criminal justice system that relate to the

incidents, or to the impacts of socio-economic disparity on Aboriginal communities that

result in social problems.

This thesis will analyze the racism against Aboriginal people as an ideology that

facilitated the processes of colonialism and continues to perpetuate the oppression of

Aboriginal people. This ideology is also the underlying factor in the critical incidents

that have come to the attention of governments and the public because they appear to

provide a justification. Commissions and inquiries have either been unable or unwilling

to address the underlying racism to date, particularly by misunderstanding the essential

features of racism.

Racism is not the result of cultural misunderstanding, although that is how it is

often presented. Evidence that a cultural sensitivity or diversity approach to addressing

racism is insufficient can be found in the climbing crime statistics in Aboriginal

populations. The key to addressing racism is to challenge the ignorance that is fostered

and protected by white privilege. However, this approach is complicated by the fact that

racism is not necessary a conscious and intentional attitude. In order to bring it to

consciousness, there must be honest attempts to address racism as it really is. These


attempts involve understanding the power roles in racism, and understanding that it has

become incorporated into Canadian social structures and attitudes. This work will

require an acceptance of responsibility, as opposed to blame, and the courage and

determination of governments and people to confront racism directly.


attempts involve understanding the power roles in racism, and understanding that it has

become incorporated into Canadian social structures and attitudes. This work will

require an acceptance of responsibility, as opposed to blame, and the courage and

determination of governments and people to confront racism directly.


Acknowledgements

I would like to express gratitude to my late brother, Ivan Sellers, whose memory

requires me to be honest and direct, and who sat on my moral shoulder throughout this

process. I appreciate the intellectual, emotional and financial support of my parents, Jim

Sellers and Judy Bader; and Betty Sellers and James Misfeldt. I would like to thank my

partner, Otto Gajari, for being there for me when these incidents evoked anger and tears.

I would like to thank my children, Larissa, Jacob, Julio, Uma and Isaac, and my

granddaughter Gabrielle for reminding me daily, sometimes through their own trials and

tribulations, why this work is so important.

I would like to thank the Government of Saskatchewan and the Commission on

First Nations and Metis Relations, for helping me to shape my perspective and for

allowing me the time to work on this thesis. I would also like to thank the Inuvialuit

Regional Corporation for their financial assistance through scholarships and student

income assistance.

Further, I would like to thank the Faculty of Graduate Studies and Research and

the Department of Sociology for their financial support through graduate scholarships

and teaching assistantships, as well as Professor John Conway for his persistence,

patience, reflections and advocacy.

Finally, I would like to dedicate this thesis to the people who suffer from

Aboriginal racism, the people who have been the ultimate victims in the battle, and to

those people, both Aboriginal and not, who are courageous enough to confront racism on

a daily basis.


Acknowledgements

I would like to express gratitude to my late brother, Ivan Sellers, whose memory

requires me to be honest and direct, and who sat on my moral shoulder throughout this

process. I appreciate the intellectual, emotional and financial support of my parents, Jim

Sellers and Judy Bader; and Betty Sellers and James Misfeldt. I would like to thank my

partner, Otto Gajari, for being there for me when these incidents evoked anger and tears.

I would like to thank my children, Larissa, Jacob, Julio, Uma and Isaac, and my

granddaughter Gabrielle for reminding me daily, sometimes through their own trials and

tribulations, why this work is so important.

I would like to thank the Government of Saskatchewan and the Commission on

First Nations and Metis Relations, for helping me to shape my perspective and for

allowing me the time to work on this thesis. I would also like to thank the Inuvialuit

Regional Corporation for their financial assistance through scholarships and student

income assistance.

Further, I would like to thank the Faculty of Graduate Studies and Research and

the Department of Sociology for their financial support through graduate scholarships

and teaching assistantships, as well as Professor John Conway for his persistence,

patience, reflections and advocacy.

Finally, I would like to dedicate this thesis to the people who suffer from

Aboriginal racism, the people who have been the ultimate victims in the battle, and to

those people, both Aboriginal and not, who are courageous enough to confront racism on

a daily basis.


Table of Contents

Abstract Acknowledgements Table of Contents List of Figures

iii iv

1. Introduction: Evading Racism 1

2. The Incidents: Racism or Ineffective Justice? 17 2.1 Introduction 17 2.2 Donald Marshall Jr. 22 2.3 Helen Betty Osborne 37 2.4 J.J. Harper 46 2.5 Leo LaChance 50 2.6 The Starlight Tours 56 2.7 Neil Stonechild 61 2.8 Summary 66

3. Missing the Mark: Commissions and Inquiries 71 3.1 Introduction 71 3.2 The Royal Commission on the Donald Marshall Jr. Prosecution 71 3.3 The Aboriginal Justice Inquiry of Manitoba 77 3.4 The Commission on Inquiry into the Shooting Death of Leo LaChance 83 3.5 The Commission on First Nations and Metis Peoples and Justice Reform 88 3.6 The Commission of Inquiry into Matters Relating to the Death of Neil Stonechild 94 3.7 Summary 99

4. Confronting Racism 100 4.1 Introduction 100 4.2 Structuration Theory 110 4.3 Agency 114 4.4 The Impacts of Oppression 124 4.5 Summary 130

5. Holding Up the Mirror 134

Endnotes 142 Bibliography 146


Table of Contents

Abstract iAcknowledgements iiiTable of Contents ivList of Figures v

1. Introduction: Evading Racism 1

2. The Incidents: Racism or Ineffective Justice? 172.1 Introduction 172.2 Donald Marshall Jr. 222.3 Helen Betty Osborne 372.4 J.J. Harper 462.5 Leo LaChance 502.6 The Starlight Tours 562.7 Neil Stonechild 612.8 Summary 66

3. Missing the Mark: Commissions and Inquiries 713.1 Introduction 713.2 The Royal Commission on the Donald Marshall Jr. Prosecution 713.3 The Aboriginal Justice Inquiry of Manitoba 773.4 The Commission on Inquiry into the Shooting Deathof Leo LaChance 833.5 The Commission on First Nations and Metis Peoplesand Justice Reform 883.6 The Commission of Inquiry into Matters Relating to theDeath of Neil Stonechild 943.7 Summary 99

4. Confronting Racism 1004.1 Introduction 1004.2 Structuration Theory 1104.3 Agency 1144.4 The Impacts of Oppression 1244.5 Summary 130

5. Holding Up the Mirror 134

Endnotes 142Bibliography 146

iv


List of Figures

Figure One: Society as Ideas and Structures, 110 mediated by the everyday life of individuals


List of Figures

Figure One: Society as Ideas and Structures, 110mediated by the everyday life of individuals


Chapter One: Introduction: Evading Racism

The relationship between Aboriginal people and the criminal justice system has

generated a high level of interest from academics, the media, the public, and

governments. More often than not, the issues highlighted are acts of injustice on the part

of what appears to be a racist, discriminatory and oppressive non-Aboriginal justice

system that does harm by showing bias against Aboriginal persons.

Injustices against Aboriginal people by the various personnel or components of

the criminal justice system — whether these are police, prosecutors, courts, or correctional

facilities — have resulted in numerous commissions and inquiries spanning a number of

decades. This thesis will analyze the Royal Commission on Donald Marshall Jr.

Prosecution, Nova Scotia; the Aboriginal Justice Inquiry of Manitoba; Commission of

Inquiry Into the Shooting Death of Leo LaChance; the Commission on First Nations and

Metis Peoples and Justice Reform; and the Commission of Inquiry Into Matters Relating

to the Death of Neil Stonechild. These commissions and inquiries, amongst many

others', are often the result of public demands for a closer analysis of what is wrong with

the justice system where Aboriginal people are concerned, and the task is to make

recommendations to ensure a more fair administration of justice.

Unfortunately, what may begin as an investigation into a miscarriage of justice

can turn into a description of things we already know, such as the fact that Aboriginal

people are worse off socioeconomically than non-Aboriginal people, and that poor

socioeconomic conditions are generally associated with higher levels of crime. In 2001,

the Canadian Centre for Justice Statistics (CCJS) reported that although education rates

Notes appear at the end of the thesis beginning on page 142.

1


Chapter One: Introduction: Evading Racism

The relationship between Aboriginal people and the criminal justice system has

generated a high level of interest from academics, the media, the public, and

governments. More often than not, the issues highlighted are acts of injustice on the part

of what appears to be a racist, discriminatory and oppressive non-Aboriginal justice

system that does harm by showing bias against Aboriginal persons.

Injustices against Aboriginal people by the various personnel or components of

the criminal justice system - whether these are police, prosecutors, courts, or correctional

facilities - have resulted in numerous commissions and inquiries spanning a number of

decades. This thesis will analyze the Royal Commission on Donald Marshall Jr.

Prosecution, Nova Scotia; the Aboriginal Justice Inquiry of Manitoba; Commission of

Inquiry Into the Shooting Death of Leo LaChance; the Commission on First Nations and

Metis Peoples and Justice Reform; and the Commission of Inquiry Into Matters Relating

to the Death of Neil Stonechild. These commissions and inquiries, amongst many

others1, are often the result of public demands for a closer analysis of what is wrong with

the justice system where Aboriginal people are concerned, and the task is to make

recommendations to ensure a more fair administration of justice.

Unfortunately, what may begin as an investigation into a miscarriage of justice

can turn into a description of things we already know, such as the fact that Aboriginal

people are worse off socioeconomically than non-Aboriginal people, and that poor

socioeconomic conditions are generally associated with higher levels of crime. In 2001,

the Canadian Centre for Justice Statistics (CCJS) reported that although education rates

1 Notes appear at the end of the thesis beginning on page 142.

1


are improving, Aboriginal people still have high unemployment and low income levels,

particularly in urban areas. The same report cites that one in four Aboriginal people who

participate in the labour force is unemployed, and that in 1995 Aboriginal people had an

average income of just $15,700 per year. Very high proportions of Aboriginal people in

western Canada are poor. The CCJS reported that the proportion of Aboriginal people

whose average income is less than $10,000 makes up 51% of the Aboriginal population

in Saskatoon, 48% in Regina, 47% in Edmonton and 46% in Winnipeg (Canadian Centre

for Criminal Justice Statistics, June 2001: 6).

Studies of Aboriginal people living in Edmonton, Saskatoon, Regina and

Winnipeg have found that inner city Aboriginal people suffer more challenges in

comparison to non-Aboriginal people. For example, it was found that Aboriginal people

were likely to suffer abuse as children, to have unstable family lives, to have much less

education and to be poor (Saskatchewan Justice and Saskatchewan Corrections and

Public Safety, 2003: 19). In their submission to the Commission on First Nations and

Metis Peoples and Justice Reform, the Saskatchewan Departments of Justice and

Corrections and Public Safety acknowledged that Aboriginal people are

socioeconomically disadvantaged, putting them at higher risk for criminal behaviour and

victimization. In fact, the over-representation of Aboriginal people in the criminal justice

system is the highest in the western provinces. For example, of all the provinces,

Manitoba (59%), Saskatchewan (76%) and Alberta (38%) have the highest Aboriginal

incarceration rate, which appears to support the argument that poor socioeconomic

conditions, including poverty, contribute to high levels of crimes.

2


are improving, Aboriginal people still have high unemployment and low income levels,

particularly in urban areas. The same report cites that one in four Aboriginal people who

participate in the labour force is unemployed, and that in 1995 Aboriginal people had an

average income of just $15,700 per year. Very high proportions of Aboriginal people in

western Canada are poor. The CCJS reported that the proportion of Aboriginal people

whose average income is less than $10,000 makes up 51% of the Aboriginal population

in Saskatoon, 48% in Regina, 47% in Edmonton and 46% in Winnipeg (Canadian Centre

for Criminal Justice Statistics, June 2001: 6).

Studies of Aboriginal people living in Edmonton, Saskatoon, Regina and

Winnipeg have found that inner city Aboriginal people suffer more challenges in

comparison to non-Aboriginal people. For example, it was found that Aboriginal people

were likely to suffer abuse as children, to have unstable family lives, to have much less

education and to be poor (Saskatchewan Justice and Saskatchewan Corrections and

Public Safety, 2003: 19). In their submission to the Commission on First Nations and

Metis Peoples and Justice Reform, the Saskatchewan Departments of Justice and

Corrections and Public Safety acknowledged that Aboriginal people are

socioeconomically disadvantaged, putting them at higher risk for criminal behaviour and

victimization. In fact, the over-representation of Aboriginal people in the criminal justice

system is the highest in the western provinces. For example, of all the provinces,

Manitoba (59%), Saskatchewan (76%) and Alberta (38%) have the highest Aboriginal

incarceration rate, which appears to support the argument that poor socioeconomic

conditions, including poverty, contribute to high levels of crime1.

2


Information about the socioeconomic status of Aboriginal people is abundant, and

is included in all commissions and inquires. However, looking at the socioeconomic

conditions of Aboriginal populations without looking at the conditions that create

disparity is a misdirection of focus. In doing so, the analyses leave behind the particulars

and underlying dynamics of the incidents that spawn them, and turn to look at ways of

reducing the high levels of offending, victimization and incarceration of Aboriginal

peoples, or an examination of community dysfunction and its relationship to criminal

behaviour. This approach takes the focus off the racist dynamics at play between

Aboriginal and non-Aboriginal peoples, and places it back on the shoulders of Aboriginal

peoples, predominantly identifying poverty as the cause of crime and dysfunction while

indicating criminal justice system responses as a remedy. This approach completely

ignores the role of racism as the necessary ingredient in the critical incidents which lead

to the establishment of commissions and inquiries into the justice system, placing blame

on Aboriginal communities or on the Aboriginal people who are involved as victims2.

Just as misguided are the analyses of the criminal justice system in an attempt to

formulate recommendations that will improve responses to Aboriginal crime to prevent

future critical incidents from occurring. An examination of the actual events that led to

high profile investigations into the justice system and Aboriginal peoples reveal that more

often than not, the Aboriginal people in the incidents that spawn commissions and

inquiries tend not to be criminals, at least in the typical "crime-committing" sense.

Rather, as a result of the extreme marginalization that many Aboriginal communities

face, the Aboriginal people involved in the critical incidents tend to be victims

themselves.

3


Information about the socioeconomic status of Aboriginal people is abundant, and

is included in all commissions and inquires. However, looking at the socioeconomic

conditions of Aboriginal populations without looking at the conditions that create

disparity is a misdirection of focus. In doing so, the analyses leave behind the particulars

and underlying dynamics of the incidents that spawn them, and turn to look at ways of

reducing the high levels of offending, victimization and incarceration of Aboriginal

peoples, or an examination of community dysfunction and its relationship to criminal

behaviour. This approach takes the focus off the racist dynamics at play between

Aboriginal and non-Aboriginal peoples, and places it back on the shoulders of Aboriginal

peoples, predominantly identifying poverty as the cause of crime and dysfunction while

indicating criminal justice system responses as a remedy. This approach completely

ignores the role of racism as the necessary ingredient in the critical incidents which lead

to the establishment of commissions and inquiries into the justice system, placing blame

on Aboriginal communities or on the Aboriginal people who are involved as victims2.

Just as misguided are the analyses of the criminal justice system in an attempt to

formulate recommendations that will improve responses to Aboriginal crime to prevent

future critical incidents from occurring. An examination of the actual events that led to

high profile investigations into the justice system and Aboriginal peoples reveal that more

often than not, the Aboriginal people in the incidents that spawn commissions and

inquiries tend not to be criminals, at least in the typical “crime-committing” sense.

Rather, as a result of the extreme marginalization that many Aboriginal communities

face, the Aboriginal people involved in the critical incidents tend to be victims

themselves.

3


While Aboriginal people are highly represented as victims and offenders in our

criminal justice system, criminally offensive behaviour on the part of Aboriginal people

is not the reason that commissions and inquiries into justice practices are initiated. The

inquiries into the justice system, therefore, are misdirected, focusing on the criminal

justice system as it relates to processing Aboriginal persons as offenders, and as victims,

rather than on the events and the larger societal and historical context that led to the

specific miscarriages of justice. Since the majority of incidents are related to racism and

are not related to criminal behaviour, analyses and recommendations relating to criminal

justice system processes will not prevent similar incidents from occurring in the future.

To properly analyze these events it is necessary to go beyond the limited scope of

the criminal justice system and the patterns of crime and victimization in Aboriginal

populations. To come up with recommendations to reduce the levels of crime and

enhance the criminal justice system will not prevent similar incidents from happening

because it is impossible to address the strife faced in Aboriginal communities through the

criminal justice system. A good investigation must be honest and brave enough to go

beyond the act of analyzing Aboriginal communities in a vain attempt to determine the

internal "causes of crime" so as to produce recommendations that will reduce the levels

of crime.

What is required is a comprehensive analysis of oppression and racism towards

Aboriginal people in all of its formal and informal expressions, and its impacts, on both

Aboriginal peoples and non-Aboriginal Canadian society. Once one carries out this

analysis, one realizes that it is not poverty that causes crime or dysfunction in Aboriginal

communities, it is the legacy of colonialism and the racist ideology that justifies

4


While Aboriginal people are highly represented as victims and offenders in our

criminal justice system, criminally offensive behaviour on the part of Aboriginal people

is not the reason that commissions and inquiries into justice practices are initiated. The

inquiries into the justice system, therefore, are misdirected, focusing on the criminal

justice system as it relates to processing Aboriginal persons as offenders, and as victims,

rather than on the events and the larger societal and historical context that led to the

specific miscarriages of justice. Since the majority of incidents are related to racism and

are not related to criminal behaviour, analyses and recommendations relating to criminal

justice system processes will not prevent similar incidents from occurring in the future.

To properly analyze these events it is necessary to go beyond the limited scope of

the criminal justice system and the patterns of crime and victimization in Aboriginal

populations. To come up with recommendations to reduce the levels of crime and

enhance the criminal justice system will not prevent similar incidents from happening

because it is impossible to address the strife faced in Aboriginal communities through the

criminal justice system. A good investigation must be honest and brave enough to go

beyond the act of analyzing Aboriginal communities in a vain attempt to determine the

internal “causes of crime” so as to produce recommendations that will reduce the levels

of crime.

What is required is a comprehensive analysis of oppression and racism towards

Aboriginal people in all of its formal and informal expressions, and its impacts, on both

Aboriginal peoples and non-Aboriginal Canadian society. Once one carries out this

analysis, one realizes that it is not poverty that causes crime or dysfunction in Aboriginal

communities, it is the legacy of colonialism and the racist ideology that justifies

4


Aboriginal oppression that cause poverty and crime in Aboriginal communities. The

expansion of capitalism through colonialism brought a different society to North

America, with its own historical dimensions and specific, cultural, spiritual, social,

political and economic norms, which tended to contradict those of many Aboriginal

communities. This society was violently imposed upon Aboriginal peoples. This initial

imposition, which has to be truly recognized as a form of cultural genocide, occurred

over a very short period of time, and had devastating results for those who were forced to

adapt.

During this imposition of one system over another, the justice system undoubtedly

generated problems where Aboriginal peoples were concerned. It has to be remembered,

however, that the criminal justice system, as a formal system that is mandated to maintain

the structure of a society through social control by establishing laws and reinforcing

norms, predominantly exists to deter and punish resistance. This function is the same

regardless of the race of those who resist. However, where there is a mandate that is

specifically pointed at capturing and controlling a particular group, there is more likely to

be resistance and conflict.

In this case, the justice system sought to ensure that resistance by Aboriginal

people was not as big a threat to the state and other Canadians during the process of the

creation of Canada, the expansion of the capitalist economy and ultimately, the

maintenance of the status quo. Once out of the way, Aboriginal people would not pose a

threat to non-Aboriginal peoPle, partly because First Nations people became confined on

reserves. In this sense, historically, the criminal justice system has served primarily as a

backup for other imposing intervention systems that failed in their contradictory attempts

5


Aboriginal oppression that cause poverty and crime in Aboriginal communities. The

expansion of capitalism through colonialism brought a different society to North

America, with its own historical dimensions and specific, cultural, spiritual, social,

political and economic norms, which tended to contradict those of many Aboriginal

communities. This society was violently imposed upon Aboriginal peoples. This initial

imposition, which has to be truly recognized as a form of cultural genocide, occurred

over a very short period of time, and had devastating results for those who were forced to

adapt.

During this imposition of one system over another, the justice system undoubtedly

generated problems where Aboriginal peoples were concerned. It has to be remembered,

however, that the criminal justice system, as a formal system that is mandated to maintain

the structure of a society through social control by establishing laws and reinforcing

norms, predominantly exists to deter and punish resistance. This function is the same

regardless of the race of those who resist. However, where there is a mandate that is

specifically pointed at capturing and controlling a particular group, there is more likely to

be resistance and conflict.

In this case, the justice system sought to ensure that resistance by Aboriginal

people was not as big a threat to the state and other Canadians during the process of the

creation of Canada, the expansion of the capitalist economy and ultimately, the

maintenance of the status quo. Once out of the way, Aboriginal people would not pose a

threat to non-Aboriginal people, partly because First Nations people became confined on

reserves. In this sense, historically, the criminal justice system has served primarily as a

backup for other imposing intervention systems that failed in their contradictory attempts

5


to force Aboriginal peoples to adopt a non-inclusive society that was not their own, and

that contradicted much of what existed in Aboriginal ways of life.

One of the first imposing interventions intended to control the daily lives of some

Aboriginal peoples was the Indian Act3. The Indian Act is a piece of legislation that has

worked in many ways to separate Aboriginal peoples from mainstream society, while

controlling the daily lives of Aboriginal people by defining who was and was not an

"Indian", outlawing traditional Aboriginal religions and imposing Christianity

(Saskatchewan Department of First Nations and Metis Relations, 2004a).

Later on, the signing of treaties eventually introduced the reserve system, which

kept Aboriginal people from being mobile and reduced their ability to support their

communities in their own traditional economic ways, such as nomadic hunting and

gathering. The reserve system kept Aboriginal people in defined and controllable areas.

In their 2002-2003 Annual Report, The Office of the Treaty Commissioner writes that

Alexander Morris, Lieutenant Governor of Manitoba and the Northwest Territories:

...was anxious to conclude treaties with First Nations people on the prairies because of the 'restiveness' of the First Nations and Metis in the Qu'Appelle area. Morris clearly saw treaties in the prairie region as essential to avoid unrest among the plains First Nations — unrest that would deter potential settlers and retard the agricultural development of the northwest — both key objectives in Prime Minister Macdonald's national policy (Office of the Treaty Commissioner, 2003: 4).

The above is another clear example of how the government of Canada used

processes of marginalization of Aboriginal people in order to settle a new nation state.

The pass system, established after the 1885 Northwest Resistance, was created to further

ensure that Aboriginal people were confined to reserves5, kept in check and unable to

resist their oppression by government authorities. Under the pass system, Indian people

6


to force Aboriginal peoples to adopt a non-inclusive society that was not their own, and

that contradicted much of what existed in Aboriginal ways of life.

One of the first imposing interventions intended to control the daily lives of some

Aboriginal peoples was the Indian Act3. The Indian Act is a piece of legislation that has

worked in many ways to separate Aboriginal peoples from mainstream society, while

controlling the daily lives of Aboriginal people by defining who was and was not an

“Indian”, outlawing traditional Aboriginal religions and imposing Christianity

(Saskatchewan Department of First Nations and Metis Relations, 2004a).

Later on, the signing of treaties eventually introduced the reserve system, which

kept Aboriginal people from being mobile and reduced their ability to support their

communities in their own traditional economic ways, such as nomadic hunting and

gathering. The reserve system kept Aboriginal people in defined and controllable areas.

In their 2002-2003 Annual Report. The Office of the Treaty Commissioner writes that

Alexander Morris, Lieutenant Governor of Manitoba and the Northwest Territories:

.. .was anxious to conclude treaties with First Nations people on the prairies because of the ‘restiveness’ of the First Nations and Metis in the Qu’Appelle area. Morris clearly saw treaties in the prairie region as essential to avoid unrest among the plains First Nations - unrest that would deter potential settlers and retard the agricultural development of the northwest - both key objectives in Prime Minister Macdonald’s national policy (Office of the Treaty Commissioner, 2003: 4).

The above is another clear example of how the government of Canada used

processes of marginalization of Aboriginal people in order to settle a new nation state.

The pass system, established after the 1885 Northwest Resistance4, was created to further

ensure that Aboriginal people were confined to reserves5, kept in check and unable to

resist their oppression by government authorities. Under the pass system, Indian people

6


required permission in the form of a pass from the Indian agent to leave the reserve. Not

to comply with the pass system was a criminal offence, and those caught were processed

as criminals through the criminal justice system (Saskatchewan Department of First

Nations and Metis Relations, 2004b).

The residential school system has had a horrific impact on Aboriginal

communities. Aboriginal children were taken from their families and placed in schools

where they lived for most of their childhood. These schools attempted to Christianize

Aboriginal children, they prohibited them from speaking their languages, and they

intentionally prevented Aboriginal children from learning about who they were through

their history and traditions (Saskatchewan First Nations and Metis Relations, 2004c).

Many Aboriginal people will insist that because they were deprived of loving

relationships with their parents, they never learned how to parent their own children.

Furthermore, since many were subjected to sexual, emotional and psychological abuse,

they were severely emotionally and psychologically damaged and unable to trust, care

and show love. The residential school system was a vital component of the machine of

cultural genocide as it worked to strip Aboriginal children of their economic, social,

cultural, spiritual and emotional lives, isolating them from their families and

communities, while replacing their young and vulnerable identities with confusion and

abuse. It is hard not to make the analogy between residential schools and the high rates

of Aboriginal children in custody and foster care, and come to the conclusion that the

method of segregation of Aboriginal children is not one of the past, but is alive and well

today in different forms6.

7


required permission in the form of a pass from the Indian agent to leave the reserve. Not

to comply with the pass system was a criminal offence, and those caught were processed

as criminals through the criminal justice system (Saskatchewan Department of First

Nations and Metis Relations, 2004b).

The residential school system has had a horrific impact on Aboriginal

communities. Aboriginal children were taken from their families and placed in schools

where they lived for most of their childhood. These schools attempted to Christianize

Aboriginal children, they prohibited them from speaking their languages, and they

intentionally prevented Aboriginal children from learning about who they were through

their history and traditions (Saskatchewan First Nations and Metis Relations, 2004c).

Many Aboriginal people will insist that because they were deprived of loving

relationships with their parents, they never learned how to parent their own children.

Furthermore, since many were subjected to sexual, emotional and psychological abuse,

they were severely emotionally and psychologically damaged and unable to trust, care

and show love. The residential school system was a vital component of the machine of

cultural genocide as it worked to strip Aboriginal children of their economic, social,

cultural, spiritual and emotional lives, isolating them from their families and

communities, while replacing their young and vulnerable identities with confusion and

abuse. It is hard not to make the analogy between residential schools and the high rates

of Aboriginal children in custody and foster care, and come to the conclusion that the

method of segregation of Aboriginal children is not one of the past, but is alive and well

today in different forms6.


In Canada, the Constitution Act, 1982 recognizes Indians, Metis and Inuit as the

three Aboriginal groups. However, the identification of Aboriginal people is quite

complicated as there is more than one way in which to identify as Indian, Metis and

Status Indian, and not all of them are consistent and agreed upon. For example, a

pamphlet entitled Information: Definitions published in 2000, by Indian Affairs and

Northern Development Canada, Aboriginal peoples are referred to as Aboriginal peoples,

"Bill C-31s," First Nation, Indian, Innu, Inuvialuit, Inuit, Metis, Non-Status Indians,

Status Indian and Treaty Indian. Each of these groups of Aboriginal people are defined

differently under the law, and some are entitled to different benefits than others such as

education costs and health care (Indian Affairs and Northern Development Canada,

2001). Furthermore, some are entitled to no benefits as a result of how they are defined

as Aboriginal, yet they still live with the legacy of racism as a result of the process of

capitalist expansion and colonization. Regardless of the technical meanings of each

Aboriginal group, and the possible intent behind their definitions, the effect is to separate

them from other Aboriginal people and Canadians through formal systems of legislation

and public policy.

The government of Canada, through such measures as the Indian Act, mandated

the control and reduced the chances of resistance by Aboriginal people, referred to as

"Indians," by legally dictating the everyday lives of Aboriginal peoples in Canada,

because this group was in the way physically and posed the most threat to expansion.

Once isolated, the government' of Canada mandated the attempted destruction of

Aboriginal people by attacking the core of their identities as communities, families and

individuals. The Indian Act legitimated cultural genocide of Aboriginal peoples through

8


In Canada, the Constitution A ct 1982 recognizes Indians, Metis and Inuit as the

three Aboriginal groups. However, the identification of Aboriginal people is quite

complicated as there is more than one way in which to identify as Indian, Metis and

Status Indian, and not all of them are consistent and agreed upon. For example, a

pamphlet entitled Information: Definitions published in 2000, by Indian Affairs and

Northern Development Canada, Aboriginal peoples are referred to as Aboriginal peoples,

“Bill C-31s,” First Nation, Indian, Innu, Inuvialuit, Inuit, Metis, Non-Status Indians,

Status Indian and Treaty Indian. Each of these groups of Aboriginal people are defined

differently under the law, and some are entitled to different benefits than others such as

education costs and health care (Indian Affairs and Northern Development Canada,

2001). Furthermore, some are entitled to no benefits as a result of how they are defined

as Aboriginal, yet they still live with the legacy of racism as a result of the process of

capitalist expansion and colonization. Regardless of the technical meanings of each

Aboriginal group, and the possible intent behind their definitions, the effect is to separate

them from other Aboriginal people and Canadians through formal systems of legislation

and public policy.

The government of Canada, through such measures as the Indian Act, mandated

the control and reduced the chances of resistance by Aboriginal people, referred to as

“Indians,” by legally dictating the everyday lives of Aboriginal peoples in Canada,

because this group was in the way physically and posed the most threat to expansion.

Once isolated, the government of Canada mandated the attempted destruction of

Aboriginal people by attacking the core of their identities as communities, families and

individuals. The Indian Act legitimated cultural genocide of Aboriginal peoples through

8


the residential school system, which legislated the separation of children from their

parents and families, making it almost impossible to teach them their languages, values,

economic activities, traditions and religion.

This amounted to the attempted destruction of an entire people. Survivors of

residential schools were not able to easily return to and integrate back into their

communities. Their belief systems were different, and they had often suffered abuse,

which has the potential to alter people for life. On the other hand, however, Aboriginal

children were not welcomed into or able to live in the "white world". As a result, there

was no belonging for many. Avenues to further education took them away from their

families even further as these were the paths to assimilated disenfranchisement. Besides

the attainment of an education, a Status Indian woman could be disenfranchised if she

married a non-Indian, which would result in her and her children's loss of connection to

their communities.

Subsequent attempts to identify Aboriginal people came as expansion continued,

and as a result of the efforts of Aboriginal people who strove to retain their rights through

political and legal actions. The result has been a fracturing of Aboriginal peoples, and

often groups compete with one another for scarce resources, causing further division.

One example is that of the Treaty Indians and the Metis, particularly on the prairies.

During the negotiation of treaties, First Nation leaders would ask that the government

remember the claims of their Metis relatives, and Metis people often assisted with the

negotiation of treaties. The government responded by ensuring that Metis people were

eradicated from the Indian Act and from the treaty process completely (Alberta, undated).

The Metis had initially been offered scrip, or an allowance of land, in return for

9


the residential school system, which legislated the separation of children from their

parents and families, making it almost impossible to teach them their languages, values,

economic activities, traditions and religion.

This amounted to the attempted destruction of an entire people. Survivors of

residential schools were not able to easily return to and integrate back into their

communities. Their belief systems were different, and they had often suffered abuse,

which has the potential to alter people for life. On the other hand, however, Aboriginal

children were not welcomed into or able to live in the “white world”. As a result, there

was no belonging for many. Avenues to further education took them away from their

families even further as these were the paths to assimilated disenfranchisement7. Besides

the attainment of an education, a Status Indian woman could be disenfranchised if she

married a non-Indian, which would result in her and her children’s loss of connection to

their communities.

Subsequent attempts to identify Aboriginal people came as expansion continued,

and as a result of the efforts of Aboriginal people who strove to retain their rights through

political and legal actions. The result has been a fracturing of Aboriginal peoples, and

often groups compete with one another for scarce resources, causing further division.

One example is that of the Treaty Indians and the Metis, particularly on the prairies.

During the negotiation of treaties, First Nation leaders would ask that the government

remember the claims of their Metis relatives, and Metis people often assisted with the

negotiation of treaties. The government responded by ensuring that Metis people were

eradicated from the Indian Act and from the treaty process completely (Alberta, undated).

The Metis had initially been offered scrip, or an allowance of land, in return for

9


surrendering in Manitoba. However, because many Metis were poor, scrip was sold for

money. The result is that the Metis had no land base like their First Nations neighbours

did, and in some areas a divide developed based on differential rights. Not only have

Aboriginal communities been isolated and controlled by Canada, Aboriginal peoples

have been divided and pitted against one another.

The system that came along with the European settlers was one that contradicted

many Aboriginal beliefs about the world, and their existence and overall way of life.

Aboriginal people were perceived as being in the way, and the developing state

developed laws and policies over time with which to maintain the control and oppression

of Aboriginal people. When these laws and policies failed to either eliminate or

assimilate Aboriginal peoples, the criminal justice system was there to maintain control

to ensure that Aboriginal people would not be a threat to a new and growing Canadian

society.

In the past, as it does now, the criminal justice system served as a last resort in a

larger system that established norms and maintained social control. In this sense, the

criminal justice system existed as a backup for interventions that were less than perfect in

the onerous task of either eliminating Aboriginal people, or reluctantly creating

"Aboriginal Canadians". Aboriginal people were excluded from the economic system

after they served their use in the fur trade. In the beginning they were used for their skills

and knowledge, so their freedom was essential to the labour of hunting and trapping.

When the fur trade went into decline, these labour skills were no longer required and for

the most part they were excluded from the new and growing economic system in Canada.

They were in the way.

10


surrendering in Manitoba. However, because many Metis were poor, scrip was sold for

money. The result is that the Metis had no land base like their First Nations neighbours

did, and in some areas a divide developed based on differential rights. Not only have

Aboriginal communities been isolated and controlled by Canada, Aboriginal peoples

have been divided and pitted against one another.

The system that came along with the European settlers was one that contradicted

many Aboriginal beliefs about the world, and their existence and overall way of life.

Aboriginal people were perceived as being in the way, and the developing state

developed laws and policies over time with which to maintain the control and oppression

of Aboriginal people. When these laws and policies failed to either eliminate or

assimilate Aboriginal peoples, the criminal justice system was there to maintain control

to ensure that Aboriginal people would not be a threat to a new and growing Canadian

society.

In the past, as it does now, the criminal justice system served as a last resort in a

larger system that established norms and maintained social control. In this sense, the

criminal justice system existed as a backup for interventions that were less than perfect in

the onerous task of either eliminating Aboriginal people, or reluctantly creating

“Aboriginal Canadians”. Aboriginal people were excluded from the economic system

after they served their use in the fur trade. In the beginning they were used for their skills

and knowledge, so their freedom was essential to the labour of hunting and trapping.

When the fur trade went into decline, these labour skills were no longer required and for

the most part they were excluded from the new and growing economic system in Canada.

They were in the way.

10


In the event that control or attempts at assimilation were unsuccessful the criminal

justice system had the power to subdue resistance or deal with problems. The first

system was the government of Canada (originally the Crown) and the policies to set aside

or legitimately physically marginalize and control Aboriginal people. Subsequent

systems included the church and education systems. The government mandated the

church, which was largely responsible for running residential schools, to educate

Aboriginal children. What was really meant by "educate", however, was to strip away

their Aboriginal identities and replace them with non-Aboriginal identities. No longer

celebrating traditional Aboriginal lifestyles, and not speaking their traditional languages,

Aboriginal children were taught non-Aboriginal roles for men and women. However,

Aboriginal children still had a tie to their homes and chose to go home, and the reserve

system survived. As well, it would appear that non-Aboriginal society was still not warm

to the idea of assimilation. Many Aboriginal people tended to be physically identifiable,

thus they were largely not welcome in white Canadian society. The main systems that

Aboriginal people were included in were those systems that were built just for them, such

as the residential school system and the reserve system, or on the furthest margins of non-

Aboriginal society, and when they resisted, then there was the criminal justice system.

There is not much difference presently in that there are a number of systems that

are meant to "address the needs"8 of Aboriginal people. The education system schools

children, the social services systems9 address issues such as counselling, financial needs,

child welfare, family violence and difficulties with integration. There are health systems

intended to address the needs of high rates of diabetes, accidents, mental illness, drug and

alcohol addictions, and now fetal alcohol spectrum disorder and crystal

11


In the event that control or attempts at assimilation were unsuccessful the criminal

justice system had the power to subdue resistance or deal with problems. The first

system was the government o f Canada (originally the Crown) and the policies to set aside

or legitimately physically marginalize and control Aboriginal people. Subsequent

systems included the church and education systems. The government mandated the

church, which was largely responsible for running residential schools, to educate

Aboriginal children. What was really meant by “educate”, however, was to strip away

their Aboriginal identities and replace them with non-Aboriginal identities. No longer

celebrating traditional Aboriginal lifestyles, and not speaking their traditional languages,

Aboriginal children were taught non-Aboriginal roles for men and women. However,

Aboriginal children still had a tie to their homes and chose to go home, and the reserve

system survived. As well, it would appear that non-Aboriginal society was still not warm

to the idea of assimilation. Many Aboriginal people tended to be physically identifiable,

thus they were largely not welcome in white Canadian society. The main systems that

Aboriginal people were included in were those systems that were built just for them, such

as the residential school system and the reserve system, or on the furthest margins of non-

Aboriginal society, and when they resisted, then there was the criminal justice system.

There is not much difference presently in that there are a number of systems that

are meant to “address the needs”8 of Aboriginal people. The education system schools

children, the social services systems9 address issues such as counselling, financial needs,

child welfare, family violence and difficulties with integration. There are health systems

intended to address the needs of high rates of diabetes, accidents, mental illness, drug and

alcohol addictions, and now fetal alcohol spectrum disorder and crystal

11


methamphetamine addictions. There are still systems in place to deal with Aboriginal

peoples and as always, the criminal justice system remains only a back up for the other

systems where they fail. One of the principal failures is the need to look at the systems

themselves as the source of dysfunction, and the role that racism plays in perpetuating

them.

One cannot have this discussion without looking at the racist ideological

environment that made such structural impositions and attempts at cultural genocide

permissible. "Racism," as a doctrine and an ideology, has permitted the perpetuation of

the subordination of Aboriginal people. Racism has provided the moral justification for

the oppression of, and attempts at eradicating, Aboriginal communities. Racism, as it

relates to the process of the oppression of Aboriginal people in Canada, is the

understanding that Aboriginal people are inferior to non-Aboriginal people, and that they

are the authors of whatever ills they may suffer. Government mandated oppression has

caused a lot of damage to Aboriginal communities. This damage can be seen in the high

levels of the many kinds of social pathologies10 that are evident in Aboriginal

communities. In turn, these reinforce the belief that Aboriginal people are inferior and

incapable people.

As a result of the belief that Aboriginal people are inferior, Aboriginal people

have been disempowered and marginalized, which creates the appearance that they are

indeed unable to look after themselves. When one visits a community where there is

90% unemployment and high levels of addictions, abuse and violence, one is seeing what

appears to be people who cannot look after themselves. In reality, though, many

communities are composed of people who continue to be caught in a cycle of

12


methamphetamine addictions. There are still systems in place to deal with Aboriginal

peoples and as always, the criminal justice system remains only a back up for the other

systems where they fail. One of the principal failures is the need to look at the systems

themselves as the source of dysfunction, and the role that racism plays in perpetuating

them.

One cannot have this discussion without looking at the racist ideological

environment that made such structural impositions and attempts at cultural genocide

permissible. “Racism,” as a doctrine and an ideology, has permitted the perpetuation of

the subordination of Aboriginal people. Racism has provided the moral justification for

the oppression of, and attempts at eradicating, Aboriginal communities. Racism, as it

relates to the process of the oppression of Aboriginal people in Canada, is the

understanding that Aboriginal people are inferior to non-Aboriginal people, and that they

are the authors of whatever ills they may suffer. Government mandated oppression has

caused a lot of damage to Aboriginal communities. This damage can be seen in the high

levels of the many kinds of social pathologies10 that are evident in Aboriginal

communities. In turn, these reinforce the belief that Aboriginal people are inferior and

incapable people.

As a result of the belief that Aboriginal people are inferior, Aboriginal people

have been disempowered and marginalized, which creates the appearance that they are

indeed unable to look after themselves. When one visits a community where there is

90% unemployment and high levels of addictions, abuse and violence, one is seeing what

appears to be people who cannot look after themselves. In reality, though, many

communities are composed of people who continue to be caught in a cycle of

12


disempowerment that is premised on the racist notion that they unable to look after

themselves. For instance, for many communities to access dollars to fund programs they

have to demonstrate need and if need is not demonstrated an isolated and impoverished

community loses more resources. This becomes a cyclical pattern of a government

imposed communal self-fulfilling prophecy that makes it appear that Aboriginal

communities cannot look after their programs''.

Undoubtedly, racism is a necessary ingredient for the incidents leading to justice

system inquiries, commissions and analyses over the decades. As the incidents are

reviewed in this thesis it will become clear that racism played a very large role in the

injustices suffered by the Aboriginal people involved, and that had many of the victims

been "white" instead of Aboriginal, the outcomes and reactions to the incidents would

have been dramatically different.

Finally, a proper official inquiry would require taking an honest look at Canadian

ideology in general, and our tepid responses to critical issues and the role of racism in the

foundation of this country. A proper inquiry would acknowledge fully and without fear

that Aboriginal communities were defined as being lesser than non-Aboriginal peoples by

non-Aboriginal people, governments and courts. Racist beliefs that Aboriginal people

are inherently incapable of determining their own lives appear to justify the methods that

took away control from Aboriginal communities, while a non-Aboriginal society grew

and flourished across the country, built on the backs of Aboriginal peoples and their

histories12.

An analysis of racism requires a critical analysis of how it works as a process, and

how it has affected Aboriginal peoples. It is necessary to look at the role racism has

13


disempowerment that is premised on the racist notion that they unable to look after

themselves. For instance, for many communities to access dollars to fund programs they

have to demonstrate need and if need is not demonstrated an isolated and impoverished

community loses more resources. This becomes a cyclical pattern of a government

imposed communal self-fulfilling prophecy that makes it appear that Aboriginal

communities cannot look after their programs11.

Undoubtedly, racism is a necessary ingredient for the incidents leading to justice

system inquiries, commissions and analyses over the decades. As the incidents are

reviewed in this thesis it will become clear that racism played a very large role in the

injustices suffered by the Aboriginal people involved, and that had many of the victims

been “white” instead of Aboriginal, the outcomes and reactions to the incidents would

have been dramatically different.

Finally, a proper official inquiry would require taking an honest look at Canadian

ideology in general, and our tepid responses to critical issues and the role of racism in the

foundation of this country. A proper inquiry would acknowledge fully and without fear

that Aboriginal communities were defined as being lesser than non-Aboriginal peoples by

non-Aboriginal people, governments and courts. Racist beliefs that Aboriginal people

are inherently incapable of determining their own lives appear to justify the methods that

took away control from Aboriginal communities, while a non-Aboriginal society grew

and flourished across the country, built on the backs of Aboriginal peoples and their

histories12.

An analysis of racism requires a critical analysis of how it works as a process, and

how it has affected Aboriginal peoples. It is necessary to look at the role racism has

13


played, and how racism is perpetuated by the fact that non-Aboriginal people, by virtue

of "white privilege," are able to avoid confronting their own racism. Surprisingly, such

an analysis is not hard to do because racist ideologies are not secret, and are in fact

celebrated, arrogantly defended by the openly racist, or fearfully denied by the more

liberally minded. Such attitudes pervade Canada and are by no means unique to the

personnel or structures of the criminal justice system. An honest and brave approach to

addressing the critical incidents would require confronting what racism is: an ideology

that is an integral part of the dominant Canadian society that excludes Aboriginal people

and perpetuates the privileges of non-Aboriginal white Canada.

This thesis highlights how Canada has an uncomfortable relationship with its own

history of racism. This discomfort is evident when one analyzes how racism has been

addressed in particularly high profile cases involving race. The brunt of the blame is

either attributed to the harsh socioeconomic conditions of Aboriginal communities, or it

is placed on the criminal justice system's inability to address Aboriginal peoples as

victims and offenders. What commissions and inquiries fail to address is how racism is a

part of Canadian ideology, how it works, and how it has become a part of the structures

and systems that characterize Canada.

The argument in this thesis is a theoretical analysis of existing documents and

literature13. The existing documents consist mainly of government publications about the

commissions and inquiries into the incidents. The work that goes into a commission or

inquiry is extensive14; relying on extensive original research and literature reviews,

observations of commissioners and interviews with people. For this reason it wasn't

necessary to replicate this work for the purposes of writing this thesis.

14


played, and how racism is perpetuated by the fact that non-Aboriginal people, by virtue

of “white privilege,” are able to avoid confronting their own racism. Surprisingly, such

an analysis is not hard to do because racist ideologies are not secret, and are in fact

celebrated, arrogantly defended by the openly racist, or fearfully denied by the more

liberally minded. Such attitudes pervade Canada and are by no means unique to the

personnel or structures of the criminal justice system. An honest and brave approach to

addressing the critical incidents would require confronting what racism is: an ideology

that is an integral part of the dominant Canadian society that excludes Aboriginal people

and perpetuates the privileges of non-Aboriginal white Canada.

This thesis highlights how Canada has an uncomfortable relationship with its own

history of racism. This discomfort is evident when one analyzes how racism has been

addressed in particularly high profile cases involving race. The brunt of the blame is

either attributed to the harsh socioeconomic conditions of Aboriginal communities, or it

is placed on the criminal justice system’s inability to address Aboriginal peoples as

victims and offenders. What commissions and inquiries fail to address is how racism is a

part of Canadian ideology, how it works, and how it has become a part of the structures

and systems that characterize Canada.

The argument in this thesis is a theoretical analysis of existing documents and

11literature . The existing documents consist mainly of government publications about the

commissions and inquiries into the incidents. The work that goes into a commission or

inquiry is extensive14; relying on extensive original research and literature reviews,

observations of commissioners and interviews with people. For this reason it wasn’t

necessary to replicate this work for the purposes of writing this thesis.

14


The secondary materials used in this thesis consisted primarily of books that

contained more explicit details about the victims, perpetrators and the incidents in

general. These sources were instrumental in getting a sense of the events from a more

personal perspective, particularly the lives of the victims. The incidents covered in this

thesis were highly emotional, and some may even argue that the families were victimized

by the processes involved in the investigations of the incidents. For these reason, original

research on the families and/or persons involved directly in the incidents through

interviews and surveys for example, was not desirable.

The theoretical background for this analysis draws upon non-racial theories

relating to the constitution of social structure, the development of individual ideologies in

the context of group membership and society, and on an argument against the notion that

ideology and structure are separate entities. This argument tends not to be made very

strongly in work that relates to race, except when racism is related to class. While class

is undoubtedly related, poverty itself is not the foundation for racism; rather, it is a part of

the structural impacts of racism. This thesis uses a realist approach to look at racism.

Derek Layder argues that

the realist approach attempts to address (this) complexity by offering a layered or `stratified' model of society which includes macro (structural, institutional) phenomena as well, as well as the more micro phenomena of interaction and behaviour (Layder, 1993: 7-8).

Further, Layer adds that such an approach allows for use of what he refers to as a

"research map" that allows for the analysis of behaviour in the context of setting and

history (Layder, 1993: 9). This approach is critical to analyzing racism against

15


The secondary materials used in this thesis consisted primarily of books that

contained more explicit details about the victims, perpetrators and the incidents in

general. These sources were instrumental in getting a sense of the events from a more

personal perspective, particularly the lives of the victims. The incidents covered in this

thesis were highly emotional, and some may even argue that the families were victimized

by the processes involved in the investigations of the incidents. For these reason, original

research on the families and/or persons involved directly in the incidents through

interviews and surveys for example, was not desirable.

The theoretical background for this analysis draws upon non-racial theories

relating to the constitution of social structure, the development of individual ideologies in

the context of group membership and society, and on an argument against the notion that

ideology and structure are separate entities. This argument tends not to be made very

strongly in work that relates to race, except when racism is related to class. While class

is undoubtedly related, poverty itself is not the foundation for racism; rather, it is a part of

the structural impacts of racism. This thesis uses a realist approach to look at racism.

Derek Layder argues that

the realist approach attempts to address (this) complexity by offering a layered or ‘stratified’ model of society which includes macro (structural, institutional) phenomena as well, as well as the more micro phenomena of interaction and behaviour (Layder, 1993: 7-8).

Further, Layer adds that such an approach allows for use of what he refers to as a

“research map” that allows for the analysis of behaviour in the context of setting and

history (Layder, 1993: 9). This approach is critical to analyzing racism against

15


Aboriginal people in Canada, where there is a very specific historical, legal and political

context for racism.

Chapter two of this thesis provides details of the critical incidents that led to

justice inquiries and commissions and the role racism played in each of them. Chapter

three details the mandates and the responses of the commissions and inquiries, and

provides analyses of the pertinent recommendations. Chapter four takes a more

theoretical look at racism as a process, and how it is implicated in the inquiries and the

commissions. Chapter five concludes with recommendations for addressing racism.

16


Aboriginal people in Canada, where there is a very specific historical, legal and political

context for racism.

Chapter two of this thesis provides details of the critical incidents that led to

justice inquiries and commissions and the role racism played in each of them. Chapter

three details the mandates and the responses of the commissions and inquiries, and

provides analyses of the pertinent recommendations. Chapter four takes a more

theoretical look at racism as a process, and how it is implicated in the inquiries and the

commissions. Chapter five concludes with recommendations for addressing racism.

16


Chapter Two: The Incidents: Racism or Ineffective Justice?

2.1 Introduction

Commissions and inquiries tasked with investigating the relationship between

Aboriginal people and the justice system have tended to look at the ways that Aboriginal

people are processed by the justice system as criminals, with an eye to recommending

more fair or culturally appropriate methods of processing. These investigators are also

often asked to identify the "causes of crime" from a socioeconomic perspective,

particularly when it comes to the poverty and dysfunction that seems to exist in

Aboriginal communities.

The underlying argument is that Aboriginal communities are poor and toxic, and

poverty and toxicity produces more incidents of criminal behaviours. This is typically

how commissions and inquiries have ended up focusing on the socio-economic

conditions in Aboriginal communities that may contribute to criminal behaviour, and the

criminal justice responses that are in place to address the high levels of crime in

Aboriginal communities. However, none have looked at the true relevance of the criminal

justice system as an element of the incidents that lead to investigations. Often,

criminality is not much of a contributing factor.

It is true that Aboriginal people are over-represented as accused and victims in the

criminal justice system. According to the Canadian Centre for Justice Statistics (CCJS),

35% of all Aboriginal people reported being the victim of a crime in 1995, whether it

related to crimes of property or violence, as opposed to 26% of non-Aboriginal people

(CCJS, 2001: 6-7). Incarceration statistics, the last point in criminal justice system

17


Chapter Two: The Incidents: Racism or Ineffective Justice?

2.1 Introduction

Commissions and inquiries tasked with investigating the relationship between

Aboriginal people and the justice system have tended to look at the ways that Aboriginal

people are processed by the justice system as criminals, with an eye to recommending

more fair or culturally appropriate methods of processing. These investigators are also

often asked to identify the “causes of crime” from a socioeconomic perspective,

particularly when it comes to the poverty and dysfunction that seems to exist in

Aboriginal communities.

The underlying argument is that Aboriginal communities are poor and toxic, and

poverty and toxicity produces more incidents of criminal behaviours. This is typically

how commissions and inquiries have ended up focusing on the socio-economic

conditions in Aboriginal communities that may contribute to criminal behaviour, and the

criminal justice responses that are in place to address the high levels of crime in

Aboriginal communities. However, none have looked at the true relevance of the criminal

justice system as an element of the incidents that lead to investigations. Often,

criminality is not much of a contributing factor.

It is true that Aboriginal people are over-represented as accused and victims in the

criminal justice system. According to the Canadian Centre for Justice Statistics (CCJS),

35% of all Aboriginal people reported being the victim of a crime in 1995, whether it

related to crimes of property or violence, as opposed to 26% of non-Aboriginal people

(CCJS, 2001: 6-7). Incarceration statistics, the last point in criminal justice system

17


processes, also indicate that Aboriginal people are over-represented as accused who are

found guilty and sentenced to jail. For example, the Canadian Centre for Justice

Statistics reports that, with the exception of youth in Prince Edward Island, Aboriginal

youth are over-represented in custodial facilities across Canada, particularly in the Prairie

Provinces and northern Canada. In Manitoba, Aboriginal youth account for 75% of

youth admissions to custody, while they represent 16% of Manitoba's youth population.

In Saskatchewan, Aboriginal youth account for 75% of youth admissions to custody

while they accounted for only 15% of youth in the province (CCJS, 2001: 9)15.

Adult Aboriginal people are not a whole lot better off than their youthful

counterparts across Canada, again particularly in the Prairie Provinces and northern

Canada. Aboriginal adults account for 8% of the adult population in Saskatchewan.

However, they account for 76% of adult admissions to correctional facilities. In

Manitoba, adult Aboriginal people account for 9% of the population but accounted for

59% of provincial correctional populations (CCJS, 2001: 10).

One has to remember, of course, that correctional sentences do not represent the

majority of criminal justice processes. In fact, a very small percentage of criminal

offences result in sentences of custody. As such, one can assume that a far greater

number of Aboriginal people are represented in earlier criminal justice processes, from

police contact, court appearances, alternative measures processes, community sentences

and probation.

Despite the high numbers of Aboriginal people who go through the criminal

justice system processes, criminal behaviours are not at the core of many of the incidents

that led to the establishment of commissions and inquiries. Furthermore, most of the

18


processes, also indicate that Aboriginal people are over-represented as accused who are

found guilty and sentenced to jail. For example, the Canadian Centre for Justice

Statistics reports that, with the exception of youth in Prince Edward Island, Aboriginal

youth are over-represented in custodial facilities across Canada, particularly in the Prairie

Provinces and northern Canada. In Manitoba, Aboriginal youth account for 75% of

youth admissions to custody, while they represent 16% of Manitoba’s youth population.

In Saskatchewan, Aboriginal youth account for 75% of youth admissions to custody

while they accounted for only 15% of youth in the province (CCJS, 2001: 9)15.

Adult Aboriginal people are not a whole lot better off than their youthful

counterparts across Canada, again particularly in the Prairie Provinces and northern

Canada. Aboriginal adults account for 8% of the adult population in Saskatchewan.

However, they account for 76% of adult admissions to correctional facilities. In

Manitoba, adult Aboriginal people account for 9% of the population but accounted for

59% of provincial correctional populations (CCJS, 2001: 10).

One has to remember, of course, that correctional sentences do not represent the

majority of criminal justice processes. In fact, a very small percentage of criminal

offences result in sentences of custody. As such, one can assume that a far greater

number of Aboriginal people are represented in earlier criminal justice processes, from

police contact, court appearances, alternative measures processes, community sentences

and probation.

Despite the high numbers of Aboriginal people who go through the criminal

justice system processes, criminal behaviours are not at the core of many of the incidents

that led to the establishment of commissions and inquiries. Furthermore, most of the

18


incidents that actually do involve criminal justice system personnel that come to the

attention of the media and public are not simply criminal justice issues. Rather, they are

incidents that depict the results of a history of complex oppressive negative race relations

that have resulted in complex social issues for Aboriginal peoples. For example, racism

is the necessary ideological tool to justify the continued oppression of Aboriginal people.

As a result of racism, Aboriginal people are marginal. Marginality is correlated with

many social ills such as substance abuse, violence and poverty. Aboriginal people are

viewed as inferior to other Canadians partly because of the high rates of substance abuse,

poverty and violence in Aboriginal communities, which is a result of the process of

marginalization. Substance abuse, violence and poverty are not inherent in Aboriginal

communities, they are the aftermath of colonialist and continued oppression. Many of

the incidents reflect this particular dynamic; these dynamics occur on a small scale in the

everyday lives of Aboriginal communities. However, when they result in extreme

incidents, particularly those that indicate racism, they come to the attention of the media

as they highlight the difficulties in the race relationships that exist in Canada, particularly

where Aboriginal people are concerned.

The purpose of the commissions and inquiries should be to look at identifying the

dynamics behind the incidents in order to make recommendations to prevent similar

incidents from reoccurring. It is rare that the incidents can be attributed simply to

criminal justice system personnel or the Aboriginal people involved. Some commissions

and inquiries have looked outside of the criminal justice system, for example, the

Commission on First Nations and Metis Peoples and Justice Reform. This commission

19


incidents that actually do involve criminal justice system personnel that come to the

attention of the media and public are not simply criminal justice issues. Rather, they are

incidents that depict the results of a history of complex oppressive negative race relations

that have resulted in complex social issues for Aboriginal peoples. For example, racism

is the necessary ideological tool to justify the continued oppression of Aboriginal people.

As a result of racism, Aboriginal people are marginal. Marginality is correlated with

many social ills such as substance abuse, violence and poverty. Aboriginal people are

viewed as inferior to other Canadians partly because of the high rates of substance abuse,

poverty and violence in Aboriginal communities, which is a result of the process of

marginalization. Substance abuse, violence and poverty are not inherent in Aboriginal

communities, they are the aftermath of colonialist and continued oppression. Many of

the incidents reflect this particular dynamic; these dynamics occur on a small scale in the

everyday lives of Aboriginal communities. However, when they result in extreme

incidents, particularly those that indicate racism, they come to the attention of the media

as they highlight the difficulties in the race relationships that exist in Canada, particularly

where Aboriginal people are concerned.

The purpose of the commissions and inquiries should be to look at identifying the

dynamics behind the incidents in order to make recommendations to prevent similar

incidents from reoccurring. It is rare that the incidents can be attributed simply to

criminal justice system personnel or the Aboriginal people involved. Some commissions

and inquiries have looked outside of the criminal justice system, for example, the

Commission on First Nations and Metis Peoples and Justice Reform. This commission

19


looked at the child welfare system and educational system amongst others, but this is the

exception rather than the rule.

This lack of scope is unfortunate because problems in the delivery of education,

health and family services can be strongly implicated in the problems of Aboriginal

people and can impact what occurs in the criminal justice system. Incidents of family

violence16 often end up in the criminal justice system, when perhaps they should not17.

Many Aboriginal people who come into contact with the criminal justice system,

including those who were picked up on the "Starlight Tours", have a history of alcohol

abuse. Alcoholism should be a mental health issue that is addressed by the health system;

if it is not, then it is likely eventually addressed by the criminal justice system. Most

often, commissions and inquiries get caught up in looking at components of the criminal

justice system or Aboriginal communities. Instead of looking at how the police deal with

alcohol abuse, they need to start looking at the role of government, particularly

departments of health, in addressing alcohol abuse.

Where commissions and inquiries turn to issues in Aboriginal communities, the

focus tends to turn to be on Aboriginal offending, causes of crime and criminal justice

responses such as policing, courts, corrections and other components of the justice

system. This ends up being a back end analysis instead of a front-end analysis of the

services that are available for Aboriginal people. In other words, instead of analyzing the

causes of a particular group of effects, the commissions and inquiries look only at

improving the outcomes of effects rather than identifying the causes.

Considering that the criminal justice system is the ultimate system of social

control, one has to acknowledge that there are a number of failures in the system previous

20


looked at the child welfare system and educational system amongst others, but this is the

exception rather than the rule.

This lack of scope is unfortunate because problems in the delivery of education,

health and family services can be strongly implicated in the problems of Aboriginal

people and can impact what occurs in the criminal justice system. Incidents of family

16 17violence often end up in the criminal justice system, when perhaps they should not .

Many Aboriginal people who come into contact with the criminal justice system,

including those who were picked up on the “Starlight Tours”, have a history of alcohol

abuse. Alcoholism should be a mental health issue that is addressed by the health system;

if it is not, then it is likely eventually addressed by the criminal justice system. Most

often, commissions and inquiries get caught up in looking at components of the criminal

justice system or Aboriginal communities. Instead of looking at how the police deal with

alcohol abuse, they need to start looking at the role of government, particularly

departments of health, in addressing alcohol abuse.

Where commissions and inquiries turn to issues in Aboriginal communities, the

focus tends to turn to be on Aboriginal offending, causes of crime and criminal justice

responses such as policing, courts, corrections and other components of the justice

system. This ends up being a back end analysis instead of a front-end analysis of the

services that are available for Aboriginal people. In other words, instead of analyzing the

causes of a particular group of effects, the commissions and inquiries look only at

improving the outcomes of effects rather than identifying the causes.

Considering that the criminal justice system is the ultimate system of social

control, one has to acknowledge that there are a number of failures in the system previous

20


to the criminal justice system, such as the health, social service and education systems,

that allow Aboriginal people to fall through the cracks far enough to come to the attention

of the criminal justice system. For instance, in the cases of Aboriginal children who have

difficulty attending school18, one has to question the availability of supports for the child

and the child's family to assist the child in achieving an education. There may be a

number of supports that are relevant to such a child, including educational assistance for

learning difficulties, social supports for families experiencing difficulties and medical,

mental health or other supports for families experiencing a range of difficulties. Further,

one has to question the environment of the school, including the possibility of bullying or

racist behaviour from students and staff In any case, people who have trouble coping,

and who do not have any supportive resources, tend to be more likely to encounter the

attentions of the criminal justice system. In this case, the child who is not supported in

going to school can end up coming to the attention of the criminal justice system. The

criminal justice system, in this case, would be the back end of the social service system,

the educational system and the health system, which are all intended to provide services

in their respective areas for all citizens.

While there are undoubtedly injustices in all of the different areas, an analysis of

these areas alone can do nothing to identify the problems behind the actual incidents that

led to the establishment of commissions and inquiries. More comprehensive attempts

include trying to acknowledge or address those elements that bring Aboriginal people to

the attention of the justice system, but they do not go far enough, nor do they address the

dynamics behind the original incidents. A proper understanding of the degree of

deflection requires a closer look at the incidents that led to the establishment of

21


to the criminal justice system, such as the health, social service and education systems,

that allow Aboriginal people to fall through the cracks far enough to come to the attention

of the criminal justice system. For instance, in the cases of Aboriginal children who have

difficulty attending school18, one has to question the availability of supports for the child

and the child’s family to assist the child in achieving an education. There may be a

number of supports that are relevant to such a child, including educational assistance for

learning difficulties, social supports for families experiencing difficulties and medical,

mental health or other supports for families experiencing a range of difficulties. Further,

one has to question the environment of the school, including the possibility of bullying or

racist behaviour from students and staff. In any case, people who have trouble coping,

and who do not have any supportive resources, tend to be more likely to encounter the

attentions of the criminal justice system. In this case, the child who is not supported in

going to school can end up coming to the attention of the criminal justice system. The

criminal justice system, in this case, would be the back end of the social service system,

the educational system and the health system, which are all intended to provide services

in their respective areas for all citizens.

While there are undoubtedly injustices in all of the different areas, an analysis of

these areas alone can do nothing to identify the problems behind the actual incidents that

led to the establishment of commissions and inquiries. More comprehensive attempts

include trying to acknowledge or address those elements that bring Aboriginal people to

the attention of the justice system, but they do not go far enough, nor do they address the

dynamics behind the original incidents. A proper understanding of the degree of

deflection requires a closer look at the incidents that led to the establishment of

21


commissions and inquiries into the relationship of Aboriginal people and the criminal

justice system.

2.2 Donald Marshall Jr.

Donald Marshall Jr. (Harris, 1990)19 grew up on the Membertou First Nation in

Nova Scotia with his mother, father and 12 brothers and sisters. His father was the Grand

Chief and spiritual leader of the Micmac Nation and a plasterer by trade, while his mother

worked at the local hospital as a cleaner. His parents were often away, and Marshall Jr.

recounts that "My mother and father tried to deal with us whenever they had the time but

they worked a lot. In a way, we were brought up by babysitters" (Harris, 1990: 21-22).

Donald Marshall Jr., also known as "Junior" or "Little Rock," was by no means a

perfect kid. By the time he was 15 he was expelled from school for hitting a teacher, and

was given the choice by the court of going to work with his father or moving away to the

Shelburne School for boys. Harris writes,

Junior was far from upset at the premature end to his formal education. The idea of working as an apprentice plasterer with his father was much more to his liking than going to a school where the white kids were the spoiled darlings of the staff and the Indian kids were 'treated like dirt'. (Harris, 1990: 21)

No longer in school and a part of the working class, and often among bored young men

on reserve, Marshall Jr. and his acquaintances began visiting the city of Sydney looking

for excitement in the forms of "petty vandalism, drinking, and fighting" (Harris, 1990:

22). Marshall Jr. admits having harassed people for change, making them "roll out their

pockets" (Harris, 1990: 22-23) and was sentenced to a day in jail for stealing wine from a

bootlegger (Harris, 1990: 25).

22


commissions and inquiries into the relationship of Aboriginal people and the criminal

justice system.

2.2 Donald Marshall Jr.

Donald Marshall Jr. (Harris, 1990)19 grew up on the Membertou First Nation in

Nova Scotia with his mother, father and 12 brothers and sisters. His father was the Grand

Chief and spiritual leader of the Micmac Nation and a plasterer by trade, while his mother

worked at the local hospital as a cleaner. His parents were often away, and Marshall Jr.

recounts that “My mother and father tried to deal with us whenever they had the time but

they worked a lot. In a way, we were brought up by babysitters” (Harris, 1990: 21-22).

Donald Marshall Jr., also known as “Junior” or “Little Rock,” was by no means a

perfect kid. By the time he was 15 he was expelled from school for hitting a teacher, and

was given the choice by the court of going to work with his father or moving away to the

Shelburne School for boys. Harris writes,

Junior was far from upset at the premature end to his formal education. The idea of working as an apprentice plasterer with his father was much more to his liking than going to a school where the white kids were the spoiled darlings of the staff and the Indian kids were ‘treated like dirt’. (Harris, 1990: 21)

No longer in school and a part of the working class, and often among bored young men

on reserve, Marshall Jr. and his acquaintances began visiting the city of Sydney looking

for excitement in the forms of “petty vandalism, drinking, and fighting” (Harris, 1990:

22). Marshall Jr. admits having harassed people for change, making them “roll out their

pockets” (Harris, 1990: 22-23) and was sentenced to a day in jail for stealing wine from a

bootlegger (Harris, 1990: 25).

22


By the time Marshall Jr. was accused of murdering Sandy Seale, he had had

enough run ins with the police to be known by the local Sydney Police Chief, John

Maclntyre. In one case investigated by MacIntyre, Marshall Jr. was falsely charged with

rape. As the "victim" testified in court that her sexual relationship with Marshall Jr. was

consensual, the case completely fell apart. Maclntyre promised Marshall Jr. and one of

his friends that he'd get them "next time" (Harris, 1990: 27).

The next time McIntyre questioned Marshall Jr. was when numerous headstones

had been knocked over in the graveyard, including one that read "Maclntyre". Although

Marshall Jr. knew who the culprits were, he refused to inform on them. He says about

the incident "I told him no way it was me. I told him I was there, I know who knocked

`em down, but it was up to him to find out who. I wasn't giving him fuck all" (Harris,

1990: 28). Obviously, over the course of time Marshall Jr. and Maclntyre grew to resent

each other greatly.

Harris summed up the context for Marshall Jr.'s defiant behaviour very succinctly

when he wrote the following about the state of race relations in Sydney, Nova Scotia at

the time McIntyre and Marshall Jr. were butting heads.

The ritual defiance had its roots in what the young Indians saw as a social and legal system that was stacked against them the moment they stepped off the reserve. If trouble broke out at Sydney's teen dances, for example, the Indians felt the treatment they got was very different from that given their white counterparts. (Han-is, 1990: 29)

Kevin Christmas, a cousin of Marshall Jr.'s, stated the following regarding the

differential treatment by police.

We would never see them arresting non-Indian people. They would kick them out of the dance or send them home, but Indians they would arrest and take them down. And I mean we've seen, I mean I've talked to people who were arrested the

23


By the time Marshall Jr. was accused of murdering Sandy Seale, he had had

enough run ins with the police to be known by the local Sydney Police Chief, John

MacIntyre. In one case investigated by MacIntyre, Marshall Jr. was falsely charged with

rape. As the “victim” testified in court that her sexual relationship with Marshall Jr. was

consensual, the case completely fell apart. MacIntyre promised Marshall Jr. and one of

his friends that he’d get them “next time” (Harris, 1990: 27).

The next time McIntyre questioned Marshall Jr. was when numerous headstones

had been knocked over in the graveyard, including one that read “MacIntyre”. Although

Marshall Jr. knew who the culprits were, he refused to inform on them. He says about

the incident “I told him no way it was me. I told him I was there, I know who knocked

‘em down, but it was up to him to find out who. I wasn’t giving him fuck all” (Harris,

1990: 28). Obviously, over the course of time Marshall Jr. and MacIntyre grew to resent

each other greatly.

Harris summed up the context for Marshall Jr.’s defiant behaviour very succinctly

when he wrote the following about the state of race relations in Sydney, Nova Scotia at

the time McIntyre and Marshall Jr. were butting heads.

The ritual defiance had its roots in what the young Indians saw as a social and legal system that was stacked against them the moment they stepped off the reserve. If trouble broke out at Sydney’s teen dances, for example, the Indians felt the treatment they got was very different from that given their white counterparts. (Harris, 1990: 29)

Kevin Christmas, a cousin of Marshall Jr.’s, stated the following regarding the

differential treatment by police.

We would never see them arresting non-Indian people. They would kick them out of the dance or send them home, but Indians they would arrest and take them down. And I mean we’ve seen, I mean I’ve talked to people who were arrested the

23


night before and I'd see them the next day and they'd have black eyes and a tooth missing... (Harris, 1990: 29)

This was the social and cultural contextual climate on the night of May 28, 1971,

as Donald Marshall Jr. and Sandy Seale were walking through Wentworth Park on the

way home from a dance. Roy Ebsary, a 59-year-old eccentric alcoholic who often

dressed like a ship's captain, had been drinking with his friend Jimmy MacNeil, a 25-

year-old unemployed labourer, and they had been in the park asking people for cigarettes.

Marshall Jr. had seen them earlier but did not pay much attention to them, passing them

off as bums.

The second time Marshall Jr. met the two men with Seale, however, they stopped

to talk. Ebsary and MacNeil asked Marshall Jr. and Seale to come and drink with them,

but Seale and Marshall Jr. declined their invitation (Harris, 1990: 39-42). As the two

older men went to leave, Marshall Jr. called them back, and Seale asked them for money,

telling them to "Dig, man, dig" (Harris, 1990: 42).

Without warning, Ebsary pulled a knife from the pocket he was digging in and

stabbed Seale in the abdomen, and when Marshall Jr. tried to intervene, Ebsary slashed

his left arm. Marshall Jr. staggered and then got up, and ran through the park and the

streets to find help. One of the people Marshall Jr. encountered in this brief period was

Maynard Chant. He told Chant and several other people what had happened and showed

them his arm (Harris, 1990: 43). Marvel Mattson, a retired RCMP officer, overheard the

commotion and called the police twice and the police called the ambulance (Harris, 1990:

44-45).

24


night before and I’d see them the next day and they’d have black eyes and a tooth missing...(Harris, 1990: 29)

This was the social and cultural contextual climate on the night of May 28,1971,

as Donald Marshall Jr. and Sandy Seale were walking through Wentworth Park on the

way home from a dance. Roy Ebsary, a 59-year-old eccentric alcoholic who often

dressed like a ship’s captain, had been drinking with his friend Jimmy MacNeil, a 25-

year-old unemployed labourer, and they had been in the park asking people for cigarettes.

Marshall Jr. had seen them earlier but did not pay much attention to them, passing them

off as bums.

The second time Marshall Jr. met the two men with Seale, however, they stopped

to talk. Ebsary and MacNeil asked Marshall Jr. and Seale to come and drink with them,

but Seale and Marshall Jr. declined their invitation (Harris, 1990: 39-42). As the two

older men went to leave, Marshall Jr. called them back, and Seale asked them for money,

telling them to “Dig, man, dig” (Harris, 1990: 42).

Without warning, Ebsary pulled a knife from the pocket he was digging in and

stabbed Seale in the abdomen, and when Marshall Jr. tried to intervene, Ebsary slashed

his left arm. Marshall Jr. staggered and then got up, and ran through the park and the

streets to find help. One of the people Marshall Jr. encountered in this brief period was

Maynard Chant. He told Chant and several other people what had happened and showed

them his arm (Harris, 1990: 43). Marvel Mattson, a retired RCMP officer, overheard the

commotion and called the police twice and the police called the ambulance (Harris, 1990:

44-45).

24


Chant accompanied Marshall Jr. back to the scene, and placed his coat over Seale

as he lay on the sidewalk while they waited for paramedics to arrive. Debbie

MacPherson and Robert MacKay were a young couple who had just left the dance, and

who had come upon Seale as he lay in the park (Harris, 1990: 41-42). MacPherson and

MacKay joined Marshall Jr. and Chant and they talked about what had happened.

After Ebsary stabbed Seale and Marshall Jr., he and MacNeil went back to

Ebsary's house to barbecue steaks, while Seale lay on the ground bleeding to death and

while Marshall Jr. ran through the park and the nearby neighborhood telling his story

looking for help. During the course of the evening, Marshall Jr. told his story of the two

strangers and the stabbing to at least a dozen people, including several policemen,

ambulance attendants and hospital personnel (Harris. 1990: 43-51). He recounted his

story before he was a suspect and as such, he had no motivation to lie to people about the

events of the evening while running around bleeding and looking for help for himself and

his friend.

Seale died on May 29, 1971. From the perspective of the official investigation by

the police, there were no witnesses other than Marshall, there was no substantial physical

evidence, and no sign of the mysterious men that Marshall had identified as the

perpetrators. There was also the added pressure of a previously unsolved murder, and a

police chief, John MacIntyre, who was seeking revenge on his nemesis, Marshall Jr. All

of these factors combined served to put Marshall Jr. at a serious disadvantage.

Marshall Jr. came to be considered a suspect after the investigation failed to locate

and identify the two strangers he had described to the police. Maclntyre had the creeks

drained in an attempt to find the murder weapon, which was actually in Ebsary's

25


Chant accompanied Marshall Jr. back to the scene, and placed his coat over Seale

as he lay on the sidewalk while they waited for paramedics to arrive. Debbie

MacPherson and Robert MacKay were a young couple who had just left the dance, and

who had come upon Seale as he lay in the park (Harris, 1990: 41-42). MacPherson and

MacKay joined Marshall Jr. and Chant and they talked about what had happened.

After Ebsary stabbed Seale and Marshall Jr., he and MacNeil went back to

Ebsary’s house to barbecue steaks, while Seale lay on the ground bleeding to death and

while Marshall Jr. ran through the park and the nearby neighborhood telling his story

looking for help. During the course of the evening, Marshall Jr. told his story of the two

strangers and the stabbing to at least a dozen people, including several policemen,

ambulance attendants and hospital personnel (Harris. 1990: 43-51). He recounted his

story before he was a suspect and as such, he had no motivation to lie to people about the

events of the evening while running around bleeding and looking for help for himself and

his friend.

Seale died on May 29,1971. From the perspective of the official investigation by

the police, there were no witnesses other than Marshall, there was no substantial physical

evidence, and no sign of the mysterious men that Marshall had identified as the

perpetrators. There was also the added pressure of a previously unsolved murder, and a

police chief, John MacIntyre, who was seeking revenge on his nemesis, Marshall Jr. All

of these factors combined served to put Marshall Jr. at a serious disadvantage.

Marshall Jr. came to be considered a suspect after the investigation failed to locate

and identify the two strangers he had described to the police. MacIntyre had the creeks

drained in an attempt to find the murder weapon, which was actually in Ebsary’s

25


basement until it was discovered in the final investigation, and began questioning

possible witnesses. Harris writes that "The policeman already considered Junior

Marshall a suspect and concentrated his search of the drained pond adjacent to the path

the young Indian had taken as he fled the stabbing scene on the night of the murder"

(1990: 58).

Several witnesses were present that night near the scene where Seale was stabbed

and killed by Roy Ebsary, and all of the witnesses, some of whom approached police of

their own volition, initially told police that two unknown strangers were involved in the

stabbing of Sandy Seale. One of these witnesses was Maynard Chant, one of the first

people that Marshall Jr. recounted his story to, and who accompanied Marshall Jr. back to

the scene of the stabbing, and who laid his coat over Seale as he lay bleeding on the

ground.

Chant lied to police during the initial interview by telling them that he was

actually at the scene of the stabbing where there were two suspects over six feet tall, and

that one of them stabbed Sandy Seale. He believed at the time that the police would be

happy with him for telling them what they wanted to hear, and said that he was surprised

that "he was left with the very distinctive impression that the detectives were 'very

disappointed' in him" (Harris, 1990: 60). Maynard Chant was not the last witness to

experience this feeling.

John Pratico was a friend of Marshall Jr.'s. Harris writes,

...Sixteen-year-old Pratico had begun tagging along with the 'Indian guys' in the summer of 1970, about the time he became a psychiatric patient of Dr, M. A. Mian... An outcast of white gangs and a heavy drinker, Pratico was diagnosed as a schizophrenic with a 'rather childish desire to be in the limelight or centre of attention' ... From August 1970 he was placed on 'continual medication' so that he could 'function outside of a psychiatric institution... (Harris, 1990: 29)

26


basement until it was discovered in the final investigation, and began questioning

possible witnesses. Harris writes that “The policeman already considered Junior

Marshall a suspect and concentrated his search of the drained pond adjacent to the path

the young Indian had taken as he fled the stabbing scene on the night of the murder”

(1990: 58).

Several witnesses were present that night near the scene where Seale was stabbed

and killed by Roy Ebsary, and all of the witnesses, some of whom approached police of

their own volition, initially told police that two unknown strangers were involved in the

stabbing of Sandy Seale. One of these witnesses was Maynard Chant, one of the first

people that Marshall Jr. recounted his story to, and who accompanied Marshall Jr. back to

the scene of the stabbing, and who laid his coat over Seale as he lay bleeding on the

ground.

Chant lied to police during the initial interview by telling them that he was

actually at the scene of the stabbing where there were two suspects over six feet tall, and

that one of them stabbed Sandy Seale. He believed at the time that the police would be

happy with him for telling them what they wanted to hear, and said that he was surprised

that “he was left with the very distinctive impression that the detectives were ‘very

disappointed’ in him” (Harris, 1990: 60). Maynard Chant was not the last witness to

experience this feeling.

John Pratico was a friend of Marshall Jr.’s. Harris writes,

.. .Sixteen-year-old Pratico had begun tagging along with the ‘Indian guys’ in the summer of 1970, about the time he became a psychiatric patient of Dr, M. A. Mian... An outcast of white gangs and a heavy drinker, Pratico was diagnosed as a schizophrenic with a ‘rather childish desire to be in the limelight or centre of attention’... From August 1970 he was placed on ‘continual medication’ so that he could ‘function outside of a psychiatric institution... (Harris, 1990: 29)

26


Unfortunately, Pratico was the next witness to give a statement to police.

Initially, Pratico remembers wondering why the police would want to talk to him

about the murder of Sandy Seale by his good friend, Marshall Jr. He had been in the

vicinity, having been at the dance, but he was not with Marshall Jr. or Seale at any time

during that evening, and by his own admission, he had been too drunk to have noticed

anything had he be been present. Harris writes that "he had been drinking heavily at the

St. Joseph's teen dance, so heavily in fact that his Indian friends had taken him to a

nearby lumberyard to sober up away from the watchful eyes of the Sydney policemen"

(1990: 61). Upon hearing about the stabbing in the park the morning after it happened,

he asked his mother who had been stabbed. Harris notes that this is an odd question

coming from the person who would be the Crown's main eyewitness within a week

(Harris: 1990: 62).

Later during the inquiry, Pratico would remember that when he told them he knew

nothing about the stabbing, the police told him "... if you don't tell us about it we're

going to put you in jail until you do tell us" (Harris, 1990: 64). On this note, Pratico's

recount of the story that he knew only through the words of Marshall Jr. became a signed

statement of his own eyewitness account in which

... he did little more than embroider on the facts of the stabbing as Junior Marshall had presented them to him on his porch the day before. 'I was over by the courthouse when I heard a scream. I saw two fellows running from the direction of the screaming. They jumped into a white Volkswagen, blue license and white numbers on it (Harris, 1990: 64).

Pratico described one of the men as being five feet five inches tall and wearing a brown

corduroy jacket, and the other being six feet tall with a grey suit, a description that did

27


Unfortunately, Pratico was the next witness to give a statement to police.

Initially, Pratico remembers wondering why the police would want to talk to him

about the murder of Sandy Seale by his good friend, Marshall Jr. He had been in the

vicinity, having been at the dance, but he was not with Marshall Jr. or Seale at any time

during that evening, and by his own admission, he had been too drunk to have noticed

anything had he be been present. Harris writes that “he had been drinking heavily at the

St. Joseph’s teen dance, so heavily in fact that his Indian friends had taken him to a

nearby lumberyard to sober up away from the watchful eyes of the Sydney policemen”

(1990: 61). Upon hearing about the stabbing in the park the morning after it happened,

he asked his mother who had been stabbed. Harris notes that this is an odd question

coming from the person who would be the Crown’s main eyewitness within a week

(Harris: 1990: 62).

Later during the inquiry, Pratico would remember that when he told them he knew

nothing about the stabbing, the police told him “... if you don’t tell us about it we’re

going to put you in jail until you do tell us” (Harris, 1990: 64). On this note, Pratico’s

recount of the story that he knew only through the words of Marshall Jr. became a signed

statement of his own eyewitness account in which

... he did little more than embroider on the facts of the stabbing as Junior Marshall had presented them to him on his porch the day before. ‘I was over by the courthouse when I heard a scream. I saw two fellows running from the direction of the screaming. They jumped into a white Volkswagen, blue license and white numbers on it (Harris, 1990: 64).

Pratico described one of the men as being five feet five inches tall and wearing a brown

corduroy jacket, and the other being six feet tall with a grey suit, a description that did

27


not match the description of the men given by Chant or Marshall Jr. As Harris so aptly

comments, "In less than a week, that problem would inexplicably resolve itself' (Harris,

1990: 64).

For the most part, much of the witnesses gave hearsay evidence based on what

they had heard Donald Marshall Jr. say about the night in question. In other words,

although the police wanted to be able to press charges against Marshall Jr., they had no

legally acceptable evidence on which to do so. It was at this point in the investigation

that they picked up Pratico again, telling him that they knew he was lying to them and

that he ought to reconsider his statement. As a result, a week after the death of Sandy

Seale, Practico gave a different and completely fabricated statement, just two months

before he was committed to a mental institution for suffering a nervous breakdown. This

time, he stated for the record that he witnessed Marshall Jr. stab Sandy Seale in an

argument on the night of May 28 (Harris, 1990: 72-73).

Based on the changes to Pratico's statement, the police visited Chant to question

him again. This time, they told him that they had evidence that he made up his initial

statement, and Chant recalled later that they told him "...you've already perjured yourself

by this statement and you could suffer very serious consequences. You could probably

get two to five years..." (Harris, 1990: 75). Subsequent to this threat, Chant signed a

new statement claiming that he saw Marshall Jr. stab Sandy Seale after witnessing them

having an argument. Later on during the inquiry, McIntyre admitted to having signed the

statement for Chant's mother and probation officer after they denied having done so

(Harris, 1990: 75).

28


not match the description of the men given by Chant or Marshall Jr. As Harris so aptly

comments, “In less than a week, that problem would inexplicably resolve itself’ (Harris,

1990: 64).

For the most part, much of the witnesses gave hearsay evidence based on what

they had heard Donald Marshall Jr. say about the night in question. In other words,

although the police wanted to be able to press charges against Marshall Jr., they had no

legally acceptable evidence on which to do so. It was at this point in the investigation

that they picked up Pratico again, telling him that they knew he was lying to them and

that he ought to reconsider his statement. As a result, a week after the death of Sandy

Seale, Practico gave a different and completely fabricated statement, just two months

before he was committed to a mental institution for suffering a nervous breakdown. This

time, he stated for the record that he witnessed Marshall Jr. stab Sandy Seale in an

argument on the night of May 28 (Harris, 1990: 72-73).

Based on the changes to Pratico’s statement, the police visited Chant to question

him again. This time, they told him that they had evidence that he made up his initial

statement, and Chant recalled later that they told him “.. .you’ve already peijured yourself

by this statement and you could suffer very serious consequences. You could probably

get two to five years...” (Harris, 1990: 75). Subsequent to this threat, Chant signed a

new statement claiming that he saw Marshall Jr. stab Sandy Seale after witnessing them

having an argument. Later on during the inquiry, McIntyre admitted to having signed the

statement for Chant’s mother and probation officer after they denied having done so

(Harris, 1990: 75).

28


It is important to note that both Chant and Pratico were extremely unreliable and

unstable witnesses. In both cases, the witnesses were young, afraid of the police, and

were attempting to please the police by lying and giving false statements. Pratico was

particularly vulnerable, due to his alcoholism and mental illness. In both instances, the

witnesses were pressured and contradicted themselves throughout their interviews, and

later, throughout the trial. Almost three weeks into the investigation, however, 14 year

old Patricia Harriss gave police a statement that, in the minds of the police, would

"closely connect Junior Marshall to the crime" (Harris, 1990: 89).

Patricia Harriss first stated that she and her boyfriend ran into Marshall Jr. while

he was talking with the two strangers. She indicated that Marshall Jr. told her that they

were "crazy", and she noticed Ebsary in particular because he appeared to be so

eccentric. She gave a very detailed description of the men, in particular saying "one man

was short with a long coat. Grey or white hair, with a long coat" (Harris, 1990: 90).

During the course of her discussions with police, however, McIntyre took over the

interview process, and her statement changed dramatically. Harris writes,

During the interrogation, Harriss felt that the police were telling her what she should have seen, banging their fists on the table when they were unhappy with what she was telling them, and changing her statements repeatedly. Finally she, like Chant and Pratico, signed a second, and false, statement. (1990: 92)

The police in the case, particularly John McIntyre, pressured and intimidated the

witnesses to obtain false statements. Chant was a troubled kid who wanted to please,

Pratico suffered from mental illness and addiction, and Harriss was a grade seven student,

all easy targets for intimidation and manipulation, particularly when under duress.

29


It is important to note that both Chant and Pratico were extremely unreliable and

unstable witnesses. In both cases, the witnesses were young, afraid of the police, and

were attempting to please the police by lying and giving false statements. Pratico was

particularly vulnerable, due to his alcoholism and mental illness. In both instances, the

witnesses were pressured and contradicted themselves throughout their interviews, and

later, throughout the trial. Almost three weeks into the investigation, however, 14 year

old Patricia Harriss gave police a statement that, in the minds of the police, would

“closely connect Junior Marshall to the crime” (Harris, 1990: 89).

Patricia Harriss first stated that she and her boyfriend ran into Marshall Jr. while

he was talking with the two strangers. She indicated that Marshall Jr. told her that they

were “crazy”, and she noticed Ebsary in particular because he appeared to be so

eccentric. She gave a very detailed description of the men, in particular saying “one man

was short with a long coat. Grey or white hair, with a long coat” (Harris, 1990: 90).

During the course of her discussions with police, however, McIntyre took over the

interview process, and her statement changed dramatically. Harris writes,

During the interrogation, Harriss felt that the police were telling her what she should have seen, banging their fists on the table when they were unhappy with what she was telling them, and changing her statements repeatedly. Finally she, like Chant and Pratico, signed a second, and false, statement. (1990: 92)

The police in the case, particularly John McIntyre, pressured and intimidated the

witnesses to obtain false statements. Chant was a troubled kid who wanted to please,

Pratico suffered from mental illness and addiction, and Harriss was a grade seven student,

all easy targets for intimidation and manipulation, particularly when under duress.

29


The police did not conduct a proper investigation from the beginning. In fact, the

treatment of the initial crime scene brings to mind a staged play full of bumbling

characters who forget their lines while bumping into one another and destroying the set.

The crime scene was not cordoned off or secured in any way, and witnesses at the scene

were not immediately identified or questioned (Nova Scotia, 1989b: 2). The

mishandling of the case grew even more tragically and dramatically ridiculous as time

went on. However, Marshall Jr. was charged with the second-degree murder of Sandy

Seale.

The Crown prosecutor at the preliminary hearing was Donald McNeil, an attorney

who had been recently reprimanded by the Human Rights Commission for displaying

discriminatory statements against Aboriginal people (Harris: 1990: 104-105). Judge

John A. MacDonald had been the judge who had denied Marshall Jr. bail after his arrest

in the murder (Harris: 1990: 98). Despite the fact that there were several problems

implicit in the preliminary hearing, such as evidence that Harriss's statement was

coached by the police and that Chant and Pratico were not reliable witnesses, the case

proceeded to trial.

If the investigation and preliminary hearing were a sham, things got even worse

with the trial. The presiding judge, J. Louis Dubinsky, was the brother-in-law of one of

the defense attorneys, Moe Rosenblum, which for some reason, was not a problem for the

Crown prosecutor, Donald MacNeil, who was the attorney who had recently been

disciplined by the Human Rights Commission. The jury consisted of 12 white men

(Harris, 1990: 130).

30


The police did not conduct a proper investigation from the beginning. In fact, the

treatment of the initial crime scene brings to mind a staged play full of bumbling

characters who forget their lines while bumping into one another and destroying the set.

The crime scene was not cordoned off or seemed in any way, and witnesses at the scene

were not immediately identified or questioned (Nova Scotia, 1989b: 2). The

mishandling of the case grew even more tragically and dramatically ridiculous as time

went on. However, Marshall Jr. was charged with the second-degree murder of Sandy

Seale.

The Crown prosecutor at the preliminary hearing was Donald McNeil, an attorney

who had been recently reprimanded by the Human Rights Commission for displaying

discriminatory statements against Aboriginal people (Harris: 1990: 104-105). Judge

John A. MacDonald had been the judge who had denied Marshall Jr. bail after his arrest

in the murder (Harris: 1990: 98). Despite the fact that there were several problems

implicit in the preliminary hearing, such as evidence that Harriss’s statement was

coached by the police and that Chant and Pratico were not reliable witnesses, the case

proceeded to trial.

If the investigation and preliminary hearing were a sham, things got even worse

with the trial. The presiding judge, J. Louis Dubinsky, was the brother-in-law of one of

the defense attorneys, Moe Rosenblum, which for some reason, was not a problem for the

Crown prosecutor, Donald MacNeil, who was the attorney who had recently been

disciplined by the Human Rights Commission. The jury consisted of 12 white men

(Harris, 1990: 130).

30


The Crown's evidence consisted primarily of the statements given under duress

by Pratico, Chant, and Harriss, who claimed only that she had seen Marshall Jr. and

another man near the incident on the night it occurred. The defense did not have access

to the initial statements identifying two suspects at the stabbing, they only had access to

the official statements given by the witnesses to the police. As a result, the defense was

unable to make the connection to the two strangers that Marshall Jr. had reported as being

involved in the stabbing. The physical evidence was limited to Seale's bloodied clothing,

Marshall's bloodied jacket that was torn where he himself had been stabbed, a blood

stained tissue and a map of the park (Harris, 1990: 131). There was no match between

the blood on Seale's clothing and Marshall Jr.'s jacket (Harris, 1990: 131, 140). What

evidence there was in the statements that indicated a link between the murder and

Marshall Jr. was completely unreliable, and the physical evidence was entirely

circumstantial.

Besides bad evidence, irrelevant and inconsistent testimony, questionable court

proceedings plagued the trial as well. Chant and Pratico both admitted to having told

police lies about the case earlier in the investigation, which alone should have cast doubt

on their testimony. Pratico refuted points in his official statement and Harriss changed

her testimony, making it more difficult for the prosecution to argue that she had seen

Marshall Jr. almost immediately before the stabbing. Chant repeatedly contradicted his

testimony from the preliminary hearing and in his statement, including that he couldn't be

sure that Marshall Jr. and Seale were arguing, if he saw the knife, and was not sure if it

was actually Marshall Jr. that he saw. He also admitted giving the police a false

statement prior to the one he testified to (Harris, 1990: 161-169).

31


The Crown’s evidence consisted primarily of the statements given under duress

by Pratico, Chant, and Harriss, who claimed only that she had seen Marshall Jr. and

another man near the incident on the night it occurred. The defense did not have access

to the initial statements identifying two suspects at the stabbing, they only had access to

the official statements given by the witnesses to the police. As a result, the defense was

unable to make the connection to the two strangers that Marshall Jr. had reported as being

involved in the stabbing. The physical evidence was limited to Seale’s bloodied clothing,

Marshall’s bloodied jacket that was tom where he himself had been stabbed, a blood

stained tissue and a map of the park (Harris, 1990: 131). There was no match between

the blood on Seale’s clothing and Marshall Jr.’s jacket (Harris, 1990: 131, 140). What

evidence there was in the statements that indicated a link between the murder and

Marshall Jr. was completely unreliable, and the physical evidence was entirely

circumstantial.

Besides bad evidence, irrelevant and inconsistent testimony, questionable court

proceedings plagued the trial as well. Chant and Pratico both admitted to having told

police lies about the case earlier in the investigation, which alone should have cast doubt

on their testimony. Pratico refuted points in his official statement and Harriss changed

her testimony, making it more difficult for the prosecution to argue that she had seen

Marshall Jr. almost immediately before the stabbing. Chant repeatedly contradicted his

testimony from the preliminary hearing and in his statement, including that he couldn’t be

sure that Marshall Jr. and Seale were arguing, if he saw the knife, and was not sure if it

was actually Marshall Jr. that he saw. He also admitted giving the police a false

statement prior to the one he testified to (Harris, 1990: 161-169).

31


At one point, Pratico admitted in the court halls to Marshall Sr., Marshall Jr.'s

defense attorney, a Sheriff and the Crown prosecutor that he had lied in his statement and

subsequent testimony (Harris, 1990: 157-158). He would later testify that he had been

very drunk and unsure at times of who he was with. As well, Pratico would later admit to

the judge he told the officials in the hall that Marshall Jr. did not stab Seale (Harris, 1990:

177-178), but claimed that it had been because he was afraid that the "Indians" would

seek revenge on him for testifying against Marshall Jr. (Harris, 1990: 184).

On November 5th, 1971, after only four hours of deliberation, the all white male

jury pronounced Donald Marshall Jr. guilty of second degree murder in the death of

Sandy Seale. Judge MacDonald sentenced Marshall Jr. to life in prison at the Dorchester

Penitentiary in New Brunswick (Harris, 1990: 219-220). However, that was still not the

end of the story.

Shortly after Marshall Jr.'s imprisonment, and after Ebsary refused to have

contact with him, Jimmy MacNeil admitted to his family that he had been present on the

night of the stabbing, and that an innocent man was in jail for the murder of Sandy Seale.

Jimmy went to the police station with his brothers to talk to the police, and to give a

statement that he had been at the scene the night that Sandy Seale was murdered.

MacNeil also revealed that it was Roy Ebsary, the other stranger, who did the stabbing

instead of Donald Marshall Jr. (Harris, 1990: 222-226).

The police followed up be doing a mini-reinvestigation of the murder. They

picked up Ebsary, his wife and his son, and took them in for questioning. During this

period, Ebsary admitted to having been with MacNeil, Marshall Jr. and Seale on the night

of the stabbing. He described the exact same story as MacNeil had earlier, only in his

32


At one point, Pratico admitted in the court halls to Marshall Sr., Marshall Jr.’s

defense attorney, a Sheriff and the Crown prosecutor that he had lied in his statement and

subsequent testimony (Harris, 1990: 157-158). He would later testify that he had been

very drunk and unsure at times of who he was with. As well, Pratico would later admit to

the judge he told the officials in the hall that Marshall Jr. did not stab Seale (Harris, 1990:

177-178), but claimed that it had been because he was afraid that the “Indians” would

seek revenge on him for testifying against Marshall Jr. (Harris, 1990: 184).

On November 5th, 1971, after only four hours of deliberation, the all white male

jury pronounced Donald Marshall Jr. guilty of second degree murder in the death of

Sandy Seale. Judge MacDonald sentenced Marshall Jr. to life in prison at the Dorchester

Penitentiary in New Brunswick (Harris, 1990: 219-220). However, that was still not the

end of the story.

Shortly after Marshall Jr.’s imprisonment, and after Ebsary refused to have

contact with him, Jimmy MacNeil admitted to his family that he had been present on the

night of the stabbing, and that an innocent man was in jail for the murder of Sandy Seale.

Jimmy went to the police station with his brothers to talk to the police, and to give a

statement that he had been at the scene the night that Sandy Seale was murdered.

MacNeil also revealed that it was Roy Ebsary, the other stranger, who did the stabbing

instead of Donald Marshall Jr. (Harris, 1990: 222-226).

The police followed up be doing a mini-reinvestigation of the murder. They

picked up Ebsary, his wife and his son, and took them in for questioning. During this

period, Ebsary admitted to having been with MacNeil, Marshall Jr. and Seale on the night

of the stabbing. He described the exact same story as MacNeil had earlier, only in his

32


version of events, the night ended with MacNeil and Ebsary fighting off a mugging by

Seale and Marshall Jr., and no one was hurt (Harris, 1990: 228-231). Soon after Ebsary

and MacNeil gave their statements to the police, McIntyre passed the file over to the

RCMP and "bailed out" of the investigation (Harris, 1990: 232-233).

The RCMP flew into Sydney from Regina to administer polygraph tests to both

MacNeil and Ebsary. The assessment of the polygraph given to MacNeil amounted to

little more than an "amateur psycho-analysis" rather than a professional police

investigation. The assessment included the following description of MacNeil and his

version of events.

We interviewed MacNeil and it was obvious by his demeanor and speech that he has subnormal intelligence and is slightly mental. He was, nonetheless, convinced that Ebsary stuck a knife into the deceased and later they went to Ebsary's home, where he, Ebsary, washed off the knife. Because we were certain that MacNeil's account... was a figment of his imagination, we did not immediately question him or take any further action with respect to MacNeil at this time. (Harris, 1990: 234-235)

This summation of MacNeil's polygraph, and his psychological or psychiatric makeup

came from Corporal Eugene Smith who had been administering polygraph tests for less

than five months (Harris, 1990: 234).

A significant and substantial amount of credibility was given Roy Ebsary. Smith

reported "indications of truthfulness in Ebsary's polygraph" (Harris, 1990: 238). As

well, very little importance was given to the analysis of the conflicting evidence of

Pratico and Chant (Harris, 1990: 235-236). Although his wife and son were interviewed

by the police and gave statements, Ebsary's thirteen-year-old daughter, Donna, was not.

Unbeknownst to everyone involved, she had seen Ebsary clean off and put away the

murder weapon, but was too afraid to speak about it. When she did so to the police a few

33


version of events, the night ended with MacNeil and Ebsary fighting off a mugging by

Seale and Marshall Jr., and no one was hurt (Harris, 1990: 228-231). Soon after Ebsary

and MacNeil gave their statements to the police, McIntyre passed the file over to the

RCMP and “bailed out” of the investigation (Harris, 1990: 232-233).

The RCMP flew into Sydney from Regina to administer polygraph tests to both

MacNeil and Ebsary. The assessment of the polygraph given to MacNeil amounted to

little more than an “amateur psycho-analysis” rather than a professional police

investigation. The assessment included the following description of MacNeil and his

version of events.

We interviewed MacNeil and it was obvious by his demeanor and speech that he has subnormal intelligence and is slightly mental. He was, nonetheless, convinced that Ebsary stuck a knife into the deceased and later they went to Ebsary’s home, where he, Ebsary, washed off the knife. Because we were certain that MacNeil’s account... was a figment of his imagination, we did not immediately question him or take any further action with respect to MacNeil at this time. (Harris, 1990: 234-235)

This summation of MacNeil’s polygraph, and his psychological or psychiatric makeup

came from Corporal Eugene Smith who had been administering polygraph tests for less

than five months (Harris, 1990: 234).

A significant and substantial amount of credibility was given Roy Ebsary. Smith

reported “indications of truthfulness in Ebsary’s polygraph” (Harris, 1990: 238). As

well, very little importance was given to the analysis of the conflicting evidence of

Pratico and Chant (Harris, 1990: 235-236). Although his wife and son were interviewed

by the police and gave statements, Ebsary’s thirteen-year-old daughter, Donna, was not.

Unbeknownst to everyone involved, she had seen Ebsary clean off and put away the

murder weapon, but was too afraid to speak about it. When she did so to the police a few

33


years later, she was brushed off (Harris, 1990: 255-256). Finally, Donald Marshall Jr.

was never involved in the re-investigation, not even to view Ebsary in a police line up

(Harris, 1990: 232).

All of the evidence that contradicted the police imposed version of events, even

the two disclosures regarding Roy Ebsary's role in the stabbing, was overlooked, ignored

or simply dismissed. Rather, the conflicting testimony of unreliable witnesses and of

incompetent vengeful police officers was considered more reliable to the kangaroo court

processes than the testimony of Donald Marshall Jr., a Mi'kmaq youth, leading to his

wrongful conviction. He sat in jail for a long time, and just got used to being in prison

for life.

It was in jail that he was told the identity of the real killer in August, 1981. It just

happened that the brother of a girl Marshall Jr. was dating happened to talk to Ebsary,

who admitted to stabbing Seale in 1971. Marshall recounted this information to a friend,

who recounted it to the Union of Nova Scotia Indians. Dan Paul, from the Union of

Nova Scotia Indians, then recounted the information to Sydney police investigator

William Urquhart, who was now hearing Ebsary's name in relation to the stabbing for the

third time. The first time had been ten years prior, almost immediately after Marshall Jr.

was sentenced and the MacNeils came to the police to give their information to police.

The second time was a few years prior when Ebsary's own daughter, Donna, had come

forth to give her information. This time, Urquhart wrote up a report of his meeting with

the Union representative and gave it to his superiors setting in motion another series of

events (Harris, 1990: 305-306).

34


years later, she was brushed off (Harris, 1990: 255-256). Finally, Donald Marshall Jr.

was never involved in the re-investigation, not even to view Ebsary in a police line up

(Harris, 1990: 232).

All of the evidence that contradicted the police imposed version of events, even

the two disclosures regarding Roy Ebsary’s role in the stabbing, was overlooked, ignored

or simply dismissed. Rather, the conflicting testimony of unreliable witnesses and of

incompetent vengeful police officers was considered more reliable to the kangaroo court

processes than the testimony of Donald Marshall Jr., a Mi’kmaq youth, leading to his

wrongful conviction. He sat in jail for a long time, and just got used to being in prison

for life.

It was in jail that he was told the identity of the real killer in August, 1981. It just

happened that the brother o f a girl Marshall Jr. was dating happened to talk to Ebsary,

who admitted to stabbing Seale in 1971. Marshall recounted this information to a friend,

who recounted it to the Union of Nova Scotia Indians. Dan Paul, from the Union of

Nova Scotia Indians, then recounted the information to Sydney police investigator

William Urquhart, who was now hearing Ebsary’s name in relation to the stabbing for the

third time. The first time had been ten years prior, almost immediately after Marshall Jr.

was sentenced and the MacNeils came to the police to give their information to police.

The second time was a few years prior when Ebsary’s own daughter, Donna, had come

forth to give her information. This time, Urquhart wrote up a report of his meeting with

the Union representative and gave it to his superiors setting in motion another series of

events (Harris, 1990: 305-306).

34


The Union of Nova Scotia Indians arranged for attorney Steve Aronson to look

into Marshall Jr.'s case (Harris, 1990: 306). In January 1982, after reading about

Ebsary's charge in an unrelated case, Marshall Jr. wrote a letter to the accused asking him

to confess to the earlier crime. Copies of the letter were sent to the Union of Nova Scotia

Indians, the Sydney police and Steve Aronson, and the case was reassigned, once again,

to RCMP officers Harry Wheaton and Jim Carroll (Harris, 1990: 307-312).

Wheaton and Carroll re-interviewed Maynard Chant on February 16, 1982. They

found him working at a fish plant after years of involvement in the drug trade forced him

to return home. After years of torment and thought about the matter, he told Wheaton

and Carroll the true story in his parents' living room with his pregnant wife by his side,

indicating that he was not even in the park during the stabbing. They were dumbfounded,

and they believed him (Harris, 1990: 317-322). They followed up this interview by

paying a visit to Donald Marshall Jr. in prison who gave his version events; and then

interviewed Pratico who also admitted he was not in the park during the stabbing (Harris,

1990: 324-328). Before the end of the re-investigation, Pratico, Chant and Harriss all

had admitted that they had succumbed to the pressure tactics of the police and lied in

their statements and in their court testimony (Harris, 1990: 334-335).

On February 22, 1982, Wheaton and Carroll paid a now 70 year old Roy Ebsary

a visit. During their initial discussions, the old man, who was now living alone, denied

having participated in the events of the evening. Later, he admitted he had done it, but

demanded to speak to Marshall Jr.'s parents to "assess their character" (Harris, 1990:

328-330). After refusing to admit to the murder, the officers struck up a relationship with

Ebsary's son and former wife, who led them to the murder weapon that had been in the

35


The Union of Nova Scotia Indians arranged for attorney Steve Aronson to look

into Marshall Jr.’s case (Harris, 1990: 306). In January 1982, after reading about

Ebsary’s charge in an unrelated case, Marshall Jr. wrote a letter to the accused asking him

to confess to the earlier crime. Copies of the letter were sent to the Union of Nova Scotia

Indians, the Sydney police and Steve Aronson, and the case was reassigned, once again,

to RCMP officers Harry Wheaton and Jim Carroll (Harris, 1990: 307-312).

Wheaton and Carroll re-interviewed Maynard Chant on February 16,1982. They

found him working at a fish plant after years of involvement in the drug trade forced him

to return home. After years of torment and thought about the matter, he told Wheaton

and Carroll the true story in his parents’ living room with his pregnant wife by his side,

indicating that he was not even in the park during the stabbing. They were dumbfounded,

and they believed him (Harris, 1990: 317-322). They followed up this interview by

paying a visit to Donald Marshall Jr. in prison who gave his version events; and then

interviewed Pratico who also admitted he was not in the park during the stabbing (Harris,

1990: 324-328). Before the end of the re-investigation, Pratico, Chant and Harriss all

had admitted that they had succumbed to the pressure tactics of the police and lied in

their statements and in their court testimony (Harris, 1990: 334-335).

On February 22,1982, Wheaton and Carroll paid a now 70 year old Roy Ebsary

a visit. During their initial discussions, the old man, who was now living alone, denied

having participated in the events of the evening. Later, he admitted he had done it, but

demanded to speak to Marshall Jr.’s parents to “assess their character” (Harris, 1990:

328-330). After refusing to admit to the murder, the officers struck up a relationship with

Ebsary’s son and former wife, who led them to the murder weapon that had been in the

35


basement for over 11 years (Harris, 1990: 338-339). A forensic analysis revealed that

the weapon still retained fiber from the jackets of both Seale and Marshall Jr. and the

physical evidence linking Ebsary to the stabbing was sent to the Attorney General's

office for reconsideration (Harris, 1990: 346).

At the news of the new evidence Marshall Jr. was released from prison, but not as

a free Canadian. On March 29, 1972, after years of being denied parole and excursions

because he refused to admit his guilt in the case of Sandy Seale, Marshall Jr. was released

to a day parole facility where he was treated as a regular inmate. On December 1, 1982,

Marshall Jr. was acquitted in the stabbing death of Sandy Seale. However, this acquittal

did not come without conditions. The court refused to admit that there had been a

miscarriage of justice, citing that "There can be no doubt but that Donald Marshall's

untruthfulness through this whole affair contributed in a large measure to his conviction"

(Harris, 1990: 365-371).

In summary, to consider the real issue behind the incident, one has to keep in

mind the tense racial relations of the time, and the significance of the role of a disgruntled

police officer who used his power to get a conviction against an Aboriginal youth who

was relatively powerless in comparison to the criminal justice system. The criminal

justice system was the venue in which this particular incident played out. In this case, it

acted primarily as a conduit for an angry non-Aboriginal person to achieve vengeance on

an Aboriginal youth who had no power, and this was typical of the feelings towards

Aboriginal people at this time in Nova Scotia. Ironically, it was only through exceptional

police effort, followed by the admission of the real murderer, that Marshall Jr. was finally

released. The Donald Marshall Jr. case ultimately resulted in The Royal Commission on

36


basement for over 11 years (Harris, 1990: 338-339). A forensic analysis revealed that

the weapon still retained fiber from the jackets of both Seale and Marshall Jr. and the

physical evidence linking Ebsary to the stabbing was sent to the Attorney General’s

office for reconsideration (Harris, 1990: 346).

At the news of the new evidence Marshall Jr. was released from prison, but not as

a free Canadian. On March 29,1972, after years of being denied parole and excursions

because he refused to admit his guilt in the case of Sandy Seale, Marshall Jr. was released

to a day parole facility where he was treated as a regular inmate. On December 1, 1982,

Marshall Jr. was acquitted in the stabbing death of Sandy Seale. However, this acquittal

did not come without conditions. The court refused to admit that there had been a

miscarriage of justice, citing that “There can be no doubt but that Donald Marshall’s

untruthfulness through this whole affair contributed in a large measure to his conviction”

(Harris, 1990: 365-371).

In summary, to consider the real issue behind the incident, one has to keep in

mind the tense racial relations of the time, and the significance of the role of a disgruntled

police officer who used his power to get a conviction against an Aboriginal youth who

was relatively powerless in comparison to the criminal justice system. The criminal

justice system was the venue in which this particular incident played out. In this case, it

acted primarily as a conduit for an angry non-Aboriginal person to achieve vengeance on

an Aboriginal youth who had no power, and this was typical of the feelings towards

Aboriginal people at this time in Nova Scotia. Ironically, it was only through exceptional

police effort, followed by the admission of the real murderer, that Marshall Jr. was finally

released. The Donald Marshall Jr. case ultimately resulted in The Royal Commission on

36


the Donald Marshall Jr. Prosecution, and was a precursor to the Royal Commission on

Aboriginal Peoples.

2.3 Helen Betty Osborne20

In the northern regions of many provinces, students have difficulties completing

their education due to a lack of complete secondary school and the near complete absence

of post-secondary educational opportunities. This was the situation in Manitoba that led

Helen Betty Osborne (Priest, 1998), a 19-year-old high student, from Norway House

where she could only finish her grade eight education, to a residential school in

Clearwater Lake, to complete her high school education. She lived at the Guy Hill

Residential School for two years before she moved to The Pas and boarded with a local

family while continuing to work towards her dream of going on to complete her post-

secondary education to become a teacher (Manitoba, 1999).

Family, friends and acquaintances remember and describe Betty Osborne as "a

shy young woman" and witnesses into the inquiry relating to her death gave called her "a

very kind person" (Manitoba, 1991: 6). One can imagine the courage it took for Helen to

leave the safety of her family and community in the north to attend school in the south,

and the loss her community felt at the news of her death.

Four non-Aboriginal males, Lee Colgan, Jim Houghton, Dwayne Johnston and

Norm Manger murdered Helen Betty Osborne outside of The Pas Manitoba on November

13, 1971. Lee Colgan was 18 years old at the time, and the son of "respected members of

the community". Colgan's father was a government employee, and his mother was a

music teacher (Manitoba, 1999).

37


the Donald Marshall Jr. Prosecution, and was a precursor to the Royal Commission on

Aboriginal Peoples.

2.3 Helen Betty Osborne20

In the northern regions of many provinces, students have difficulties completing

their education due to a lack of complete secondary school and the near complete absence

of post-secondary educational opportunities. This was the situation in Manitoba that led

Helen Betty Osborne (Priest, 1998), a 19-year-old high student, from Norway House

where she could only finish her grade eight education, to a residential school in

Clearwater Lake, to complete her high school education. She lived at the Guy Hill

Residential School for two years before she moved to The Pas and boarded with a local

family while continuing to work towards her dream of going on to complete her post

secondary education to become a teacher (Manitoba, 1999).

Family, friends and acquaintances remember and describe Betty Osborne as “a

shy young woman” and witnesses into the inquiry relating to her death gave called her “a

very kind person” (Manitoba, 1991: 6). One can imagine the courage it took for Helen to

leave the safety of her family and community in the north to attend school in the south,

and the loss her community felt at the news of her death.

Four non-Aboriginal males, Lee Colgan, Jim Houghton, Dwayne Johnston and

Norm Manger murdered Helen Betty Osborne outside of The Pas Manitoba on November

13, 1971. Lee Colgan was 18 years old at the time, and the son of “respected members of

the community”. Colgan’s father was a government employee, and his mother was a

music teacher (Manitoba, 1999).

37


Colgan was a close acquaintance of another of the accused, 23 year old Jim

Houghton, who lived across the street with his parents while attending technical school.

He had known Colgan his entire life, had babysat him as a child and his family had

owned a cottage at the same lake as the Colgans. His father was also a respected member

of the community, a salesman by profession (Manitoba, 1999).

Norm Manger was not so highly respected. It came out later that he was actually

the son of an Aboriginal woman who had died when he was a child. It appears he did not

have a stable upbringing. As the Justice Inquiry noted, he "didn't see much of his father

when he was growing up." He was unemployed and a heavy drinker, and the Inquiry

noted that "by his own admission he had 'turned into a bum'." Manger was 25 at the

time of Betty Osborne's death.

Dwayne Johnston, who was 18 at the time of Betty Osborne's death, was also not

very well respected in town, having several run-ins with the police. He was the member

of a motorcycle gang, had dropped out of school and was working for the Canadian

National Railroad. He openly hated Aboriginal people, eliciting the comment during the

inquiry from Colgan that "I've never seen anybody hate native people so much in my

life".

All four were in Colgan's father's car the night of the incident, and they were

drinking heavily when they observed Betty Osborne walking home alone. Betty Osborne

had had a rough night that night. Earlier in the evening, after visiting a friend at the

hospital and then going home to visit another friend over some drinks, Betty Osborne saw

her boyfriend, Cornelius Bighetty out with another woman. After arguing with him, she

left and drank more with friends at various locations. Aside from the four men who were

38


Colgan was a close acquaintance of another of the accused, 23 year old Jim

Houghton, who lived across the street with his parents while attending technical school.

He had known Colgan his entire life, had babysat him as a child and his family had

owned a cottage at the same lake as the Colgans. His father was also a respected member

of the community, a salesman by profession (Manitoba, 1999).

Norm Manger was not so highly respected. It came out later that he was actually

the son of an Aboriginal woman who had died when he was a child. It appears he did not

have a stable upbringing. As the Justice Inquiry noted, he “didn’t see much of his father

when he was growing up.” He was unemployed and a heavy drinker, and the Inquiry

noted that “by his own admission he had ‘turned into a bum’.” Manger was 25 at the

time of Betty Osborne’s death.

Dwayne Johnston, who was 18 at the time of Betty Osborne’s death, was also not

very well respected in town, having several run-ins with the police. He was the member

o f a motorcycle gang, had dropped out of school and was working for the Canadian

National Railroad. He openly hated Aboriginal people, eliciting the comment during the

inquiry from Colgan that “I’ve never seen anybody hate native people so much in my

life”.

All four were in Colgan’s father’s car the night of the incident, and they were

drinking heavily when they observed Betty Osborne walking home alone. Betty Osborne

had had a rough night that night. Earlier in the evening, after visiting a friend at the

hospital and then going home to visit another friend over some drinks, Betty Osborne saw

her boyfriend, Cornelius Bighetty out with another woman. After arguing with him, she

left and drank more with friends at various locations. Aside from the four men who were

38


involved in her murder, she was last seen at approximately 2:15 am walking home alone

from a dance at the local Legion.

Earlier in the evening, Colgan had borrowed his father's car and picked up the

other three men. The four had driven around town drinking beer together until they ran

out, then they broke into an apartment to steal wine. Such was the collective state of

mind when the four encountered Betty Osborne walking home alone that night.

Colgan testified that on the night of Betty Osborne's brutal attack and murder, the

four men had decided to pick up an Indian woman to drink and have sex with. However,

when Houghton pulled over the car, Betty Osborne did not want to participate in the

plans the four men had made. Instead of letting her go on her way, Manger opened the

door for Johnston so that she could be pulled into the car against her will.

The four men drove off with Betty Osborne in the car. Johnston and Colgan

began the sexual assault on Betty Osborne in the backseat of the car while Houghton

drove to a location where the assault escalated, while all four men continued to drink and

watch. The men soon became concerned that her screams would result in their discovery.

To avoid being heard and discovered, Betty Osborne was again pulled into the car and

driven to a more isolated area.

In this more isolated location, according to the testimony of Colgan, Johnston

continued to beat Betty Osborne while the four men sat in the car drinking. Colgan

testified that while the three other men continued to drink in the car, they could hear

Johnston continue to beat Helen Betty Osborne for about ten minutes, and then the noises

stopped. At this point, Houghton got out of the car, leaving Colgan and Manger alone.

Johnston came back to the car, leaving Houghton alone with Betty Osborne, until he

39


involved in her murder, she was last seen at approximately 2:15 am walking home alone

from a dance at the local Legion.

Earlier in the evening, Colgan had borrowed his father’s car and picked up the

other three men. The four had driven around town drinking beer together until they ran

out, then they broke into an apartment to steal wine. Such was the collective state of

mind when the four encountered Betty Osborne walking home alone that night.

Colgan testified that on the night of Betty Osborne’s brutal attack and murder, the

four men had decided to pick up an Indian woman to drink and have sex with. However,

when Houghton pulled over the car, Betty Osborne did not want to participate in the

plans the four men had made. Instead of letting her go on her way, Manger opened the

door for Johnston so that she could be pulled into the car against her will.

The four men drove off with Betty Osborne in the car. Johnston and Colgan

began the sexual assault on Betty Osborne in the backseat o f the car while Houghton

drove to a location where the assault escalated, while all four men continued to drink and

watch. The men soon became concerned that her screams would result in their discovery.

To avoid being heard and discovered, Betty Osborne was again pulled into the car and

driven to a more isolated area.

In this more isolated location, according to the testimony of Colgan, Johnston

continued to beat Betty Osborne while the four men sat in the car drinking. Colgan

testified that while the three other men continued to drink in the car, they could hear

Johnston continue to beat Helen Betty Osborne for about ten minutes, and then the noises

stopped. At this point, Houghton got out of the car, leaving Colgan and Manger alone.

Johnston came back to the car, leaving Houghton alone with Betty Osborne, until he

39


found a screwdriver. At this point, he left the car again. Helen Betty Osborne was

stabbed repeatedly with the screwdriver. The Aboriginal Justice Inquiry referred to her

attack in the following words:

The photographs and the descriptions given by a number of witnesses make it clear that Osborne suffered a vicious beating, particularly to her face... The autopsy report adds some details to what was obvious. Along with well over 50 stab wounds, her skull, cheekbones and palate were broken, her lungs were damaged, and one kidney was torn. Her body showed extensive bruising. The massive number of puncture wounds to the head and torso confirmed other evidence that was presented at the trial which suggested that a screwdriver was at least one weapon used. The other weapon or weapons presumably were hands or feet or some other blunt instrument. It is impossible to conclude, from the condition of the body, whether more than one sharp object, such as another screwdriver, was used or exactly what else caused the injuries. Nor is it possible to say with absolute certainty at what point during her violation Osborne died. The autopsy did show that Osborne had not been raped during her ordeal (Manitoba, 1991: 11).

The body of Helen Betty Osborne was left in the nearby bushes, and her clothes

were hidden. They attempted to get rid of any signs of the attack, including leaving her

face, completely unrecognizable. To demonstrate how unrecognizably she was beaten,

31 people, including the man of the home in which she was boarding, could not identify

her body in the morgue (Manitoba, 1991: 25).

According to the evidence given in court by Lee Colgan, although she had been at

a party, it did not appear that Helen Betty Osborne was intoxicated to the point of being

unable to exercise good judgment. The Aboriginal Justice Inquiry also came to this

conclusion, stating from the available evidence that "she did not wish to get into the car

with the four, resisted being there and resisted their advances throughout the evening up

until her death. It is absolutely certain she was an unwilling participant in the events of

that night" (Manitoba, 1991: 13).

40


found a screwdriver. At this point, he left the car again. Helen Betty Osborne was

stabbed repeatedly with the screwdriver. The Aboriginal Justice Inquiry referred to her

attack in the following words:

The photographs and the descriptions given by a number of witnesses make it clear that Osborne suffered a vicious beating, particularly to her face...The autopsy report adds some details to what was obvious. Along with well over 50 stab wounds, her skull, cheekbones and palate were broken, her lungs were damaged, and one kidney was tom. Her body showed extensive bruising. The massive number of puncture wounds to the head and torso confirmed other evidence that was presented at the trial which suggested that a screwdriver was at least one weapon used. The other weapon or weapons presumably were hands or feet or some other blunt instrument. It is impossible to conclude, from the condition of the body, whether more than one sharp object, such as another screwdriver, was used or exactly what else caused the injuries. Nor is it possible to say with absolute certainty at what point during her violation Osborne died.The autopsy did show that Osbome had not been raped during her ordeal (Manitoba, 1991: 11).

The body of Helen Betty Osbome was left in the nearby bushes, and her clothes

were hidden. They attempted to get rid of any signs of the attack, including leaving her

face, completely unrecognizable. To demonstrate how unrecognizably she was beaten,

31 people, including the man of the home in which she was boarding, could not identify

her body in the morgue (Manitoba, 1991: 25).

According to the evidence given in court by Lee Colgan, although she had been at

a party, it did not appear that Helen Betty Osbome was intoxicated to the point of being

unable to exercise good judgment. The Aboriginal Justice Inquiry also came to this

conclusion, stating from the available evidence that “she did not wish to get into the car

with the four, resisted being there and resisted their advances throughout the evening up

until her death. It is absolutely certain she was an unwilling participant in the events of

that night” (Manitoba, 1991: 13).

40


Despite the extent of the beating, Betty Osborne did not give in to the men.

Colgan testified that in the process of being both kidnapped and sexually assaulted,

Osborne had refused to have sex with the men by stating that "No white man will ever

have sex with me" (Priest, 1989: 77). Betty Osborne did not particularly like white men,

having stated that she "couldn't understand why some Indian women liked white men

when she didn't... because she thought they were physically kind of ugly" (Priest, 1989:

23).

Osborne was clearly an unwilling victim in the events of the night that led to her

death, and it is also clear that Osborne was not selected randomly from the streets of The

Pas on the night she was murdered. The Aboriginal Justice Inquiry concluded "Colgan's

evidence was that they had formed a common plan to find an Indian girl with whom to

drink and have sex". The report also states that "there is nothing to indicate that any of

the occupants of the car recognized the woman as Betty Osborne" (Aboriginal Justice

Inquiry, 1991: 14). These two findings meant that the attackers did not recognize that

the woman they were attacking was a person that some of them may have known; they

recognized her only by her race and as having a sexual purpose for them. Helen Betty

Osborne was targeted, objectified, victimized by the four men and died as a result of their

interpretations of her based on her race and gender, two factors over which she had no

control.

The investigation took 16 years to complete, and is said to have had three phases.

The first phase began with the discovery of the body and lasted approximately a year.

During this phase of the investigation, the RCMP gathered several pieces of evidence

including the murder weapon, a pair of gloves, a bloodstained paper bag and two pieces

41


Despite the extent of the beating, Betty Osbome did not give in to the men.

Colgan testified that in the process of being both kidnapped and sexually assaulted,

Osbome had refused to have sex with the men by stating that “No white man will ever

have sex with me” (Priest, 1989: 77). Betty Osbome did not particularly like white men,

having stated that she “couldn’t understand why some Indian women liked white men

when she didn’t . .. because she thought they were physically kind of ugly” (Priest, 1989:

23).

Osbome was clearly an unwilling victim in the events of the night that led to her

death, and it is also clear that Osbome was not selected randomly from the streets of The

Pas on the night she was murdered. The Aboriginal Justice Inquiry concluded “Colgan’s

evidence was that they had formed a common plan to find an Indian girl with whom to

drink and have sex”. The report also states that “there is nothing to indicate that any of

the occupants of the car recognized the woman as Betty Osbome” (Aboriginal Justice

Inquiry, 1991: 14). These two findings meant that the attackers did not recognize that

the woman they were attacking was a person that some of them may have known; they

recognized her only by her race and as having a sexual purpose for them. Helen Betty

Osbome was targeted, objectified, victimized by the four men and died as a result of their

interpretations of her based on her race and gender, two factors over which she had no

control.

The investigation took 16 years to complete, and is said to have had three phases.

The first phase began with the discovery of the body and lasted approximately a year.

During this phase of the investigation, the RCMP gathered several pieces of evidence

including the murder weapon, a pair of gloves, a bloodstained paper bag and two pieces

41


of brassiere along the side of the highway. Betty Osborne's glasses were discovered

along the highway at the turn off to the Houghton cabin a few months later. Based on

evidence given by a cab driver who was sent by the RCMP to Saskatchewan, Colgan's

father's car was identified as well but not thoroughly searched, partially because the

police vouched for the Colgan family and their reputation (Manitoba, 1991: 27-30).

In May of 1972, an anonymous letter submitted to police several months after the

murder identified Colgan, Houghton and Manger. In following up on this lead, the

RCMP finally searched the Colgan car and found a brassiere clasp, hair and bloodstains

that they determined belonged to Betty Osborne. Finally, they received an anonymous

tip that Dwayne Johnston was involved in the murder. On the advice of their common

lawyer, D'Arcy Bancroft, the men remained silent and did not give statements, and

despite the evidence collected the four men were never formally arrested and questioned

by police (Manitoba, 1991: 32-33).

The second brief phase of the investigation occurred in 1974 when D'Arcy

Bancroft died. This phase included some re-questioning of Colgan and some

recommendations for further steps from Criminal Information Services in Winnipeg, but

little else. As the Aboriginal Justice Inquiry noted, "We were told that two constables

worked on the file between 1981 and 1983, but apart from the special interest that

Moorlag21 took in the file, it appears that almost nothing was accomplished during the

second phase of the investigation" (Manitoba, 1991: 37).

The third phase of the investigation began with the involvement of Constable

Urbanoski in 1983. Between July 1983 and March 1984, he did a complete review of the

file, interviewing the officers involved and ensuring that the evidence was still in place.

42


of brassiere along the side of the highway. Betty Osborne’s glasses were discovered

along the highway at the turn off to the Houghton cabin a few months later. Based on

evidence given by a cab driver who was sent by the RCMP to Saskatchewan, Colgan’s

father’s car was identified as well but not thoroughly searched, partially because the

police vouched for the Colgan family and their reputation (Manitoba, 1991: 27-30).

In May of 1972, an anonymous letter submitted to police several months after the

murder identified Colgan, Houghton and Manger. In following up on this lead, the

RCMP finally searched the Colgan car and found a brassiere clasp, hair and bloodstains

that they determined belonged to Betty Osbome. Finally, they received an anonymous

tip that Dwayne Johnston was involved in the murder. On the advice of their common

lawyer, D’Arcy Bancroft, the men remained silent and did not give statements, and

despite the evidence collected the four men were never formally arrested and questioned

by police (Manitoba, 1991: 32-33).

The second brief phase of the investigation occurred in 1974 when D’Arcy

Bancroft died. This phase included some re-questioning of Colgan and some

recommendations for further steps from Criminal Information Services in Winnipeg, but

little else. As the Aboriginal Justice Inquiry noted, “We were told that two constables

worked on the file between 1981 and 1983, but apart from the special interest that

Moorlag21 took in the file, it appears that almost nothing was accomplished during the

second phase of the investigation” (Manitoba, 1991: 37).

The third phase of the investigation began with the involvement of Constable

Urbanoski in 1983. Between July 1983 and March 1984, he did a complete review of the

file, interviewing the officers involved and ensuring that the evidence was still in place.

42


He then followed up on the recommendations that were given by Criminal Information

Services in 1980 during the second phase of the investigation. He arranged to set up wire

taps in Manitoba, Alberta and British Columbia, which necessitated the involvement of

11 other full-time investigators. Urbanoski also put an ad in the local paper calling for

information on the death of Helen Betty Osborne.

In the article, Urbanoski included information suggesting that others had come

forward with information. He told the Aboriginal Justice Inquiry that he did this "to

assure those with information that they would not be alone were they to go to the

police... 'to put their minds at ease" (Manitoba, 1991: 39). As a result, four more

people came forward with information. In August of 1986, charges were laid against

Colgan and Johnston.

Shortly after his arrest, Colgan agreed to testify to his role in the murder on the

condition that he be granted immunity. Based on this testimony, the police were able to

lay charges against Houghton. They also located Norm Manger and, although he was

never charged, he agreed to testify against Houghton and Johnston (Manitoba, 1991: 39).

In 1987, 16 years after the horrific murder of Helen Betty Osborne, Dwayne Johnston

was convicted of murder and sentenced to life. Although he admittedly played an active

role in the events of the evening, Lee Colgan walked away from the trial immune from

any legal action in return for his testimony. Norm Manger was never charged, and Jom

Houghton was acquitted of all charges (Manitoba, 1991: 1).

When considering this incident, itis difficult to resist imagining the comparisons

had the people involved been of different racial backgrounds. Had Helen Betty Osborne

been a non-Aboriginal 19-year-old high school student with dreams of being a teacher

43


He then followed up on the recommendations that were given by Criminal Information

Services in 1980 during the second phase of the investigation. He arranged to set up wire

taps in Manitoba, Alberta and British Columbia, which necessitated the involvement of

11 other full-time investigators. Urbanoski also put an ad in the local paper calling for

information on the death of Helen Betty Osborne.

In the article, Urbanoski included information suggesting that others had come

forward with information. He told the Aboriginal Justice Inquiry that he did this “to

assure those with information that they would not be alone were they to go to the

police... ‘to put their minds at ease’” (Manitoba, 1991: 39). As a result, four more

people came forward with information. In August of 1986, charges were laid against

Colgan and Johnston.

Shortly after his arrest, Colgan agreed to testify to his role in the murder on the

condition that he be granted immunity. Based on this testimony, the police were able to

lay charges against Houghton. They also located Norm Manger and, although he was

never charged, he agreed to testify against Houghton and Johnston (Manitoba, 1991: 39).

In 1987, 16 years after the horrific murder of Helen Betty Osborne, Dwayne Johnston

was convicted of murder and sentenced to life. Although he admittedly played an active

role in the events of the evening, Lee Colgan walked away from the trial immune from

any legal action in return for his testimony. Norm Manger was never charged, and Jom

Houghton was acquitted of all charges (Manitoba, 1991: 1).

When considering this incident, it .is difficult to resist imagining the comparisons

had the people involved been of different racial backgrounds. Had Helen Betty Osborne

been a non-Aboriginal 19-year-old high school student with dreams of being a teacher

43


who was found brutally murdered, the identity of her killers, if known, would not have

been an issue for secrecy, and townspeople would have been out to seek justice. If the

four accused in the death of an aspiring 19-year-old non-Aboriginal woman were

Aboriginal, the townspeople would have been out to seek revenge.

Although race was not found to be an issue in the criminal justice processes

involved in the investigation of the murder of Helen Betty Osborne, it certainly has to be

concluded that racism was the issue behind the abduction, horrific sexual assault and

subsequent murder of Helen Betty Osborne, as well as the silent protection of the four

accused by the town of The Pas. In a larger context, The Pas was a town divided in 1971

along geographical lines that also shadowed the racial lines of tension. The reserve was

separated from the rest of the town by the Saskatchewan River, with the main part of

town being inhabited and run by non-Aboriginal people. The Inquiry reports that:

It is easy to conclude that the town of The Pas deliberately has excluded Aboriginal people from its midst, yet it depended on them as customers and consumers. While there was some superficial communication, the communities might as well have been worlds apart... Members of each community were clearly identifiable to the other and skin colour immediately seemed to raise stereotypical feelings of fear, suspicion and dislike. These attitudes existed in both communities in 1971 and to a large extent, still exist today. (Manitoba, 1991: 7)

The book detailing the events of the murder and the subsequent trial, Conspiracy

of Silence, by Lisa Priest, is titled quite aptly, for the silence of the four suspects initially

blocked any attempts at investigation into the murder. However, two of the four suspects

were not silent enough. Lee Colgan, and on one or two occasions, Dwayne Johnson, all

spoke of the murders to people who testified at the trials. While there were a few

anonymous tips indicating the suspects, and evidence was found here and there, it was

44


who was found brutally murdered, the identity of her killers, if known, would not have

been an issue for secrecy, and townspeople would have been out to seek justice. If the

four accused in the death of an aspiring 19-year-old non-Aboriginal woman were

Aboriginal, the townspeople would have been out to seek revenge.

Although race was not found to be an issue in the criminal justice processes

involved in the investigation of the murder of Helen Betty Osbome, it certainly has to be

concluded that racism was the issue behind the abduction, horrific sexual assault and

subsequent murder of Helen Betty Osbome, as well as the silent protection of the four

accused by the town of The Pas. In a larger context, The Pas was a town divided in 1971

along geographical lines that also shadowed the racial lines of tension. The reserve was

separated from the rest of the town by the Saskatchewan River, with the main part of

town being inhabited and run by non-Aboriginal people. The Inquiry reports that:

It is easy to conclude that the town of The Pas deliberately has excluded Aboriginal people from its midst, yet it depended on them as customers and consumers. While there was some superficial communication, the communities might as well have been worlds apart... Members of each community were clearly identifiable to the other and skin colour immediately seemed to raise stereotypical feelings of fear, suspicion and dislike. These attitudes existed in both communities in 1971 and to a large extent, still exist today. (Manitoba, 1991: 7)

The book detailing the events of the murder and the subsequent trial, Conspiracy

of Silence, by Lisa Priest, is titled quite aptly, for the silence of the four suspects initially

blocked any attempts at investigation into the murder. However, two of the four suspects

were not silent enough. Lee Colgan, and on one or two occasions, Dwayne Johnson, all

spoke of the murders to people who testified at the trials. While there were a few

anonymous tips indicating the suspects, and evidence was found here and there, it was

44


ultimately the silence exuded by the suspects and the entire town that allowed the case to

be stalled for ten years.

It was clear that the preservation of this division, based on racism and exclusion

of Aboriginal people, was strictly protected when the murder and investigation of Helen

Betty Osborne was occurring, and that this division was sharply divided along the lines of

race. Helen Betty Osborne was an Aboriginal woman; and Colgan, Johnson, Houghton

and Manger believed that because she was an Aboriginal woman, that she would be

willing to get in the car with them, drink beer and then have sex with them. Helen Betty

Osborne did not fit the mould of what they thought an Aboriginal woman would be, and

they killed her. However, Osborne's victimization did not stop at her murder. She was

victimized again by the whole town, for 16 years, when they chose to remain silent.

One can consider that things change in a town over a period of years. Young

people grow up, older people change their minds and attitudes become more liberal.

However, this is not a good explanation, save for the factor of racist attitudes and

protecting one's own, for the fact that nothing was done for ten years, with no one being

brought to trial for 16 years. Add that in the meantime, Lee Colgan was telling many

different people the story over and over again, making it difficult for the town to forget,

and the racism becomes blatant and appalling.

As stated prior, race was not found to be an issue in the criminal processes that

occurred in the investigation of the murder of Helen Betty Osborne. However, this case

is particularly disturbing, as race was undoubtedly a factor that was extremely evident in

the callous disregard that the town's people had regarding Helen Betty Osborne's death.

The inhumane disregard for her family and the disregard for the loss of her family and

45


ultimately the silence exuded by the suspects and the entire town that allowed the case to

be stalled for ten years.

It was clear that the preservation of this division, based on racism and exclusion

of Aboriginal people, was strictly protected when the murder and investigation of Helen

Betty Osbome was occurring, and that this division was sharply divided along the lines of

race. Helen Betty Osbome was an Aboriginal woman; and Colgan, Johnson, Houghton

and Manger believed that because she was an Aboriginal woman, that she would be

willing to get in the car with them, drink beer and then have sex with them. Helen Betty

Osbome did not fit the mould of what they thought an Aboriginal woman would be, and

they killed her. However, Osborne’s victimization did not stop at her murder. She was

victimized again by the whole town, for 16 years, when they chose to remain silent.

One can consider that things change in a town over a period of years. Young

people grow up, older people change their minds and attitudes become more liberal.

However, this is not a good explanation, save for the factor of racist attitudes and

protecting one’s own, for the fact that nothing was done fo r ten years, with no one being

brought to trial fo r 16 years. Add that in the meantime, Lee Colgan was telling many

different people the story over and over again, making it difficult for the town to forget,

and the racism becomes blatant and appalling.

As stated prior, race was not found to be an issue in the criminal processes that

occurred in the investigation of the murder of Helen Betty Osbome. However, this case

is particularly disturbing, as race was undoubtedly a factor that was extremely evident in

the callous disregard that the town’s people had regarding Helen Betty Osborne’s death.

The inhumane disregard for her family and the disregard for the loss of her family and

45


community were clear in the silence exuded by the community she was murdered in. It is

obvious that for the people of the town, protecting the reputation of the accused and their

families was far more important than seeking justice in the death of a promising 19-year-

old Aboriginal student.

2.4 J. 1 Harper

At around the same time that the Helen Betty Osborne case was gaining national

attention the case of the fatal shooting of John Joseph Harper, the Executive Director of

the Island Lake Tribal Council, by a Winnipeg police officer came to light. It was March

8, 1988, and Harper had called to tell his wife that he wouldn't be home in time to go for

a drive with her and the kids because he had to pick someone up from the airport in

Winnipeg (Sinclair, 1999: 10). In his book about the shooting of Harper, Gordon

Sinclair Junior writes that it was likely that Lois Harper "was worried that he would go

out drinking and that he wouldn't come home. Or worse, that he'd go drinking and he

would come home." Despite her worries, Mrs. Harper had had no worries about her

husband's personal safety that night (Sinclair, 1999: 8-10).

At approximately 1 a.m., March 9, 1988, someone called the Winnipeg police

station to report a stolen car. It was at about 2 a.m. that Constables Robert Cross and

Kathryn Hodgins saw a car that matched the description of the one stolen earlier — a

white 1983 Dodge Aries (Sinclair, 1999: 11-12). The officers pursued the car, and a

short chase ensued.

Officer Cross gave an initial description of the suspects as they fled the vehicle,

identifying them as two male suspects with dark clothing. Hodgins corrected his

46


community were clear in the silence exuded by the community she was murdered in. It is

obvious that for the people of the town, protecting the reputation of the accused and their

families was far more important than seeking justice in the death of a promising 19-year-

old Aboriginal student.

2.4 J.J. Harper

At around the same time that the Helen Betty Osbome case was gaining national

attention the case of the fatal shooting of John Joseph Harper, the Executive Director of

the Island Lake Tribal Council, by a Winnipeg police officer came to light. It was March

8, 1988, and Harper had called to tell his wife that he wouldn’t be home in time to go for

a drive with her and the kids because he had to pick someone up from the airport in

Winnipeg (Sinclair, 1999: 10). In his book about the shooting of Harper, Gordon

Sinclair Junior writes that it was likely that Lois Harper “was worried that he would go

out drinking and that he wouldn’t come home. Or worse, that he’d go drinking and he

would come home.” Despite her worries, Mrs. Harper had had no worries about her

husband’s personal safety that night (Sinclair, 1999: 8-10).

At approximately 1 a.m., March 9,1988, someone called the Winnipeg police

station to report a stolen car. It was at about 2 a.m. that Constables Robert Cross and

Kathryn Hodgins saw a car that matched the description of the one stolen earlier - a

white 1983 Dodge Aries (Sinclair, 1999: 11-12). The officers pursued the car, and a

short chase ensued.

Officer Cross gave an initial description of the suspects as they fled the vehicle,

identifying them as two male suspects with dark clothing. Hodgins corrected his

46


description adding, "My partner's got one male... one small juvenile." In fact, the two

suspects were 19 year-old Melvin Pruden and his 14 year-old cousin Allan. The two had

been hanging around all day with nothing much to do. Allan and Melvin were both

Aboriginal, fact which was added to the description of the older suspect a few moments

later (Sinclair, 1999: 12-14).

Lois Harper's concerns about her husband had been correct. Earlier in the

evening he had started drinking. He had met up with a former girlfriend, Kathy Bushie,

at a bar called the Front Page Lounge, and had gone on to The Westbrook and then to a

bar called D.J.'s Saloon where they played pool, danced, and Harper sang. It was around

this time that Harper was so inebriated that the girls he was with began to discuss what

they should do with him. After disagreeing with Kathy about where they should go,

Harper walked off alone down the street towards another bar (Sinclair, 1999: 52-55). It

was soon after that Harper encountered Constable Cross.

Although it was late and in a relatively quiet neighbourhood, there were several

witnesses to the events of the evening. Melvin and Allen were leading officers on a foot

chase as they ran from the Aries. Randy Houston and his girlfriend, Linda Morisette

were driving by Stanley Knowles Park when they witnessed a police officer, gun in hand

and aiming at "head height", running down the street. An elderly woman by the name of

Katherine Tyler looked out her back window and saw what appeared to be a police

officer searching between her and her neighbour's houses. When she checked out the

front window, she saw someone fleeing across the park in front of her house. As the

chase progressed, the descriptions of the suspects became more complete. It was

approximately 2:38 a.m. when the description of one of the males changed to include

47


description adding, “My partner’s got one male... one small juvenile.” In fact, the two

suspects were 19 year-old Melvin Pruden and his 14 year-old cousin Allan. The two had

been hanging around all day with nothing much to do. Allan and Melvin were both

Aboriginal, fact which was added to the description of the older suspect a few moments

later (Sinclair, 1999: 12-14).

Lois Harper’s concerns about her husband had been correct. Earlier in the

evening he had started drinking. He had met up with a former girlfriend, Kathy Bushie,

at a bar called the Front Page Lounge, and had gone on to The Westbrook and then to a

bar called D J . ’s Saloon where they played pool, danced, and Harper sang. It was around

this time that Harper was so inebriated that the girls he was with began to discuss what

they should do with him. After disagreeing with Kathy about where they should go,

Harper walked off alone down the street towards another bar (Sinclair, 1999: 52-55). It

was soon after that Harper encountered Constable Cross.

Although it was late and in a relatively quiet neighbourhood, there were several

witnesses to the events of the evening. Melvin and Allen were leading officers on a foot

chase as they ran from the Aries. Randy Houston and his girlfriend, Linda Morisette

were driving by Stanley Knowles Park when they witnessed a police officer, gun in hand

and aiming at “head height", running down the street. An elderly woman by the name of

Katherine Tyler looked out her back window and saw what appeared to be a police

officer searching between her and her neighbour’s houses. When she checked out the

front window, she saw someone fleeing across the park in front of her house. As the

chase progressed, the descriptions of the suspects became more complete. It was

approximately 2:38 a.m. when the description of one of the males changed to include

47


"Grey jacket. Native". Shortly after this description, Mervin Pruden, the older of the two

suspects, was arrested (Sinclair, 1999: 15-16).

In the meantime, 14 year-old Allen had been arrested, and was sitting in the back

seat of Hodgins' police cruiser. Her partner had been on foot, looking for the other

suspect when the shooting occurred. As they drove around to the location of the

shooting, Allen cried, thinking it was his cousin's body on the ground "writhing on the

sidewalk and two cops crouched over it" with blood "fountaining from the chest." Allen

and Hodgins remembered the moment differently from one another. Allen remembers

being called a "fucking blue-eyed Indian" and being blamed for the shooting. Hodgins

recalls blaming him because he stole a car, but claims that she called him a "little thief'

(Sinclair, 1999: 17).

Constable Cross had been giving chase on foot, searching for the suspect, when

he ran into J.J. Harper who was walking home from the bar after leaving Bushie to get

home on her own. Cross claimed later that he asked him for his identification.

According to Cross, a struggle ensued, with Harper pushing Cross onto the ground and

Cross pulling Harper over with him. Cross then claims that he felt a tugging at his gun in

his holster, there was a struggle for the gun causing it go off, hitting Harper in the chest

(Manitoba, 1991: 11).

The subsequent internal police inquiry into the shooting death completely

exonerated Constable Cross, the explanation for events leading to the death being largely

provided by Constable Cross himself. None of the officers who were present, even

Cross's partner, Constable Hodgins, was asked to testify about their version of the events

that evening. The day after the shooting, the Chief of the Winnipeg police service issued

48


“Grey jacket. Native”. Shortly after this description, Mervin Pruden, the older of the two

suspects, was arrested (Sinclair, 1999: 15-16).

In the meantime, 14 year-old Allen had been arrested, and was sitting in the back

seat of Hodgins’ police cruiser. Her partner had been on foot, looking for the other

suspect when the shooting occurred. As they drove around to the location of the

shooting, Allen cried, thinking it was his cousin’s body on the ground “writhing on the

sidewalk and two cops crouched over it” with blood “fountaining from the chest.” Allen

and Hodgins remembered the moment differently from one another. Allen remembers

being called a “fucking blue-eyed Indian” and being blamed for the shooting. Hodgins

recalls blaming him because he stole a car, but claims that she called him a “little thief’

(Sinclair, 1999: 17).

Constable Cross had been giving chase on foot, searching for the suspect, when

he ran into J.J. Harper who was walking home from the bar after leaving Bushie to get

home on her own. Cross claimed later that he asked him for his identification.

According to Cross, a struggle ensued, with Harper pushing Cross onto the ground and

Cross pulling Harper over with him. Cross then claims that he felt a tugging at his gun in

his holster, there was a struggle for the gun causing it go off, hitting Harper in the chest

(Manitoba, 1991: 11).

The subsequent internal police inquiry into the shooting death completely

exonerated Constable Cross, the explanation for events leading to the death being largely

provided by Constable Cross himself. None of the officers who were present, even

Cross’s partner, Constable Hodgins, was asked to testify about their version of the events

that evening. The day after the shooting, the Chief of the Winnipeg police service issued

48


a press release saying the "death was precipitated by the assault of the officer by Harper

and the subsequent struggle for his service revolver which accidentally discharged"

(Manitoba, 1991: 14-15).

Two days after the death of J.J. Harper, and one day after the exoneration of

Constable Cross, a coroner's inquest was held to look into the death of a citizen by a

police officer. The coroner found that

... despite certain shortcomings in the area of police investigation, it is my view that the shooting occurred as a result of the deceased pushing down the officer and then attempting to take his revolver. The officer's attempt to keep control of his gun is justified and the ensuing shooting I find to be accidental. I therefore exonerate Constable Cross. (Manitoba, 1991: 71)

Later, the Aboriginal Justice Inquiry of Manitoba would find fault with the inquest

process, and having had the opportunity to hear from a broader range of witnesses,

reached a far different conclusion (Manitoba, 1991: 71-72).

The constable had been chasing two suspects, neither of whom resembled Harper,

even in age, the similarities amongst them being only that they were described as

"Native". On the night of J.J. Harper's shooting the police were pursuing two young

Aboriginal men, one of them a youth and one of them a man in his early 20s. Harper was

in his late 30s. Thus, it is difficult to ascertain as to why exactly Constable Cross chose

to stop and identify Harper, particularly when the fleeing suspects had been arrested. The

only thing that the suspects and Harper had in common was the fact that they were

Aboriginal and male.

The result of the outrage associated with the cases of Helen Betty Osborne and

J.J. Harper launched the Manitoba Aboriginal Justice Inquiry in 1991, discussed further

in Chapter 3.

49


a press release saying the “death was precipitated by the assault of the officer by Harper

and the subsequent struggle for his service revolver which accidentally discharged”

(Manitoba, 1991: 14-15).

Two days after the death of JJ . Harper, and one day after the exoneration of

Constable Cross, a coroner’s inquest was held to look into the death of a citizen by a

police officer. The coroner found that

... despite certain shortcomings in the area of police investigation, it is my view that the shooting occurred as a result of the deceased pushing down the officer and then attempting to take his revolver. The officer’s attempt to keep control of his gun is justified and the ensuing shooting I find to be accidental. I therefore exonerate Constable Cross. (Manitoba, 1991: 71)

Later, the Aboriginal Justice Inquiry of Manitoba would find fault with the inquest

process, and having had the opportunity to hear from a broader range of witnesses,

reached a far different conclusion (Manitoba, 1991: 71-72).

The constable had been chasing two suspects, neither of whom resembled Harper,

even in age, the similarities amongst them being only that they were described as

“Native”. On the night of JJ . Harper’s shooting the police were pursuing two young

Aboriginal men, one of them a youth and one of them a man in his early 20s. Harper was

in his late 30s. Thus, it is difficult to ascertain as to why exactly Constable Cross chose

to stop and identify Harper, particularly when the fleeing suspects had been arrested. The

only thing that the suspects and Harper had in common was the fact that they were

Aboriginal and male.

The result of the outrage associated with the cases of Helen Betty Osbome and

JJ . Harper launched the Manitoba Aboriginal Justice Inquiry in 1991, discussed further

in Chapter 3.

49


2.5 Leo LaChance

At 48 years of age, Leo LaChance was the youngest of three surviving brothers.

He was a Cree trapper who lived alone on the Whitefish First Nation in northern

Saskatchewan. He lived in a small house that looked "like a child's drawing of a house"

with a handmade table and chairs and a wood stove in the middle of the living room. He

had one daughter living on the reserve, and was described by his mother's daughter,

"Mary Ann," as "a good man, fun to be with, happy and quiet." Mary Ann noticed a

change in LaChance in the time before his death, however. She said he became quiet and

edgy, and worried about the Gulf War. He told her he was "going away" soon and that

he wanted their daughter to have his house. At one point he told his sister Roseanne that

he needed to talk to her about something in person, but they never got the chance. Mary

Ann attributes this feeling to LaChance being aware that he was going to die soon

(Sampson, 1995: 4-5).

On the morning of January 28, 1991, LaChance was planning to go to Prince

Albert to sell a few furs. It was —28 Celsius outside, so LaChance dressed warmly in

sweater and a long parka and began to walk towards Prince Albert. Like many

northerners, LaChance did not own a vehicle, but knew that it was a pretty easy hitchhike

to Debden and then to Prince Albert. He had walked almost to Debden before Chief John

Keenatch and his daughter Patsy picked him up. They gave LaChance a ride to the

outskirts of the city where he walked the rest of the way in to the fur shop where he

usually sold his pelts. Unfortunately, the fur shop was closed, and he ended up in the

Northern Pawn and Gun Shop. No one really knows why he ended up in what was

50


2.5 Leo LaChance

At 48 years of age, Leo LaChance was the youngest of three surviving brothers.

He was a Cree trapper who lived alone on the Whitefish First Nation in northern

Saskatchewan. He lived in a small house that looked “like a child’s drawing of a house”

with a handmade table and chairs and a wood stove in the middle of the living room. He

had one daughter living on the reserve, and was described by his mother’s daughter,

“Mary Ann,” as “a good man, fun to be with, happy and quiet.” Mary Ann noticed a

change in LaChance in the time before his death, however. She said he became quiet and

edgy, and worried about the Gulf War. He told her he was “going away” soon and that

he wanted their daughter to have his house. At one point he told his sister Roseanne that

he needed to talk to her about something in person, but they never got the chance. Mary

Ann attributes this feeling to LaChance being aware that he was going to die soon

(Sampson, 1995: 4-5).

On the morning o f January 28,1991, LaChance was planning to go to Prince

Albert to sell a few furs. It was -28 Celsius outside, so LaChance dressed warmly in

sweater and a long parka and began to walk towards Prince Albert. Like many

northerners, LaChance did not own a vehicle, but knew that it was a pretty easy hitchhike

to Debden and then to Prince Albert. He had walked almost to Debden before Chief John

Keenatch and his daughter Patsy picked him up. They gave LaChance a ride to the

outskirts of the city where he walked the rest of the way in to the fur shop where he

usually sold his pelts. Unfortunately, the fur shop was closed, and he ended up in the

Northern Pawn and Gun Shop. No one really knows why he ended up in what was

50


considered to be the "headquarters of the leader of the Saskatchewan white supremacist

movement" (Sampson, 1995: 2,3,7,9-12).

The "leader" of the white supremacist movement in Saskatchewan and the owner

of the pawnshop was Carney Nerland, a long time resident of Prince Albert. As a school

kid, his interest in Nazism was well known and not something he felt compelled to hide,

even in school, when he fashioned his own "Second World War German military style"

uniform. His teachers remember him being relatively normal in intelligence, but unhappy

after the age of eleven, a bully and a loner "who picked on kids who were different"

(Sampson, 1995: 92).

Nerland came from what appears to be a contradictory home life. His mother was

a Jehovah's Witness, so he was brought up with very strict religious expectations. He did

not sing the national anthem or participate in Christmas, birthdays or Hallowe'en. It is

arguable that this oppositional experience led him to become a very confused, and angry,

person. For example, although he professed himself a Nazi who hated Jewish people,

Indians and non-Whites; he married a Chilean woman, had a First Nations business

partner and rented his store from a Jew (Sampson, 1995: 92, 96, 98).

On the other hand, Nerland's father apparently had no religious affiliation at all,

and seems to have been somewhat of a biker. He wrote a column for the local paper, the

Daily Herald, called "Fat Bob on Bikes" and was thought to have ties to Alberta

motorcycle gangs. He wore a German army helmet instead of a motorcycle helmet, and

it was known that he did not like Indians (Sampson, 1995: 93).

Nerland began his life with white supremacy when he moved to Vancouver,

British Columbia, with his father in the 1980s. Nerland claims it was a Corrections

51


considered to be the “headquarters of the leader of the Saskatchewan white supremacist

movement” (Sampson, 1995: 2,3,7,9-12).

The ’’leader” of the white supremacist movement in Saskatchewan and the owner

of the pawnshop was Carney Nerland, a long time resident of Prince Albert. As a school

kid, his interest in Nazism was well known and not something he felt compelled to hide,

even in school, when he fashioned his own “Second World War German military style”

uniform. His teachers remember him being relatively normal in intelligence, but unhappy

after the age of eleven, a bully and a loner “who picked on kids who were different”

(Sampson, 1995: 92).

Nerland came from what appears to be a contradictory home life. His mother was

a Jehovah’s Witness, so he was brought up with very strict religious expectations. He did

not sing the national anthem or participate in Christmas, birthdays or Hallowe’en. It is

arguable that this oppositional experience led him to become a very confused, and angry,

person. For example, although he professed himself a Nazi who hated Jewish people,

Indians and non-Whites; he married a Chilean woman, had a First Nations business

partner and rented his store from a Jew (Sampson, 1995: 92, 96, 98).

On the other hand, Nerland’s father apparently had no religious affiliation at all,

and seems to have been somewhat of a biker. He wrote a column for the local paper, the

Daily Herald, called “Fat Bob on Bikes” and was thought to have ties to Alberta

motorcycle gangs. He wore a German army helmet instead of a motorcycle helmet, and

it was known that he did not like Indians (Sampson, 1995: 93).

Nerland began his life with white supremacy when he moved to Vancouver,

British Columbia, with his father in the 1980s. Nerland claims it was a Corrections

51


Canada employee who introduced Nerland to the Klu Klux Klan in Vancouver, but it was

his travel to Idaho in 1984, that led him to become a member of the Aryan Nations at the

compound of the Church of Jesus Christ Christian Aryan Nations. Hayden Lake was the

home of the leader of the sect, Richard Butler, who believed that British colonists were

the true descendants of the Israelites, and were Gods chosen people. Jews, and all other

non-whites, were to be killed. The compound at Hayden Lake "became a meeting place

for those of like views and a training centre for the day when the whites would take over

North America and drive out all other races." Several murders and robberies, including

the killing of a Jewish broadcaster and the robbery of a Brinks truck, were directly linked

to the compound while Nerland trained. Nerland became the Saskatchewan leader of the

Church of Jesus Christ Aryan Nations in 1989, and participated in several very public

Aryan Nations activities where he personally drew national media attention (Sampson,

1995: 94-96).

When LaChance walked into Northern Pawn and Gun, Nerland was present with

two friends, Gar Brownbridge and Russell Yungwirth, who were also associated with

white supremacy, and worked for the provincial and federal governments22. Yungwirth

was a guard at the Prince Albert Penitentiary, and Brownbridge was a youth worker at a

Prince Albert young offender facility. The three had been drinking rye and Cokes and

talking about the Gulf War when LaChance showed up.

Sampson writes the following account of what Nerland, Yungwirth and

Brownbridge claim happened.

The four men were the only witnesses to what happened next. Now, one is dead. One has disappeared. Two others want to put the whole experience behind them... Yungwirth and Brownbridge would claim that Leo was intoxicated when he entered the store. They said he wanted to sell a .303 rifle he did not have with

52


Canada employee who introduced Nerland to the Klu Klux Klan in Vancouver, but it was

his travel to Idaho in 1984, that led him to become a member of the Aryan Nations at the

compound of the Church of Jesus Christ Christian Aryan Nations. Hayden Lake was the

home of the leader of the sect, Richard Butler, who believed that British colonists were

the true descendants of the Israelites, and were Gods chosen people. Jews, and all other

non-whites, were to be killed. The compound at Hayden Lake “became a meeting place

for those of like views and a training centre for the day when the whites would take over

North America and drive out all other races.” Several murders and robberies, including

the killing of a Jewish broadcaster and the robbery of a Brinks truck, were directly linked

to the compound while Nerland trained. Nerland became the Saskatchewan leader o f the

Church of Jesus Christ Aryan Nations in 1989, and participated in several very public

Aryan Nations activities where he personally drew national media attention (Sampson,

1995: 94-96).

When LaChance walked into Northern Pawn and Gun, Nerland was present with

two friends, Gar Brownbridge and Russell Yungwirth, who were also associated with

white supremacy, and worked for the provincial and federal governments22. Yungwirth

was a guard at the Prince Albert Penitentiary, and Brownbridge was a youth worker at a

Prince Albert young offender facility. The three had been drinking rye and Cokes and

talking about the Gulf War when LaChance showed up.

Sampson writes the following account of what Nerland, Yungwirth and

Brownbridge claim happened.

The four men were the only witnesses to what happened next. Now, one is dead. One has disappeared. Two others want to put the whole experience behind them... Yungwirth and Brownbridge would claim that Leo was intoxicated when he entered the store. They said he wanted to sell a .303 rifle he did not have with

52


him. They said Nerland fired two shots from the gun he had in his hand into the floor behind the counter. Then Leo turned to leave. They said they were shocked when a third shot rang out as the door was closing. They saw Nerland standing with his rifle in his hands, pointed at the door. (Sampson, 1995: 14)

LaChance did not know he was shot at first, and walked further down the street to Central

Avenue. He made it approximately 50 metres before he fell.

Initially, LaChance lost consciousness, and fell to the ground. He regained

consciousness, however, in time to see his friend Maurice Morin and two other men,

Donald Blunden and Kim Koroll, come to his aid. Blunden covered LaChance with one

blanket and placed another under his head. Koroll ran to find help, first to the Northern

Pawn and Gun Shop, to ask for a phone. Nerland, Yungwirth and Brownbridge were still

in the shop and told him there was no phone. Koroll had to go further away to find a

phone, he "cut through a back alley and jumped a fence alongside the A&W where he

finally found one, two blocks from where Leo lay in the snow" (Sampson, 1995: 22-23).

Leo LaChance came in and out of consciousness that evening. He had a broken

arm, was bleeding, and his blood pressure and pulse were failing. He had identified

himself to the paramedics with an alias he sometimes used, likely because he was still

afraid for his life, possibly confused as to what possible motive someone would have for

trying to kill him (Sampson, 1995: 24-25). At times he tried to speak to attendants, but it

was unclear what he was trying to say, he may possibly have been trying to speak in

Cree. It is known, however, that as he lay in the ambulance and then the hospital

struggling for his life, Nerland and his friends were panicking (Sampson, 1995: 24-25).

Later, the officers and paramedics involved recalled LaChance saying that he had been in

53


him. They said Nerland fired two shots from the gun he had in his hand into the floor behind the counter. Then Leo turned to leave. They said they were shocked when a third shot rang out as the door was closing. They saw Nerland standing with his rifle in his hands, pointed at the door. (Sampson, 1995: 14)

LaChance did not know he was shot at first, and walked further down the street to Central

Avenue. He made it approximately 50 metres before he fell.

Initially, LaChance lost consciousness, and fell to the ground. He regained

consciousness, however, in time to see his friend Maurice Morin and two other men,

Donald Blunden and Kim Koroll, come to his aid. Blunden covered LaChance with one

blanket and placed another under his head. Koroll ran to find help, first to the Northern

Pawn and Gun Shop, to ask for a phone. Nerland, Yungwirth and Brownbridge were still

in the shop and told him there was no phone. Koroll had to go further away to find a

phone, he “cut through a back alley and jumped a fence alongside the A&W where he

finally found one, two blocks from where Leo lay in the snow” (Sampson, 1995: 22-23).

Leo LaChance came in and out of consciousness that evening. He had a broken

arm, was bleeding, and his blood pressure and pulse were failing. He had identified

himself to the paramedics with an alias he sometimes used, likely because he was still

afraid for his life, possibly confused as to what possible motive someone would have for

trying to kill him (Sampson, 1995: 24-25). At times he tried to speak to attendants, but it

was unclear what he was trying to say, he may possibly have been trying to speak in

Cree. It is known, however, that as he lay in the ambulance and then the hospital

struggling for his life, Nerland and his friends were panicking (Sampson, 1995: 24-25).

Later, the officers and paramedics involved recalled LaChance saying that he had been in

53


the store trying to sell his furs, there were three men, and the one with the rifle had shot

him (Sampson, 1995: 108-109).

" If I shot that Indian, I'm fucked. My business is fucked" are the words Nerland

spoke to Yungwirth and Brownbridge (Sampson, 1995: 25). The fear Nerland had of

losing what he had as a result of the shooting was likely what inspired him to tell police a

fabricated story during his first interview. Nerland claimed he had been clearing out the

store when two men in their 20s came in and fired the gun while handling it, threatened

him to keep quiet, and then left (Sampson, 1995: 111).

Not long after the shooting, however, Yungwirth and Brownbridge contacted

police through their lawyers wanting to give a statement, a statement contradicting

Nerland's assertion there were two unidentified men in the store that fired the gun.

According to Yungwirth and Brownbridge, they were in the store when an "elderly

intoxicated Indian" came into the store wanting to sell a rifle. Nerland shot the gun into

the floor twice, and then a third time through the door. Both men stated Nerland looked

stunned and said he hadn't known that there was a third bullet in the gun. This statement,

which depicted the incident as an accident, indicated what occurred was not murder,

which is premeditated and intentional, but manslaughter (Sampson, 1995: 117). The

charge of manslaughter was laid on January 30, 1991, two days after Leo LaChance was

shot (Sampson, 1995: 120). After being denied bail, and on the way to jail to await trial,

Nerland told the police who were transporting him, "If I am convicted for shooting that

Indian, you'll have to pin a medal on me. I've done you all a favour" (Sampson, 1995:

133).

54


the store trying to sell his furs, there were three men, and the one with the rifle had shot

him (Sampson, 1995: 108-109).

“ Iff shot that Indian, I’m fucked. My business is fucked” are the words Nerland

spoke to Yungwirth and Brownbridge (Sampson, 1995: 25). The fear Nerland had of

losing what he had as a result of the shooting was likely what inspired him to tell police a

fabricated story during his first interview. Nerland claimed he had been clearing out the

store when two men in their 20s came in and fired the gun while handling it, threatened

him to keep quiet, and then left (Sampson, 1995: 111).

Not long after the shooting, however, Yungwirth and Brownbridge contacted

police through their lawyers wanting to give a statement, a statement contradicting

Nerland’s assertion there were two unidentified men in the store that fired the gun.

According to Yungwirth and Brownbridge, they were in the store when an “elderly

intoxicated Indian” came into the store wanting to sell a rifle. Nerland shot the gun into

the floor twice, and then a third time through the door. Both men stated Nerland looked

stunned and said he hadn’t known that there was a third bullet in the gun. This statement,

which depicted the incident as an accident, indicated what occurred was not murder,

which is premeditated and intentional, but manslaughter (Sampson, 1995: 117). The

charge of manslaughter was laid on January 30,1991, two days after Leo LaChance was

shot (Sampson, 1995: 120). After being denied bail, and on the way to jail to await trial,

Nerland told the police who were transporting him, “If I am convicted for shooting that

Indian, you’ll have to pin a medal on me. I’ve done you all a favour” (Sampson, 1995:

133).

54


On April 12, 1991, Carney Nerland pleaded guilty to manslaughter and was

sentenced to four years in jail. The fact that Nerland was a white supremacist was not

taken into account in the investigation of the shooting, nor in the charging and sentencing

of Nerland. Justice Gerein indicated that the reason for this was because Nerland's racist

beliefs had not been put forth by the police or prosecutors as a part of the case, and that if

they had, the sentence could have been higher (Sampson, 1995: 140). When the news

broke that Nerland was a paid RCMP informant, it elicited outrage from the public, as it

had been deliberately kept quiet during the trial, causing suspicion that the police and

prosecution protected him (Sampson, 1995: 137).

Despite the fact that Nerland was a white supremacist, racism as a motivating, or

even aggravating, factor was never investigated. The fact that it subsequently was

revealed that the suspect was an RCMP informant makes this case more suspicious; and

the avoidance of the role of racism as it relates to this case was carried out in an openly

manipulated fashion. At the preliminary hearing Judge Ferris noted that the charge could

have been murder, likely because Nerland could have been had a racial motive — but

police and prosecution had, for some reason, decided against this. Judge Ferris

mentioned several important questions that didn't seem to be considered, including the

validity of LaChance's statements, seeing that LaChance may have been intoxicated.

Was it really an accident because Nerland did not know the gun was loaded? If Nerland

had shot the gun more than once, how could it be an accident? Further, why would the

three men not have checked outside to see if LaChance was injured, and why would they

have refused Koroll the use of a telephone if they had been concerned? (Sampson, 1995:

136-137)

55


On April 12, 1991, Carney Nerland pleaded guilty to manslaughter and was

sentenced to four years in jail. The fact that Nerland was a white supremacist was not

taken into account in the investigation of the shooting, nor in the charging and sentencing

of Nerland. Justice Gerein indicated that the reason for this was because Nerland’s racist

beliefs had not been put forth by the police or prosecutors as a part of the case, and that if

they had, the sentence could have been higher (Sampson, 1995: 140). When the news

broke that Nerland was a paid RCMP informant, it elicited outrage from the public, as it

had been deliberately kept quiet during the trial, causing suspicion that the police and

prosecution protected him (Sampson, 1995: 137).

Despite the fact that Nerland was a white supremacist, racism as a motivating, or

even aggravating, factor was never investigated. The fact that it subsequently was

revealed that the suspect was an RCMP informant makes this case more suspicious; and

the avoidance of the role of racism as it relates to this case was carried out in an openly

manipulated fashion. At the preliminary hearing Judge Ferris noted that the charge could

have been murder, likely because Nerland could have been had a racial motive - but

police and prosecution had, for some reason, decided against this. Judge Ferris

mentioned several important questions that didn’t seem to be considered, including the

validity of LaChance’s statements, seeing that LaChance may have been intoxicated.

Was it really an accident because Nerland did not know the gun was loaded? If Nerland

had shot the gun more than once, how could it be an accident? Further, why would the

three men not have checked outside to see if LaChance was injured, and why would they

have refused Koroll the use of a telephone if they had been concerned? (Sampson, 1995:

136-137)

55


All of the questions surrounding the LaChance case indicated an unwillingness, or

a fear, to even ask about the role of racism in the series of events. Possible reasons for

this fear or unwillingness include disbelief that racism is actually a problem, fear of

increasing racial tensions, and ignorance about what to do about it. The Commission of

Inquiry Into the Shooting Death of Leo LaChance Inquiry, also known as the LaChance

Inquiry or the Hughes Commission after the chief commissioner, Judge Ted Hughes, was

established in May 1992 (Sampson, 1995: 150).

2.6 The "Starlight Tours"

The Commission on First Nations and Metis Peoples and Justice Reform was

established in November of 2001, after calls for justice system reform after the reports of

the "Starlight Tours" in Saskatoon, Saskatchewan. Darrell Night, a First Nations man

from Saskatoon, was dropped off outside the city of Saskatoon by members of the

Saskatoon Police Force on the night of January 28, 2004.

Night had just finished an afternoon of running errands and was looking forward

to a weekend of fun on the evening of January 27, 2004. With his brother and cousin,

Night spent the early evening drinking and playing pool at different bars. When the bars

closed, they went to a house party where things began to get out of hand when people

began to fight, so Night decided to leave (Desjarlais, 2002).

As he walked out the building, he saw Constables Ken Munson and Dan Hatchen

pull up in•their cruiser. He thought they were there to deal with the fights beginning in

the apartment he just left, and he told them it was about time they got there and that they

needed to get up there to stop the fights. Munson and Hatchen gave Night no response,

56


All of the questions surrounding the LaChance case indicated an unwillingness, or

a fear, to even ask about the role of racism in the series of events. Possible reasons for

this fear or unwillingness include disbelief that racism is actually a problem, fear of

increasing racial tensions, and ignorance about what to do about it. The Commission of

Inquiry Into the Shooting Death of Leo LaChance Inquiry, also known as the LaChance

Inquiry or the Hughes Commission after the chief commissioner, Judge Ted Hughes, was

established in May 1992 (Sampson, 1995: 150).

2.6 The “Starlight Tours”


established in November of 2001, after calls for justice system reform after the reports of

the “Starlight Tours” in Saskatoon, Saskatchewan. Darrell Night, a First Nations man

from Saskatoon, was dropped off outside the city of Saskatoon by members of the

Saskatoon Police Force on the night of January 28, 2004.

Night had just finished an afternoon of running errands and was looking forward

to a weekend of fun on the evening of January 27, 2004. With his brother and cousin,

Night spent the early evening drinking and playing pool at different bars. When the bars

closed, they went to a house party where things began to get out of hand when people

began to fight, so Night decided to leave (Desjarlais, 2002).

As he walked out the building, he saw Constables Ken Munson and Dan Hatchen

pull up in-their cruiser. He thought they were there to deal with the fights beginning in

the apartment he just left, and he told them it was about time they got there and that they

needed to get up there to stop the fights. Munson and Hatchen gave Night no response,

56


and instead, they jumped on him, wrestled him up against the car while handcuffing him.

The two officers put Night in the car and began to drive away to the outskirts of

Saskatoon.

The cruiser passed the Queen Elizabeth Power Station and continued for about

kilometre before coming to a stop. As they pulled Night out of the car one of the officers

shouted, "Get out you fucking Indian." Expecting a beating, as he had so often heard

could happen at the hands of police in situations such as this, he was stunned when the

car simply drove off, leaving him in the bitter cold in the middle of the Saskatchewan

prairie in winter.

Night began walking. When he reached the power plant he knocked on the door,

but there was no response. By this point, he had already begun to hallucinate, and

considered throwing a pipe through the window to break into the station. Although he

was on the verge of freezing to death he decided not to try to break in for fear the same

police cruiser would be called out to investigate the call. Instead, he continued knocking

on the door, waiting to be heard from somewhere within the power station.

Inside the plant, a lone night supervisor, Mark Envoy, checked the front of the

building. Shocked at seeing Night standing there in the cold, he rushed to the door to let

him inside, and Night told what happened. Envoy called a cab for Night, and while they

were waiting, they talked about what Night had just been through with the police. When

the cab pulled up they shook hands and Night left the station.

The cab driver, John Frieson, noticed the smell of alcohol on Night when he got

into the cab and joked about Night having been drinking on the job. While they were

57


and instead, they jumped on him, wrestled him up against the car while handcuffing him.

The two officers put Night in the car and began to drive away to the outskirts of

Saskatoon.

The cruiser passed the Queen Elizabeth Power Station and continued for about

kilometre before coming to a stop. As they pulled Night out of the car one of the officers

shouted, “Get out you fucking Indian.” Expecting a beating, as he had so often heard

could happen at the hands of police in situations such as this, he was stunned when the

car simply drove off, leaving him in the bitter cold in the middle of the Saskatchewan

prairie in winter.

Night began walking. When he reached the power plant he knocked on the door,

but there was no response. By this point, he had already begun to hallucinate, and

considered throwing a pipe through the window to break into the station. Although he

was on the verge of freezing to death he decided not to try to break in for fear the same

police cruiser would be called out to investigate the call. Instead, he continued knocking

on the door, waiting to be heard from somewhere within the power station.

Inside the plant, a lone night supervisor, Mark Envoy, checked the front of the

building. Shocked at seeing Night standing there in the cold, he rushed to the door to let

him inside, and Night told what happened. Envoy called a cab for Night, and while they

were waiting, they talked about what Night had just been through with the police. When

the cab pulled up they shook hands and Night left the station.

The cab driver, John Frieson, noticed the smell of alcohol on Night when he got

into the cab and joked about Night having been drinking on the job. While they were

57


driving back into the city, Night told Frieson his story. Once at home, Night went to

sleep on the couch.

The next day, Night recounted the incident to his uncle, "Randy", who had

survived a similar incident years ago. Initially, Randy said little about it except that there

was nothing they could do about it because "it's your word against theirs" (Desjarlais,

2002: 15). When Night recounted his story more completely, including information

about Envoy and Frieson, Randy became excited because they had witnesses to the

incident. However, at no time did they consider going to the Saskatoon Police to lay a

formal complaint. Rather, they were thinking about approaching the Federation of

Saskatchewan Indian Nations, because Aboriginal people tend not to trust police

complaints processes, which for the most part are conducted internally.

The body of Rodney Naistus was found by the Queen Elizabeth Power Plant on

January 29, 2000, just 30 hours after Darrell Night's run-in with Munson and Hatchen.

On January 31, 2000, the body of Lawrence Kim Wegner was found in approximately the

same location. The cases of Darcy Dean Ironchild, who died on February 19th, 2000, and

the case of Lloyd Dustyhorn, whose body was found on January 19th, 2000 would also be

considered suspicious (Saskatchewan, 2000; 2001a,b,c). Both men had died after being

in policy custody. When one looked at the timeline it was very suspicious:

January 18th, 2000 — Lloyd Joseph Dustyhorn is taken into police custody for intoxication; January 19th, 2000 — Dustyhorn's body is found, frozen, the cause of death is hypothermia; January 28th, 2000 — Darrell Night is dropped off by the Queen Elizabeth Power Station, he survives; January 29th 2000 — Rodney Naistus is last seen in the early morning alive. Later that morning, his body is discovered in the area Night was dropped off just hours before; January 31st, 2000 — Kim Wegner is last seen alive, intoxicated, after a call is put into the police out of concern for him;

58


driving back into the city, Night told Frieson his story. Once at home, Night went to

sleep on the couch.

The next day, Night recounted the incident to his uncle, “Randy”, who had

survived a similar incident years ago. Initially, Randy said little about it except that there

was nothing they could do about it because “it’s your word against theirs” (Desjarlais,

2002: 15). When Night recounted his story more completely, including information

about Envoy and Frieson, Randy became excited because they had witnesses to the

incident. However, at no time did they consider going to the Saskatoon Police to lay a

formal complaint. Rather, they were thinking about approaching the Federation of

Saskatchewan Indian Nations, because Aboriginal people tend not to trust police

complaints processes, which for the most part are conducted internally.

The body of Rodney Naistus was found by the Queen Elizabeth Power Plant on

January 29, 2000, just 30 hours after Darrell Night’s run-in with Munson and Hatchen.

On January 31,2000, the body of Lawrence Kim Wegner was found in approximately the

tlisame location. The cases of Darcy Dean Ironchild, who died on February 19 , 2000, andi L

the case of Lloyd Dustyhom, whose body was found on January 19 , 2000 would also be

considered suspicious (Saskatchewan, 2000; 2001 a,b,c). Both men had died after being

in policy custody. When one looked at the timeline it was very suspicious:

t l iJanuary 18 ,2000 - Lloyd Joseph Dustyhom is taken into police custody for intoxication;

fhJanuary 19 , 2000 - Dustyhom’s body is found, frozen, the cause of death is hypothermia;January 28th, 2000 - Darrell Night is dropped off by the Queen Elizabeth Power Station, he survives;January 29th 2000 - Rodney Naistus is last seen in the early morning alive. Later that morning, his body is discovered in the area Night was dropped off just hours before; January 31st, 2000 - Kim Wegner is last seen alive, intoxicated, after a call is put into the police out of concern for him;

58


February 3rd 2000 — Wegner's body is found outside the city by the landfill; February 18th, 2000 — Darcy Dean Ironchild was picked up by the Saskatoon police for public intoxication; and February 19th 2000 - The body of Ironchild is discovered in his apartment, the cause of death was an apparent overdose.

Despite the glaring similarities and staggeringly close timelines, officials explained the

deaths of the men away. With the exception of Darrell Night's case, all the other cases

were cleared, and no charges against the police or anyone else were laid (Canadian

Heritage, 2003).

Perhaps it was the fact that Randy and Night had just heard about the discovery of

Naistus's body on the radio that motivated Randy to mention it to a police officer who

pulled them over. It was February 3, 2000, when Constable Bruce Ehalt pulled Randy

over to give him a seatbelt ticket. Ehalt asked the two if they had reported it, to which

Night responded, "Yeah, and who's gonna believe me?" (Desjarlais, 2002: 22). Not

having a response, Ehalt tried to go about the rest of the day without thinking about it.

However, it was not long before he brought the incident to the attention of Police Chief

Dave Scott.

The words of Ehalt were echoed widely, as he approached Night for more

information, "Remember yesterday when you said no one would believe you?... Well, I

believe you" (Desjarlais, 2002: 29). According to Joy Desjarlais this statement was to

become a bombshell,

It had only been a few short words yet the impact would be felt all over the city of Saskatoon from the mayor to the chief of police, cops, family members and even to small children who idolized police officers. For the first time the treatment of Aboriginal people at the hands of a rogue cop would finally be uncovered and those in power would be scrambling to come up with answers of which they had none. And the impact of the allegations would further divide the relations between

59


February 3rd 2000 - Wegner’s body is found outside the city by the landfill;February 18th, 2000 - Darcy Dean Ironchild was picked up by the Saskatoon police for public intoxication; andFebruary 19th 2000 - The body of Ironchild is discovered in his apartment, the cause of death was an apparent overdose.

Despite the glaring similarities and staggeringly close timelines, officials explained the

deaths of the men away. With the exception of Darrell Night’s case, all the other cases

were cleared, and no charges against the police or anyone else were laid (Canadian

Heritage, 2003).

Perhaps it was the fact that Randy and Night had just heard about the discovery of

Naistus’s body on the radio that motivated Randy to mention it to a police officer who

pulled them over. It was February 3, 2000, when Constable Bruce Ehalt pulled Randy

over to give him a seatbelt ticket. Ehalt asked the two if they had reported it, to which

Night responded, “Yeah, and who’s gonna believe me?” (Desjarlais, 2002: 22). Not

having a response, Ehalt tried to go about the rest of the day without thinking about it.

However, it was not long before he brought the incident to the attention of Police Chief

Dave Scott.

The words of Ehalt were echoed widely, as he approached Night for more

information, “Remember yesterday when you said no one would believe you?... Well, I

believe you” (Desjarlais, 2002: 29). According to Joy Desjarlais this statement was to

become a bombshell,

It had only been a few short words yet the impact would be felt all over the city of Saskatoon from the mayor to the chief of police, cops, family members and even to small children who idolized police officers. For the first time the treatment of Aboriginal people at the hands of a rogue cop would finally be uncovered and those in power would be scrambling to come up with answers of which they had none. And the impact of the allegations would further divide the relations between

59


the First Nations community and the Police Force as they had never been before (Desjarlais, 2002: 29-30).

Night went down to the station, reluctantly, to record a statement and have the pictures of

the bruises on his wrists taken. A week after he was dropped off by the police, he still

had the imprints of the handcuffs on his wrists, bearing witness to the harsh treatment he

had received. After the discoveries of the bodies of Wegner and Naistus, the RCMP were

called in to take over the investigation.

Based on the information given by Darrell Night, the court held a preliminary

hearing to determine if any charges should be laid against Constables Ken Munson and

Dan Hatchen. Night gave his story to the court, and was challenged by the defence for

possibly having been too drunk to remember the events of the evening, and for having a

prior criminal record. The cab driver, John Frieson and nightman Mark Envoy gave

testimony as to what they had witnessed, and to the conversations they had had with

Night. A sergeant and a constable gave statements in relation to the evidence that they

took from Night. The judge decided that there was enough evidence to proceed with

charges of assault and unlawful confinement.

Incredibly, Munson and Hatchen requested a sentencing circle. A sentencing

circle is considered to be a traditional First Nations form of justice where the community

decides the fate of someone who has pleaded guilty to a crime. The family of Darrell

Night, Darrell Night himself, and ultimately the Elder who was suggested to lead the

circle, all refused to participate. As such, the idea of a sentencing circle was abandoned,

particularly since the accused did not plead guilty, and therefore, had not accepted

responsibility for their actions, the fundamental aspect of the sentencing circle. Hatchen

60


the First Nations community and the Police Force as they had never been before (Desjarlais, 2002: 29-30).

Night went down to the station, reluctantly, to record a statement and have the pictures of

the bruises on his wrists taken. A week after he was dropped off by the police, he still

had the imprints of the handcuffs on his wrists, bearing witness to the harsh treatment he

had received. After the discoveries of the bodies of Wegner and Naistus, the RCMP were

called in to take over the investigation.

Based on the information given by Darrell Night, the court held a preliminary

hearing to determine if any charges should be laid against Constables Ken Munson and

Dan Hatchen. Night gave his story to the court, and was challenged by the defence for

possibly having been too drunk to remember the events of the evening, and for having a

prior criminal record. The cab driver, John Frieson and nightman Mark Envoy gave

testimony as to what they had witnessed, and to the conversations they had had with

Night. A sergeant and a constable gave statements in relation to the evidence that they

took from Night. The judge decided that there was enough evidence to proceed with

charges of assault and unlawful confinement.

Incredibly, Munson and Hatchen requested a sentencing circle. A sentencing

circle is considered to be a traditional First Nations form of justice where the community

decides the fate of someone who has pleaded guilty to a crime. The family of Darrell

Night, Darrell Night himself, and ultimately the Elder who was suggested to lead the

circle, all refused to participate. As such, the idea of a sentencing circle was abandoned,

particularly since the accused did not plead guilty, and therefore, had not accepted

responsibility for their actions, the fundamental aspect of the sentencing circle. Hatchen

60


and Munson did not take responsibility for their actions, and chose instead to define their

actions as an "error in judgement" (Desjarlais, 2002: 91). They were convicted of

unlawful confinement, and race was not found to be an aggravating role, which would

have elevated the seriousness of the crime, and they were sentenced to eight months in

jail.

While not much is known about the lives of the men who were found on the

outskirts of the city, they all had three things in common. The first is that they were First

Nations men. Second, they were intoxicated. Third, they were all in police custody prior

to their deaths. The most important point to make about these connections is the lack of

criminal behaviour involved, at least on the part of the Aboriginal victims. None of these

men were in a situation where they were committing a serious crime, such as a crime

against a person or even against property. They were intoxicated, and in the event that

they are intoxicated enough to cause them problems, that is a health issue and not a

criminal justice issue.

On November 15, 2001, the Commission on First Nations and Metis Peoples and

Justice Reform was established, with Wilton (Willie) Littlechild as the Chair

(Saskatchewan, 2001e). Although the mandate did not include looking into the deaths of

the Aboriginal men in Saskatoon, this Commission was established as a result of public

pressure to look into the justice system as a result of those deaths.

2.7 Neil Stonechild

The death of Neil Stonechild, an Aboriginal youth, was closely linked with the

allegations against the Saskatoon police involving the Starlight Tours. Like the other

61


and Munson did not take responsibility for their actions, and chose instead to define their

actions as an “error in judgement” (Desjarlais, 2002: 91). They were convicted of

unlawful confinement, and race was not found to be an aggravating role, which would

have elevated the seriousness of the crime, and they were sentenced to eight months in

jail.

While not much is known about the lives of the men who were found on the

outskirts of the city, they all had three things in common. The first is that they were First

Nations men. Second, they were intoxicated. Third, they were all in police custody prior

to their deaths. The most important point to make about these connections is the lack of

criminal behaviour involved, at least on the part of the Aboriginal victims. None of these

men were in a situation where they were committing a serious crime, such as a crime

against a person or even against property. They were intoxicated, and in the event that

they are intoxicated enough to cause them problems, that is a health issue and not a

criminal justice issue.

On November 15, 2001, the Commission on First Nations and Metis Peoples and

Justice Reform was established, with Wilton (Willie) Littlechild as the Chair

(Saskatchewan, 2001e). Although the mandate did not include looking into the deaths of

the Aboriginal men in Saskatoon, this Commission was established as a result of public

pressure to look into the justice system as a result of those deaths.

2.7 Neil Stonechild

The death of Neil Stonechild, an Aboriginal youth, was closely linked with the

allegations against the Saskatoon police involving the Starlight Tours. Like the other

61


Aboriginal men from Saskatoon, Neil Stonechild's body was discovered shortly after

having been in contact with the Saskatoon police. His body, like some of the others, was

found in a field on the outskirts of Saskatoon on the morning of November 29, 1990. The

initial autopsy recorded the cause of death as hypothermia. After a poorly conducted

partial investigation by the Saskatoon Police Service, foul play was ruled out and the

cause of death was determined to be accidental.

According to Neil's mother Stella Bignell, Neil was born in Brandon, Manitoba,

in 1973. Neil was one of 5 children. Mrs. Bignell moved her family to Saskatoon in

1980 to "make a new life for herself and to escape problems with alcohol abuse"

(Stonechild Inquiry, 2004: 24). She described Neil as an active boy, a "loveable boy

who enjoyed sports and excelled in wrestling... he was an Army Cadet" but Neil began

having trouble with alcohol and minor crime when he was about 14 or 15 years of age

(Stonechild Inquiry, 2004: 24). His aunt, Debra Mason, also had very fond memories of

Neil, saying that he had a particular fondness for young children, and that he was

growing tired of the way his life was going and had expressed interest in turning things

around.

According to Mrs. Bignell, on November 24, 1990, Neil had been on the run from

a community home where he had been sentenced for criminal activity. He had promised

both Mrs. Bignell and the manager of the community home that he was going to return to

the home after the weekend, but that he had plans to go out with friends that evening.

When he did not return by the evening of November 25th, Mrs. Bignell began to worry

and asked her older son, Marcel, to look for him. After checking around, Marcel heard

62


Aboriginal men from Saskatoon, Neil Stonechild’s body was discovered shortly after

having been in contact with the Saskatoon police. His body, like some of the others, was

found in a field on the outskirts of Saskatoon on the morning of November 29,1990. The

initial autopsy recorded the cause of death as hypothermia. After a poorly conducted

partial investigation by the Saskatoon Police Service, foul play was ruled out and the

cause of death was determined to be accidental.

According to Neil’s mother Stella Bignell, Neil was bom in Brandon, Manitoba,

in 1973. Neil was one of 5 children. Mrs. Bignell moved her family to Saskatoon in

1980 to “make a new life for herself and to escape problems with alcohol abuse”

(Stonechild Inquiry, 2004: 24). She described Neil as an active boy, a “loveable boy

who enjoyed sports and excelled in wrestling... he was an Army Cadet” but Neil began

having trouble with alcohol and minor crime when he was about 14 or 15 years of age

(Stonechild Inquiry, 2004: 24). His aunt, Debra Mason, also had very fond memories of

Neil, saying that he had a particular fondness for young children, and that he was

growing tired of the way his life was going and had expressed interest in turning things

around.

According to Mrs. Bignell, on November 24,1990, Neil had been on the run from

a community home where he had been sentenced for criminal activity. He had promised

both Mrs. Bignell and the manager of the community home that he was going to return to

the home after the weekend, but that he had plans to go out with friends that evening.

When he did not return by the evening of November 25th, Mrs. Bignell began to worry

and asked her older son, Marcel, to look for him. After checking around, Marcel heard

62


from Neil's friend, Jason Roy that Neil had been taken into custody by the police the

night before.

However, when the family checked with the police, they learned that this was not

the case. On November 29th, 1990, Sgt. Keith Jarvis, a Morality Officer, informed Mrs.

Bignell that Neil's body had been found on the outskirts of the north west side of the city.

She was told that he was likely trying to walk to the Saskatoon Correctional Centre to

turn himself in, an unlikely story for a youth who knew the system and knew he would

not be taken in at the adult facility. This was a sentiment echoed by the manager of the

youth community living facility, Patricia Pickard,

Young offenders know the law, believe it or not, better than most people who are dealing with them. He would have never turned himself in at Corrections, because Corrections wouldn't have accepted him, he wasn't an adult... he would have come home. He knew what the procedure was. (Stonechild Inquiry, 2004: 31-32)

Over time, the events of the night slowly began to come to light. Earlier in the

evening, Neil's older brother had bought him a bottle of vodka to take to a friend's house.

According to Commissioner Wright of the Stonechild Inquiry, Neil and Roy drank about

three-quarters of the vodka before Neil decided he wanted to visit his ex-girlfriend,

Lucille Horse, who was babysitting in an apartment with her boyfriend. The two walked

several blocks before stopping at a convenience store to warm up. After searching

unproductively for Horse, Roy was cold and wanted to go back to the 7-11 to warm up,

but Neil refused. At that point, Roy left Neil searching the apartments while he want

back to the convenience store to warm up. After warming up, Roy ran into Neil again

after leaving the store.

63


from Neil’s friend, Jason Roy that Neil had been taken into custody by the police the

night before.

However, when the family checked with the police, they learned that this was not

the case. On November 29th, 1990, Sgt. Keith Jarvis, a Morality Officer, informed Mrs.

Bignell that Neil’s body had been found on the outskirts of the north west side of the city.

She was told that he was likely trying to walk to the Saskatoon Correctional Centre to

turn himself in, an unlikely story for a youth who knew the system and knew he would

not be taken in at the adult facility. This was a sentiment echoed by the manager of the

youth community living facility, Patricia Pickard,

Young offenders know the law, believe it or not, better than most people who are dealing with them. He would have never turned himself in at Corrections, because Corrections wouldn’t have accepted him, he wasn’t an adult... he would have come home. He knew what the procedure was. (Stonechild Inquiry, 2004: 31-32)

Over time, the events of the night slowly began to come to light. Earlier in the

evening, Neil’s older brother had bought him a bottle of vodka to take to a friend’s house.

According to Commissioner Wright of the Stonechild Inquiry, Neil and Roy drank about

three-quarters of the vodka before Neil decided he wanted to visit his ex-girlfriend,

Lucille Horse, who was babysitting in an apartment with her boyfriend. The two walked

several blocks before stopping at a convenience store to warm up. After searching

unproductively for Horse, Roy was cold and wanted to go back to the 7-11 to warm up,

but Neil refused. At that point, Roy left Neil searching the apartments while he want

back to the convenience store to warm up. After warming up, Roy ran into Neil again

after leaving the store.

63


In his testimony at the Inquiry, Roy described seeing Neil, for the last time, in the

back of the police car.

... a police car pulled in front of me and Neil was in the back. Neil went to — he saw me, he was — very irate... He was saying "Jay, help me. Help me. These guys are going to kill me. He had fresh blood on his face across his nose. I couldn't see all that well, but he had his face to the window and he was yelling at me asking me to help him. Not for one minute did I think he was in any danger (Stonechild Inquiry, 2004: 35).

The police in the cruiser asked Roy to identify himself, to which he answered that he was

"Tracy Lee Horse", a friend of his (Stonechild Inquiry, 2004: 36). Due to his own

breach of probation, and his fear of police, Roy did not immediately come forward with

his story to Neil's family. He did, however, call Sergeant Jarvis on November 30, 1990,

and agreed to give a statement after Neil's body was discovered, but did not add the part

about having seen Neil in the back of the police car. Roy never heard back about the

results of the investigation of the statement he gave to Jarvis.

Over the course of many years, Roy consistently claimed that the last time he saw

Neil, he was in the back seat of a police car screaming. He disclosed this information to

both Diane Fraser, a social worker, who knew both Neil and Roy, and to a psychology

student who was a teacher at Kilburn Hall, a youth correctional facility, who had been

asked to help Roy with stress and an inability to sleep. Roy consistently described Neil

as being handcuffed and bleeding when he saw him in the backseat of the police car, and

he had lived with the guilt of not being able to do anything.

Despite the testimony of Jason Roy, in police dispatch records it stated that they

arrived at the scene and searched for Roy's alias, Tracy Lee Horse, and in their own

records, Constables Brad Senger and Larry Hartwig claimed that they could not recall

64


In his testimony at the Inquiry, Roy described seeing Neil, for the last time, in the

back of the police car.

... a police car pulled in front of me and Neil was in the back. Neil went to - he saw me, he was - very irate... He was saying “Jay, help me. Help me. These guys are going to kill me. He had fresh blood on his face across his nose. I couldn’t see all that well, but he had his face to the window and he was yelling at me asking me to help him. Not for one minute did I think he was in any danger (Stonechild Inquiry, 2004: 35).

The police in the cruiser asked Roy to identify himself, to which he answered that he was

“Tracy Lee Horse”, a friend of his (Stonechild Inquiry, 2004: 36). Due to his own

breach of probation, and his fear of police, Roy did not immediately come forward with

his story to Neil’s family. He did, however, call Sergeant Jarvis on November 30, 1990,

and agreed to give a statement after Neil’s body was discovered, but did not add the part

about having seen Neil in the back of the police car. Roy never heard back about the

results of the investigation of the statement he gave to Jarvis.

Over the course of many years, Roy consistently claimed that the last time he saw

Neil, he was in the back seat of a police car screaming. He disclosed this information to

both Diane Fraser, a social worker, who knew both Neil and Roy, and to a psychology

student who was a teacher at Kilbum Hall, a youth correctional facility, who had been

asked to help Roy with stress and an inability to sleep. Roy consistently described Neil

as being handcuffed and bleeding when he saw him in the backseat of the police car, and

he had lived with the guilt of not being able to do anything.

Despite the testimony of Jason Roy, in police dispatch records it stated that they

arrived at the scene and searched for Roy’s alias, Tracy Lee Horse, and in their own

records, Constables Brad Senger and Larry Hartwig claimed that they could not recall

64


having Neil in their car. Many important questions were left unanswered, including why

police were so eager to close the file without investigating other suggested leads. Despite

the questions, it was 13 years before the death of Neil Stonechild resulted in a full scale

"Commission of Inquiry into Matters Relating to the Death of Neil Stonechild," under the

direction of Judge David Henry Wright.

The Saskatoon Police Service vehemently denied the evidence that Constables

Hartwig and Senger had anything to do with Neil Stonechild the night of his death. It

was claimed that Neil was walking through the fields to get to the provincial correctional

centre, rather than going home as planned. Perhaps one could argue that he was

intoxicated and unable to make a rational decision, but the evidence that exists indicates

otherwise.

The police have indicated that the blood alcohol level was 150mgm/100 ml of blood. This may have been a contributing factor but is generally not associated with marked incapacitation or coma. No other explanation for an altered mental state was found (Stonechild Inquiry Exhibit P-49, 2004: A33).

In other words, Neil was not drunk enough to think he could walk across the prairie to a

correctional facility to turn himself in, when he knew they that would not take him, and

that he might pass out and die when he could not make it.

There were concerns within the Saskatoon police service, particularly on the part

of an Aboriginal officer, Constable Ernie Loutitt. Loutitt's claimed that the investigation

was shoddy, likely due to the race or "social stature" of Neil Stonechild and his family

(Stonechild Inquiry, 2004: 120-121). Despite this analysis, Constable Loutitt did not

incriminate his colleagues as having responsibility for the death in any way. Loutitt's

initial interest seemed to be based in concern for the family, particularly Mrs. Bignell. It

65


having Neil in their car. Many important questions were left unanswered, including why

police were so eager to close the file without investigating other suggested leads. Despite

the questions, it was 13 years before the death of Neil Stonechild resulted in a full scale

“Commission of Inquiry into Matters Relating to the Death of Neil Stonechild,” under the

direction of Judge David Henry Wright.

The Saskatoon Police Service vehemently denied the evidence that Constables

Hartwig and Senger had anything to do with Neil Stonechild the night of his death. It

was claimed that Neil was walking through the fields to get to the provincial correctional

centre, rather than going home as planned. Perhaps one could argue that he was

intoxicated and unable to make a rational decision, but the evidence that exists indicates

otherwise.

The police have indicated that the blood alcohol level was 150mgm/100 ml of blood. This may have been a contributing factor but is generally not associated with marked incapacitation or coma. No other explanation for an altered mental state was found (Stonechild Inquiry Exhibit P-49, 2004: A33).

In other words, Neil was not drunk enough to think he could walk across the prairie to a

correctional facility to turn himself in, when he knew they that would not take him, and

that he might pass out and die when he could not make it.

There were concerns within the Saskatoon police service, particularly on the part

of an Aboriginal officer, Constable Ernie Loutitt. Loutitt’s claimed that the investigation

was shoddy, likely due to the race or “social stature” of Neil Stonechild and his family

(Stonechild Inquiry, 2004: 120-121). Despite this analysis, Constable Loutitt did not

incriminate his colleagues as having responsibility for the death in any way. Loutitt’s

initial interest seemed to be based in concern for the family, particularly Mrs. Bignell. It

65


is perhaps speculative, but one could argue that Loutitt was afraid himself to confront the

racism he observed.

As with the Aboriginal men who were picked up in the Starlight Tours, beyond

being a possible public nuisance, it is unclear what serious crime Neil had committed.

Although public intoxication is often a criminal offence, it could also be strongly argued

that it is more of a health issue than a criminal justice issue, at least until an intoxicated

person harms another person or commits a property offence. There is no reason to

suspect that any of the men in Saskatoon had committed any offences at all, and in fact,

when they police were called, it appears that they were sometimes called out of concern

for the men's well being.

2.8 Summary

Donald Marshall Jr. was on the losing end of a power struggle in the context of

strained race relations at a time and place where Aboriginal people were particularly

marginal. In such social contexts, it is difficult for Aboriginal people to want to integrate

or be a part of a society, or even of a structure in society like school system, where their

marginality is reinforced everyday. Being an Aboriginal male is particularly challenging,

and the gang life available to Marshall Jr. at least afforded him an opportunity to prove he

was worth something, even (and maybe especially) in an arena that was not particularly

held in high esteem, particularly by authorities.

Being Aboriginal did not help Marshall Jr.'s case, and his resentment towards his

social location in comparison to the police helped him even less. McIntyre, frustrated by

the young men who he possibly saw as getting away with things, took his position of

66


is perhaps speculative, but one could argue that Loutitt was afraid himself to confront the

racism he observed.

As with the Aboriginal men who were picked up in the Starlight Tours, beyond

being a possible public nuisance, it is unclear what serious crime Neil had committed.

Although public intoxication is often a criminal offence, it could also be strongly argued

that it is more of a health issue than a criminal justice issue, at least until an intoxicated

person harms another person or commits a property offence. There is no reason to

suspect that any of the men in Saskatoon had committed any offences at all, and in fact,

when they police were called, it appears that they were sometimes called out of concern

for the men’s well being.

2.8 Summary

Donald Marshall Jr. was on the losing end of a power struggle in the context of

strained race relations at a time and place where Aboriginal people were particularly

marginal. In such social contexts, it is difficult for Aboriginal people to want to integrate

or be a part of a society, or even of a structure in society like school system, where their

marginality is reinforced everyday. Being an Aboriginal male is particularly challenging,

and the gang life available to Marshall Jr. at least afforded him an opportunity to prove he

was worth something, even (and maybe especially) in an arena that was not particularly

held in high esteem, particularly by authorities.

Being Aboriginal did not help Marshall Jr.’s case, and his resentment towards his

social location in comparison to the police helped him even less. McIntyre, frustrated by

the young men who he possibly saw as getting away with things, took his position of

66


power and used it to get revenge. In the real world, as McIntyre understood it, it was

most likely that this young Aboriginal man would have less credibility than almost

anyone else, including an emotionally troubled young man and a mentally ill alcoholic

youth. In fact, the courts did not even go out of their way to ensure that Marshall Jr. had

the fair judicial process as he was entitled to. It is clear that Marshall Jr. was considered

guilty all along, and that his being an Aboriginal male contributed to that belief, and his

inability to properly defend himself rested on a gross and racist power imbalance.

Lee Colgan, Dwayne Johnson, Jim Houghton, and Norm Manger targeted Helen

Betty Osborne for reasons beyond her control and not of her doing. She was identified

for sexual purposes because she was Aboriginal and female. Save for some anonymous

tips, the entire town maintained a wall of silence to protect the identities of the killers.

This silence was especially maintained for James Houghton and Lee Colgan, whose

families were well respected by the community. In contrast, none of the townspeople

protected the memory of Helen Betty Osborne, a courageous young Aboriginal woman

with dreams and aspirations. Although the rambling of Colgan and the bragging of

Johnston disturbed some, none of the townspeople complained about the slow pace,

demanding justice. Osborne's family was left to search, mostly their minds and hearts for

answers. There were none.

It is not enough to say that Betty Osborne was targeted because she was female,

or even because she was partying on the night in question. Many young white women

party, and take risks, but far fewer die as a result. It is true that many Aboriginal women

are beaten by their spouses, and that they are more likely to experience domestic violence

or stranger violence, but they are certainly victimized more often by strangers than white

67


power and used it to get revenge. In the real world, as McIntyre understood it, it was

most likely that this young Aboriginal man would have less credibility than almost

anyone else, including an emotionally troubled young man and a mentally ill alcoholic

youth. In fact, the courts did not even go out of their way to ensure that Marshall Jr. had

the fair judicial process as he was entitled to. It is clear that Marshall Jr. was considered

guilty all along, and that his being an Aboriginal male contributed to that belief, and his

inability to properly defend himself rested on a gross and racist power imbalance.

Lee Colgan, Dwayne Johnson, Jim Houghton, and Norm Manger targeted Helen

Betty Osbome for reasons beyond her control and not of her doing. She was identified

for sexual purposes because she was Aboriginal and female. Save for some anonymous

tips, the entire town maintained a wall of silence to protect the identities of the killers.

This silence was especially maintained for James Houghton and Lee Colgan, whose

families were well respected by the community. In contrast, none of the townspeople

protected the memory of Helen Betty Osbome, a courageous young Aboriginal woman

with dreams and aspirations. Although the rambling of Colgan and the bragging of

Johnston disturbed some, none of the townspeople complained about the slow pace,

demanding justice. Osborne’s family was left to search, mostly their minds and hearts for

answers. There were none.

It is not enough to say that Betty Osbome was targeted because she was female,

or even because she was partying on the night in question. Many young white women

party, and take risks, but far fewer die as a result. It is true that many Aboriginal women

are beaten by their spouses, and that they are more likely to experience domestic violence

or stranger violence, but they are certainly victimized more often by strangers than white

67


women, as evidenced by the Trail of Tears, which spans 720 kilometres of Highway

1623between Prince Rupert and Prince George, British Columbia. Again, had the incident

involved a white woman and four native men, the outcry would have been heard across

the country until justice was "seen to be done"24. Unfortunately, not everyone who wants

justice has the power to influence it, and many are captive and subject to the imposition

of what justice is believed to be25 by the more powerful.

John Joseph Harper died because he was a First Nations man, there was no other

reason. The case of John Joseph Harper is the pinnacle of what can go wrong if racial

profiling is an acceptable method of police processes. It is not the police processes

themselves that are faulty, it is the definition of people by race that exists in the common

consciousness that can be misleading. Racism and racial profiling are almost

synonymous. It is far too easy for a majority non-Aboriginal population to develop an

incomplete or faulty idea of who a "Native" or "Aboriginal" person may be, too easy to

develop a one-dimensional construct to represent a minority. It could be by no other

means that Cross could either mistake Harper for the young men being pursued; or decide

that simply because he was an Aboriginal man he was suspicious.

The death of Leo LaChance was not given the importance it deserved. Had a

white man walked into a store full of Aboriginal men and been shot without provocation,

there would have been no rest until justice was served. The police and prosecution would

have pursued a murder charge, even if they suspected that the findings would have been

manslaughter. The fact that Nerland's white supremacy association was not taken into

account in the laying of the information or the Crown prosecution, was identified as

troubling even by the judge who presided over the trial.

68


women, as evidenced by the Trail of Tears, which spans 720 kilometres of Highway

1623between Prince Rupert and Prince George, British Columbia. Again, had the incident

involved a white woman and four native men, the outcry would have been heard across

the country until justice was “seen to be done”24. Unfortunately, not everyone who wants

justice has the power to influence it, and many are captive and subject to the imposition

of what justice is believed to be25 by the more powerful.

John Joseph Harper died because he was a First Nations man, there was no other

reason. The case of John Joseph Harper is the pinnacle of what can go wrong if racial

profiling is an acceptable method of police processes. It is not the police processes

themselves that are faulty, it is the definition of people by race that exists in the common

consciousness that can be misleading. Racism and racial profiling are almost

synonymous. It is far too easy for a majority non-Aboriginal population to develop an

incomplete or faulty idea of who a “Native” or “Aboriginal” person may be, too easy to

develop a one-dimensional construct to represent a minority. It could be by no other

means that Cross could either mistake Harper for the young men being pursued; or decide

that simply because he was an Aboriginal man he was suspicious.

The death of Leo LaChance was not given the importance it deserved. Had a

white man walked into a store full of Aboriginal men and been shot without provocation,

there would have been no rest until justice was served. The police and prosecution would

have pursued a murder charge, even if they suspected that the findings would have been

manslaughter. The fact that Nerland’s white supremacy association was not taken into

account in the laying of the information or the Crown prosecution, was identified as

troubling even by the judge who presided over the trial.

68


Darrell Night, Neil Stonechild and the other men who were taken out on the

Starlight Tours were perceived similarly to Marshall Jr., John Joseph Harper and Leo

LaChance. They were seen simply as an annoyance, as powerless, and as members of the

wrong race, and as a result the authorities abused their power. It is not common for the

bodies of white men to be discovered on the outskirts of deathly frigid prairie towns. All

one has to do to find a disorderly intoxicated person is to go to bars and night-clubs,

weekdays or weekends. Being annoying when you are intoxicated is not a personality

quality that is unique to Aboriginal people. If public intoxication is a public nuisance that

requires dramatic responses, then the police would be waiting in the areas of night clubs

and bars to arrest patrons there. This does not happen. Instead, one looks to pre-

established meanings to determine the type of intervention required in a particular

situation. Sometimes, dangerous, angry and/or racist people occupy positions of

legitimate and state protected authority. Sometimes, the decisions of these people can be

deadly. It must be remembered, however, that the meanings that define the intervention

exist in society in general, as do people in positions of power, and these meanings and

people can exist in the justice system as well.

All of the above incidents elicited high levels of emotion from the public, the

media, governments or Aboriginal political bodies and they elicited inquiries into the

workings of the criminal justice system and how it failed the Aboriginal victims involved.

In each case, an Aboriginal person lost his or her life to a non-Aboriginal person, or in

the case of Darrell Night came very close to death. It is clear that the Aboriginal people

in these cases were at a disadvantage in many ways; however, what is not clear is how

69


Darrell Night, Neil Stonechild and the other men who were taken out on the

Starlight Tours were perceived similarly to Marshall Jr., John Joseph Harper and Leo

LaChance. They were seen simply as an annoyance, as powerless, and as members of the

wrong race, and as a result the authorities abused their power. It is not common for the

bodies of white men to be discovered on the outskirts of deathly frigid prairie towns. All

one has to do to find a disorderly intoxicated person is to go to bars and night-clubs,

weekdays or weekends. Being annoying when you are intoxicated is not a personality

quality that is unique to Aboriginal people. If public intoxication is a public nuisance that

requires dramatic responses, then the police would be waiting in the areas of night clubs

and bars to arrest patrons there. This does not happen. Instead, one looks to pre-

established meanings to determine the type of intervention required in a particular

situation. Sometimes, dangerous, angry and/or racist people occupy positions of

legitimate and state protected authority. Sometimes, the decisions of these people can be

deadly. It must be remembered, however, that the meanings that define the intervention

exist in society in general, as do people in positions of power, and these meanings and

people can exist in the justice system as well.

All of the above incidents elicited high levels of emotion from the public, the

media, governments or Aboriginal political bodies and they elicited inquiries into the

workings of the criminal justice system and how it failed the Aboriginal victims involved.

In each case, an Aboriginal person lost his or her life to a non-Aboriginal person, or in

the case of Darrell Night came very close to death. It is clear that the Aboriginal people

in these cases were at a disadvantage in many ways; however, what is not clear is how

69


these incidents reflect race relations in Canada, and what recommendations could prevent

similar incidents from reoccurring in the future.

70


these incidents reflect race relations in Canada, and what recommendations could prevent

similar incidents from reoccurring in the future.

70


Chapter Three: Missing the Mark: The Commissions and Inquiries

3.1 Introduction

The critical incidents involved Aboriginal people and non-Aboriginal people or

authorities. In all cases, Aboriginal people were victims, losing their lives. These

incidents elicited a very strong emotional reaction from the public, typically expressed as

calls for analyses into the criminal justice system processes related to the cases, or the

relationships between Aboriginal peoples and the criminal justice system.

Such inquiries were limited in their ability to either understand or to actually

prevent, or even to respond to such incidents. When they would be able to take decisive

action, such as in the prosecution of hate crimes, they retreat. The commissions and

inquiries have fallen short, simply because they refused, out of lack of insight, to face

how racism played a central role in all of the incidents. An analysis of the critical

incidents, followed by an examination of the mandates of the commissions and inquiries

provide the basis for an analysis of the role of commissions and inquiries, particularly as

it relates to the role that the justice system played in the original incidents.

3.2 The Royal Commission on the Donald Marshall Jr. Prosecution

Donald Marshall Jr. served 11 years in prison for a crime that he did not commit.

The police fumbled the initial investigation of the crime and pressured witnesses to lie in

police statements and in court testimony, while ignoring evidence pointing at another

perpetrator. The prosecution pressed forward with a case with noticeable flaws, and the

71


Chapter Three: Missing the Mark: The Commissions and Inquiries

3.1 Introduction

The critical incidents involved Aboriginal people and non-Aboriginal people or

authorities. In all cases, Aboriginal people were victims, losing their lives. These

incidents elicited a very strong emotional reaction from the public, typically expressed as

calls for analyses into the criminal justice system processes related to the cases, or the

relationships between Aboriginal peoples and the criminal justice system.

Such inquiries were limited in their ability to either understand or to actually

prevent, or even to respond to such incidents. When they would be able to take decisive

action, such as in the prosecution of hate crimes, they retreat. The commissions and

inquiries have fallen short, simply because they refused, out of lack of insight, to face

how racism played a central role in all of the incidents. An analysis of the critical

incidents, followed by an examination of the mandates of the commissions and inquiries

provide the basis for an analysis of the role of commissions and inquiries, particularly as

it relates to the role that the justice system played in the original incidents.

3.2 The Royal Commission on the Donald Marshall Jr. Prosecution

Donald Marshall Jr. served 11 years in prison for a crime that he did not commit.

The police fumbled the initial investigation of the crime and pressured witnesses to lie in

police statements and in court testimony, while ignoring evidence pointing at another

perpetrator. The prosecution pressed forward with a case with noticeable flaws, and the

71


courts accepted the conflicting testimony of non-credible witnesses and sentenced Donald

Marshall Jr. to life.

While it is easy from the outset to say that this is a classic case of criminal justice

system failure, one has to ask if the same amount of failure would have been present in so

many sectors of the criminal justice system had Marshall Jr. been a non-Aboriginal

accused. First, would the resentment towards Marshall Jr., an Aboriginal youth, have

been as intense if he had been of non-Aboriginal ancestry? Police Chief MacIntyre was a

white man with a position of legitimate power and authority, while Marshall Jr. was an

Aboriginal youth with a history of minor offences. As such, Marshall Jr.'s credibility

held against that of the Sydney police chief would have been doubtful from the outset.

When one places the situation in the context of Sydney, Nova Scotia, a town divided by

racism, one must conclude that Marshall Jr. would be in a position of powerlessness and

non-credibility from the beginning.

When witnesses came forward to the police, they were pressured to change their

statements, and later, their testimony. These witnesses had a choice between going along

with perceived legitimate authority and power, or standing up against it and siding with

the powerless Marshall Jr. With the addition of intimidation by McIntyre, who held a

relatively large amount of power, it is almost understandable why many changed their

testimony over time, particularly because Pratico and Chant had emotional and mental

health issues, and Harriss was a grade seven girl.

It is possible to argue that if the police association had tighter rules regarding

professional conduct, that this would have prevented the wrongful sentencing of Marshall

Jr. However, it is hard to see how racism can be eliminated from the minds of

72


courts accepted the conflicting testimony of non-credible witnesses and sentenced Donald

Marshall Jr. to life.

While it is easy from the outset to say that this is a classic case of criminal justice

system failure, one has to ask if the same amount of failure would have been present in so

many sectors of the criminal justice system had Marshall Jr. been a non-Aboriginal

accused. First, would the resentment towards Marshall Jr., an Aboriginal youth, have

been as intense if he had been of non-Aboriginal ancestry? Police Chief MacIntyre was a

white man with a position of legitimate power and authority, while Marshall Jr. was an

Aboriginal youth with a history of minor offences. As such, Marshall Jr.’s credibility

held against that of the Sydney police chief would have been doubtful from the outset.

When one places the situation in the context of Sydney, Nova Scotia, a town divided by

racism, one must conclude that Marshall Jr. would be in a position of powerlessness and

non-credibility from the beginning.

When witnesses came forward to the police, they were pressured to change their

statements, and later, their testimony. These witnesses had a choice between going along

with perceived legitimate authority and power, or standing up against it and siding with

the powerless Marshall Jr. With the addition of intimidation by McIntyre, who held a

relatively large amount of power, it is almost understandable why many changed their

testimony over time, particularly because Pratico and Chant had emotional and mental

health issues, and Harriss was a grade seven girl.

It is possible to argue that if the police association had tighter rules regarding

professional conduct, that this would have prevented the wrongful sentencing of Marshall

Jr. However, it is hard to see how racism can be eliminated from the minds of

72


individuals who live their lives in a racist society just because they become a part of a

particular profession. Moreover, the social position of disadvantage of Marshall Jr., and

his hostile attitude toward authority, are both part of the aftermath of the colonial process

and oppression that have bred so much anger in Aboriginal communities, and have

fuelled racism against Aboriginal people. Strengthening professional policing standards

does not begin to address the oppression that Aboriginal people have lived through, and

the anger that results from the actions of police officers such as McIntyre. When one

views what happened to Donald Marshall Jr. in this context, it becomes clear that racism

was a key factor in the wrongful conviction of Marshall Jr.

The Order in Council that established the Royal Commission on the Donald

Marshall, Jr., Prosecution instructed the Commission as follows.

Make recommendations to the Governor in Council respecting the investigation of the death of Sandford William Seale on the 28-29th day of May, A.D., 1971; the charging and prosecution of Donald Marshall, Jr. with that death; the subsequent conviction and sentencing of Donald Marshall, Jr. for the non-capital murder of Sandford William Seale for which he was subsequently found to be not guilty; and such other related matters which the Commissioners consider relevant to the inquiry. (Nova Scotia, 1989b: xi)

The Commissioners were therefore primarily to look at the criminal justice

processes of police investigation, charging, prosecution, conviction and sentencing; but

they also had the opportunity to investigate "other related matters" that the

Commissioners deemed relevant to the incident, through a process of public hearings. In

his opening statement to the public, Chairman Chief Justice Hickman stated,

It is our ultimate aim to make recommendations which will ensure that the unfortunate events surrounding Mr. Marshall will not be repeated; to do this we must satisfy ourselves that the present state of the administration of criminal justice in Nova Scotia is sound. We will not avoid a discussion of these issues (Nova Scotia, 1989b: xii).

73


individuals who live their lives in a racist society just because they become a part of a

particular profession. Moreover, the social position of disadvantage of Marshall Jr., and

his hostile attitude toward authority, are both part of the aftermath of the colonial process

and oppression that have bred so much anger in Aboriginal communities, and have

fuelled racism against Aboriginal people. Strengthening professional policing standards

does not begin to address the oppression that Aboriginal people have lived through, and

the anger that results from the actions of police officers such as McIntyre. When one

views what happened to Donald Marshall Jr. in this context, it becomes clear that racism

was a key factor in the wrongful conviction of Marshall Jr.

The Order in Council that established the Royal Commission on the Donald

Marshall, Jr., Prosecution instructed the Commission as follows.

Make recommendations to the Governor in Council respecting the investigation of the death of Sandford William Seale on the 28-29th day of May, A.D., 1971; the charging and prosecution of Donald Marshall, Jr. with that death; the subsequent conviction and sentencing of Donald Marshall, Jr. for the non-capital murder of Sandford William Seale for which he was subsequently found to be not guilty; and such other related matters which the Commissioners consider relevant to the inquiry. (Nova Scotia, 1989b: xi)

The Commissioners were therefore primarily to look at the criminal justice

processes of police investigation, charging, prosecution, conviction and sentencing; but

they also had the opportunity to investigate “other related matters” that the

Commissioners deemed relevant to the incident, through a process of public hearings. In

his opening statement to the public, Chairman Chief Justice Hickman stated,

It is our ultimate aim to make recommendations which will ensure that the unfortunate events surrounding Mr. Marshall will not be repeated; to do this we must satisfy ourselves that the present state o f the administration of criminal justice in Nova Scotia is sound. We will not avoid a discussion of these issues (Nova Scotia, 1989b: xii).

73


The Commission had a fairly large mandate that began with looking at the

criminal justice system, but the Order In Council included "such other related matters",

which allowed the Commissioners to go outside the boundaries of the criminal justice

system to analyze other non-criminal justice system factors. The issue of race was

perceived to have been once such factor, one that the final report identified as one that

required additional research to address since it was so complex. As such, Part 2.2, 2.3

and 2.4 of the final report cover the areas of "Visible Minorities and the Criminal Justice

System;" "Nova Scotia MicMac and the Criminal Justice System;" and "Blacks and the

Criminal Justice System."

The Royal Commission on the Donald Marshall Prosecution stated in 1989:

We find: • that the criminal justice system failed Donald Marshall, Jr. at virtually

every turn from his arrest and conviction in 1971 up to — and even beyond — his acquittal by the Supreme Court of Nova Scotia (Appeal Decision) in 1983.

• that this miscarriage of justice could have and should have been prevented if persons involved in the criminal justice system had carried out their duties in a professional and/or competent manner.

• that Marshall was not the author of his own misfortune. • that the miscarriage of justice was real and not simply apparent. • that the fact that Marshall was a Native was a factor in his wrongful

conviction and imprisonment (Nova Scotia, 1989b: 19).

In other words, the Commission found that Marshall Jr., as a Native person, had been

discriminated against throughout the criminal justice process. This acknowledgement

goes beyond the issue of racial differences, and acknowledges a specific perception of

Native people, which had an impact on the Marshall Jr. case26. There were 82

recommendations, seven of which fell under the heading "Righting the Wrong: Dealing

with the Wrongfully Convicted", which included a review mechanism, with coercive

74


The Commission had a fairly large mandate that began with looking at the

criminal justice system, but the Order In Council included “such other related matters”,

which allowed the Commissioners to go outside the boundaries of the criminal justice

system to analyze other non-criminal justice system factors. The issue of race was

perceived to have been once such factor, one that the final report identified as one that

required additional research to address since it was so complex. As such, Part 2.2, 2.3

and 2.4 of the final report cover the areas of “Visible Minorities and the Criminal Justice

System;” “Nova Scotia MicMac and the Criminal Justice System;” and “Blacks and the

Criminal Justice System.”

The Royal Commission on the Donald Marshall Prosecution stated in 1989:

We find:• that the criminal justice system failed Donald Marshall, Jr. at virtually

every turn from his arrest and conviction in 1971 up to - and even beyond - his acquittal by the Supreme Court of Nova Scotia (Appeal Decision) in 1983.

• that this miscarriage of justice could have and should have been prevented if persons involved in the criminal justice system had carried out their duties in a professional and/or competent manner.

• that Marshall was not the author of his own misfortune.• that the miscarriage of justice was real and not simply apparent.• that the fact that Marshall was a Native was a factor in his wrongful

conviction and imprisonment (Nova Scotia, 1989b: 19).

In other words, the Commission found that Marshall Jr., as a Native person, had been

discriminated against throughout the criminal justice process. This acknowledgement

goes beyond the issue of racial differences, and acknowledges a specific perception of

Native people, which had an impact on the Marshall Jr. case26. There were 82

recommendations, seven of which fell under the heading “Righting the Wrong: Dealing

with the Wrongfully Convicted”, which included a review mechanism, with coercive

74


authority, to investigate allegations of wrongful convictions. Further, it was

recommended that a judicial inquiry be established to consider compensation claims with

unlimited compensation claim amounts. The Commission also recommended that the

review mechanism take into consideration all factors leading to the wrongful conviction,

and that legal fees and disbursements of the wrongfully convicted should be paid as a part

of the inquiry's expenses. Finally, they recommended that inquiry reports be public.

Eleven of the 82 recommendations dealt directly with Aboriginal people and

included the implementation of a Native criminal court, a Native justice institute and a

tripartite forum on Native issues. This court would be held on reserve and have Micmac

interpreters and courtworkers. The Commission also recommended increased legal aid

funding, a liaison with the bar, native constables and justice committees, and probation

and aftercare.

It may be possible that a Native criminal court may not have sided so eagerly with

Maclntyre. Since Marshall Jr. did not speak Micmac, the presence of a Micmac

interpreter would not have been of any assistance. Marshall Jr. was somewhat familiar

with court processes, and had a lawyer, so it is not immediately apparent what the

presence of a Native courtworker would have done for him, besides perhaps making him

feel more comfortable in the presence of more Native people during the court process.

There is some debate about what the increase of Native constables actually does

to improve the relationship between Aboriginal people and the justice system,

considering the fact that they are still within the police organization. A case in point was

Constable Loutitt's concern that Neil Stonechild's case was not getting a careful

75


authority, to investigate allegations of wrongful convictions. Further, it was

recommended that a judicial inquiry be established to consider compensation claims with

unlimited compensation claim amounts. The Commission also recommended that the

review mechanism take into consideration all factors leading to the wrongful conviction,

and that legal fees and disbursements of the wrongfully convicted should be paid as a part

of the inquiry’s expenses. Finally, they recommended that inquiry reports be public.

Eleven of the 82 recommendations dealt directly with Aboriginal people and

included the implementation of a Native criminal court, a Native justice institute and a

tripartite forum on Native issues. This court would be held on reserve and have Micmac

interpreters and courtworkers. The Commission also recommended increased legal aid

funding, a liaison with the bar, native constables and justice committees, and probation

and aftercare.

It may be possible that a Native criminal court may not have sided so eagerly with

MacIntyre. Since Marshall Jr. did not speak Micmac, the presence of a Micmac

interpreter would not have been of any assistance. Marshall Jr. was somewhat familiar

with court processes, and had a lawyer, so it is not immediately apparent what the

presence of a Native courtworker would have done for him, besides perhaps making him

feel more comfortable in the presence of more Native people during the court process.

There is some debate about what the increase of Native constables actually does

to improve the relationship between Aboriginal people and the justice system,

considering the fact that they are still within the police organization. A case in point was

Constable Loutitt’s concern that Neil Stonechild’s case was not getting a careful

75


investigation because he was an Aboriginal youth. Loutitt was not able to do anything

for the family, ultimately, as more senior officers terminated his efforts.

Native Justice Committees exist to give judges advice on sentencing Aboriginal

people. Perhaps this could assist where the accused is actually guilty, but Marshall Jr.

was not. Similarly, since probation and aftercare come after a wrongful conviction, it is

not clear how they could have helped a person who was wrongfully convicted. Aftercare,

however, can be important to inmates who are making the transition from prison to

community life.

If Roy Ebsary was sane enough, this eccentric and violent man who actually

stabbed Seale was possibly aware of and took advantage of the fact Marshall Jr. was

Aboriginal. Understanding that Marshall, as an Aboriginal youth, would have little

credibility in the context of a society whose dominant class is white and privileged,

enabled Ebsary to worry little that he would be identified as the real murderer. Ebsary

might have assumed that an Aboriginal youth would be going down for the crime, despite

the fact that Ebsary himself was not a credible person. Ebsary was white, and thereby

enjoyed his modest portion of white privilege.

The fact that Marshall Jr. was Aboriginal played a part in the entire incident and

worked against him all along. The front end of the incident occurred in a climate soaked

with tense race relations in Sydney, Nova Scotia, at the time of the stabbing. Further,

Marshall Jr.'s credibility and ability to fight the charge were significantly impacted by his

socio-economic position, which is a part of the aftermath of colonialism. The

Commission charged with looking into the wrongful conviction did little to make

recommendations that would address the underlying dynamics of racism.

76


investigation because he was an Aboriginal youth. Loutitt was not able to do anything

for the family, ultimately, as more senior officers terminated his efforts.

Native Justice Committees exist to give judges advice on sentencing Aboriginal

people. Perhaps this could assist where the accused is actually guilty, but Marshall Jr.

was not. Similarly, since probation and aftercare come after a wrongful conviction, it is

not clear how they could have helped a person who was wrongfully convicted. Aftercare,

however, can be important to inmates who are making the transition from prison to

community life.

If Roy Ebsary was sane enough, this eccentric and violent man who actually

stabbed Seale was possibly aware of and took advantage of the fact Marshall Jr. was

Aboriginal. Understanding that Marshall, as an Aboriginal youth, would have little

credibility in the context of a society whose dominant class is white and privileged,

enabled Ebsary to worry little that he would be identified as the real murderer. Ebsary

might have assumed that an Aboriginal youth would be going down for the crime, despite

the fact that Ebsary himself was not a credible person. Ebsary was white, and thereby

enjoyed his modest portion of white privilege.

The fact that Marshall Jr. was Aboriginal played a part in the entire incident and

worked against him all along. The front end of the incident occurred in a climate soaked

with tense race relations in Sydney, Nova Scotia, at the time of the stabbing. Further,

Marshall Jr.’s credibility and ability to fight the charge were significantly impacted by his

socio-economic position, which is a part of the aftermath of colonialism. The

Commission charged with looking into the wrongful conviction did little to make

recommendations that would address the underlying dynamics of racism.

76


3.3 The Aboriginal Justice Inquiry of Manitoba

The public concern about the cases of Helen Betty Osborne and J.J. Harper led the

government of Manitoba to establish the Aboriginal Justice Inquiry, on April 13, 1988.

While the Inquiry evidently attempted to get a firm grasp on the events the led up to the

incidents27, it is clearly evident that they also evaded the issue of racism as the foundation

of both incidents. As a result, the recommendations of the Manitoba Aboriginal Justice

Inquiry focused primarily on ways for the justice system to deal with Aboriginal accused

in a more culturally appropriate way, and did not deal with the deaths of Aboriginal

people who were completely innocent of any wrongdoing whatsoever.

Helen Betty Osborne was killed as the result of blatant racism. She was not

randomly selected as any female walking down the street. The evidence indicated that

the men were looking to pick up an "Indian" woman to drink and have sex with. This

behaviour implies that they were targeting a woman, on the basis of race, for a specific

purpose. Also evident is a belief that Aboriginal women would be more likely to

participate in intoxicated sexual behaviour than non-Aboriginal women, a stereotype that

is further explored in Chapter 4. There can be nothing more objectifying and

dehumanizing than being targeted as Betty Osborne was, and being killed in the process.

The townspeople maintained a level of silence that made the case easy to ignore,

and difficult to deal with legally. Had Betty Osborne been of importance, or represented

someone the townspeople could relate to, such as a white 19-year-old female student who

dreamed of being a teacher, the townspeople would have reacted differently. It is not

clear how the justice system could have prevented the victimization of Betty Osborne, as

77


3.3 The Aboriginal Justice Inquiry o f Manitoba

The public concern about the cases of Helen Betty Osborne and J J . Harper led the

government of Manitoba to establish the Aboriginal Justice Inquiry, on April 13,1988.

While the Inquiry evidently attempted to get a firm grasp on the events the led up to the

• • onincidents , it is clearly evident that they also evaded the issue of racism as the foundation

of both incidents. As a result, the recommendations of the Manitoba Aboriginal Justice

Inquiry focused primarily on ways for the justice system to deal with Aboriginal accused

in a more culturally appropriate way, and did not deal with the deaths of Aboriginal

people who were completely innocent of any wrongdoing whatsoever.

Helen Betty Osborne was killed as the result of blatant racism. She was not

randomly selected as any female walking down the street. The evidence indicated that

the men were looking to pick up an “Indian” woman to drink and have sex with. This

behaviour implies that they were targeting a woman, on the basis of race, for a specific

purpose. Also evident is a belief that Aboriginal women would be more likely to

participate in intoxicated sexual behaviour than non-Aboriginal women, a stereotype that

is further explored in Chapter 4. There can be nothing more objectifying and

dehumanizing than being targeted as Betty Osborne was, and being killed in the process.

The townspeople maintained a level of silence that made the case easy to ignore,

and difficult to deal with legally. Had Betty Osborne been of importance, or represented

someone the townspeople could relate to, such as a white 19-year-old female student who

dreamed of being a teacher, the townspeople would have reacted differently. It is not

clear how the justice system could have prevented the victimization of Betty Osborne, as

77


the way in which she was perceived by her assailants, was the same perception as existed

in the community at large.

In reference to the case of J.J. Harper, the Aboriginal Justice Inquiry wrote "To

advise police officers that a suspect in an offence is a native is a licence to commit

racism. That should not be condoned" (Manitoba, 1991: 94). It is clear, when one looks

at the facts, as they are now known, that J.J. Harper should be alive today. He did

nothing to deserve his death. Walking home from a night of drinking, instead of driving,

is not a criminal act when one poses no threat and is not being a public nuisance.

J.J. Harper, like Helen Betty Osborne, is dead because he was Aboriginal. Instead

of being killed by civilians, though, he was killed by a police officer. This would seem to

indicate a problem with the justice system. However, it does not particularly do so.

Although Constable Cross initiated contact with Harper the night he shot and killed him,

he was doing so on the information he referred to when responding to a description of

native suspects; the idea of what "native" is exists outside of the realm of the criminal

justice system.

The Aboriginal Justice Inquiry presented an intriguing insight into the issue of

"Including 'Race' in Police Descriptions of Suspects."

There is strong evidence to suggest that merely describing someone by reference to race appeals to stereotypes held about that group. Asking police to search for a "native" calls upon officers to reach conclusions about how the person they are searching for looks, talk or behaves. There is no commonality among Aboriginal people in their appearance, manner of speaking or behaviour. (Manitoba, 1991: 94)

In other words, the word "native" triggers stereotypes in the minds of people based on

race. The argument in this thesis is that, although these stereotypes undoubtedly exist in

78


the way in which she was perceived by her assailants, was the same perception as existed

in the community at large.

In reference to the case of JJ . Harper, the Aboriginal Justice Inquiry wrote “To

advise police officers that a suspect in an offence is a native is a licence to commit

racism. That should not be condoned” (Manitoba, 1991: 94). It is clear, when one looks

at the facts, as they are now known, that J.J. Harper should be alive today. He did

nothing to deserve his death. Walking home from a night of drinking, instead of driving,

is not a criminal act when one poses no threat and is not being a public nuisance.

J.J. Harper, like Helen Betty Osborne, is dead because he was Aboriginal. Instead

of being killed by civilians, though, he was killed by a police officer. This would seem to

indicate a problem with the justice system. However, it does not particularly do so.

Although Constable Cross initiated contact with Harper the night he shot and killed him,

he was doing so on the information he referred to when responding to a description of

native suspects; the idea of what “native” is exists outside of the realm of the criminal

justice system.

The Aboriginal Justice Inquiry presented an intriguing insight into the issue of

“Including ‘Race’ in Police Descriptions of Suspects.”

There is strong evidence to suggest that merely describing someone by reference to race appeals to stereotypes held about that group. Asking police to search for a “native” calls upon officers to reach conclusions about how the person they are searching for looks, talk or behaves. There is no commonality among Aboriginal people in their appearance, manner of speaking or behaviour. (Manitoba, 1991: 94)

In other words, the word “native” triggers stereotypes in the minds of people based on

race. The argument in this thesis is that, although these stereotypes undoubtedly exist in

78


the criminal justice system, J.J. Harper's case being a case in point, these stereotypes do

not originate in the criminal justice system, but in society itself.

In the Terms of Reference Scope of Inquiry 3(1), which were laid out in Bill 28,

An Act to Establish and Validate the Public Inquiry Into the Administration of Justice and

Aboriginal People, the scope of inquiry allowed the commissioners to:

...investigate, report and make recommendations to the Minister of Justice on the relationship between the administration of justice and Aboriginal peoples of Manitoba, guided by but not limited to the terms of reference set out in the Schedule (Manitoba, 1991: 3).

In the Schedule, it was mandated that the commissioners would inquire into:

All components of the justice system, that is policing, courts and correctional services... to consider whether and to what extent aboriginal and non-aboriginal persons are treated differently by the justice system and whether there are specific adverse effects, including possible systemic discrimination against aboriginal people, in the justice system. (Manitoba, 1991: 3).

These terms meant that the Inquiry was looking for instances of racism only in the

justice system in its responses to Aboriginal people. The areas that were laid out in the

Schedule include policing, access to and adequacy of legal counsel, court processes, court

dispositions, post-sentencing and other. The "other" category included the "awareness

and knowledge of justice system by aboriginal people; communication between justice

system personnel and aboriginal people" and "employment of aboriginal people in the

justice system" (Manitoba, 1991: 763-764).

The Aboriginal Justice Inquiry used several methods of collecting information

that would back up its recommendations. The Commission used a variety of research

pieces, public community consultations with over 43 Aboriginal communities, 5

79


the criminal justice system, JJ . Harper’s case being a case in point, these stereotypes do

not originate in the criminal justice system, but in society itself.

In the Terms of Reference Scope of Inquiry 3(1), which were laid out in Bill 28,

An Act to Establish and Validate the Public Inquiry Into the Administration o f Justice and

Aboriginal People, the scope of inquiry allowed the commissioners to:

.. .investigate, report and make recommendations to the Minister of Justice on the relationship between the administration of justice and Aboriginal peoples of Manitoba, guided by but not limited to the terms of reference set out in the Schedule (Manitoba, 1991: 3).

In the Schedule, it was mandated that the commissioners would inquire into:

All components of the justice system, that is policing, courts and correctional services... to consider whether and to what extent aboriginal and non-aboriginal persons are treated differently by the justice system and whether there are specific adverse effects, including possible systemic discrimination against aboriginal people, in the justice system.(Manitoba, 1991: 3).

These terms meant that the Inquiry was looking for instances of racism only in the

justice system in its responses to Aboriginal people. The areas that were laid out in the

Schedule include policing, access to and adequacy of legal counsel, court processes, court

dispositions, post-sentencing and other. The “other” category included the “awareness

and knowledge of justice system by aboriginal people; communication between justice

system personnel and aboriginal people” and “employment of aboriginal people in the

justice system” (Manitoba, 1991: 763-764).

The Aboriginal Justice Inquiry used several methods of collecting information

that would back up its recommendations. The Commission used a variety of research

pieces, public community consultations with over 43 Aboriginal communities, 5

79


correctional facilities, and non-Aboriginal persons, police, government and non-

government organizations (Manitoba, 1991: 765-767).

The Aboriginal Justice Inquiry made recommendations in the areas of Aboriginal

and treaty rights; Aboriginal justice systems; court reform; juries; alternatives to

incarceration; jails; parole; Aboriginal women; child welfare; young offenders; policing;

and "A Strategy for Action" (Manitoba, 1991: 729-757). Although these topics were

very broad, and perhaps even valid areas of study to further Aboriginal rights issues and

relationships with the criminal justice system, they echo the recommendations of the final

report into the Donald Marshall Jr. Commission. Further, not one of the

recommendations in such areas would have prevented the deaths of Helen Betty Osborne

or J.J. Harper.

When it came to dealing with the issue of race, besides presenting facts and

questions about treaties and Metis peoples in their final report, the Commission

recommended a legislated Aboriginal justice commission, with some measure of

independence, with Aboriginal representation to monitor the status of implementation of

recommendations; an Aboriginal justice college that would train Aboriginal people for

justice careers; the establishment of formal cross-cultural awareness training; the

establishment of an employment equity commission that would look into complaints that

would serve to increase the numbers of Aboriginal people who work and seek promotion

in the criminal justice system; for educational institutions to increase the numbers of

Aboriginal law students; and that all law students take Aboriginal law courses.

80


correctional facilities, and non-Aboriginal persons, police, government and non

government organizations (Manitoba, 1991: 765-767).

The Aboriginal Justice Inquiry made recommendations in the areas of Aboriginal

and treaty rights; Aboriginal justice systems; court reform; juries; alternatives to

incarceration; jails; parole; Aboriginal women; child welfare; young offenders; policing;

and “A Strategy for Action” (Manitoba, 1991: 729-757). Although these topics were

very broad, and perhaps even valid areas of study to further Aboriginal rights issues and

relationships with the criminal justice system, they echo the recommendations of the final

report into the Donald Marshall Jr. Commission. Further, not one of the

recommendations in such areas would have prevented the deaths of Helen Betty Osborne

or J.J. Harper.

When it came to dealing with the issue of race, besides presenting facts and

questions about treaties and Metis peoples in their final report, the Commission

recommended a legislated Aboriginal justice commission, with some measure of

independence, with Aboriginal representation to monitor the status of implementation of

recommendations; an Aboriginal justice college that would train Aboriginal people for

justice careers; the establishment of formal cross-cultural awareness training; the

establishment of an employment equity commission that would look into complaints that

would serve to increase the numbers of Aboriginal people who work and seek promotion

in the criminal justice system; for educational institutions to increase the numbers of

Aboriginal law students; and that all law students take Aboriginal law courses.

80


There are several problems with these well-intentioned recommendations. The

first and most evident problem is that of the confusion between racism and cultural

insensitivity. Racism is not the same as cultural ignorance or even insensitivity. This

will be more fully examined in Chapter 4, but if one considers the incidents involving

Helen Betty Osborne and J.J. Harper, it is more than obvious that culture played no role.

For instance, it was not a misunderstanding of culture that led the four non-Aboriginal

men to abduct, sexually assault and murder Helen Betty Osborne, it was a form of hate

and disregard for her humanity because she was Aboriginal and female. It was not an

issue of cultural misunderstanding that led to the interpretation of J.J. Harper as a

suspicious person by the police, it was the fact that the police were looking for two

"Native" men, and Harper was Aboriginal. In both instances, it was "racism". Thus,

cross-cultural awareness training for criminal justice system personnel would have done

nothing to prevent the deaths of Helen Betty Osborne and J.J. Harper. Similarly, since it

was not an issue of Aboriginal law that led to the deaths of J.J. Harper and Helen Betty

Osborne, teaching Aboriginal law to the lawyers involved in the cases would not have

been helpful in any way.

The other theme in the recommendations is to increase the involvement of

Aboriginal people in the administration of criminal justice through affirmative action or

employment equity hiring initiatives. In other words, hire more Aboriginal people and

the criminal justice system will deal more effectively with Aboriginal people. Again,

there are some problems with the implications of this recommendation.

First, employment equity recommendations do not acknowledge the depth of

racism as part of the social structure and ideology outside of the criminal justice system.

81


There are several problems with these well-intentioned recommendations. The

first and most evident problem is that of the confusion between racism and cultural

insensitivity. Racism is not the same as cultural ignorance or even insensitivity. This

will be more fully examined in Chapter 4, but if one considers the incidents involving

Helen Betty Osborne and J.J. Harper, it is more than obvious that culture played no role.

For instance, it was not a misunderstanding of culture that led the four non-Aboriginal

men to abduct, sexually assault and murder Helen Betty Osbome, it was a form of hate

and disregard for her humanity because she was Aboriginal and female. It was not an

issue of cultural misunderstanding that led to the interpretation of J.J. Harper as a

suspicious person by the police, it was the fact that the police were looking for two

“Native” men, and Harper was Aboriginal. In both instances, it was “racism”. Thus,

cross-cultural awareness training for criminal justice system personnel would have done

nothing to prevent the deaths of Helen Betty Osbome and J.J. Harper. Similarly, since it

was not an issue of Aboriginal law that led to the deaths of J.J. Harper and Helen Betty

Osbome, teaching Aboriginal law to the lawyers involved in the cases would not have

been helpful in any way.

The other theme in the recommendations is to increase the involvement of

Aboriginal people in the administration of criminal justice through affirmative action or

employment equity hiring initiatives. In other words, hire more Aboriginal people and

the criminal justice system will deal more effectively with Aboriginal people. Again,

there are some problems with the implications of this recommendation.

First, employment equity recommendations do not acknowledge the depth of

racism as part of the social structure and ideology outside of the criminal justice system.

81


That is, if structural or systemic racism exists, and is staunchly maintained in the

structure of the criminal justice (or any other) system, it cannot be eliminated through the

actions of individual Aboriginal employees alone. Again, an example of the limitations

of individual Aboriginal employees can be seen in the Neil Stonechild case where

Constable Loutitt, a Metis police officer, tried to dig deeper into the case and was stopped

by those higher up in the police organization early on in the investigation:

...Constable Loutitt felt that she (Stella Bignell) was being treated poorly in regards to the investigation, and the matter was not being thoroughly investigated. He told Stella if Neil had been a person of different social stature, the investigation would have been much more thorough and the Officer involved with the investigation would have been more forthcoming with her... (Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild, 2004: 121).

Constable Loutitt did not know that Saskatoon Police were involved. However, he

suspected that the case was being given inadequate attention, and even his attempts to

address that from within the Saskatoon Police Service were dismissed. This example

shows that the presence of Aboriginal employees alone cannot change the social structure

from within. In fact, it is a daunting task when Aboriginal people are being hired to

change the structural realities of such systems as the criminal justice system. Indeed, it is

a burden not many people would be anxious to bear.

The Aboriginal Justice Inquiry focussed on the wrong material in its

recommendations. The deaths of Helen Betty Osborne and J.J. Harper could not have

been prevented by ensuring that the criminal justice system personnel were culturally

sensitive to Aboriginal people, because cultural realities or differences had nothing to do

with their deaths. Racism goes beyond, and actually has nothing to do, with cultural

differences. Increased numbers of Aboriginal criminal justice personnel would not have

prevented their deaths, as it is difficult to change structures by changing appearances of

82


That is, if structural or systemic racism exists, and is staunchly maintained in the

structure of the criminal justice (or any other) system, it cannot be eliminated through the

actions of individual Aboriginal employees alone. Again, an example of the limitations

of individual Aboriginal employees can be seen in the Neil Stonechild case where

Constable Loutitt, a Metis police officer, tried to dig deeper into the case and was stopped

by those higher up in the police organization early on in the investigation:

.. .Constable Loutitt felt that she (Stella Bignell) was being treated poorly in regards to the investigation, and the matter was not being thoroughly investigated. He told Stella if Neil had been a person of different social stature, the investigation would have been much more thorough and the Officer involved with the investigation would have been more forthcoming with her... (Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild, 2004: 121).

Constable Loutitt did not know that Saskatoon Police were involved. However, he

suspected that the case was being given inadequate attention, and even his attempts to

address that from within the Saskatoon Police Service were dismissed. This example

shows that the presence of Aboriginal employees alone cannot change the social structure

from within. In fact, it is a daunting task when Aboriginal people are being hired to

change the structural realities of such systems as the criminal justice system. Indeed, it is

a burden not many people would be anxious to bear.

The Aboriginal Justice Inquiry focussed on the wrong material in its

recommendations. The deaths of Helen Betty Osbome and J.J. Harper could not have

been prevented by ensuring that the criminal justice system personnel were culturally

sensitive to Aboriginal people, because cultural realities or differences had nothing to do

with their deaths. Racism goes beyond, and actually has nothing to do, with cultural

differences. Increased numbers of Aboriginal criminal justice personnel would not have

prevented their deaths, as it is difficult to change structures by changing appearances of

82


the personnel who represent them. Racism, as an ideology, is deeply embedded in

structures and in the ideology of society. The prevention of other deaths similar to those

of Helen Betty Osborne and J.J. Harper requires significant changes to occur beyond the

scope of the criminal justice system.

3.4 The Commission of Inquiry Into the Shooting Death of Leo LaChance

The Commission of Inquiry Into the Shooting Death of Leo LaChance was

established in the spring of 1992 to look into the circumstances surrounding this incident

that was perpetrated by Carney Nerland. This inquiry focused largely on the justice

processes of the incident, and attempted to establish the obvious potential racist

motivations of the accused against Aboriginal persons. In the initial investigation the

search for a link between the murder and racism was intentionally avoided, as noted by

Judge Ferris during Nerland's preliminary trial when he stated he could not take

Nerland's association with white supremacy into account. The Report of the

Commission of Inquiry into the Shooting Death of Leo LaChance, stated that the terms of

reference directed the Commission to look into whether or not racism played a role in the

shooting of Leo LaChance, and if it played a role in the police investigation into

LaChance's death; and to advise if there should be further investigation into organized

racist activity.

In response to the terms of reference the Commissioner commented as follows.

We have reviewed the nature, timing, and detail of the police investigation on previous pages. That review makes references to all relevant circumstances pertaining to the investigation. From 7:00 pm. On January 28, 1991, until the charges were laid mid-afternoon on January 30, 1991, it is our view that the performance of the officers was excellent...However, they did not recognize when they should have that racism may have been the motivating factor for the

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the personnel who represent them. Racism, as an ideology, is deeply embedded in

structures and in the ideology of society. The prevention of other deaths similar to those

of Helen Betty Osbome and J.J. Harper requires significant changes to occur beyond the

scope of the criminal justice system.

3.4 The Commission o f Inquiry Into the Shooting Death o f Leo LaChance

The Commission of Inquiry Into the Shooting Death of Leo LaChance was

established in the spring of 1992 to look into the circumstances surrounding this incident

that was perpetrated by Carney Nerland. This inquiry focused largely on the justice

processes of the incident, and attempted to establish the obvious potential racist

motivations of the accused against Aboriginal persons. In the initial investigation the

search for a link between the murder and racism was intentionally avoided, as noted by

Judge Ferris during Nerland’s preliminary trial when he stated he could not take

Nerland’s association with white supremacy into account. The Report of the

Commission of Inquiry into the Shooting Death of Leo LaChance. stated that the terms of

reference directed the Commission to look into whether or not racism played a role in the

shooting of Leo LaChance, and if it played a role in the police investigation into

LaChance’s death; and to advise if there should be further investigation into organized

racist activity.

In response to the terms of reference the Commissioner commented as follows.

We have reviewed the nature, timing, and detail of the police investigation on previous pages. That review makes references to all relevant circumstances pertaining to the investigation. From 7:00 pm. On January 28, 1991, until the charges were laid mid-afternoon on January 30,1991, it is our view that the performance of the officers was excellent.. .However, they did not recognize when they should have that racism may have been the motivating factor for the

83


actions of Nerland on this occasion. Not only should this have been recognized, but it should have been followed by further investigation of Nerland's association with and activities as a member of the Church of Jesus Christ Christian-Aryan Nations. This would have led to details of his participation at the Aryan Fest, his supplying of weapons on that occasion, and his offensive and reprehensible behaviour including his reference to use of a shot gun as a form of "Native birth control." In our judgement, if that investigation had taken place, the role that Nerland's racism played in the shooting death of LaChance would more likely have come to the attention of the Court (Commission of Inquiry into the Shooting Death of Leo LaChance, 1993: 60-61)

In other words, according to the inquiry, the work of the police was excellent

despite the fact that the investigation did not take into account the links to organized

racist hate groups that may have motivated the crime in the first place. The police did

their duty to investigate the physical evidence at the scene of the crime, but did not go

further to take into account possible motives based on racial hatred. Perhaps it seemed

irrelevant to the crime in terms of the actual physical mechanical operations of the

suspects involved, but one has to remember that establishing a motive is always a part of

a murder investigation. Of course, it was assumed that this incident was not necessarily a

murder. One also has to recognize that, to some extent, there is individual discretion

involved since a police officer can decide what facts are pertinent to a case, and how far

to go in an investigation.

To the lay person, it is not clear why racism would not be even investigated as a

motive, unless there was something further to hide. Perhaps, establishing racism as a

motive in a killing in Saskatchewan was too ugly a subject to raise. How the police work

can be found to have been "excellent" in this context is a mystery the inquiry failed to

share. Perhaps it was a public relations effort to convince people that the situation was

not as serious as the media, Aboriginal organizations and citizen's groups were claiming.

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actions of Nerland on this occasion. Not only should this have been recognized, but it should have been followed by further investigation of Nerland’s association with and activities as a member of the Church of Jesus Christ Christian-Aryan Nations. This would have led to details of his participation at the Aryan Fest, his supplying of weapons on that occasion, and his offensive and reprehensible behaviour including his reference to use of a shot gun as a form of “Native birth control.” In our judgement, if that investigation had taken place, the role that Nerland’s racism played in the shooting death of LaChance would more likely have come to the attention of the Court (Commission of Inquiry into the Shooting Death of Leo LaChance, 1993: 60-61)

In other words, according to the inquiry, the work of the police was excellent

despite the fact that the investigation did not take into account the links to organized

racist hate groups that may have motivated the crime in the first place. The police did

their duty to investigate the physical evidence at the scene of the crime, but did not go

further to take into account possible motives based on racial hatred. Perhaps it seemed

irrelevant to the crime in terms of the actual physical mechanical operations of the

suspects involved, but one has to remember that establishing a motive is always a part of

a murder investigation. Of course, it was assumed that this incident was not necessarily a

minder. One also has to recognize that, to some extent, there is individual discretion

involved since a police officer can decide what facts are pertinent to a case, and how far

to go in an investigation.

To the lay person, it is not clear why racism would not be even investigated as a

motive, unless there was something further to hide. Perhaps, establishing racism as a

motive in a killing in Saskatchewan was too ugly a subject to raise. How the police work

can be found to have been “excellent” in this context is a mystery the inquiry failed to

share. Perhaps it was a public relations effort to convince people that the situation was

not as serious as the media, Aboriginal organizations and citizen’s groups were claiming.

84


When one considers a possible link to the fact that Nerland was an RCMP informant,

despite the fact that the RCMP were not the investigating police organization, it is even

more troubling that race was not considered an issue. To a reasonable observer it at least

appears there was a cover-up to protect someone. If this person was not Nerland, it may

have been someone he had information on.

Beyond the work of the police, the Commission found prosecutors to be at fault in

the same way. The Commission found that although racism did not appear to play a part

on the immediate surface, it could have been established with certainty that racism was a

key factor, and that this discovery should have been cause for reconsideration of the

killing as accidental. The Inquiry commented as follows:

We also believe, however, that the prosecutors erred in concluding that Nerland's white supremacist views had nothing to do with the shooting. They were mistaken in accepting the probably accidental shooting explanation without following up the motivational aspect of the matter... they did not appreciate and give attention to the possibility that racism could explain reckless behaviour as well as intentional conduct (Commission of Inquiry into the Shooting Death of Leo LaChance, 1992: 62).

The Commission of Inquiry Into the Shooting Death of Leo LaChance did therefore find

that racism was a factor in the shooting. However, the findings were very conditional in

the sense that the blame for the racism involved fell squarely on the shoulders of a well-

known white supremacist. The blame did not fall on the shoulders of the police or the

prosecutors. The criminal justice system processes, then, failed only in their lack of

attention to the role that racism played in the case. It might be reasonably argued that this

inattention itself was a form of racism that would not have occurred had the situation

involved a non-Aboriginal victim and an Aboriginal offender.

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When one considers a possible link to the fact that Nerland was an RCMP informant,

despite the fact that the RCMP were not the investigating police organization, it is even

more troubling that race was not considered an issue. To a reasonable observer it at least

appears there was a cover-up to protect someone. If this person was not Nerland, it may

have been someone he had information on.

Beyond the work of the police, the Commission found prosecutors to be at fault in

the same way. The Commission found that although racism did not appear to play a part

on the immediate surface, it could have been established with certainty that racism was a

key factor, and that this discovery should have been cause for reconsideration of the

killing as accidental. The Inquiry commented as follows:

We also believe, however, that the prosecutors erred in concluding that Nerland’s white supremacist views had nothing to do with the shooting. They were mistaken in accepting the probably accidental shooting explanation without following up the motivational aspect of the matter... they did not appreciate and give attention to the possibility that racism could explain reckless behaviour as well as intentional conduct (Commission of Inquiry into the Shooting Death of Leo LaChance, 1992: 62).

The Commission of Inquiry Into the Shooting Death of Leo LaChance did therefore find

that racism was a factor in the shooting. However, the findings were very conditional in

the sense that the blame for the racism involved fell squarely on the shoulders of a well-

known white supremacist. The blame did not fall on the shoulders of the police or the

prosecutors. The criminal justice system processes, then, failed only in their lack of

attention to the role that racism played in the case. It might be reasonably argued that this

inattention itself was a form of racism that would not have occurred had the situation

involved a non-Aboriginal victim and an Aboriginal offender.

85


The Commission of Inquiry did then acknowledge racism as a factor in the

original incident. Certainly, Carney Nerland was a racist. His hateful views of

Aboriginal people could have played a role in the killing of Leo LaChance, but was it a

motivating factor in a killing? Likely not, surprisingly, according to the inquiry.

There was no evidence that Nerland had ever mishandled a gun in the presence of other customers. Why did he do so in the presence of LaChance? It may have been that Nerland felt no obligation to treat LaChance with the respect or circumspection given to other customers or passers-by who came into his store. The fact that LaChance was an Aboriginal is, in our opinion, one of the reasons why Nerland exhibited what at least was a lack of concern for his safety (Commission of Inquiry into the Shooting Death of Leo LaChance, 1992: 51).

In other words, even if racial hatred was not identified as a motivating factor in the

killing of Leo LaChance, it was the reason that Nerland was able to take Leo LaChance's

life so lightly. Nerland was able to dehumanize Leo LaChance to the point where his

safety as a human being was not an issue in the reckless stupidity of his behaviour. To

test this angle, one would ask if Nerland would have taken the same risk of stupidity had

the customer been non-Aboriginal, and the likely response is no.

The Commission found that racism did play a part in the death of Leo LaChance,

and that the police and prosecutors did not take into account racist motivations for

Nerland's behaviour (Commission of Inquiry into the Shooting Death of Leo LaChance,

1993: 69). However, the Commission softens this stance with a failure to acknowledge

that racism played a part in the administration of justice. Similar to how Nerland did not

acknowledge Leo LaChance's life as one that was important enough to consider at risk in

his phoney bravado while playing with a firearm, the Commission responded to the role

of racism in the death of Leo LaChance by recommending cultural awareness training.28

Cultural awareness training, simply put, is "training" that provides learners with an

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The Commission of Inquiry did then acknowledge racism as a factor in the

original incident. Certainly, Carney Nerland was a racist. His hateful views of

Aboriginal people could have played a role in the killing of Leo LaChance, but was it a

motivating factor in a killing? Likely not, surprisingly, according to the inquiry.

There was no evidence that Nerland had ever mishandled a gun in the presence of other customers. Why did he do so in the presence of LaChance? It may have been that Nerland felt no obligation to treat LaChance with the respect or circumspection given to other customers or passers-by who came into his store. The fact that LaChance was an Aboriginal is, in our opinion, one of the reasons why Nerland exhibited what at least was a lack of concern for his safety (Commission of Inquiry into the Shooting Death of Leo LaChance, 1992: 51).

In other words, even if racial hatred was not identified as a motivating factor in the

killing of Leo LaChance, it was the reason that Nerland was able to take Leo LaChance’s

life so lightly. Nerland was able to dehumanize Leo LaChance to the point where his

safety as a human being was not an issue in the reckless stupidity of his behaviour. To

test this angle, one would ask if Nerland would have taken the same risk of stupidity had

the customer been non-Aboriginal, and the likely response is no.

The Commission found that racism did play a part in the death of Leo LaChance,

and that the police and prosecutors did not take into account racist motivations for

Nerland’s behaviour (Commission of Inquiry into the Shooting Death of Leo LaChance,

1993: 69). However, the Commission softens this stance with a failure to acknowledge

that racism played a part in the administration of justice. Similar to how Nerland did not

acknowledge Leo LaChance’s life as one that was important enough to consider at risk in

his phoney bravado while playing with a firearm, the Commission responded to the role

of racism in the death of Leo LaChance by recommending cultural awareness training.28

Cultural awareness training, simply put, is “training” that provides learners with an

86


understanding or "awareness" of the cultural differences or uniqueness of a particular

people. An awareness of LaChance's Cree traditions would not have changed the fact

that he was shot, would not have changed the outcome of the investigation, and would

not have changed the outcome of the prosecution.

Perhaps the outcome was the result of a misunderstanding of the nature of racism

as a lack of understanding of a different culture. Nerland was not a racist because he did

not understand Cree culture. One can only come to the conclusion that diverting the

attention of the non-Aboriginal public from the issue of racism was a part of the Inquiry's

purpose, and that satiating the Aboriginal public, as best as could be done, was the other

part of its purpose.

The LaChance Inquiry made several recommendations related to the issues of

race and culture. The recommendations were to hire a police officer that was fluent in

Cree and to provide prosecutors with race relations training. The thinking was that if

there had been a Cree speaking police officer on staff the night Leo LaChance was shot,

then the Cree speaking officer may have been able to get more information from Leo

about the details of the shooting (Commission of Inquiry into the Shooting Death of Leo

LaChance, 1993: 68-69). This recommendation may be true, but it presupposed that

Aboriginal people trust Aboriginal police officers because they are Aboriginal regardless

of them working in a police organization. Such a presupposition could actually be racist

in itself, to believe that Aboriginal people do not see beyond their own aboriginality.

To provide race relations training to prosecutors seems odd, since prosecutors

often work from the information that is provided to them by police. The report also

doesn't discuss racism as a social and historical context. It is not sufficient to change the

87


understanding or “awareness” of the cultural differences or uniqueness of a particular

people. An awareness of LaChance’s Cree traditions would not have changed the fact

that he was shot, would not have changed the outcome of the investigation, and would

not have changed the outcome of the prosecution.

Perhaps the outcome was the result of a misunderstanding of the nature of racism

as a lack of understanding of a different culture. Nerland was not a racist because he did

not understand Cree culture. One can only come to the conclusion that diverting the

attention of the non-Aboriginal public from the issue of racism was a part of the Inquiry’s

purpose, and that satiating the Aboriginal public, as best as could be done, was the other

part of its purpose.

The LaChance Inquiry made several recommendations related to the issues of

race and culture. The recommendations were to hire a police officer that was fluent in

Cree and to provide prosecutors with race relations training. The thinking was that if

there had been a Cree speaking police officer on staff the night Leo LaChance was shot,

then the Cree speaking officer may have been able to get more information from Leo

about the details of the shooting (Commission of Inquiry into the Shooting Death of Leo

LaChance, 1993: 68-69). This recommendation may be true, but it presupposed that

Aboriginal people trust Aboriginal police officers because they are Aboriginal regardless

of them working in a police organization. Such a presupposition could actually be racist

in itself, to believe that Aboriginal people do not see beyond their own aboriginality.

To provide race relations training to prosecutors seems odd, since prosecutors

often work from the information that is provided to them by police. The report also

doesn’t discuss racism as a social and historical context. It is not sufficient to change the

87


personnel in the criminal justice system without changing the ideology; and the ideology

comes from the ideas of the society in which the system exists. Thus, this

recommendation succeeds in evading racism by proposing a superficial cultural or racial

change, and would have done nothing to prevent the shooting death of Leo LaChance.

The ideological and structural basis for racism is simply ignored.

3.5 The Commission on First Nations and Metis Peoples and Justice Reform


established on November 15, 2001 (Saskatchewan, 2001e). While the Saskatchewan

government did not attribute the establishment of the Justice Reform Commission to the

Starlight Tours in Saskatoon, the public outcry and the political pressure that came from

the First Nations and Metis communities that resulted from those incidents was

undoubtedly a contributing factor. The news release announcing the appointment of the

Justice Reform Commission stated the following.

The independent commission will engage in a problem-solving dialogue with Saskatchewan people, particularly Aboriginal communities and organizations, to identify reforms that will improve the justice system for all citizens of the province... The goal of the Commission is to identify efficient, effective and financially responsible reforms to the justice system. These reforms should improve the justice system so it reflects the strengths and values of aboriginal people, and ultimately lead to safer communities in Saskatchewan. (Saskatchewan, 2001b)

This news release implied that it is communities, and Aboriginal communities

specifically, that require reform. It did not take into account the racist historical, cultural

and political roots behind the situation in Aboriginal communities. Rather, it looked at

ways of improving the justice system's response to the aftermath of colonialism. That

88


personnel in the criminal justice system without changing the ideology; and the ideology

comes from the ideas of the society in which the system exists. Thus, this

recommendation succeeds in evading racism by proposing a superficial cultural or racial

change, and would have done nothing to prevent the shooting death of Leo LaChance.

The ideological and structural basis for racism is simply ignored.

3.5 The Commission on First Nations and Metis Peoples and Justice Reform


established on November 15, 2001 (Saskatchewan, 2001e). While the Saskatchewan

government did not attribute the establishment of the Justice Reform Commission to the

Starlight Tours in Saskatoon, the public outcry and the political pressure that came from

the First Nations and Metis communities that resulted from those incidents was

undoubtedly a contributing factor. The news release announcing the appointment of the

Justice Reform Commission stated the following.

The independent commission will engage in a problem-solving dialogue with Saskatchewan people, particularly Aboriginal communities and organizations, to identify reforms that will improve the justice system for all citizens of the province... The goal of the Commission is to identify efficient, effective and financially responsible reforms to the justice system. These reforms should improve the justice system so it reflects the strengths and values of aboriginal people, and ultimately lead to safer communities in Saskatchewan. (Saskatchewan, 2001b)

This news release implied that it is communities, and Aboriginal communities

specifically, that require reform. It did not take into account the racist historical, cultural

and political roots behind the situation in Aboriginal communities. Rather, it looked at

ways of improving the justice system’s response to the aftermath of colonialism. That

88


Aboriginal strength and values should accomplish this, when Aboriginal communities

appear to be the problem, was contradictory.

While it was not specifically stated in the news release, the implication was that

Aboriginal people, due to their high levels of involvement in the criminal justice system,

present a threat to the safety of community. Evidence of this interpretation can be found

in the more detailed Terms of Reference for the Justice Reform Commission, which

mandated the Justice Reform Commission in Section 2(e) to:

Identify efficient, effective and financially responsible reforms which would improve the administration of justice and would better reflect the values and inherent strengths of Aboriginal communities and promote positive inter-community and inter-disciplinary co-operation, leading to reduced offending, reduced victimization, reduced incarceration and safer communities for First Nations and Metis Peoples...(Commission on First Nations and Metis Peoples and Justice Reform, 2001).

The implication of these two directives was that the Justice Reform Commission was to

discuss, almost specifically with Aboriginal people, the reforms that will lead to reducing

offending and victimization in Saskatchewan's communities, which will make the

communities safer. These seemed in contradiction to the opening statement of the terms

of reference that identified the intention of the Justice Reform Commission as to

44. . review the justice system with the intent of devising solutions to overcome systemic

discriminatory practices and address attitudes based on racial or cultural prejudice..."

What was being evaluated, the justice system or Aboriginal communities? If Aboriginal

communities were being evaluated, what were they being evaluated for? Could one come

to the conclusion that the situation was entirely the fault of Aboriginal people, that

Saskatchewan communities were not safe because of the high levels of Aboriginal

89


Aboriginal strength and values should accomplish this, when Aboriginal communities

appear to be the problem, was contradictory.

While it was not specifically stated in the news release, the implication was that

Aboriginal people, due to their high levels of involvement in the criminal justice system,

present a threat to the safety of community. Evidence of this interpretation can be found

in the more detailed Terms of Reference for the Justice Reform Commission, which

mandated the Justice Reform Commission in Section 2(e) to:

Identify efficient, effective and financially responsible reforms which would improve the administration of justice and would better reflect the values and inherent strengths of Aboriginal communities and promote positive intercommunity and inter-disciplinary co-operation, leading to reduced offending, reduced victimization, reduced incarceration and safer communities for First Nations and Metis Peoples.. .(Commission on First Nations and Metis Peoples and Justice Reform, 2001).

The implication of these two directives was that the Justice Reform Commission was to

discuss, almost specifically with Aboriginal people, the reforms that will lead to reducing

offending and victimization in Saskatchewan’s communities, which will make the

communities safer. These seemed in contradiction to the opening statement of the terms

of reference that identified the intention of the Justice Reform Commission as to

“ ... review the justice system with the intent of devising solutions to overcome systemic

discriminatory practices and address attitudes based on racial or cultural prejudice...”

What was being evaluated, the justice system or Aboriginal communities? If Aboriginal

communities were being evaluated, what were they being evaluated for? Could one come

to the conclusion that the situation was entirely the fault of Aboriginal people, that

Saskatchewan communities were not safe because of the high levels o f Aboriginal

89


offending and victimization; and the proper way to address this problem was by making

changes in the justice system?

When one ponders the terms of reference and the news releases, one has to ask

what this review has to do with the Aboriginal men who died outside of Saskatoon. True,

it is never specifically and explicitly stated that the Justice Reform Commission was a

response to the Starlight Tours, but it is implicitly understood. Had there been no outcry

over the deaths, there would have been no establishment of a Commission on First

Nations and Metis Peoples and Justice Reform, particularly just after the Linn Report

(Linn, 1992 (a)(b)), which included 90 recommendations, was released in 1992.

Further, while the Province of Saskatchewan did not acknowledge the deaths of

Darcy Dean Ironchild, Lloyd Joseph Dustyhorn, Rodney Hank Naistus, Lawrence Kim

Wegner, and the very lucky escape of Darrell Night as being the reason for the

establishment of the Justice Reform Commission, the Commission acknowledged the

deaths of the men in their Final Report, when in the opening statement from the chair,

Commissioner Littlechild wrote as follows.

The goal is that in a decade, the benefits of change will make Saskatchewan the best province in Canada. No more frozen bodies. Instead, a collective celebration of life (Commission on First Nations and Metis Peoples and Justice Reform, 2004: 5).

Metis Family and Community Justice Services also acknowledged the deaths in

their submission to the Justice Reform Commission, which was published in volume II of

the Final Report. The introduction to their submission reads as follows.

This report is for those who have gone before us and fought to survive in the face of racism, oppression and ignorance. This report is for Lawrence Wegner, Rodney Naistus, Pamela George, Leo LaChance and the many unnamed Aboriginal men and women who have paid the ultimate price for ignorance and neglect. It is with

90


offending and victimization; and the proper way to address this problem was by making

changes in the justice system?

When one ponders the terms of reference and the news releases, one has to ask

what this review has to do with the Aboriginal men who died outside of Saskatoon. True,

it is never specifically and explicitly stated that the Justice Reform Commission was a

response to the Starlight Tours, but it is implicitly understood. Had there been no outcry

over the deaths, there would have been no establishment of a Commission on First

Nations and Metis Peoples and Justice Reform, particularly just after the Linn Report

(Linn, 1992 (a)(b)), which included 90 recommendations, was released in 1992.

Further, while the Province of Saskatchewan did not acknowledge the deaths of

Darcy Dean Ironchild, Lloyd Joseph Dustyhom, Rodney Hank Naistus, Lawrence Kim

Wegner, and the very lucky escape of Darrell Night as being the reason for the

establishment of the Justice Reform Commission, the Commission acknowledged the

deaths of the men in their Final Report, when in the opening statement from the chair,

Commissioner Littlechild wrote as follows.

The goal is that in a decade, the benefits of change will make Saskatchewan the best province in Canada. No more frozen bodies. Instead, a collective celebration of life (Commission on First Nations and Metis Peoples and Justice Reform,2004: 5).

Metis Family and Community Justice Services also acknowledged the deaths in

their submission to the Justice Reform Commission, which was published in volume II of

the Final Report. The introduction to their submission reads as follows.

This report is for those who have gone before us and fought to survive in the face of racism, oppression and ignorance. This report is for Lawrence Wegner, Rodney Naistus, Pamela George, Leo LaChance and the many unnamed Aboriginal men and women who have paid the ultimate price for ignorance and neglect. It is with

90


a heavy heart that this Commission has been established. The price of this Commission is a burden too great to bear and the feelings of pain and loss echo throughout the Aboriginal community. While these men, and women, who were sons, daughters, fathers and mothers are gone... they are not forgotten (Commission on First Nations and Metis Peoples and Justice Reform, 2004: I-I)

Important to the argument presented here, the Commission was to "review the

justice system with the intent of devising solutions to overcome systemic discriminatory

practices and address attitudes based on racial or cultural prejudice" (Commission on

First Nations and Metis Peoples and Justice Reform, 2004: A-61). The Commission did

attempt to address racism in Chapter 7 in the report. However, the Commission took a

very conflicted approach to racism, particularly when it came to making

recommendations to address racism.

Although the Commission on First Nations and Metis Relations attempted to

address the issue of racism as an important factor in improving the relationship between

Aboriginal and non-Aboriginal people, they offered up a strange picture of racism, and a

contradictory method of addressing it in their recommendations. The Commission's

chapter "Eliminating Racism: Creating Healthy Relationships in Saskatchewan",

identifies "individual racism", "condescension", and "systemic racism"; then goes on to

discuss the role of "race-based privilege", which is basically the idea that whiteness

brings with it certain unconscious or unspoken privileges that give "white" people access

to benefits that Aboriginal people do not have. There is some credibility to these

concepts, which are discussed in Chapter 4. However, much of what is recommended

concerns the development of cultural awareness and partnership building, without

confronting the structures and power relations in which racism is deeply embedded.

91


a heavy heart that this Commission has been established. The price of this Commission is a burden too great to bear and the feelings of pain and loss echo throughout the Aboriginal community. While these men, and women, who were sons, daughters, fathers and mothers are gone... they are not forgotten (Commission on First Nations and Metis Peoples and Justice Reform, 2004:1-I)

Important to the argument presented here, the Commission was to “review the

justice system with the intent of devising solutions to overcome systemic discriminatory

practices and address attitudes based on racial or cultural prejudice” (Commission on

First Nations and Metis Peoples and Justice Reform, 2004: A-61). The Commission did

attempt to address racism in Chapter 7 in the report. However, the Commission took a

very conflicted approach to racism, particularly when it came to making

recommendations to address racism.

Although the Commission on First Nations and Metis Relations attempted to

address the issue of racism as an important factor in improving the relationship between

Aboriginal and non-Aboriginal people, they offered up a strange picture of racism, and a

contradictory method of addressing it in their recommendations. The Commission’s

chapter “Eliminating Racism: Creating Healthy Relationships in Saskatchewan”,

identifies “individual racism”, “condescension”, and “systemic racism”; then goes on to

discuss the role of “race-based privilege”, which is basically the idea that whiteness

brings with it certain unconscious or unspoken privileges that give “white” people access

to benefits that Aboriginal people do not have. There is some credibility to these

concepts, which are discussed in Chapter 4. However, much of what is recommended

concerns the development of cultural awareness and partnership building, without

confronting the structures and power relations in which racism is deeply embedded.

91


The most useful section of this chapter was the discussion of white privilege and

how racism is not simply a form of ignorance. The Commission quoted the following

from Newkirk and Rutstein (2000)29:

We have found that it is actually more difficult for individuals to overcome the emotional attachment to the ignorance than to overcome the ignorance itself. Challenging one's belief system usually provokes resistance because there is a natural desire to protect what makes one feel comfortable and secure (Commission on First Nations and Metis Peoples and Justice Reform, 2004: 7-7).

Unfortunately, the chapter then slipped back into the myth that it is cultural

misconception and a lack of understanding that creates racism. The text then proceeded

to explain certain myths about Aboriginal people and explained some of the social and

economic costs of racism; but then recommends a predominantly cross-cultural basis

from which to address racism.

(7.1) To report on the progress of the implement of recommendations related to multiculturalism; (7.2) That the provincial, federal, Federation of Indian Nations and Metis Nations Saskatchewan compile and maintain a publicly accessible directory for cross-cultural and race relations facilitators and instructors; (7.3) That the media create an external community editorial board to provide feedback on the portrayal of Aboriginal people in the media; (7.4) That the Department of Culture, Youth and Recreation work with government and non-government Aboriginal and non-Aboriginal stakeholders to organize an anti-racism conference; (7.5) That the Saskatchewan Association of Rural Municipalities, Saskatchewan Urban Municipalities Association, Government of Saskatchewan, Federation of Saskatchewan Indian Nations and Metis Nation-Saskatchewan co-ordinate anti-racism activities in 2005; (7.6) That the Government of Saskatchewan, with the assistance of First Nations and Metis peoples, organize a media campaign to inform the public about Aboriginal peoples and deliver an understanding of how to improve relationships and assist communities in addressing barriers that are based on racial and cultural differences; and, (7.7) That everyone commit to eliminating racism in day to day life (Commission on First Nations and Metis Peoples and Justice Reform, 2001: Chapter 7)

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The most useful section of this chapter was the discussion of white privilege and

how racism is not simply a form of ignorance. The Commission quoted the following

from Newkirk and Rutstein (2000)29:

We have found that it is actually more difficult for individuals to overcome the emotional attachment to the ignorance than to overcome the ignorance itself. Challenging one’s belief system usually provokes resistance because there is a natural desire to protect what makes one feel comfortable and secure (Commission on First Nations and Metis Peoples and Justice Reform, 2004: 7-7).

Unfortunately, the chapter then slipped back into the myth that it is cultural

misconception and a lack of understanding that creates racism. The text then proceeded

to explain certain myths about Aboriginal people and explained some of the social and

economic costs of racism; but then recommends a predominantly cross-cultural basis

from which to address racism.

(7.1) To report on the progress of the implement of recommendations related to multiculturalism;(7.2) That the provincial, federal, Federation of Indian Nations and Metis Nations Saskatchewan compile and maintain a publicly accessible directory for cross- cultural and race relations facilitators and instructors;(7.3) That the media create an external community editorial board to provide feedback on the portrayal of Aboriginal people in the media;(7.4) That the Department of Culture, Youth and Recreation work with government and non-government Aboriginal and non-Aboriginal stakeholders to organize an anti-racism conference;(7.5) That the Saskatchewan Association of Rural Municipalities, Saskatchewan Urban Municipalities Association, Government of Saskatchewan, Federation of Saskatchewan Indian Nations and Metis Nation-Saskatchewan co-ordinate antiracism activities in 2005;(7.6) That the Government of Saskatchewan, with the assistance of First Nations and Metis peoples, organize a media campaign to inform the public about Aboriginal peoples and deliver an understanding of how to improve relationships and assist communities in addressing barriers that are based on racial and cultural differences; and,(7.7) That everyone commit to eliminating racism in day to day life (Commission on First Nations and Metis Peoples and Justice Reform, 2001: Chapter 7)

92


If one assumes the definition of racism as it is posited in this thesis, than one can

see that the majority of these recommendations do not go far enough in addressing racism

as a factor in the experiences of the men who died on the outskirts of Saskatoon. These

recommendations do not confront racism as an ideological tool that has enabled the

continued subordination of Aboriginal people, and by virtue of subordination, their

domination and victimization by non-Aboriginal people. Rather, it suggests cultural

education, or the exploration of diversity, as a means to confront racism, neither of which

are, quite frankly, particularly useful.

Recommendation 7.1, 7.2 and 7.6 were intended to address a lack of information

about Aboriginal people and their culture. It can be argued that ignorance does not lie at

the heart of racism. Therefore, these recommendations did not provide anything new for

addressing racism because they just put more emphasis on understanding the history and

culture of Aboriginal communities. A more complete way of dealing with racism in this

sense would be to explore the effects of colonialism on Aboriginal peoples,

acknowledging the fact that racism was an ideological tool that facilitated this process.

The other recommendations refer to addressing stereotypes and committing to

anti-racism activities. Addressing stereotypes is an important part of addressing racism,

however, it also undermines the role of racism as a part of the ideology that exists as

common sense, and as explained prior, the commitment or emotional attachment that

people have to their ideas. Anti-racism activities are fine, in terms of getting people

together, but there is a gulf between addressing racism and trying to encourage the public

to explore and embrace diversity. It is commonly heard that such activities are simply

preaching to the converted, and do not go far enough to challenge racism.

93


If one assumes the definition of racism as it is posited in this thesis, than one can

see that the majority of these recommendations do not go far enough in addressing racism

as a factor in the experiences of the men who died on the outskirts of Saskatoon. These

recommendations do not confront racism as an ideological tool that has enabled the

continued subordination of Aboriginal people, and by virtue of subordination, their

domination and victimization by non-Aboriginal people. Rather, it suggests cultural

education, or the exploration of diversity, as a means to confront racism, neither of which

are, quite frankly, particularly useful.

Recommendation 7.1, 7.2 and 7.6 were intended to address a lack of information

about Aboriginal people and their culture. It can be argued that ignorance does not lie at

the heart of racism. Therefore, these recommendations did not provide anything new for

addressing racism because they just put more emphasis on understanding the history and

culture of Aboriginal communities. A more complete way of dealing with racism in this

sense would be to explore the effects of colonialism on Aboriginal peoples,

acknowledging the fact that racism was an ideological tool that facilitated this process.

The other recommendations refer to addressing stereotypes and committing to

anti-racism activities. Addressing stereotypes is an important part of addressing racism,

however, it also undermines the role of racism as a part of the ideology that exists as

common sense, and as explained prior, the commitment or emotional attachment that

people have to their ideas. Anti-racism activities are fine, in terms of getting people

together, but there is a gulf between addressing racism and trying to encourage the public

to explore and embrace diversity. It is commonly heard that such activities are simply

preaching to the converted, and do not go far enough to challenge racism.

93


The problem was that the Commission had a faulty definition of racism that did

not recognize that racism is not about cultural difference. Again, although the

Commission made an honest attempt at looking at racism beyond the scope of racial and

cultural difference, addressing racism was evaded in the final report. Finally, one of the

most significant strengths in the work of the Commission was that it took the issue

outside of the criminal justice system and placed responsibility, not blame, on the

shoulders of all citizens.

3.6 The Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild

The Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild

was announced by Saskatchewan Justice Minister Eric Cline, Q.C. on February 20, 2003.

The statement from Minister Cline was as follows.

The head office of the Public Prosecutions Division reviewed the RCMP investigation into the death of Neil Stonechild and determined that there is not sufficient evidence to lay charges... There is, however, evidence that Neil Stonechild had contact with members of the Saskatoon Police Service on the day he was last seen alive (Saskatchewan, 2004).

So, although the RCMP determined that there was no basis for a criminal charge against

members of the Saskatoon Police Service in the death of Neil Stonechild, Saskatchewan

Justice felt there was enough discomfort with the case to re-open it and look at it more

closely. In this sense, the mandate of the Stonechild Inquiry was fairly specific to the

events that occurred that night, the quality of the investigation and the role of racism.

The Honourable Justice David Wright of the Court of Queen's Bench was

appointed Commissioner. The mandate of the Commission was very open, with the first

term including:

94


The problem was that the Commission had a faulty definition of racism that did

not recognize that racism is not about cultural difference. Again, although the

Commission made an honest attempt at looking at racism beyond the scope of racial and

cultural difference, addressing racism was evaded in the final report. Finally, one of the

most significant strengths in the work of the Commission was that it took the issue

outside of the criminal justice system and placed responsibility, not blame, on the

shoulders of all citizens.

3.6 The Commission o f Inquiry Into Matters Relating to the Death o f Neil Stonechild

The Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild

was announced by Saskatchewan Justice Minister Eric Cline, Q.C. on February 20, 2003.

The statement from Minister Cline was as follows.

The head office of the Public Prosecutions Division reviewed the RCMP investigation into the death of Neil Stonechild and determined that there is not sufficient evidence to lay charges... There is, however, evidence that Neil Stonechild had contact with members of the Saskatoon Police Service on the day he was last seen alive (Saskatchewan, 2004).

So, although the RCMP determined that there was no basis for a criminal charge against

members of the Saskatoon Police Service in the death of Neil Stonechild, Saskatchewan

Justice felt there was enough discomfort with the case to re-open it and look at it more

closely. In this sense, the mandate of the Stonechild Inquiry was fairly specific to the

events that occurred that night, the quality of the investigation and the role of racism.

The Honourable Justice David Wright of the Court of Queen’s Bench was

appointed Commissioner. The mandate of the Commission was very open, with the first

term including:

94


the responsibility to inquire into any and all aspects of the circumstances that resulted in the death of Neil Stonechild, and the conduct of the investigation into the death of Neil Stonechild with respect to the administration of justice in the province of Saskatchewan (Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild, 2004: 4).

During the course of the inquiry, the Commission heard testimony from 63

witnesses. The witnesses spent from September 8, 2003 until March 18, 2004 on the

stand in sessions where they were questioned and cross-examined in public. Judge

Wright was presented with 197 exhibits and heard from forensic and medical experts, a

photogrammetric expert and memory experts. During the course of the hearings, the

Commissioner heard from family, friends, the original Saskatoon police officers who

investigated the case, the officers who had investigated the case subsequent to its

reopening and various experts. The theme of racism was one that came up throughout the

process in the transcripts of the hearings, even being pinpointed as a factor by Saskatoon

police officer Ernie Loutitt when asked if he thought race was a factor in the case.

Q: Now did you form any view as to why you didn't think it was being investigated the way you thought it should be? A: Yeah, we had conversations. I can't recall my exact wording. I believe I told her that if Neil had been a person of different social stature that the investigation would have been much more thorough and the officers involved in the investigation would have been more forthcoming with her. And it was along that vein, that was basically how the conversation went. Q: Did you think that race played a role in it? A: Race, indifference, incompetence, the adjective, I think, will be up to the Commissioner at the end of this. Q: Well I was asking you as to your view at the time? A: In 1990? I felt that, yeah, race was playing an issue. Race or social stature, whatever type of discrimination you want to call it. (Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild, 2003: 2838-2839).

In the end, it was determined that Neil Stonechild had, in fact, been in police custody on

the night of his death. It was the opinion of Commissioner Wright that the officer in

95


the responsibility to inquire into any and all aspects of the circumstances that resulted in the death of Neil Stonechild, and the conduct of the investigation into the death of Neil Stonechild with respect to the administration of justice in the province of Saskatchewan (Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild, 2004: 4).

During the course of the inquiry, the Commission heard testimony from 63

witnesses. The witnesses spent from September 8, 2003 until March 18,2004 on the

stand in sessions where they were questioned and cross-examined in public. Judge

Wright was presented with 197 exhibits and heard from forensic and medical experts, a

photogrammetric expert and memory experts. During the course of the hearings, the

Commissioner heard from family, friends, the original Saskatoon police officers who

investigated the case, the officers who had investigated the case subsequent to its

reopening and various experts. The theme of racism was one that came up throughout the

process in the transcripts of the hearings, even being pinpointed as a factor by Saskatoon

police officer Emie Loutitt when asked if he thought race was a factor in the case.

Q: Now did you form any view as to why you didn’t think it was being investigated the way you thought it should be?A: Yeah, we had conversations. I can’t recall my exact wording. I believe I told her that if Neil had been a person of different social stature that the investigation would have been much more thorough and the officers involved in the investigation would have been more forthcoming with her. And it was along that vein, that was basically how the conversation went.Q: Did you think that race played a role in it?A: Race, indifference, incompetence, the adjective, I think, will be up to the Commissioner at the end of this.Q: Well I was asking you as to your view at the time?A: In 1990? I felt that, yeah, race was playing an issue. Race or social stature, whatever type of discrimination you want to call it. (Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild, 2003: 2838-2839).

In the end, it was determined that Neil Stonechild had, in fact, been in police custody on

the night of his death. It was the opinion of Commissioner Wright that the officer in

95


charge of investigating the case, Sergeant Keith Jarvis, conducted a poor investigation,

partially in fear that he would reveal the wrongdoing of his colleagues (Commission of

Inquiry Into Matters Relating to the Death of Neil Stonechild, 2004: 212). Not only did

Commissioner Wright believe that Constables Senger and Hartwig had Neil in their

custody that night, he believed that they were lying about not being able to remember

having him there. As well, Commissioner Wright believed that they had the assistance of

their superior, Sergeant Jarvis, in concealing both that they had Neil in their car, and the

fact that they were trying to cover up the real story behind the death. Finally, in a rather

bold statement about what could be referred to as the true nature of the incident, Judge

Wright commented as follows.

As I reviewed the evidence of this inquiry, I was reminded again and again, of the chasm that separates Aboriginal and non-Aboriginal people in this city and this province... Our two communities do not know each other and do not seem to want to (Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild, 2004: 208).

Subsequent to his conclusions, Commissioner Wright made recommendations to review

the Coroner's Act; for the province to establish an introductory program at the

Saskatchewan Police College for Aboriginal and minority community candidates into the

municipal police services; for the Minister of Justice establish an advisory board

composed of police service members to address the recruitment of Aboriginal people into

municipal police services; to develop accessible and efficient police complaints

procedures; to appoint an Aboriginal Justice of the Peace with the rank of Sergeant to act

as a liaison between the police and Aboriginal people; for municipal police forces to

provide an annual report of police complaints to the Minister of Justice; for race relations

training including "information about Aboriginal culture, history, societal and family

96


charge of investigating the case, Sergeant Keith Jarvis, conducted a poor investigation,

partially in fear that he would reveal the wrongdoing of his colleagues (Commission of

Inquiry Into Matters Relating to the Death of Neil Stonechild, 2004: 212). Not only did

Commissioner Wright believe that Constables Senger and Hartwig had Neil in their

custody that night, he believed that they were lying about not being able to remember

having him there. As well, Commissioner Wright believed that they had the assistance of

their superior, Sergeant Jarvis, in concealing both that they had Neil in their car, and the

fact that they were trying to cover up the real story behind the death. Finally, in a rather

bold statement about what could be referred to as the true nature of the incident, Judge

Wright commented as follows.

As I reviewed the evidence of this inquiry, I was reminded again and again, of the chasm that separates Aboriginal and non-Aboriginal people in this city and this province... Our two communities do not know each other and do not seem to want to (Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild, 2004: 208).

Subsequent to his conclusions, Commissioner Wright made recommendations to review

the Coroner’s Act; for the province to establish an introductory program at the

Saskatchewan Police College for Aboriginal and minority community candidates into the

municipal police services; for the Minister of Justice establish an advisory board

composed of police service members to address the recruitment of Aboriginal people into

municipal police services; to develop accessible and efficient police complaints

procedures; to appoint an Aboriginal Justice of the Peace with the rank of Sergeant to act

as a liaison between the police and Aboriginal people; for municipal police forces to

provide an annual report of police complaints to the Minister of Justice; for race relations

training including “information about Aboriginal culture, history, societal and family

96


structures" and a refresher course every three years that includes Aboriginal officers; and

to ensure the adequacy of anger management and dispute resolution training, particularly

for first responders (Commission of Inquiry Into Matters Relating to the Death of Neil

Stonechild, 2004: 213)..

Ironically, although Judge Wright acknowledged racism as a factor in the death of

Neil Stonechild, it was perhaps the non-racism-related recommendations that might have

been helpful in preventing his death. Accessible and efficient police complaints

procedures and a duty to formally provide a report of police complaints to the Minister of

Justice would act as a deterrent to the potential for abuse of police authority. Proper

anger management and dispute resolution training would have helped frustrated officers

to cope. In short, these non-race related recommendations would have helped to assure

that the police acted in a more professional manner by reducing the potential for abuse of

power with a possibly frustrating situation involving a teenager, regardless of whether or

not the teenager was Aboriginal or non-Aboriginal. However, as with the previous

recommendations to bolster professional police standards, this recommendation still did

not address the roots of racism as an ideology that has been incorporated into the social

structures of our society, and that permeates all of our social relationships.

The recommendations that are intended to deal specifically with the issue of

Aboriginal people fail miserably on a number of fronts. For one, increasing the numbers

of Aboriginal criminal justice personnel will not necessarily improve the relationships

between police and the Aboriginal public, at least not until they are well represented in

the organization. As stated twice earlier, Constable Loutitt is a good example of this

particular point. Even more than a decade after Neil's death, in our more progressive era,

97


structures” and a refresher course every three years that includes Aboriginal officers; and

to ensure the adequacy of anger management and dispute resolution training, particularly

for first responders (Commission of Inquiry Into Matters Relating to the Death of Neil

Stonechild, 2004: 213)..

Ironically, although Judge Wright acknowledged racism as a factor in the death of

Neil Stonechild, it was perhaps the non-racism-related recommendations that might have

been helpful in preventing his death. Accessible and efficient police complaints

procedures and a duty to formally provide a report of police complaints to the Minister of

Justice would act as a deterrent to the potential for abuse of police authority. Proper

anger management and dispute resolution training would have helped frustrated officers

to cope. In short, these non-race related recommendations would have helped to assure

that the police acted in a more professional manner by reducing the potential for abuse of

power with a possibly frustrating situation involving a teenager, regardless of whether or

not the teenager was Aboriginal or non-Aboriginal. However, as with the previous

recommendations to bolster professional police standards, this recommendation still did

not address the roots of racism as an ideology that has been incorporated into the social

structures of our society, and that permeates all of our social relationships.

The recommendations that are intended to deal specifically with the issue of

Aboriginal people fail miserably on a number of fronts. For one, increasing the numbers

of Aboriginal criminal justice personnel will not necessarily improve the relationships

between police and the Aboriginal public, at least not until they are well represented in

the organization. As stated twice earlier, Constable Loutitt is a good example of this

particular point. Even more than a decade after Neil’s death, in our more progressive era,

97


he was hesitant to discuss his belief that racism played a role in the investigation of Neil

Stonechild, and even more reluctant to say anything that would incriminate his

colleagues. This hesitance and reluctance was in spite of the fact that he had stated that

being an Aboriginal police officer had never been an issue for him in the course of his

career (Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild,

2004: 2839).

The seventh recommendation also superficially addresses the issue of race as it

played a factor in the death of Neil Stonechild. A teenager with a drinking problem,

possibly making a non-criminal nuisance of himself, was targeted by police officers who

were able to use their legitimate authority to, at the very least, minimize Neil's

importance as a person. In order to carry out this abuse of power, it would have been

necessary for the officers to recognize first that Neil was Aboriginal, would be perceived

as a non-credible person in comparison to them, and powerless by having fewer avenues

of retribution in comparison to other people they may pick up. It was the police officers'

referral to this ideology, as it exists imbedded in structures and general consciousness,

including but not restricted to the powerful structures of the criminal justice system, that

enabled them to deny Neil Stonechild the basic rights of a human being. It is unlikely

that information about the culture, history, society and family structures unique to Neil's

Saulteaux ancestors would have prevented his death that night. To properly confront

racism, Judge Wright would have had to recommend a confrontation of a much different

sort.

98


he was hesitant to discuss his belief that racism played a role in the investigation of Neil

Stonechild, and even more reluctant to say anything that would incriminate his

colleagues. This hesitance and reluctance was in spite of the fact that he had stated that

being an Aboriginal police officer had never been an issue for him in the course of his

career (Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild,

2004: 2839).

The seventh recommendation also superficially addresses the issue of race as it

played a factor in the death of Neil Stonechild. A teenager with a drinking problem,

possibly making a non-criminal nuisance of himself, was targeted by police officers who

were able to use their legitimate authority to, at the very least, minimize Neil’s

importance as a person. In order to carry out this abuse of power, it would have been

necessary for the officers to recognize first that Neil was Aboriginal, would be perceived

as a non-credible person in comparison to them, and powerless by having fewer avenues

of retribution in comparison to other people they may pick up. It was the police officers’

referral to this ideology, as it exists imbedded in structures and general consciousness,

including but not restricted to the powerful structures of the criminal justice system, that

enabled them to deny Neil Stonechild the basic rights of a human being. It is unlikely

that information about the culture, history, society and family structures unique to Neil’s

Saulteaux ancestors would have prevented his death that night. To properly confront

racism, Judge Wright would have had to recommend a confrontation of a much different

sort.

98


3.7 Summary

All of the commissions and inquiries attempted to deal with incidents that elicited

high levels of emotion, events that appear to be immediately related to the criminal

justice system. However, these incidents, and the criminal justice system, also exist in a

larger context that permitted them to occur in the first place. Canadians are proud of their

country, but reluctant to look at how the country came to be built at the expense of

Aboriginal people in a process that was justified by a common racist ideology that was

legitimated by government legislation and the courts. What Canadians, and at times even

Aboriginal Canadians, are reluctant to look at, is how this ideology and oppression are

still in existence in one of the best countries in the world, manifested in incidents like the

ones focused upon in this thesis.

At times, in the initial investigation it seemed like the criminal justice system

downplayed the role of race in the original incidents, in the ongoing criminal

investigations, and in criminal justice processes more generally. In truth, criminal justice

personnel do not want a system that unfairly puts people at a disadvantage due to race.

Like the general public, criminal justice system personnel want to believe that the

criminal justice system is fair, it is important to ensure that all people are safe and have

equal rights under the law. The criminal justice system, among many social systems, is

challenged with dealing with the aftermath of colonialism everyday. It is much easier for

these systems to deal with the problems that exist in Aboriginal communities that cause

crime and social dysfunction, then it is to challenge the very ideological roots that give

them power in the first place. The next chapter explores what racism is, how it works,

and why it is so difficult to confront.

99


3.7 Summary

All of the commissions and inquiries attempted to deal with incidents that elicited

high levels of emotion, events that appear to be immediately related to the criminal

justice system. However, these incidents, and the criminal justice system, also exist in a

larger context that permitted them to occur in the first place. Canadians are proud of their

country, but reluctant to look at how the country came to be built at the expense of

Aboriginal people in a process that was justified by a common racist ideology that was

legitimated by government legislation and the courts. What Canadians, and at times even

Aboriginal Canadians, are reluctant to look at, is how this ideology and oppression are

still in existence in one of the best countries in the world, manifested in incidents like the

ones focused upon in this thesis.

At times, in the initial investigation it seemed like the criminal justice system

downplayed the role of race in the original incidents, in the ongoing criminal

investigations, and in criminal justice processes more generally. In truth, criminal justice

personnel do not want a system that unfairly puts people at a disadvantage due to race.

Like the general public, criminal justice system personnel want to believe that the

criminal justice system is fair, it is important to ensure that all people are safe and have

equal rights under the law. The criminal justice system, among many social systems, is

challenged with dealing with the aftermath of colonialism everyday. It is much easier for

these systems to deal with the problems that exist in Aboriginal communities that cause

crime and social dysfunction, then it is to challenge the very ideological roots that give

them power in the first place. The next chapter explores what racism is, how it works,

and why it is so difficult to confront.

99


Chapter Four: Confronting Racism

4.1 Introduction

Canada has been reluctant to acknowledge racism in any meaningful way.

Racism in Canada has been rationalized as part of the ugly and often unspoken past, or

the results of cultural misunderstanding. When current racism is acknowledged it is often

represented as simply an unpopular opinion, and its seriousness is often undermined by

comparisons to oppression that occurs in other countries. Past attempts at addressing

racism have largely been confined to attempts at cross-cultural learning experiences.

However, since racism is not about cultural difference or ignorance, cross-cultural

experiences are not effective tools to eliminate racism.

"Racism" as a concept is often thrown about without a definition that includes its

complexities. A preliminary definition of racism is necessary to be able to properly

discuss it, and especially to distinguish it from simple unintentional naive

misunderstanding, particularly if one is attempting to address it in a way that offers

avenues with which to pragmatically address it. A good starting definition of racism is

provided by the Canadian Race Relations Foundation, which combines several concepts:

Racism is a mix of prejudice and power leading to the domination and exploitation of one group (the dominant or majority group) over another (the non-dominant, minority or racialized group). It asserts that one group is supreme and superior while the other is inferior. Racism is any individual action, or institutional practice backed by institutional power, which subordinates people because of their colour or ethnicity (Canadian Race Relation Foundation, 2005 Pamphlet).

This definition aptly captures racism as something more than a mean or wrong

idea based upon physically or culturally identifiable differences. Racism is an attitude, or

100


Chapter Four: Confronting Racism

4.1 Introduction

Canada has been reluctant to acknowledge racism in any meaningful way.

Racism in Canada has been rationalized as part of the ugly and often unspoken past, or

the results of cultural misunderstanding. When current racism is acknowledged it is often

represented as simply an unpopular opinion, and its seriousness is often undermined by

comparisons to oppression that occurs in other countries. Past attempts at addressing

racism have largely been confined to attempts at cross-cultural learning experiences.

However, since racism is not about cultural difference or ignorance, cross-cultural

experiences are not effective tools to eliminate racism.

“Racism” as a concept is often thrown about without a definition that includes its

complexities. A preliminary definition of racism is necessary to be able to properly

discuss it, and especially to distinguish it from simple unintentional naive

misunderstanding, particularly if one is attempting to address it in a way that offers

avenues with which to pragmatically address it. A good starting definition of racism is

provided by the Canadian Race Relations Foundation, which combines several concepts:

Racism is a mix of prejudice and power leading to the domination and exploitation of one group (the dominant or majority group) over another (the nondominant, minority or racialized group). It asserts that one group is supreme and superior while the other is inferior. Racism is any individual action, or institutional practice backed by institutional power, which subordinates people because of their colour or ethnicity (Canadian Race Relation Foundation, 2005 Pamphlet).

This definition aptly captures racism as something more than a mean or wrong

idea based upon physically or culturally identifiable differences. Racism is an attitude, or

100


part of an ideology, of superiority held by a segment of the population that is able, by its

dominance and access, to integrate beliefs into the power structures of a society.

Ultimately, the ideology is enforced by institutional power, which in turn reinforces the

relations of dominance.

The critical incidents discussed are excellent examples of the legitimization of

racist ideology. The racist acts against Helen Betty Osborne, Donald Marshall Jr., Leo

LaChance, Neil Stonechild, Darrell Night, Darcy Ironchild, Lawrence Wegner and

Rodney Naistus, were an expression of this ideology, and appeared to be legitimized

when not addressed properly by the courts. This process of legal legitimization also

legitimizes informal, expressions of racist ideology that occur in everyday life.

This ideology in its various forms of expression is not always conscious or

intentional, but is actually most often taken for granted, seems "common sense" and

hence, not even considered by "white" people. In this sense, the underlying causes of the

acts remain invisible to most, and are never really taken into consideration. Instead, there

is a tendency to focus on the visible impacts of racism on Aboriginal communities rather

than the roots of racism as they exist outside of Aboriginal communities. For example,

when analyzing the Marshall Jr. case, it is easy to focus on Marshall Jr.'s defiant attitude

towards authority rather than on the marginalization that put him in a situation to be

rebellious. Similarly, it is easier for people to focus on the high crime rates in Aboriginal

communities rather than on the colonial processes that put Aboriginal communities there

in the first place, and especially, on the ideological justifications that continue to explain

away racism. If attention is paid only to the "social pathologies" in Aboriginal

communities, non-Aboriginal society can rest easily while maintaining the status quo,

101


part of an ideology, of superiority held by a segment of the population that is able, by its

dominance and access, to integrate beliefs into the power structures of a society.

Ultimately, the ideology is enforced by institutional power, which in turn reinforces the

relations of dominance.

The critical incidents discussed are excellent examples of the legitimization of

racist ideology. The racist acts against Helen Betty Osbome, Donald Marshall Jr., Leo

LaChance, Neil Stonechild, Darrell Night, Darcy Ironchild, Lawrence Wegner and

Rodney Naistus, were an expression of this ideology, and appeared to be legitimized

when not addressed properly by the courts. This process of legal legitimization also

legitimizes informal, expressions of racist ideology that occur in everyday life.

This ideology in its various forms of expression is not always conscious or

intentional, but is actually most often taken for granted, seems “common sense” and

hence, not even considered by “white” people. In this sense, the underlying causes of the

acts remain invisible to most, and are never really taken into consideration. Instead, there

is a tendency to focus on the visible impacts of racism on Aboriginal communities rather

than the roots of racism as they exist outside of Aboriginal communities. For example,

when analyzing the Marshall Jr. case, it is easy to focus on Marshall Jr.’s defiant attitude

towards authority rather than on the marginalization that put him in a situation to be

rebellious. Similarly, it is easier for people to focus on the high crime rates in Aboriginal

communities rather than on the colonial processes that put Aboriginal communities there

in the first place, and especially, on the ideological justifications that continue to explain

away racism. If attention is paid only to the “social pathologies” in Aboriginal

communities, non-Aboriginal society can rest easily while maintaining the status quo,

101


while Aboriginal peoples continue to fight often seemingly invisible barriers, the

aftermath of which seems to justify racist ideology. It is a vicious cycle.

The unintentional or unconscious dimension of racism is what makes it

particularly difficult to address, especially in relation to the subject of Aboriginal and

non-Aboriginal race relations in Canada. Racism has facilitated the subordination and

marginalization of Aboriginal people in a manner that appears legitimate because it has

operated through legislation and policy, which gives it the appearance of legitimacy.

That Aboriginal people are not as valuable, important or worthy is an idea that

permeates Canadian ideology, and one that has been supported, legitimated, and at times

enforced, by Canadian law through legislation like the Indian Act. The birth of this

ideology began during first contact when Aboriginal people were valued as a working

class for European traders. Aboriginal people would have provided knowledge, skills and

a good part of the labour. In a Mandan sense, Aboriginal people would have been very

much considered a working class, while European traders would have occupied more

managerial or ownership positions3° (Bourgeault, 1983). The rules of European

capitalism would have placed Aboriginal labour in a subordinate position from the time

of contact.

The relationship between Aboriginal and Europeans changed gradually with the

decline of the fur trade. Aboriginal people were no longer needed as a working class by

European trade managers or owners, but they were considered subordinate as defined by

their previous work relationships with Europeans. The process of post-fur-trade

colonization saw no role for Aboriginal people.

102


while Aboriginal peoples continue to fight often seemingly invisible barriers, the

aftermath of which seems to justify racist ideology. It is a vicious cycle.

The unintentional or unconscious dimension of racism is what makes it

particularly difficult to address, especially in relation to the subject of Aboriginal and

non-Aboriginal race relations in Canada. Racism has facilitated the subordination and

marginalization of Aboriginal people in a manner that appears legitimate because it has

operated through legislation and policy, which gives it the appearance of legitimacy.

That Aboriginal people are not as valuable, important or worthy is an idea that

permeates Canadian ideology, and one that has been supported, legitimated, and at times

enforced, by Canadian law through legislation like the Indian Act. The birth of this

ideology began during first contact when Aboriginal people were valued as a working

class for European traders. Aboriginal people would have provided knowledge, skills and

a good part of the labour. In a Marxian sense, Aboriginal people would have been very

much considered a working class, while European traders would have occupied more

managerial or ownership positions30 (Bourgeault, 1983). The rules of European

capitalism would have placed Aboriginal labour in a subordinate position from the time

of contact.

The relationship between Aboriginal and Europeans changed gradually with the

decline of the fur trade. Aboriginal people were no longer needed as a working class by

European trade managers or owners, but they were considered subordinate as defined by

their previous work relationships with Europeans. The process of post-fur-trade

colonization saw no role for Aboriginal people.

102


It was not considered that they would settle and work the land as European

colonists would. Instead, Aboriginal people presented an obstacle to colonization, and a

possible threat. Still being perceived as subordinate, however, particularly since the

decline of traditional Aboriginal economies, Aboriginal people were dealt with largely

through the treaty process, the occasional open conflict, or they were simply ignored

unless the showed resistance. In other words, marginalization of First Nations people

was legitimized through legislation and policy in order to facilitate the process of

colonization, or like the Metis, they were dealt with through non-consideration.

Whether or not Aboriginal people were on reserves, or whether they were

otherwise marginal and relatively powerless, they came under attack, predominantly

through legislation and policy. Through methods such as the Indian Act, the residential

school system, the pass system and other forms of attempted assimilation, Aboriginal

communities became more economically, politically, socially and culturally

disempowered. In turn, Aboriginal communities, particularly First Nations communities,

were forced to rely more and more on the government for assistance. These processes,

which rendered Aboriginal communities unable to function socioeconomically as their

communities once did, would have falsely appeared to prove to the uninformed onlooker

that Aboriginal peoples were marginal and subordinate due to their own incompetence.

These problems are not left behind in history as Aboriginal communities and

populations struggle today. The resulting high poverty, unemployment and crime rates

continue to make it appear that Aboriginal people are somehow "less than" non-

Aboriginal people. This has resulted in de-contextualized stereotypes that create

resistance towards Aboriginal inclusion in non-Aboriginal society, the result being a

103


It was not considered that they would settle and work the land as European

colonists would. Instead, Aboriginal people presented an obstacle to colonization, and a

possible threat. Still being perceived as subordinate, however, particularly since the

decline of traditional Aboriginal economies, Aboriginal people were dealt with largely

through the treaty process, the occasional open conflict, or they were simply ignored

unless the showed resistance. In other words, marginalization of First Nations people

was legitimized through legislation and policy in order to facilitate the process of

colonization, or like the Metis, they were dealt with through non-consideration.

Whether or not Aboriginal people were on reserves, or whether they were

otherwise marginal and relatively powerless, they came under attack, predominantly

through legislation and policy. Through methods such as the Indian Act, the residential

school system, the pass system and other forms of attempted assimilation, Aboriginal

communities became more economically, politically, socially and culturally

disempowered. In turn, Aboriginal communities, particularly First Nations communities,

were forced to rely more and more on the government for assistance. These processes,

which rendered Aboriginal communities unable to function socioeconomically as their

communities once did, would have falsely appeared to prove to the uninformed onlooker

that Aboriginal peoples were marginal and subordinate due to their own incompetence.

These problems are not left behind in history as Aboriginal communities and

populations struggle today. The resulting high poverty, unemployment and crime rates

continue to make it appear that Aboriginal people are somehow “less than” non-

Aboriginal people. This has resulted in de-contextualized stereotypes that create

resistance towards Aboriginal inclusion in non-Aboriginal society, the result being a

103


vicious cycle: society excludes Aboriginal people, they are poor and therefore considered

incompetent; since Aboriginal people are marginal and incompetent, they are not to be

trusted so society excludes them.

It is difficult for non-Aboriginal people to understand this cycle, and since

Aboriginal people constitute a minority in mainstream society, it may be unnecessary for

them to do so. In populations with the highest representation of Aboriginal people, such

as in Saskatchewan where 14% of the population is Aboriginal, 50% of First Nations

people still live on reserve (Saskatchewan Department of First Nations and Metis

Relations, 2004d). Furthermore, Aboriginal people are over-represented in inner city

areas that are marginal, meaning that the average non-Aboriginal person never has to

interact, let alone develop a relationship of any kind, with an Aboriginal person. Without

a reason to question non-Aboriginal ideology, non-Aboriginal people are left to observe

the presentation of Aboriginal people through the media and other means out of context.

Thus, there are few reasons for non-Aboriginal Canadians to evaluate the role of racism,

as well as the source of racism, when thinking about Aboriginal peoples.

In their Final Report, the Commission on First Nations and Metis Peoples and

Justice Reform discussed the work of Peggy McIntosh on "white privilege"31.

I think whites are carefully taught not to recognize white privilege... So I have begun in an untutored way to ask what it is like to have white privilege. I have come to see white privilege as an invisible package of unearned assets that I can count on cashing in each day, but about which I was "meant" to remain oblivious. White privilege is like an invisible weightless knapsack of special provisions, maps, passports, codebooks, visas, clothes, tools, and blank checks (McIntosh, 1989: 1).

104


vicious cycle: society excludes Aboriginal people, they are poor and therefore considered

incompetent; since Aboriginal people are marginal and incompetent, they are not to be

trusted so society excludes them.

It is difficult for non-Aboriginal people to understand this cycle, and since

Aboriginal people constitute a minority in mainstream society, it may be unnecessary for

them to do so. In populations with the highest representation of Aboriginal people, such

as in Saskatchewan where 14% of the population is Aboriginal, 50% of First Nations

people still live on reserve (Saskatchewan Department of First Nations and Metis

Relations, 2004d). Furthermore, Aboriginal people are over-represented in inner city

areas that are marginal, meaning that the average non-Aboriginal person never has to

interact, let alone develop a relationship of any kind, with an Aboriginal person. Without

a reason to question non-Aboriginal ideology, non-Aboriginal people are left to observe

the presentation of Aboriginal people through the media and other means out of context.

Thus, there are few reasons for non-Aboriginal Canadians to evaluate the role of racism,

as well as the source of racism, when thinking about Aboriginal peoples.

In their Final Report, the Commission on First Nations and Metis Peoples and

Justice Reform discussed the work of Peggy McIntosh on “white privilege”31.

I think whites are carefully taught not to recognize white privilege... So I have begun in an untutored way to ask what it is like to have white privilege. I have come to see white privilege as an invisible package of unearned assets that I can count on cashing in each day, but about which I was “meant” to remain oblivious. White privilege is like an invisible weightless knapsack of special provisions, maps, passports, codebooks, visas, clothes, tools, and blank checks (McIntosh, 1989: 1).

104


McIntosh lists a number of items as invisible privileges. The following are excerpts from

this list of the most basic expectations of social reality for a "white" person, and those

that Aboriginal people, or other racialized minorities, do not experience or benefit from.

3. If I should need to move, I can be pretty sure of renting or purchasing housing in an area which I can afford and in which I would want to live; 4. I can be pretty sure that my neighbours in such a location will be neutral or pleasant to me; 5. I can go shopping alone most of the time, pretty well assured that you will not be followed or harassed; 13. Whether I use checks, credit cards or cash, I can count on my skin colour not to work against the appearance of financial reliability; 14. I can arrange to protect my children most of the time from people who might not like them; 15. I do not have to educate my children to be aware of systemic racism for their own daily physical protection; 16. I can be pretty sure that my children's teachers and employers will tolerate them if they fit school and workplace norms; my chief worries about them do not concern others' attitudes towards their race; 30. If I declare there is a racial issue at hand, or there isn't a racial issue at hand, my race will lend me more credibility for either position than a person of colour will have; 36. If my day, week or year is going badly, I need not ask of each negative episode or situation whether it had racial overtones (McIntosh, 1989: 2-4).

All of these items have one thing in common. They are taken for granted by "white"

people, and they are things that Aboriginal people (and other visible minorities) struggle

with on a daily basis. Perhaps the most striking notion included in these statements is

that many of them assume invisibility or neutrality. That is, the statements are not about

being recognized and held in a higher esteem. They are about the basic rights to live

without being degraded or harassed. These statements do not indicate being "privileged"

in the sense that people are used to thinking about privilege, in the wealthy and spoiled

sense.

Marshall Jr. felt this tension and was not disappointed to leave school to go to

work every day so that he wouldn't have to endure "going to a school where the white

105


McIntosh lists a number of items as invisible privileges. The following are excerpts from

this list of the most basic expectations of social reality for a “white” person, and those

that Aboriginal people, or other racialized minorities, do not experience or benefit from.

3. If I should need to move, I can be pretty sure of renting or purchasing housing in an area which I can afford and in which I would want to live;4. I can be pretty sure that my neighbours in such a location will be neutral or pleasant to me;5. I can go shopping alone most of the time, pretty well assured that you will not be followed or harassed;13. Whether I use checks, credit cards or cash, I can count on my skin colour not to work against the appearance of financial reliability;14. I can arrange to protect my children most of the time from people who might not like them;15. I do not have to educate my children to be aware of systemic racism for their own daily physical protection;16. I can be pretty sure that my children’s teachers and employers will tolerate them if they fit school and workplace norms; my chief worries about them do not concern others’ attitudes towards their race;30. If I declare there is a racial issue at hand, or there isn’t a racial issue at hand, my race will lend me more credibility for either position than a person of colour will have;36. If my day, week or year is going badly, I need not ask of each negative episode or situation whether it had racial overtones (McIntosh, 1989: 2-4).

All of these items have one thing in common. They are taken for granted by “white”

people, and they are things that Aboriginal people (and other visible minorities) struggle

with on a daily basis. Perhaps the most striking notion included in these statements is

that many of them assume invisibility or neutrality. That is, the statements are not about

being recognized and held in a higher esteem. They are about the basic rights to live

without being degraded or harassed. These statements do not indicate being “privileged”

in the sense that people are used to thinking about privilege, in the wealthy and spoiled

sense.

Marshall Jr. felt this tension and was not disappointed to leave school to go to

work every day so that he wouldn’t have to endure “going to a school where the white

105


kids were the spoiled darlings of the staff and the Indian kids were 'treated like dirt'

(Harris, 1990: 21). Helen Betty Osborne, who was very likely aware of this disparity, but

who still retained pride in who she was as a First Nations woman, quietly resisted the

concept of white privilege by not being interested in white men.

Some of the items on McIntosh's list, such as preparing children for racism for

their own protection, are a dismal fact of life for people who are not "white". There is a

counter to this attitude that can be found in Aboriginal populations that simply exists as a

refusal to respect and participate in non-Aboriginal society. This begs the question: if

you are under attack all the time, why would you want to be like or be a part of what

could be construed, even subconsciously, as the oppressor? In any case, these statements

provide realistic examples of everyday barriers that Aboriginal people experience as a

part of their daily lives, and that for the most part, non-Aboriginal people know nothing

about.

One further relevant point about the concept of white privilege is that it is

something that is not easily accepted by white people, particularly those people who are

in power. The Commission on First Nations and Metis Peoples and Justice Reform took

a quote from a workshop on the McIntosh concept:

It is often easier for white people to look at the disadvantages of racism for people of colour than to recognize the advantages of racism for white people. Focusing only on the negative consequences of disadvantage and marginalization sometimes permits people to feel compassion or pity for others, without having to come to terms with or challenge feelings of one's own superiority. To turn things around, and assess how white people benefit from discrimination on a daily basis, often results in painful reactions, excessive guilt, or denial. In discussions of systemic discrimination that also focus on systemic advantage, some major participants find it especially hard to acknowledge the possibility that their individual achievements may not be based exclusively on their own individual merit, but also depend on the systematically structured advantages

106


kids were the spoiled darlings of the staff and the Indian kids were ‘treated like dirt’”

(Harris, 1990: 21). Helen Betty Osborne, who was very likely aware of this disparity, but

who still retained pride in who she was as a First Nations woman, quietly resisted the

concept of white privilege by not being interested in white men.

Some of the items on McIntosh’s list, such as preparing children for racism for

their own protection, are a dismal fact of life for people who are not “white”. There is a

counter to this attitude that can be found in Aboriginal populations that simply exists as a

refusal to respect and participate in non-Aboriginal society. This begs the question: if

you are under attack all the time, why would you want to be like or be a part of what

could be construed, even subconsciously, as the oppressor? In any case, these statements

provide realistic examples of everyday barriers that Aboriginal people experience as a

part of their daily lives, and that for the most part, non-Aboriginal people know nothing

about.

One further relevant point about the concept of white privilege is that it is

something that is not easily accepted by white people, particularly those people who are

in power. The Commission on First Nations and Metis Peoples and Justice Reform took

a quote from a workshop on the McIntosh concept:

It is often easier for white people to look at the disadvantages of racism for people of colour than to recognize the advantages of racism for white people. Focusing only on the negative consequences of disadvantage and marginalization sometimes permits people to feel compassion or pity for others, without having to come to terms with or challenge feelings of one’s own superiority.To turn things around, and assess how white people benefit from discrimination on a daily basis, often results in painful reactions, excessive guilt, or denial. In discussions of systemic discrimination that also focus on systemic advantage, some major participants find it especially hard to acknowledge the possibility that their individual achievements may not be based exclusively on their own individual merit, but also depend on the systematically structured advantages

106


available to majority groups (Commission on First Nations and Metis Peoples and Justice Reform, 2004: 7.7 — 7.8).

Again, it is easier for "white" people to look at the social pathologies in

Aboriginal communities than to look at racism as the cause and to acknowledge how non-

Aboriginal people have benefited from racism. Further, because white privilege is not

conscious or intentional, white people do not have to agree that it is real. If white

privilege is not real, than one can believe that everyone has the same obstacles in life, and

that life is equally hard for everyone. This idea helps put successful people in a position

where they feel justified in passing judgement on those who are less fortunate. Those

who are less fortunate are there by their own fault. The vicious cycle continues.

Throughout Canadian history the people of Canada have held ideas about

Aboriginal people that have become a part of the social structure of Canada, and this has

been extremely detrimental to Aboriginal peoples. Canadians, many of whom are middle

class non-Aboriginal people who are educated in the western tradition, especially among

leadership circles, occupy positions of power that enable them to influence and develop

laws and policies with an ideology that reflects their social locations; and these shape the

ideological and structural nature of Canada. For the most part, their role in the

perpetuation of racism is not a conscious one, it is unintentional, but it is deeply

embedded.

The argument that racism is everywhere, that people in society are not aware of

racism per se, only the visible negative impacts, begs the question of the process that

exists that enables this. The average Canadian does not see himself or herself as racist,

does not agree with racism and does not want to be perceived as racist. Canada is one of

107


available to majority groups (Commission on First Nations and Metis Peoples andJustice Reform, 2004: 7.7 - 7.8).

Again, it is easier for “white” people to look at the social pathologies in

Aboriginal communities than to look at racism as the cause and to acknowledge how non-

Aboriginal people have benefited from racism. Further, because white privilege is not

conscious or intentional, white people do not have to agree that it is real. If white

privilege is not real, than one can believe that everyone has the same obstacles in life, and

that life is equally hard for everyone. This idea helps put successful people in a position

where they feel justified in passing judgement on those who are less fortunate. Those

who are less fortunate are there by their own fault. The vicious cycle continues.

Throughout Canadian history the people of Canada have held ideas about

Aboriginal people that have become a part o f the social structure of Canada, and this has

been extremely detrimental to Aboriginal peoples. Canadians, many of whom are middle

class non-Aboriginal people who are educated in the western tradition, especially among

leadership circles, occupy positions of power that enable them to influence and develop

laws and policies with an ideology that reflects their social locations; and these shape the

ideological and structural nature of Canada. For the most part, their role in the

perpetuation of racism is not a conscious one, it is unintentional, but it is deeply

embedded.

The argument that racism is everywhere, that people in society are not aware of

racism per se, only the visible negative impacts, begs the question of the process that

exists that enables this. The average Canadian does not see himself or herself as racist,

does not agree with racism and does not want to be perceived as racist. Canada is one of

107


the best countries in the world, governments and courts would probably feel the same

way. In order to answer this question, one has to look at society as a whole to see the role

that ideology plays in the building and maintenance of social structures; and the role that

social structures play in building both people and their ideology. The interplay between

ideology and social structures is a complex one, and one that is entirely interdependent.

It is through this process that racism, white privilege included, remains a building block

of both people and structures.

The structure — agency debate is not one that is new to sociology. Basically, it

evaluates the relationship between free will and the obstacle or limitations to free will by

the existence of social structure in a society (Wikipedia, 2006). One side argues that

people build society through their own free will. The other side argues that structure

determines and limits the free will of individuals in a society. In truth, both are correct, if

one takes into account the existence of ideas, depending on the location of people in

relation to the structure.

The diagram below illustrates society as composed of both structure and ideas.

People, as represented by the line depicting everyday life, are the mediator between

"Structure" and "Ideas." "Structure" includes social systems, governments, laws and

institutions. "Ideas" consist of the ideological make up of society, the unseen invisible

belief that society is legitimate. "Everyday life" is the lives of people as both structures

and ideas influence them.

The idea that structures and ideas are dichotomous is false. In reality, the line

between structure and ideology is crossed everyday by the people who make up society.

Depending on who the people are, as people belong to different groups, or classes, they

108


the best countries in the world, governments and courts would probably feel the same

way. In order to answer this question, one has to look at society as a whole to see the role

that ideology plays in the building and maintenance of social structures; and the role that

social structures play in building both people and their ideology. The interplay between

ideology and social structures is a complex one, and one that is entirely interdependent.

It is through this process that racism, white privilege included, remains a building block

of both people and structures.

The structure - agency debate is not one that is new to sociology. Basically, it

evaluates the relationship between free will and the obstacle or limitations to free will by

the existence of social structure in a society (Wikipedia, 2006). One side argues that

people build society through their own free will. The other side argues that structure

determines and limits the free will of individuals in a society. In truth, both are correct, if

one takes into account the existence of ideas, depending on the location of people in

relation to the structure.

The diagram below illustrates society as composed of both structure and ideas.

People, as represented by the line depicting everyday life, are the mediator between

“Structure” and “Ideas.” “Structure” includes social systems, governments, laws and

institutions. “Ideas” consist of the ideological make up of society, the unseen invisible

belief that society is legitimate. “Everyday life” is the lives of people as both structures

and ideas influence them.

The idea that structures and ideas are dichotomous is false. In reality, the line

between structure and ideology is crossed everyday by the people who make up society.

Depending on who the people are, as people belong to different groups, or classes, they

108


may or may not be in a position where they have power and are able to influence the

structure with their ideas. For example, the Indian Act controlled the everyday lives of

people. It was a part of the structure both as a piece of legislation and a policy of the

government. However, the fact that it dictated the lives of hundreds of thousands of

people did not make it external to people or an entity on its own. People created the

Indian Act. The Indian Act was created by non-Aboriginal people, who were in a

location to create it, to control the lives of Indian people, who were not in a location to

influence its creation. The difference then is one of power and not process. Non-

Aboriginal people, predominantly white and male, were in a location of power, and were

able to incorporate their own understanding — racist ideology included — into the Indian

Act to control the lives of Aboriginal people.

If one looks a little closer, however, the people who created the Indian Act did not

develop their ideas in a vacuum. As stated earlier, they were in a position to incorporate

ideas that they already had into legislation, their ideas already existing in the larger

society, particularly in their everyday lives as shaped by their limited experience.

Anthony Giddens' theory of structuration (Giddens, 1979), broken down to explain how

structures are shaped by people and how people are shaped by structures, helps to clarify

some of these ideas. Further, the theories of symbolic interactionism assist in the

explanation of how it is that people and their perspectives are limited, and how it can be

that white privilege has not been truly called into question.

As depicted in Figure I have constructed below, the structures of society are

composed of rules and resources, which come from the ideology of people. However,

not all people have the opportunity to influence structure, and some people are more

109


may or may not be in a position where they have power and are able to influence the

structure with their ideas. For example, the Indian Act controlled the everyday lives of

people. It was a part of the structure both as a piece of legislation and a policy of the

government. However, the fact that it dictated the lives of hundreds of thousands of

people did not make it external to people or an entity on its own. People created the

Indian Act. The Indian Act was created by non-Aboriginal people, who were in a

location to create it, to control the lives of Indian people, who were not in a location to

influence its creation. The difference then is one of power and not process. Non-

Aboriginal people, predominantly white and male, were in a location of power, and were

able to incorporate their own understanding - racist ideology included - into the Indian

Act to control the lives o f Aboriginal people.

If one looks a little closer, however, the people who created the Indian Act did not

develop their ideas in a vacuum. As stated earlier, they were in a position to incorporate

ideas that they already had into legislation, their ideas already existing in the larger

society, particularly in their everyday lives as shaped by their limited experience.

Anthony Giddens’ theory of structuration (Giddens, 1979), broken down to explain how

structures are shaped by people and how people are shaped by structures, helps to clarify

some of these ideas. Further, the theories of symbolic interactionism assist in the

explanation of how it is that people and their perspectives are limited, and how it can be

that white privilege has not been truly called into question.

As depicted in Figure I have constructed below, the structures of society are

composed of rules and resources, which come from the ideology of people. However,

not all people have the opportunity to influence structure, and some people are more

109


constrained by the structure than others. The differential power in these relationships

determine the amount of influence people have on structure, and the degree to which they

are impacted by structure. The everyday lives of people are caught between the two,

being that they are influenced by structure and, depending where they are socially

located, they influence structure. To date, Aboriginal people have had very few

opportunities to influence structure, and have had more than their share of experiencing

the impact of structure. An analysis of structuration theory furthers this argument.

Figure One: Society as Ideas and Structure, mediated by the everyday life of Individuals

Structure

Everyday Life

Ideas

4.2 Structuration Theory

In his book Central Problems in Social Theory, Anthony Giddens describes his

theory of structuration as follows.

To study the structuration of a social system is to study the ways in which that system, via the application of generative rules and resources, and in the context of unintended outcomes, is produced and reproduced in interaction (1979: 66).

110


constrained by the structure than others. The differential power in these relationships

determine the amount of influence people have on structure, and the degree to which they

are impacted by structure. The everyday lives of people are caught between the two,

being that they are influenced by structure and, depending where they are socially

located, they influence structure. To date, Aboriginal people have had very few

opportunities to influence structure, and have had more than their share of experiencing

the impact of structure. An analysis of structuration theory furthers this argument.

Figure One: Society as Ideas and Structure, mediated by the everyday life of Individuals

Ideas

Structure

Everyday Life

4.2 Structuration Theory

In his book Central Problems in Social Theory. Anthony Giddens describes his

theory of structuration as follows.

To study the structuration of a social system is to study the ways in which that system, via the application of generative rules and resources, and in the context of unintended outcomes, is produced and reproduced in interaction (1979: 66).

110


Society, made up of social systems such as the market, government, or the even criminal

justice system, is created and recreated through the interaction of people. It is people

who understand and play out "generative rules and resources". As this interaction occurs

"in the context of unintended outcomes" it is not necessarily done with any one particular

intention.

There are several points requiring explanation when discussing structuration,

beginning with a clarification of Giddens' conception of "structure" and "system".

Giddens refers to structure as "structuring property" which "can be understood as

rules and resources, recursively implicated in the reproduction of social systems"

(1979: 64). Structure is a constantly changing property of the society, composed of

"rules and resources"; rules and resources being the agreed upon ideas and social

meanings attributed to social conduct that change over time.

To distinguish "structure" from "system" Giddens writes "social systems are

systems of social interaction; as such they involve the situated activities of human

subjects, and exist syntagmatically in the flow of time" (1979: 66). Giddens'

"system" involves people acting in accordance with the rules and resources

associated with a particular activity. In this sense, criminal justice system activity

takes on particular appearance that is largely consistently defined by the rules and

resources, or structure, available to actors at one particular point in time. "Structure"

is composed of the regularly recreated rules and resources that people rely on in

order to go about their lives in particular systems and their institutions.

111


Society, made up of social systems such as the market, government, or the even criminal

justice system, is created and recreated through the interaction of people. It is people

who understand and play out “generative rules and resources”. As this interaction occurs

“in the context of unintended outcomes” it is not necessarily done with any one particular

intention.

There are several points requiring explanation when discussing structuration,

beginning with a clarification of Giddens’ conception of “structure” and “system”.

Giddens refers to structure as “structuring property” which “can be understood as

rules and resources, recursively implicated in the reproduction of social systems”

(1979: 64). Structure is a constantly changing property of the society, composed of

“rules and resources”; rules and resources being the agreed upon ideas and social

meanings attributed to social conduct that change over time.

To distinguish “structure” from “system” Giddens writes “social systems are

systems of social interaction; as such they involve the situated activities of human

subjects, and exist syntagmatically in the flow of time” (1979: 66). Giddens’

“system” involves people acting in accordance with the rules and resources

associated with a particular activity. In this sense, criminal justice system activity

takes on particular appearance that is largely consistently defined by the rules and

resources, or structure, available to actors at one particular point in time. “Structure”

is composed of the regularly recreated rules and resources that people rely on in

order to go about their lives in particular systems and their institutions.

I l l


Giddens also discusses the notion of power32, which "should be seen as the

property of the collectivity," meaning that power belongs within groups and is not

the sole property of any particular structure or individual (1979: 69). As members of

particular groups, some individuals have more power and can exercise more options

than others; and there are different power structures for different groups in any

particular setting. This is undoubtedly what Giddens means when he refers to the

"duality of structure" and how structure can be both "enabling and constraining"

(1979: 69-71).

Using the critical incidents to elaborate the argument, Mrs. Bignell was not a

powerful person, at least in the sense that Hartwig, Senger and Jarvis were. Mrs.

Bignell was an Aboriginal woman, a mother, and did not have the legitimized power

and authority to control or even influence the investigation into Neil's death. Such

power and influence existed within the structure of the Saskatoon Police Service, and

were available to Hartwig, Senger and Jarvis.

While as members of a society we help to produce and reproduce structure,

structure influences how we as individuals develop. Structure can enable or hinder

people as explained by the "duality of structure" or the dual nature of structure. As it

relates to the subject of power and the individual, those rules and resources can be

constraining to the individuals in society because what can be accomplished in groups

cannot always be accomplished by individuals, and rules and resources may be more

accessible to being influenced by larger groups rather than smaller, less powerful groups.

Again, this can be seen in the comparison between Mrs. Bignell and Hartwig, Senger and

Jarvis. While Mrs. Bignell's social location as a poor, Aboriginal single mother limited

112


Giddens also discusses the notion of power32, which “should be seen as the

property of the collectivity,” meaning that power belongs within groups and is not

the sole property of any particular structure or individual (1979: 69). As members of

particular groups, some individuals have more power and can exercise more options

than others; and there are different power structures for different groups in any

particular setting. This is undoubtedly what Giddens means when he refers to the

“duality of structure” and how structure can be both “enabling and constraining”

(1979: 69-71).

Using the critical incidents to elaborate the argument, Mrs. Bignell was not a

powerful person, at least in the sense that Hartwig, Senger and Jarvis were. Mrs.

Bignell was an Aboriginal woman, a mother, and did not have the legitimized power

and authority to control or even influence the investigation into Neil’s death. Such

power and influence existed within the structure of the Saskatoon Police Service, and

were available to Hartwig, Senger and Jarvis.

While as members of a society we help to produce and reproduce structure,

structure influences how we as individuals develop. Structure can enable or hinder

people as explained by the “duality of structure” or the dual nature of structure. As it

relates to the subject of power and the individual, those rules and resources can be

constraining to the individuals in society because what can be accomplished in groups

cannot always be accomplished by individuals, and rules and resources may be more

accessible to being influenced by larger groups rather than smaller, less powerful groups.

Again, this can be seen in the comparison between Mrs. Bignell and Hartwig, Senger and

Jarvis. While Mrs. Bignell’s social location as a poor, Aboriginal single mother limited

112


her ability to look into her son's death, it enabled Hartwig, Senger and Jarvis to conceal a

crime.

To apply Giddens' theory of structuration is to say that Aboriginal people have

been on the more powerless and constrained end of the process of structuration. As

Aboriginal people constitute a marginal minority in Canada, it is fair to say that they have

had little participation in creating the legislation and social policies that have affected

them. That is, they have had unequal access to participation in the active construction of

structures and systems and have experienced the constraining nature of structure.

Although there have been and continues to be deliberate oppressive social actions against

Aboriginal people, such as the examples of injustice in the documented incidents, the

unintentional acts of the collectivity have been just as damaging. It is because the

consequences of racism are not intended and appear natural that oppression appears

justified, and thereby facilitates and perpetuates or otherwise enables the intentional acts

of oppression. As Giddens states,

there is an unintentional aspect to social action that affects the nature of society; intention is not necessarily the only feature of social action or the ability of an actor to act; and this often results in social action having unintended consequences (1979: 41-42, 56, 215-216).

The marginal position of Aboriginal people, then, can be seen as the product of

social action. To further explain this marginalization one has to look at the structure of

society as Giddens envisions it to see how the rules and resources can come to work

against Aboriginal people, even when they do so unintentionally. In order to pick apart

how it is that the rules and resources are developed and accepted, it is necessary to

investigate theories of agency.

113


her ability to look into her son’s death, it enabled Hartwig, Senger and Jarvis to conceal a

crime.

To apply Giddens’ theory of structuration is to say that Aboriginal people have

been on the more powerless and constrained end of the process of structuration. As

Aboriginal people constitute a marginal minority in Canada, it is fair to say that they have

had little participation in creating the legislation and social policies that have affected

them. That is, they have had unequal access to participation in the active construction of

structures and systems and have experienced the constraining nature of structure.

Although there have been and continues to be deliberate oppressive social actions against

Aboriginal people, such as the examples of injustice in the documented incidents, the

unintentional acts of the collectivity have been just as damaging. It is because the

consequences of racism are not intended and appear natural that oppression appears

justified, and thereby facilitates and perpetuates or otherwise enables the intentional acts

of oppression. As Giddens states,

there is an unintentional aspect to social action that affects the nature of society; intention is not necessarily the only feature of social action or the ability of an actor to act; and this often results in social action having unintended consequences (1979: 41-42, 56, 215-216).

The marginal position of Aboriginal people, then, can be seen as the product of

social action. To further explain this marginalization one has to look at the structure of

society as Giddens envisions it to see how the rules and resources can come to work

against Aboriginal people, even when they do so unintentionally. In order to pick apart

how it is that the rules and resources are developed and accepted, it is necessary to

investigate theories of agency.

113


4.3 Agency

Through the everyday process of socialization, over the course of a person's life,

one becomes a part of one or many collectives, or large groupings of people, that make

up a society. How an actor comes to make sense of the world is based on their social

location in a society, and is the key to understanding how Aboriginal people came to be

subordinate in Canadian society. Society can be viewed as the product of human

interaction whereby through making sense of the world via definition, and through

learning, negotiating, sharing and agreeing on meanings, people come to understand

themselves in the context of their location and power relationships. Through this process,

and through the limited experiences of a person, one learns such ideas as "reality" or

"normalcy".

Throughout post-contact Canadian history, the "pregiven resources"33 available to

non-Aboriginal people inform them about Aboriginal people. As the social experience of

people is limited, people rely on these images to make sense of a world that they can only

partially come to know. Furthermore, these ideas can become accepted and internalized

by Aboriginal peoples themselves. This process of identifying and accepting these ideas

of Aboriginal people begins as a part of the process of socialization and can end up being

part of society's structures and systems. This process begins during socialization, which

informs the individual who she or he is in the context of the society in which she or he

lives.

In his book Mind, Self and Society, George Herbert Mead states the following

about society and the individuals of which it is composed.

If the given human individual is to develop a self in the fullest sense, it is not sufficient for him merely to take the attitude of other human

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4.3 Agency

Through the everyday process of socialization, over the course of a person’s life,

one becomes a part of one or many collectives, or large groupings of people, that make

up a society. How an actor comes to make sense of the world is based on their social

location in a society, and is the key to understanding how Aboriginal people came to be

subordinate in Canadian society. Society can be viewed as the product of human

interaction whereby through making sense of the world via definition, and through

learning, negotiating, sharing and agreeing on meanings, people come to understand

themselves in the context of their location and power relationships. Through this process,

and through the limited experiences of a person, one learns such ideas as “reality” or

“normalcy”.

Throughout post-contact Canadian history, the “pregiven resources”33 available to

non-Aboriginal people inform them about Aboriginal people. As the social experience of

people is limited, people rely on these images to make sense of a world that they can only

partially come to know. Furthermore, these ideas can become accepted and internalized

by Aboriginal peoples themselves. This process of identifying and accepting these ideas

of Aboriginal people begins as a part of the process of socialization and can end up being

part of society’s structures and systems. This process begins during socialization, which

informs the individual who she or he is in the context of the society in which she or he

lives.

In his book Mind. Self and Society. George Herbert Mead states the following

about society and the individuals of which it is composed.

If the given human individual is to develop a self in the fullest sense, it isnot sufficient for him merely to take the attitude of other human

114


individuals toward himself and toward one another within the human social process, and to bring that social process as a whole into his individual experience merely in these terms: he must also, in the same way that he takes the attitudes of other individuals toward himself and toward one another, take their attitudes toward the various phases or aspects of the common social activity or set of social undertakings in which, as members of an organized society or social group, they are all engaged; and he must then, by generalizing these individual attitudes of that organized society or social group itself, as a whole, act toward different social projects which at any given time it is carrying out, or toward the various larger phases of where these projects are specific manifestations (1934: 154-55).

A consistent society requires knowledge of each other's "attitudes" or perspectives in

order to make sense of the world and to understand social relationships. Mead does not

limit this need to individuals, but "different social projects" as well; so meaning is

important at a larger societal scale as well. Furthermore, the development of self is not a

deliberate goal to strive for; it is necessary for the collective recognition of the existence

of society.

This process begins with the development of "self." Mead claimed all meaning is

preceded by the development of the "me" and the "I" which together make up the "self';

and that this occurs through social interaction and the acquisition of language (Waters,

1994: 25). Through this process, an individual's identity as an actor and recipient of

action in any given social context is established. That is, his or her place in society is

confirmed.

Mead understood that the self develops over time as a result of social interaction.

The self is something which has a development; it is not initially there, at birth, but arises in the process of social experience and activity, that is, develops in the given individual as a result of his relations to that process as a whole and to other individuals within that process (1934: 135).

115


individuals toward himself and toward one another within the human social process, and to bring that social process as a whole into his individual experience merely in these terms: he must also, in the same way that he takes the attitudes of other individuals toward himself and toward one another, take their attitudes toward the various phases or aspects of the common social activity or set of social undertakings in which, as members of an organized society or social group, they are all engaged; and he must then, by generalizing these individual attitudes of that organized society or social group itself, as a whole, act toward different social projects which at any given time it is carrying out, or toward the various larger phases of where these projects are specific manifestations (1934: 154-55).

A consistent society requires knowledge of each other’s “attitudes” or perspectives in

order to make sense of the world and to understand social relationships. Mead does not

limit this need to individuals, but “different social projects” as well; so meaning is

important at a larger societal scale as well. Furthermore, the development of self is not a

deliberate goal to strive for; it is necessary for the collective recognition of the existence

of society.

This process begins with the development of “self.” Mead claimed all meaning is

preceded by the development of the “me” and the “I” which together make up the “self’;

and that this occurs through social interaction and the acquisition of language (Waters,

1994: 25). Through this process, an individual’s identity as an actor and recipient of

action in any given social context is established. That is, his or her place in society is

confirmed.

Mead understood that the self develops over time as a result of social interaction.

The self is something which has a development; it is not initially there, at birth, but arises in the process of social experience and activity, that is, develops in the given individual as a result of his relations to that process as a whole and to other individuals within that process (1934: 135).

115


Mead's theory recognizes three phases involved in the development of self: first,

the "play" stage; second, the "game" stage; and third, the stage characterized by the

realization of the "generalized other." It is after this third stage that an individual realizes

self, and it is this self that recognizes society as the generalized other that allows for the

existence and the shared reality of society.

The final stage in Mead's development of self is the stage during which an

individual develops a sense of "generalized other" which is the awareness of and

internalization of community or society. Mead writes "The organized community or

social group which gives to the individual his unity of self may be called the 'generalized

other'. The attitude of the generalized other is the attitude of the whole community"

(1934: 154). The reason that an individual can not have a full or complete sense of self

without a generalized other is because it is difficult to have an objective sense of self

without knowing how other people view you. About this Mead states that "The

individual experiences himself... not directly, but only indirectly, from the particular

standpoints of other individual members of the same social group as a whole to which he

belongs" (1934: 138). Thus, at this stage of development, the actor realizes that he or she

has a place in society as a member, and comes to know what is considered to be

appropriate behaviour and that he or she plays an active role in the construction and

maintenance of society (Waters, 1994: 25-26).

To sum up Mead's arguments, then, it is fair to say that people are not born with a

self but that the self is an "object" that develops over time with the social experience

gained during interaction with other people in one's society (Mead, 1934: 138).

Furthermore, it is through the community, social group, or society in which one lives that

116


Mead’s theory recognizes three phases involved in the development of self: first,

the “play” stage; second, the “game” stage; and third, the stage characterized by the

realization of the “generalized other.” It is after this third stage that an individual realizes

self, and it is this self that recognizes society as the generalized other that allows for the

existence and the shared reality of society.

The final stage in Mead’s development of self is the stage during which an

individual develops a sense of “generalized other” which is the awareness of and

internalization of community or society. Mead writes “The organized community or

social group which gives to the individual his unity of self may be called the ‘generalized

other’. The attitude of the generalized other is the attitude of the whole community”

(1934: 154). The reason that an individual can not have a full or complete sense of self

without a generalized other is because it is difficult to have an objective sense of self

without knowing how other people view you. About this Mead states that “The

individual experiences himself... not directly, but only indirectly, from the particular

standpoints of other individual members of the same social group as a whole to which he

belongs” (1934: 138). Thus, at this stage of development, the actor realizes that he or she

has a place in society as a member, and comes to know what is considered to be

appropriate behaviour and that he or she plays an active role in the construction and

maintenance of society (Waters, 1994: 25-26).

To sum up Mead’s arguments, then, it is fair to say that people are not bom with a

self but that the self is an “object” that develops over time with the social experience

gained during interaction with other people in one’s society (Mead, 1934: 138).

Furthermore, it is through the community, social group, or society in which one lives that

116


one comes to know his or her place in society. Those with whom one interacts therefore

reinforce one's sense of self. Finally, this process is necessary, not just for individuals,

but for the existence of society as well; for if we can not take the perspective of others

than we can not know how others are going to act and we can not respond or interact with

them in a way that facilitates understanding and communication. This, in fact, is how the

individual actor comes to define the situations that are encountered in day-to-day life. It

is this established shared reality that constitutes the "pregiven resources" to which

Anthony Giddens refers in his argument, and it is this shared reality that constitutes the

structures of the system in which we live.

Mead defined the "generalized other" as the social community of which the self is

a part. Being a part of one's community is to hold or understand the perspectives of

others who coexist within that community. However, Mead doesn't meaningfully expand

on this particular issue, or about how people can belong to more than one community.

One theorist who does elaborate on this same issue is Tamotsu Shibutani (1961) in his

book Society and Personality.

Shibutani recognizes that today's "mass society" is very complicated in that there

is no one particular perspective that characterizes society as a unified whole (Shibutani,

1961: 256, 600). In fact, there are many. Shibutani refers to these different groups that

characterize society as "reference groups" and writes that "the concept of reference group

may be used to designate that group, real or imaginary, whose standpoint is being used as

the frame of reference by the actor" (1961: 257). Examples of different reference groups

may include ethnic or racial groups, such as Aboriginal communities, a student

community at a university, the membership of a particular political party, or a particular

117


one comes to know his or her place in society. Those with whom one interacts therefore

reinforce one’s sense of self. Finally, this process is necessary, not just for individuals,

but for the existence of society as well; for if we can not take the perspective of others

than we can not know how others are going to act and we can not respond or interact with

them in a way that facilitates understanding and communication. This, in fact, is how the

individual actor comes to define the situations that are encountered in day-to-day life. It

is this established shared reality that constitutes the “pregiven resources” to which

Anthony Giddens refers in his argument, and it is this shared reality that constitutes the

structures of the system in which we live.

Mead defined the “generalized other” as the social community of which the self is

a part. Being a part of one’s community is to hold or understand the perspectives of

others who coexist within that community. However, Mead doesn’t meaningfully expand

on this particular issue, or about how people can belong to more than one community.

One theorist who does elaborate on this same issue is Tamotsu Shibutani (1961) in his

book Society and Personality.

Shibutani recognizes that today’s “mass society” is very complicated in that there

is no one particular perspective that characterizes society as a unified whole (Shibutani,

1961: 256, 600). In fact, there are many. Shibutani refers to these different groups that

characterize society as “reference groups” and writes that “the concept of reference group

may be used to designate that group, real or imaginary, whose standpoint is being used as

the frame of reference by the actor” (1961: 257). Examples of different reference groups

may include ethnic or racial groups, such as Aboriginal communities, a student

community at a university, the membership of a particular political party, or a particular

117


religious group. Shibutani further adds that not only is mass society characterized by

different reference groups, but "a person may acquire several perspectives, for he can

participate simultaneously in a number of social worlds" (1961: 256). For example,

although Constable Loutitt was a police officer and a part of a larger reference group

composed of police officers, he was also Aboriginal and could somewhat relate to Mrs.

Bignell based on a common understanding of what it means to be Aboriginal.

It is a small theoretical leap to argue that part of the understanding of which group

one belongs to involves knowing which groups one does not belong to. Certainly part of

developing a concept of "us" means developing a concept of "them" or "the other." In

our mass society there are many different reference groups which exist together.

Although an individual may be a member of several different reference groups, it

certainly would be impossible for an individual to be familiar with all the different

reference groups in his or her society. After all, there is certainly a limit to the number of

people that one can meaningfully interact with in the course of a lifetime, and there may

groups with whom one is not permitted to interact with by means of formal or informal

social exclusion.

As such, there are groups in a society that a person may never come to be familiar

with, or even aware of. It is fair to argue that this may be the case with Aboriginal

people, for Aboriginal people constitute a fairly small minority of people in Canada.

Considering that the Aboriginal population is not evenly dispersed throughout Canada, it

is likely that the majority of Canadians live their lives without knowing or even ever

really seeing Aboriginal people at all.

118


religious group. Shibutani further adds that not only is mass society characterized by

different reference groups, but “a person may acquire several perspectives, for he can

participate simultaneously in a number of social worlds” (1961: 256). For example,

although Constable Loutitt was a police officer and a part of a larger reference group

composed of police officers, he was also Aboriginal and could somewhat relate to Mrs.

Bignell based on a common understanding of what it means to be Aboriginal.

It is a small theoretical leap to argue that part of the understanding of which group

one belongs to involves knowing which groups one does not belong to. Certainly part of

developing a concept of “us” means developing a concept of “them” or “the other.” In

our mass society there are many different reference groups which exist together.

Although an individual may be a member of several different reference groups, it

certainly would be impossible for an individual to be familiar with all the different

reference groups in his or her society. After all, there is certainly a limit to the number of

people that one can meaningfully interact with in the course of a lifetime, and there may

groups with whom one is not permitted to interact with by means of formal or informal

social exclusion.

As such, there are groups in a society that a person may never come to be familiar

with, or even aware of. It is fair to argue that this may be the case with Aboriginal

people, for Aboriginal people constitute a fairly small minority of people in Canada.

Considering that the Aboriginal population is not evenly dispersed throughout Canada, it

is likely that the majority of Canadians live their lives without knowing or even ever

really seeing Aboriginal people at all.

118


At least theoretically, non-Aboriginal people can live their entire lives in Canada

without ever knowing an Aboriginal person. This lack of contact or interaction between

groups does not mean, however, that non-Aboriginal people have no idea what

Aboriginal people are like and have no idea of what to expect of them if they meet them.

Shibutani writes,

Another characteristic of mass society is the development of the media of mass communication and the consequent enlargement of perspectives... print media, radio, television, and motion pictures has made accessible all kinds of experiences that one could not have hoped for in the past (1961: 600-601).

What Shibutani does not mention is that the presentation of reference groups in the mass

media may be problematic, or even false. Such is often the case with how Aboriginal

people are presented in the media and how they are understood by non-Aboriginal

people. The Commission on First Nations and Metis Relations wrote that although the

media did a few stories on the life of Naistus, Wegner and Night, the media published

stories which furthered the victimization of the men and their families through how they

depicted them. The Commission quoted Braun and Sanders34, who studied the media

coverage of the Starlight Tours.

There are approximately 34 articles that portray the victims and Aboriginal peoples in a negative and/or derogatory manner... In the first articles that reported the case, "drugs," "drug use," and "drug activity" are referred to 17 times as indicative of the victims' lifestyle. This gratuitous use of negative language dominates the news coverage and blurs the factual components of the case (Commission on First Nations and Metis Peoples and Justice Reform, 2004: 7-29).

The media coverage of Aboriginal people is out of context. That is, it often portrays the

dysfunction in Aboriginal communities without providing the background and

119


At least theoretically, non-Aboriginal people can live their entire lives in Canada

without ever knowing an Aboriginal person. This lack of contact or interaction between

groups does not mean, however, that non-Aboriginal people have no idea what

Aboriginal people are like and have no idea of what to expect of them if they meet them.

Shibutani writes,

Another characteristic of mass society is the development of the media of mass communication and the consequent enlargement of perspectives... print media, radio, television, and motion pictures has made accessible all kinds of experiences that one could not have hoped for in the past (1961: 600-601).

What Shibutani does not mention is that the presentation of reference groups in the mass

media may be problematic, or even false. Such is often the case with how Aboriginal

people are presented in the media and how they are understood by non-Aboriginal

people. The Commission on First Nations and Metis Relations wrote that although the

media did a few stories on the life of Naistus, Wegner and Night, the media published

stories which furthered the victimization of the men and their families through how they

depicted them. The Commission quoted Braun and Sanders34, who studied the media

coverage of the Starlight Tours.

There are approximately 34 articles that portray the victims and Aboriginal peoples in a negative and/or derogatory manner... In the first articles that reported the case, “drugs,” “drug use,” and “drug activity” are referred to 17 times as indicative of the victims’ lifestyle. This gratuitous use of negative language dominates the news coverage and blurs the factual components of the case (Commission on First Nations and Metis Peoples and Justice Reform, 2004: 7-29).

The media coverage of Aboriginal people is out of context. That is, it often portrays the

dysfunction in Aboriginal communities without providing the background and

119


explanation of how it got that way. In this sense, it is easy to develop an understanding

of Aboriginal people that is very partial, at best, and in the worst case, plain wrong.

Despite the partiality of such understandings, they exist in society as a whole, and are the

same misunderstandings that form the basis of policy and legislation that affect the lives

of Aboriginal people, sometimes on a daily basis.

It is impossible for people to be familiar with all the reference groups that may

exist within a particular society. However, this does not, as Shibutani indicates, stop

people from attempting to imagine the perspective of unknown reference groups. The

method by which this occurs can be clearly understood by using Alfred Schutz's

discussion of "typification". In The Phenomenology of the Social World, Alfred Schutz

(1967) discusses the degree to which we can experience "contemporaries" or "others" in

our lives (1967: 180). Since we cannot experience all others, we develop ideas about

them in order to predict or understand where they fit into the larger social world (1967:

180-181).

Most Canadians are aware of Aboriginal people as a part of a collective that is

composed of members who they may never come to know. According to Schutz, we

come to know as "general types" those others who are not "experienced immediately" by

the actor (1967: 181). Schutz claims that such others are experienced as "typical

conscious experiences of 'someone' and, as such, as basically homogenous and

repeatable" (1967: 184).

Schutz refers to this as the construction of a "personal ideal type". In his

interpretation of Schutz, Malcolm Waters explains that the further these ideal

types are from our direct experience, the more inflexible our expectations of them

120


explanation of how it got that way. In this sense, it is easy to develop an understanding

of Aboriginal people that is very partial, at best, and in the worst case, plain wrong.

Despite the partiality of such understandings, they exist in society as a whole, and are the

same misunderstandings that form the basis of policy and legislation that affect the lives

of Aboriginal people, sometimes on a daily basis.

It is impossible for people to be familiar with all the reference groups that may

exist within a particular society. However, this does not, as Shibutani indicates, stop

people from attempting to imagine the perspective of unknown reference groups. The

method by which this occurs can be clearly understood by using Alfred Schutz’s

discussion of “typification”. In The Phenomenology of the Social World. Alfred Schutz

(1967) discusses the degree to which we can experience “contemporaries” or “others” in

our lives (1967: 180). Since we cannot experience all others, we develop ideas about

them in order to predict or understand where they fit into the larger social world (1967:

180-181).

Most Canadians are aware of Aboriginal people as a part of a collective that is

composed of members who they may never come to know. According to Schutz, we

come to know as “general types” those others who are not “experienced immediately” by

the actor (1967: 181). Schutz claims that such others are experienced as “typical

conscious experiences of ‘someone’ and, as such, as basically homogenous and

repeatable” (1967: 184).

Schutz refers to this as the construction of a “personal ideal type”. In his

interpretation of Schutz, Malcolm Waters explains that the further these ideal

types are from our direct experience, the more inflexible our expectations of them

120


will be (Waters, 1994: 34). Schutz is explaining that people construct ideal types

because it is impossible for an individual actor to be familiar with people from all

reference groups in a mass society. Because the ideal type is so far removed from

the regular and direct experience of the individual actor, the individual actor

expects the person who is representative of a given ideal type to conform to the

expectations of the group of which they are representative. Applied to the

argument here then, Aboriginal people may be seen by non-Aboriginal people as

being representative of a group of ideal types; and non-Aboriginal people may

expect Aboriginal people to act in a way that coincides with how Aboriginal

people have come to be typified.

The typification of Aboriginal people in Canada has become part of the central

defining aspect of the Canadian consciousness. Evidence of the typification of

Aboriginal people can be seen in the mass media. Aboriginal people are easy to typify

because they constitute a minority in Canada, yet, because of Canada's history with

Aboriginal people, particularly the colonial and political history, they exist centrally in

the Canadian consciousness. It is arguable that these typifications exist not only in

Canada, but in North America, and that evidence of them can be seen everywhere from

film to children's toys.

It is the existence of these de-contextualized ideal types that permitted all of the

critical incidents previously outlined to happen. In the case of Helen Betty Osborne,

Colgan, Houghton, Johnston and Manger drove around looking for an Indian woman who

they could drink and have sex with. They did not look for a white woman. The

difference is that they believed that an Aboriginal woman would be more open to the

121


will be (Waters, 1994: 34). Schutz is explaining that people construct ideal types

because it is impossible for an individual actor to be familiar with people from all

reference groups in a mass society. Because the ideal type is so far removed from

the regular and direct experience of the individual actor, the individual actor

expects the person who is representative of a given ideal type to conform to the

expectations of the group of which they are representative. Applied to the

argument here then, Aboriginal people may be seen by non-Aboriginal people as

being representative of a group of ideal types; and non-Aboriginal people may

expect Aboriginal people to act in a way that coincides with how Aboriginal

people have come to be typified.

The typification of Aboriginal people in Canada has become part of the central

defining aspect of the Canadian consciousness. Evidence of the typification of

Aboriginal people can be seen in the mass media. Aboriginal people are easy to typify

because they constitute a minority in Canada, yet, because of Canada’s history with

Aboriginal people, particularly the colonial and political history, they exist centrally in

the Canadian consciousness. It is arguable that these typifications exist not only in

Canada, but in North America, and that evidence of them can be seen everywhere from

film to children’s toys.

It is the existence of these de-contextualized ideal types that permitted all of the

critical incidents previously outlined to happen. In the case o f Helen Betty Osborne,

Colgan, Houghton, Johnston and Manger drove around looking for an Indian woman who

they could drink and have sex with. They did not look for a white woman. The

difference is that they believed that an Aboriginal woman would be more open to the

121


idea. This idea brings forth the stereotype of Aboriginal women as a "squaw". Emma

LaRocque (1994), a Metis Native Studies professor writes as follows.

The portrayal of the squaw is one of the most degraded, most despised and most dehumanized anywhere in the world. The "squaw" is the female counterpart to the Indian male "savage" and as such she has no human face; she is lustful, immoral, unfeeling and dirty. Such a grotesque dehumanization has rendered all Native women and girls vulnerable to gross physical, psychological and sexual violence... I believe that there is a direct relationship between these horrible racist/sexist stereotypes and violence against women and girls. I believe, for example, that Helen Betty Osborne was murdered in 1972 by four young men from The Pas because these youths grew up with twisted notions of "Indian girls" as "squaws"...Osborne's attempts to fight off these men's sexual advances challenged their racist expectations that an "Indian squaw" should show subservience, causing the whites to go into a rage and proceed to brutalize the victim (LaRoque, 1994).

If the four men did not think of Aboriginal women this way, they never would

have picked Betty Osborne up. It was because they were able to dehumanize her that

they did not feel the necessity to see her as anything other than an object of sorts that they

could drink with, use sexually, and then throw away. When it became apparent that they

were not going to be able to drink and have sex with her, they raped, killed and threw her

away. Her resistance to their stereotype did not humanize her to them because the idea of

what Aboriginal women were to them was bigger than one person. Perhaps the most

frightening aspect of this incident is that it required implicit agreement amongst the town

of The Pas, so it was an ideology that existed in the community.

This process was also necessary in the incidents involving Marshall Jr., Night,

Naistus, Wegner, Neil Stonechild, J.J. Harper and Leo LaChance. Stereotypes for

Aboriginal men depict them as dangerous warriors or drunks (Media Awareness

Network, 2006). While these stereotypes are often placed in an historical context, there

is a present day one that applies. This present day stereotype includes the gangster or the

122


idea. This idea brings forth the stereotype of Aboriginal women as a “squaw”. Emma

LaRocque (1994), a Metis Native Studies professor writes as follows.

The portrayal of the squaw is one of the most degraded, most despised and most dehumanized anywhere in the world. The "squaw" is the female counterpart to the Indian male "savage" and as such she has no human face; she is lustful, immoral, unfeeling and dirty. Such a grotesque dehumanization has rendered all Native women and girls vulnerable to gross physical, psychological and sexual violence... I believe that there is a direct relationship between these horrible racist/sexist stereotypes and violence against women and girls. I believe, for example, that Helen Betty Osbome was murdered in 1972 by four young men from The Pas because these youths grew up with twisted notions of "Indian girls" as "squaws"... Osborne’s attempts to fight off these men's sexual advances challenged their racist expectations that an "Indian squaw" should show subservience, causing the whites to go into a rage and proceed to brutalize the victim (LaRoque, 1994).

If the four men did not think of Aboriginal women this way, they never would

have picked Betty Osbome up. It was because they were able to dehumanize her that

they did not feel the necessity to see her as anything other than an object of sorts that they

could drink with, use sexually, and then throw away. When it became apparent that they

were not going to be able to drink and have sex with her, they raped, killed and threw her

away. Her resistance to their stereotype did not humanize her to them because the idea of

what Aboriginal women were to them was bigger than one person. Perhaps the most

frightening aspect of this incident is that it required implicit agreement amongst the town

of The Pas, so it was an ideology that existed in the community.

This process was also necessary in the incidents involving Marshall Jr., Night,

Naistus, Wegner, Neil Stonechild, J.J. Harper and Leo LaChance. Stereotypes for

Aboriginal men depict them as dangerous warriors or drunks (Media Awareness

Network, 2006). While these stereotypes are often placed in an historical context, there

is a present day one that applies. This present day stereotype includes the gangster or the

122


criminal, and because it can be viewed on the news and not just in fictitious recreations of

history in the movies, it seems more real. Whatever the context, the view that Aboriginal

men are dangerous and drunk makes it easier to naturalize their categorization as

criminals, and people do not see the health issues and the history behind the individuals,

let alone see them as human beings. The assailants counted on this lack of credibility,

whether the assailants were Nerland or the police.

In all of the cases, the perpetrators were not just criminal justice officials, they

were people who are members of a larger society. In all of the cases, they were white.

Despite the fact that some of them were alcoholics with mental health issues — the very

things that Aboriginal stereotypes depict — the individuals involved as accused were able

to rely on their white privilege and racist ideology as justification for their actions. In

other words, it was not the relation between the cases and the criminal justice system that

was the problem, it was the people and their belief, conscious or not, of the legitimacy of

racial subordination.

The harm incurred is that non-Aboriginal people may not know Aboriginal people

because Aboriginal people will be viewed as a typified stereotype, and they will have

rigid understandings of them. This product of typification, the stereotype, comes to be

part of the "pregiven resources" that make up the social structure of the system in which

we live. The result is that when they are even considered, Aboriginal people are

unequally, falsely, or marginally depicted in the social structure and system of Canada.

A further result can be seen in the acceptance of such stereotypes into the

"pregiven resources" of social structure. Non-Aboriginal people have had the most

influence in shaping the structure of Canadian society. Like all people, non-Aboriginal

123


criminal, and because it can be viewed on the news and not just in fictitious recreations of

history in the movies, it seems more real. Whatever the context, the view that Aboriginal

men are dangerous and drunk makes it easier to naturalize their categorization as

criminals, and people do not see the health issues and the history behind the individuals,

let alone see them as human beings. The assailants counted on this lack of credibility,

whether the assailants were Nerland or the police.

In all of the cases, the perpetrators were not just criminal justice officials, they

were people who are members of a larger society. In all of the cases, they were white.

Despite the fact that some of them were alcoholics with mental health issues - the very

things that Aboriginal stereotypes depict - the individuals involved as accused were able

to rely on their white privilege and racist ideology as justification for their actions. In

other words, it was not the relation between the cases and the criminal justice system that

was the problem, it was the people and their belief, conscious or not, of the legitimacy of

racial subordination.

The harm incurred is that non-Aboriginal people may not know Aboriginal people

because Aboriginal people will be viewed as a typified stereotype, and they will have

rigid understandings of them. This product of typification, the stereotype, comes to be

part of the “pregiven resources” that make up the social structure of the system in which

we live. The result is that when they are even considered, Aboriginal people are

unequally, falsely, or marginally depicted in the social structure and system of Canada.

A further result can be seen in the acceptance of such stereotypes into the

“pregiven resources” of social structure. Non-Aboriginal people have had the most

influence in shaping the structure of Canadian society. Like all people, non-Aboriginal

123


people become aware of themselves and their social situations through the process of

socialization. There are more non-Aboriginal people than Aboriginal people; and they

have more power and access to the development of rules and resources, or laws and

policies, than do Aboriginal people. When it comes to making laws and policies and

legislation, they do so with certain ideas about Aboriginal people that are not particularly

empowering to Aboriginal people; in fact, many are disempowering and depict

Aboriginal people as unable to act for themselves, even as entire communities or nations.

4.4 The Impacts of Oppression

The clarification of the impact of structure rather than simply how structure is

defined is essential. Giddens' definition of social structure as rules and resources,

however, is still accepted. According to some social theorists, social structure can be

measured in part by the impact that it has on the "conscious experience" of individuals in

such a way that "the subject and its agency disappears" (Waters, 1994: 12). In other

words, people feel powerless as individuals to resist or change society.

In this sense, it is arguable that structure, with a duality in its ability to enable and

constrain, also plays a role in the determination of individuals and social relationships on

a larger scale. The degree to which individuals are determined by the social structure

depends on the level of consciousness of, and the amount of power possessed by, the

individuals being affected. To fully explore this notion requires an examination of

typification and the effects upon the lives of individuals.

There are stereotypes of Aboriginal people that constitute stigmas. In Stigma:

Notes on the Management of Spoiled Identity, Erving Goffman identifies stigma as "an

124


people become aware of themselves and their social situations through the process of

socialization. There are more non-Aboriginal people than Aboriginal people; and they

have more power and access to the development of rules and resources, or laws and

policies, than do Aboriginal people. When it comes to making laws and policies and

legislation, they do so with certain ideas about Aboriginal people that are not particularly

empowering to Aboriginal people; in fact, many are disempowering and depict

Aboriginal people as unable to act for themselves, even as entire communities or nations.

4.4 The Impacts o f Oppression

The clarification of the impact of structure rather than simply how structure is

defined is essential. Giddens’ definition of social structure as rules and resources,

however, is still accepted. According to some social theorists, social structure can be

measured in part by the impact that it has on the “conscious experience” of individuals in

such a way that “the subject and its agency disappears” (Waters, 1994: 12). In other

words, people feel powerless as individuals to resist or change society.

In this sense, it is arguable that structure, with a duality in its ability to enable and

constrain, also plays a role in the determination of individuals and social relationships on

a larger scale. The degree to which individuals are determined by the social structure

depends on the level of consciousness of, and the amount of power possessed by, the

individuals being affected. To fully explore this notion requires an examination of

typification and the effects upon the lives of individuals.

There are stereotypes of Aboriginal people that constitute stigmas. In Stigma:

Notes on the Management of Spoiled Identity, Erving Goffman identifies stigma as “an

124


attribute that is deeply discrediting" identifying race as a potential stigma (1963: 3-4).

Goffman writes,

...society establishes the means of categorizing persons and the complements of attributes felt to be ordinary and natural for members of these categories. Social settings establish the categories of persons likely to be encountered there. The routines of social intercourse in established settings allow us to deal with anticipated others without special attention or thought (1963: 2).

Similarly, in Labeling Deviant Behaviour, Edwin Schur writes,

stereotyping involves the tendency to jump from a single cue or small number of cues in actual, suspected, or alleged behaviour to a more general picture of the "kind of person" with whom one is dealing (1971: 52).

Stereotypes are socially created categories that allow people to attempt to predict

how categorized persons are going to act in social situations. Stigma, added to

stereotype, leads to negative stereotyping. Being recognized as Aboriginal can increase

the likelihood of being stereotyped and stigmatized based on physical racial cues. The

stereotypes about Aboriginal people tend to be "discrediting", presenting Aboriginal

people in a manner that keeps them subordinated. As Aboriginal people can often be

identified racially, Aboriginal people can be identifiable and subject to being negatively

labelled.

If being Aboriginal is stigmatized and easily identified, Aboriginal people are

easily discriminated against. Sometimes this discrimination is intentional, as in the case

of The Indian Act. However, The Indian Act would never have been accepted without

particular ideas about Aboriginal people. This is why stereotypes must be seen as an

125

•


attribute that is deeply discrediting” identifying race as a potential stigma (1963: 3-4).

Goffman writes,

.. .society establishes the means of categorizing persons and the complements of attributes felt to be ordinary and natural for members of these categories. Social settings establish the categories of persons likely to be encountered there. The routines of social intercourse in established settings allow us to deal with anticipated others without special attention or thought (1963: 2).

Similarly, in Labeling Deviant Behaviour. Edwin Schur writes,

stereotyping involves the tendency to jump from a single cue or small number of cues in actual, suspected, or alleged behaviour to a more general picture of the “kind of person” with whom one is dealing (1971:52).

Stereotypes are socially created categories that allow people to attempt to predict

how categorized persons are going to act in social situations. Stigma, added to

stereotype, leads to negative stereotyping. Being recognized as Aboriginal can increase

the likelihood of being stereotyped and stigmatized based on physical racial cues. The

stereotypes about Aboriginal people tend to be “discrediting”, presenting Aboriginal

people in a manner that keeps them subordinated. As Aboriginal people can often be

identified racially, Aboriginal people can be identifiable and subject to being negatively

labelled.

If being Aboriginal is stigmatized and easily identified, Aboriginal people are

easily discriminated against. Sometimes this discrimination is intentional, as in the case

of The Indian Act. However, The Indian Act would never have been accepted without

particular ideas about Aboriginal people. This is why stereotypes must be seen as an

125


influence in the perpetuation the marginal position of Aboriginal people in Canadian

society.

There is a myth that Aboriginal people are marginal because they are

underrepresented in the economic base of society. In other words, poverty causes all of

the socioeconomic disparity apparent in Aboriginal populations. This ignores the fact

that the wide range of poverty is the result of the colonial process and the racism that

justifies it, and again puts responsibility on the shoulders of Aboriginal communities.

When one views poverty alone as the cause of all dysfunction in Aboriginal communities,

the corresponding solution for all Aboriginal people is to get a job. If you look at the

victims in the incidents above, not that it is all relevant, but most of them were employed

or in the process of becoming educated. The truth is, Aboriginal racism is not simply

about unemployment, it is about the structures that do not support Aboriginal people

because of how Aboriginal people are defined in society. For example, while some

people would argue that Marshall Jr. was morally deficient and dropped out of school,

one could also argue that the school did not support Aboriginal kids because of prevailing

ideas about Aboriginal communities and, by extension, Aboriginal students. Such an

analogy is the prime example of the discomfort about addressing racism as it exists in

structures. People are more comfortable addressing the dysfunction in Aboriginal

communities because then they do not have to question their role in the issues.

Aboriginal people are underrepresented in more positive social locations because

of the way in which they have been defined. For example, if Aboriginal people are seen

as being deficient in some way, and this appears to be proven because of the social and

economic conditions in which they live, then it is no wonder that they are not successful

126


influence in the perpetuation the marginal position of Aboriginal people in Canadian

society.

There is a myth that Aboriginal people are marginal because they are

underrepresented in the economic base of society. In other words, poverty causes all of

the socioeconomic disparity apparent in Aboriginal populations. This ignores the fact

that the wide range of poverty is the result of the colonial process and the racism that

justifies it, and again puts responsibility on the shoulders of Aboriginal communities.

When one views poverty alone as the cause of all dysfunction in Aboriginal communities,

the corresponding solution for all Aboriginal people is to get a job. If you look at the

victims in the incidents above, not that it is all relevant, but most of them were employed

or in the process of becoming educated. The truth is, Aboriginal racism is not simply

about unemployment, it is about the structures that do not support Aboriginal people

because o f how Aboriginal people are defined in society. For example, while some

people would argue that Marshall Jr. was morally deficient and dropped out of school,

one could also argue that the school did not support Aboriginal kids because of prevailing

ideas about Aboriginal communities and, by extension, Aboriginal students. Such an

analogy is the prime example of the discomfort about addressing racism as it exists in

structures. People are more comfortable addressing the dysfunction in Aboriginal

communities because then they do not have to question their role in the issues.

Aboriginal people are underrepresented in more positive social locations because

of the way in which they have been defined. For example, if Aboriginal people are seen

as being deficient in some way, and this appears to be proven because of the social and

economic conditions in which they live, then it is no wonder that they are not successful

126


in the Canadian economy. Aboriginal people are not marginal merely because they are

underrepresented in the economic system of Canada. They are underrepresented in the

economic system of Canada partly because of the ideas that are held about them in the

ideological and political structures of Canada. This will prove to be a challenge in the

future, particularly where there are larger populations of Aboriginal people, and

particularly because the populations tend to be youthful in comparison to non-Aboriginal

people, and because of the looming labour shortage which will require the participation

of all people in the economy. However, until the racism that prevents full participation is

addressed, there is little room for optimism. The refusal to address racism is a reason

why statistics indicate that despite labour shortages and increases in post-secondary

education attainment, there is still a chasm between the social realities of Aboriginal and

non-Aboriginal Canadians.

Aboriginal people exist in the structure of Canadian society in a state of

marginalization that can be seen where legislation and social policy, such as The Indian

Act, is found. In this way, Aboriginal people are unequally subject to the constraints of

the social structure. It can be argued that non-Aboriginal people hold many of the

discrediting stereotypes of Aboriginal people that are widely current. However, it can

also be said that sometimes the structure constrains Aboriginal people via their own

acceptance of those same stereotypes. In this manner the rules and resources found in the

social structure can be somewhat more influential or determinant of the individuals being

defined.

To best explain how Aboriginal people come to internalize the definitions about

them, one has to return to Mead's discussion of the development of self. The actor comes

127


in the Canadian economy. Aboriginal people are not marginal merely because they are

underrepresented in the economic system of Canada. They are underrepresented in the

economic system of Canada partly because of the ideas that are held about them in the

ideological and political structures of Canada. This will prove to be a challenge in the

future, particularly where there are larger populations of Aboriginal people, and

particularly because the populations tend to be youthful in comparison to non-Aboriginal

people, and because of the looming labour shortage which will require the participation

of all people in the economy. However, until the racism that prevents full participation is

addressed, there is little room for optimism. The refusal to address racism is a reason

why statistics indicate that despite labour shortages and increases in post-secondary

education attainment, there is still a chasm between the social realities of Aboriginal and

non-Aboriginal Canadians.

Aboriginal people exist in the structure of Canadian society in a state of

marginalization that can be seen where legislation and social policy, such as The Indian

Act, is found. In this way, Aboriginal people are unequally subject to the constraints of

the social structure. It can be argued that non-Aboriginal people hold many of the

discrediting stereotypes of Aboriginal people that are widely current. However, it can

also be said that sometimes the structure constrains Aboriginal people via their own

acceptance of those same stereotypes. In this manner the rules and resources found in the

social structure can be somewhat more influential or determinant of the individuals being

defined.

To best explain how Aboriginal people come to internalize the definitions about

them, one has to return to Mead’s discussion of the development of self. The actor comes

127


to recognize him or herself as a member of his or her society through the internalization

of the rules and resources in their society as the generalized other. Following this

particular line of reasoning, Goffman describes this process in a somewhat clearer

manner than Mead when he writes,

The individual constructs his image of himself out of the materials from which others first construct a social and personal identification of him (Goffman, 1963: 106).

Further, the ideas that come out of the rules and resources of society that are offered to

the individual who identifies as, or is identified as, Aboriginal, in the typified

stereotypical sense, carry with them a stigma based on racial, economic, social, real

and/or perceived differences. These definitions, poisoned by stigma, not only lead to

racial discrimination, but have the potential to be internalized by Aboriginal people

themselves. In theory, this can lead to living up to the expectations created by

stereotypes, even if it causes self-destructive behaviour.

Cooley writes about this, referring to it as the "looking glass self',

A self-idea of this sort seems to have three principle elements: the imagination of our appearance to the other person; the imagination of his judgment of that appearance, some sort of self-feeling, such as pride or mortification (Cooley, 1956: 184).

Thus, there seems to be an agreement amongst theorists that individuals come to identify

themselves as social objects via interaction with others. This process of identification can

have good and bad results for the individual being identified. In the case of Aboriginal

people who are associated with the stigmatized stereotypes, this can lead to particularly

negative experiences referred to by Merton as a self-fulfilling prophecy (Merton, 1968).

128


to recognize him or herself as a member of his or her society through the internalization

of the rules and resources in their society as the generalized other. Following this

particular line of reasoning, Goffman describes this process in a somewhat clearer

manner than Mead when he writes,

The individual constructs his image of himself out of the materials from which others first construct a social and personal identification of him (Goffman, 1963: 106).

Further, the ideas that come out of the rules and resources of society that are offered to

the individual who identifies as, or is identified as, Aboriginal, in the typified

stereotypical sense, carry with them a stigma based on racial, economic, social, real

and/or perceived differences. These definitions, poisoned by stigma, not only lead to

racial discrimination, but have the potential to be internalized by Aboriginal people

themselves. In theory, this can lead to living up to the expectations created by

stereotypes, even if it causes self-destructive behaviour.

Cooley writes about this, referring to it as the “looking glass self’,

A self-idea of this sort seems to have three principle elements: the imagination of our appearance to the other person; the imagination of his judgment of that appearance, some sort of self-feeling, such as pride or mortification (Cooley, 1956: 184).

Thus, there seems to be an agreement amongst theorists that individuals come to identify

themselves as social objects via interaction with others. This process of identification can

have good and bad results for the individual being identified. In the case of Aboriginal

people who are associated with the stigmatized stereotypes, this can lead to particularly

negative experiences referred to by Merton as a self-fulfilling prophecy (Merton, 1968).

128


The self-fulfilling prophecy is, in the beginning, a false definition of the situation evoking a new behaviour which makes the originally false conception come true (Merton, 1968: 477).

According to Merton, then, an actor can take the definition of him or herself being

offered by those around him or her and act it out. As related to this discussion, an

Aboriginal person will recognize a stereotype that is constantly being applied to him or

her, and act according to the expectations of that particular stereotype.

The result of the internalization of self, the looking-glass self, and the self-

fulfilling prophecy is that the stereotypes of Aboriginal people appear to be justified. For

example, if Aboriginal people are seen as being incapable of independence, they may be

stereotyped as being stupid. If Aboriginal people are stereotyped as stupid, and they are

encouraged less in school, they will be less likely than other people to be hired by

prospective employers. If more Aboriginal people are under-employed or unemployed,

then more Aboriginal people will require social assistance. Further, if there is a

stereotype of an Aboriginal criminal, then it may be more likely for an unemployed

Aboriginal person to turn to crime and the cycle will continue. Even where there is

active resistance against stereotypes, this is a form of influence on the development of a

person.

It becomes difficult to distinguish after a while which comes first, a stereotype or

the behaviour to which a stereotype refers. In this case, the process of definition and the

internalization of the definition become a part of a vicious cycle, and it will seem to the

Aboriginal person being so defined that it is out of his or her hands to control the

situation. In this respect, the structure, or rules and resources, as Giddens would refer to

it, are certainly seen as an external constraint on the individual being defined.

129


The self-fulfilling prophecy is, in the beginning, a false definition of the situation evoking a new behaviour which makes the originally false conception come true (Merton, 1968: 477).

According to Merton, then, an actor can take the definition of him or herself being

offered by those around him or her and act it out. As related to this discussion, an

Aboriginal person will recognize a stereotype that is constantly being applied to him or

her, and act according to the expectations of that particular stereotype.

The result of the internalization of self, the looking-glass self, and the self-

fulfilling prophecy is that the stereotypes of Aboriginal people appear to be justified. For

example, if Aboriginal people are seen as being incapable of independence, they may be

stereotyped as being stupid. If Aboriginal people are stereotyped as stupid, and they are

encouraged less in school, they will be less likely than other people to be hired by

prospective employers. If more Aboriginal people are under-employed or unemployed,

then more Aboriginal people will require social assistance. Further, if there is a

stereotype of an Aboriginal criminal, then it may be more likely for an unemployed

Aboriginal person to turn to crime and the cycle will continue. Even where there is

active resistance against stereotypes, this is a form of influence on the development of a

person.

It becomes difficult to distinguish after a while which comes first, a stereotype or

the behaviour to which a stereotype refers. In this case, the process of definition and the

internalization of the definition become a part of a vicious cycle, and it will seem to the

Aboriginal person being so defined that it is out of his or her hands to control the

situation. In this respect, the structure, or rules and resources, as Giddens would refer to

it, are certainly seen as an external constraint on the individual being defined.

129


4.5 Summary

All people learn about themselves in the context of the social relationships in the

world. We learn that we are a part of a larger group or larger groups, and we learn who is

and who is not a part of our group. We learn that others are different from us, and we

learn what these differences mean. Our life chances, including the ability to influence,

write, and benefit from the rules of society, are largely influenced by where we are

located in this context.

If an individual is born into a middle class environment where education and

financial stability is the norm, it can largely be expected that this position will be

internalized and accepted without question, and as such, will be more likely to continue

to live in an environment similar to the one we grew up in, as this is what is considered

"normal". This is akin to white privilege, and is an unconscious process that is taken for

granted. Such individuals are more likely to be educated and find employment in areas

that have an impact on social structure than people who do not belong to this particular

group.

Aboriginal people in Canada are in the beginning phases of entering this

particular social location of power. In the past, it was much more likely that Aboriginal

people were born into an environment characterized by struggle, and very often, social

dysfunction and poverty. From such a position, it is very difficult to access the processes

that are necessary to influence the rules and resources that Canadians live by. That is,

Aboriginal people have had unequal influential access to the structures that have

oppressed them, and as such, have had very little ability to change the position of their

oppression through this route.

130


4.5 Summary

All people learn about themselves in the context of the social relationships in the

world. We learn that we are a part of a larger group or larger groups, and we learn who is

and who is not a part of our group. We learn that others are different from us, and we

learn what these differences mean. Our life chances, including the ability to influence,

write, and benefit from the rules of society, are largely influenced by where we are

located in this context.

If an individual is bom into a middle class environment where education and

financial stability is the norm, it can largely be expected that this position will be

internalized and accepted without question, and as such, will be more likely to continue

to live in an environment similar to the one we grew up in, as this is what is considered

“normal”. This is akin to white privilege, and is an unconscious process that is taken for

granted. Such individuals are more likely to be educated and find employment in areas

that have an impact on social structure than people who do not belong to this particular

group.

Aboriginal people in Canada are in the beginning phases of entering this

particular social location of power. In the past, it was much more likely that Aboriginal

people were bom into an environment characterized by struggle, and very often, social

dysfunction and poverty. From such a position, it is very difficult to access the processes

that are necessary to influence the rules and resources that Canadians live by. That is,

Aboriginal people have had unequal influential access to the structures that have

oppressed them, and as such, have had very little ability to change the position of their

oppression through this route.

130


Getting a position within the power structures does not always equate to change.

Aboriginal people who do get to a position of power often do not confront racism and its

impacts for one of two reasons. The first is that the problem of racism appears to be so

all encompassing that it is easier to ignore it. Often, Aboriginal people become racist

themselves, probably because it is easier again to identify and blame "dysfunctional"

behaviours in Aboriginal communities for social inequality than to fight the structures

and ideology that cause them. While Constable Loutitt said nothing demeaning about

Mrs. Bignell or Neil Stonechild, he also did not bring himself to say that it is possible that

his colleagues were racist, and did not say anything to indicate that the police service in

Saskatoon was lacking. It would have been very difficult for him to do so without losing

his credibility as a police officer, or even his job, because it would have confronted the

structural and ideological context for the Neil Stonechild incident.

Alternatively, and more positively, one way to try to address the social inequality

caused by racism is to try to eliminate the structural evidence of the impacts of racism by

improving the overall well-being in Aboriginal communities through education and

employment development. The problem with this approach is that Aboriginal

communities can continuously try to improve their overall wellbeing, but if society is

racist, the prognosis is still poor. For instance, Helen Betty Osborne moved away from

home to try to get her education, become a teacher and help her community. The town of

The Pas was not welcoming, however, and she died tragically as a result. As a result, they

have been depicted and controlled, and have had to fight being defined by a society that

sees them as being unable to determine their own lives and define themselves. This,

131


Getting a position within the power structures does not always equate to change.

Aboriginal people who do get to a position of power often do not confront racism and its

impacts for one of two reasons. The first is that the problem of racism appears to be so

all encompassing that it is easier to ignore it. Often, Aboriginal people become racist

themselves, probably because it is easier again to identify and blame “dysfunctional”

behaviours in Aboriginal communities for social inequality than to fight the structures

and ideology that cause them. While Constable Loutitt said nothing demeaning about

Mrs. Bignell or Neil Stonechild, he also did not bring himself to say that it is possible that

his colleagues were racist, and did not say anything to indicate that the police service in

Saskatoon was lacking. It would have been very difficult for him to do so without losing

his credibility as a police officer, or even his job, because it would have confronted the

structural and ideological context for the Neil Stonechild incident.

Alternatively, and more positively, one way to try to address the social inequality

caused by racism is to try to eliminate the structural evidence of the impacts of racism by

improving the overall well-being in Aboriginal communities through education and

employment development. The problem with this approach is that Aboriginal

communities can continuously try to improve their overall wellbeing, but if society is

racist, the prognosis is still poor. For instance, Helen Betty Osbome moved away from

home to try to get her education, become a teacher and help her community. The town of

The Pas was not welcoming, however, and she died tragically as a result. As a result, they

have been depicted and controlled, and have had to fight being defined by a society that

sees them as being unable to determine their own lives and define themselves. This,

131


however, is changing, but real change will not occur until racism is confronted directly,

or until Aboriginal people are better situated in the social world.

If racism is not confronted the process of achieving equality will be delayed

significantly. Furthermore, if Aboriginal people continue to be marginal and pushed out

by racist ideology resident in Canada's structures and systems, equality may not happen

because Aboriginal people may not be willing to be a part of such a society, despite the

possibility of making gains. When one looks at low education and employment

participation rates, particularly where Aboriginal youth are concerned, there is evidence

that this is already occurring. If this is the case, then it is more than likely that there will

continue to be misdirected commissions and inquiries into what has often come to be

viewed as a criminal justice problem.

The commissions and inquiries that have been established to look into the

relationship between Aboriginal people and the criminal justice system have not been

looking at the issue in a manner that is remedial or preventative. When one looks at the

critical incidents that have spawned them, it is evident that these incidents, even when

involving criminal justice system personnel, indicate a problem of race and complex

social relationships rather than criminal justice system processes.

Looking at the incidents with a clear understanding of what racism is changes the

interpretations of them, and places the objectives of criminal justice system commissions

and inquiries into a different context. Commissions and inquiries have not been

mandated to address racism, beyond cultural or even social misunderstanding, in any

specific or directed way. Commissions and inquiries have not been mandated to do this

work largely because it is not achievable from within the confines of the criminal justice

132


however, is changing, but real change will not occur until racism is confronted directly,

or until Aboriginal people are better situated in the social world.

If racism is not confronted the process of achieving equality will be delayed

significantly. Furthermore, if Aboriginal people continue to be marginal and pushed out

by racist ideology resident in Canada’s structures and systems, equality may not happen

because Aboriginal people may not be willing to be a part of such a society, despite the

possibility of making gains. When one looks at low education and employment

participation rates, particularly where Aboriginal youth are concerned, there is evidence

that this is already occurring. If this is the case, then it is more than likely that there will

continue to be misdirected commissions and inquiries into what has often come to be

viewed as a criminal justice problem.

The commissions and inquiries that have been established to look into the

relationship between Aboriginal people and the criminal justice system have not been

looking at the issue in a manner that is remedial or preventative. When one looks at the

critical incidents that have spawned them, it is evident that these incidents, even when

involving criminal justice system personnel, indicate a problem of race and complex

social relationships rather than criminal justice system processes.

Looking at the incidents with a clear understanding of what racism is changes the

interpretations of them, and places the objectives of criminal justice system commissions

and inquiries into a different context. Commissions and inquiries have not been

mandated to address racism, beyond cultural or even social misunderstanding, in any

specific or directed way. Commissions and inquiries have not been mandated to do this

work largely because it is not achievable from within the confines of the criminal justice

132


system. Racism is not about cultural or even historical understanding alone. Confronting

racism requires that we look at dominant ideology critically.

133


system. Racism is not about cultural or even historical understanding alone. Confronting

racism requires that we look at dominant ideology critically.

133


Chapter 5: Holding up the Mirror

The cases that have elicited the calls for inquiries and commissions into the

justice system are certainly horrific. However, I would argue that they are horrific not

only in the fact that they occurred at all, but in how they have or have not been

appropriately responded to. Instead of dealing with racism as it really is, an attitude that

has grossly marginalized Aboriginal people in the worst possible social and economic

position in Canadian society, governments have led the public to take a soft approach and

a confused view of racism. This official denial perpetuates the inaction of governments,

and delays responsibility and action that could prevent similar incidents from occurring.

In many instances, since the incidents clearly do implicate criminal justice personnel and

court processes, in some ways, it appears that racism is legitimated through the courts as

it was with the implementation of the Indian Act.

Donald Marshall Jr. and his eleven year misadventure in the criminal justice

system evokes the question as to how it could be that so many things can go wrong in a

process that supposedly is shaped by policies and legislation to protect the rights of

Canada's citizens. While the investigation and court processes were seriously flawed,

they also did not take into account the historical social processes that produce young,

angry men like Marshall Jr., and their role in perpetuating these conditions. The Donald

Marshall Jr. Commission did not take this into account either, and responded with

recommendations to improve the criminal justice system, in part by introducing

Aboriginal culture into police services and court rooms. To window dress the criminal

justice process does nothing to address the roots of systemic racism.

134


Chapter 5: Holding up the Mirror

The cases that have elicited the calls for inquiries and commissions into the

justice system are certainly horrific. However, I would argue that they are horrific not

only in the fact that they occurred at all, but in how they have or have not been

appropriately responded to. Instead of dealing with racism as it really is, an attitude that

has grossly marginalized Aboriginal people in the worst possible social and economic

position in Canadian society, governments have led the public to take a soft approach and

a confused view of racism. This official denial perpetuates the inaction of governments,

and delays responsibility and action that could prevent similar incidents from occurring.

In many instances, since the incidents clearly do implicate criminal justice personnel and

court processes, in some ways, it appears that racism is legitimated through the courts as

it was with the implementation of the Indian Act.

Donald Marshall Jr. and his eleven year misadventure in the criminal justice

system evokes the question as to how it could be that so many things can go wrong in a

process that supposedly is shaped by policies and legislation to protect the rights of

Canada’s citizens. While the investigation and court processes were seriously flawed,

they also did not take into account the historical social processes that produce young,

angry men like Marshall Jr., and their role in perpetuating these conditions. The Donald

Marshall Jr. Commission did not take this into account either, and responded with

recommendations to improve the criminal justice system, in part by introducing

Aboriginal culture into police services and court rooms. To window dress the criminal

justice process does nothing to address the roots of systemic racism.

134


The case of J.J. Harper was one of the first cases of racial profiling to come to the

attention of the Canadian public. Even the words "racial" combined with "profile" evoke

strong thoughts about the potential harm that can come with this police technique. The

implicit idea is that there is one personality profile, usually criminal, characterized by

race alone. It is far too easy to make the connection between this police technique and

the prolific "common sense" stereotypes that indicate male Aboriginal criminality. This

is the connection that happened in Cross's mind the night he shot Harper while chasing

two other "Native" suspects, neither of whom resembled Harper in any way.

Similar thoughts, and raw emotions, are elicited when one looks at the case of

Helen Betty Osborne. The Helen Betty Osborne case is not a story about the law, the

courts and justice. The Helen Betty Osborne story is about how an entire town —

representative of a larger societal consciousness — can hide facts to protect heinous

murderers, because in the common sense ideologies of the townspeople, the life of an

Aboriginal woman is worth less than the respectability of ruthless, white male murderers.

It is safer to assess the conditions of the criminal justice system, and easier to

change the processes that are in place, than it is to deal with the racism that caused Betty

Osborne's murder and protected the guilty, and to address the racism that informs racial

profiling. The Aboriginal Justice Inquiry of Manitoba made recommendations that

covered the criminal justice gamut. From policing to corrections, the recommendations

ask for consideration of separate justice systems for Aboriginal people and the inclusion

of structures that will be culturally relevant to Aboriginal people. The problem is that

there was nothing included that responded appropriately to the deaths of Betty Osborne

135


The case of J.J. Harper was one of the first cases of racial profiling to come to the

attention of the Canadian public. Even the words “racial” combined with “profile” evoke

strong thoughts about the potential harm that can come with this police technique. The

implicit idea is that there is one personality profile, usually criminal, characterized by

race alone. It is far too easy to make the connection between this police technique and

the prolific “common sense” stereotypes that indicate male Aboriginal criminality. This

is the connection that happened in Cross’s mind the night he shot Harper while chasing

two other “Native” suspects, neither of whom resembled Harper in any way.

Similar thoughts, and raw emotions, are elicited when one looks at the case of

Helen Betty Osbome. The Helen Betty Osbome case is not a story about the law, the

courts and justice. The Helen Betty Osbome story is about how an entire town -

representative of a larger societal consciousness - can hide facts to protect heinous

murderers, because in the common sense ideologies of the townspeople, the life of an

Aboriginal woman is worth less than the respectability of ruthless, white male murderers.

It is safer to assess the conditions of the criminal justice system, and easier to

change the processes that are in place, than it is to deal with the racism that caused Betty

Osborne’s murder and protected the guilty, and to address the racism that informs racial

profiling. The Aboriginal Justice Inquiry o f Manitoba made recommendations that

covered the criminal justice gamut. From policing to corrections, the recommendations

ask for consideration of separate justice systems for Aboriginal people and the inclusion

of structures that will be culturally relevant to Aboriginal people. The problem is that

there was nothing included that responded appropriately to the deaths of Betty Osbome

135


and Harper, because the issue of racism was never confronted, despite the fact that the

Inquiry correctly identified racism as a founding factor in both incidents. In this

particular case it was a poor definition of racism as the result of cultural

misunderstanding, and a shying away from confronting white ideology.

In a town that is racially divided, and in Saskatchewan, a province where race

relations have been a continual national and international35 focus, it is more comfortable

for many people to believe that a shooting is the result of a simple accident and

miscommunication. It is tempting, in order to avoid public fear and backlash, to not take

race seriously as a motivator in a hate crime, particularly when the government or police

services are implicated in any way. Government is not immune from this form of denial.

When the larger social and historical context of race relations is taken into

account, one must conclude that racism must be embedded in social structures and

processes, some of which are embodied in governments. One can see why these

structures have difficulty dealing honestly with power imbalances, particularly incidents

where race is an issue. The killing of Leo LaChance demonstrates this argument. Had

the crime happened to a non-Aboriginal person, particularly if the accused were

Aboriginal, there likely would have been a deeper investigation, a deeper analysis, and a

harsher response, both publicly and systemically.

In the province of Saskatchewan the abandonment of intoxicated Aboriginal men,

and in the case of Neil Stonechild, a teenager, was a common, and unofficially accepted

practise. Alcoholism is a social issue, but it is also a medical and mental health issue. It

can become a criminal issue when a medical intervention is not sought or available.

However, there is no justifiable explanation, medically, legally or morally, for dropping

136


and Harper, because the issue of racism was never confronted, despite the fact that the

Inquiry correctly identified racism as a founding factor in both incidents. In this

particular case it was a poor definition of racism as the result of cultural

misunderstanding, and a shying away from confronting white ideology.

In a town that is racially divided, and in Saskatchewan, a province where race

relations have been a continual national and international35 focus, it is more comfortable

for many people to believe that a shooting is the result of a simple accident and

miscommunication. It is tempting, in order to avoid public fear and backlash, to not take

race seriously as a motivator in a hate crime, particularly when the government or police

services are implicated in any way. Government is not immune from this form of denial.

When the larger social and historical context of race relations is taken into

account, one must conclude that racism must be embedded in social structures and

processes, some of which are embodied in governments. One can see why these

structures have difficulty dealing honestly with power imbalances, particularly incidents

where race is an issue. The killing of Leo LaChance demonstrates this argument. Had

the crime happened to a non-Aboriginal person, particularly if the accused were

Aboriginal, there likely would have been a deeper investigation, a deeper analysis, and a

harsher response, both publicly and systemically.

In the province of Saskatchewan the abandonment of intoxicated Aboriginal men,

and in the case of Neil Stonechild, a teenager, was a common, and unofficially accepted

practise. Alcoholism is a social issue, but it is also a medical and mental health issue. It

can become a criminal issue when a medical intervention is not sought or available.

However, there is no justifiable explanation, medically, legally or morally, for dropping

136


people off in the freezing cold, particularly by police who have been charged with the

protection of the public.

In Saskatoon, there are a variety of other options for action. There are families,

and there are drunk tanks to hold intoxicated people in cells when there is a lack of

capacity to deal with them in hospitals and treatment centres. However, those options

were not chosen, and as Night's case would indicate, were not even discussed, as the

drive was long and silent. One has to ask what the motivating factor could be:

entertainment, bullying, or hate?

The difference in approach was guided by the officers' ideas and feelings about

Aboriginal people. Making these decisions would have included weighing the risks with

certain benefits. One may imagine that the internal dialogue would have included the

assessment of the probability of consequences for the officers, with the benefits of just

getting rid of the men, perhaps with an added element of entertainment. It is obvious that

the assessment leaned towards taking advantage of the men's powerlessness for the

purposes of convenience and perhaps entertainment; and it is also easy to imagine that

had the men been white, the assessment and conclusion would have been much different.

It is more difficult to understand why these officers were never officially

confronted or charged for making the decision to drop drunken Aboriginal men off in the

cold. Perhaps it was because they were safe in making the assessment that they never

would be held to account, despite that everything points to the fact that the men were

dropped off deliberately, in the cold, to walk home. The police had to have known that

this was a life risking prospect for the men who were victimized. One can only come to

137


people off in the freezing cold, particularly by police who have been charged with the

protection of the public.

In Saskatoon, there are a variety of other options for action. There are families,

and there are drunk tanks to hold intoxicated people in cells when there is a lack of

capacity to deal with them in hospitals and treatment centres. However, those options

were not chosen, and as Night’s case would indicate, were not even discussed, as the

drive was long and silent. One has to ask what the motivating factor could be:

entertainment, bullying, or hate?

The difference in approach was guided by the officers’ ideas and feelings about

Aboriginal people. Making these decisions would have included weighing the risks with

certain benefits. One may imagine that the internal dialogue would have included the

assessment of the probability of consequences for the officers, with the benefits of just

getting rid of the men, perhaps with an added element of entertainment. It is obvious that

the assessment leaned towards taking advantage of the men’s powerlessness for the

purposes of convenience and perhaps entertainment; and it is also easy to imagine that

had the men been white, the assessment and conclusion would have been much different.

It is more difficult to understand why these officers were never officially

confronted or charged for making the decision to drop drunken Aboriginal men off in the

cold. Perhaps it was because they were safe in making the assessment that they never

would be held to account, despite that everything points to the fact that the men were

dropped off deliberately, in the cold, to walk home. The police had to have known that

this was a life risking prospect for the men who were victimized. One can only come to

137


the conclusion that the refusal to address it comes from fear, again, of public backlash,

which implies an agreement on the officers' actions by the public.

In this thesis, it has been argued that racism is alive and well and allowed to

flourish by an unwillingness to address it or inability to confront it. The idea that there is

an unwillingness to address racism is a scary and easy conclusion to come to. This

refusal simply indicates a subtle agreement with the injustices that have occurred, a

notion that the victims were to blame. Proof appears to be found in the socio-economic

disparity between Aboriginal communities and non-Aboriginal people.

What is more frightening is the ignorance associated with racism, the notions of

white privilege that protect ignorance, and the refusal to admit that Canada is still

contributing to and dealing with the racist colonial ideology that oppresses Aboriginal

people. Canada does not intend to oppress Aboriginal people, it just happens as an

unintended consequence of the average Canadian in their day to day lives.

Perhaps, commissioners who have a glimpse of what is really going on are

sickened and threatened and afraid of the consequences of confronting the factors that

lead to the incidents that involved Aboriginal people and the criminal justice system.

Whether willingly or ignorantly, racism has been evaded time and time again, in favour

of dealing with the underlying factors with a cultural diversity or sensitivity approach.

The cultural diversity and sensitivity approach is not working, because the issue is not

about culture, it is about the racially exclusionary practises of non-Aboriginal people

towards Aboriginal people.

An indication of this can be seen in the work done in response to commissions

and inquiries. Police services claim to be trying to hire more Aboriginal officers, and

138


the conclusion that the refusal to address it comes from fear, again, of public backlash,

which implies an agreement on the officers’ actions by the public.

In this thesis, it has been argued that racism is alive and well and allowed to

flourish by an unwillingness to address it or inability to confront it. The idea that there is

an unwillingness to address racism is a scary and easy conclusion to come to. This

refusal simply indicates a subtle agreement with the injustices that have occurred, a

notion that the victims were to blame. Proof appears to be found in the socio-economic

disparity between Aboriginal communities and non-Aboriginal people.

What is more frightening is the ignorance associated with racism, the notions of

white privilege that protect ignorance, and the refusal to admit that Canada is still

contributing to and dealing with the racist colonial ideology that oppresses Aboriginal

people. Canada does not intend to oppress Aboriginal people, it just happens as an

unintended consequence of the average Canadian in their day to day lives.

Perhaps, commissioners who have a glimpse of what is really going on are

sickened and threatened and afraid of the consequences of confronting the factors that

lead to the incidents that involved Aboriginal people and the criminal justice system.

Whether willingly or ignorantly, racism has been evaded time and time again, in favour

of dealing with the underlying factors with a cultural diversity or sensitivity approach.

The cultural diversity and sensitivity approach is not working, because the issue is not

about culture, it is about the racially exclusionary practises of non-Aboriginal people

towards Aboriginal people.

An indication of this can be seen in the work done in response to commissions

and inquiries. Police services claim to be trying to hire more Aboriginal officers, and

138


there are more Aboriginal police services in Canada. There are culturally sensitive

criminal justice processes in place. For example, Aboriginal Courtworkers are available

in almost all of the provinces and territories across Canada (Indian and Northern Affairs

Canada, 1998). Manitoba has the Hollow Water healing project that has been touted as a

success across Canada, as well as one of the first Aboriginal Justice of the Peace Courts,

Kewaatinowi Okimakinak36. There are correctional facility healing lodges that are

intended to provide culturally appropriate healing programs specifically for Aboriginal

people when jail is not seen as an appropriate response for an Aboriginal offender.

The Aboriginal Justice Inquiry of Manitoba, charged with looking into the deaths

of Helen Betty Osborne and J.J.Harper, the Leo LaChance Inquiry, the Neil Stonechild

Inquiry and the Commission on First Nations and Metis Peoples and Justice Reform all

have taken place in Saskatchewan and Manitoba. Saskatchewan and Manitoba have

some very progressive Aboriginal justice initiatives going forward in response to the

commissions and inquiries, yet the statistics for criminal behaviour in Aboriginal

populations, particularly for Aboriginal youth, continue to grow (Statistics Canada,

2002). It is clearly apparent that the problem in not the relationship between Aboriginal

people and the criminal justice system; otherwise, the problem would have at least been

alleviated, particularly in provinces that have supported the work of inquiries and

commissions.

The problem is racism and how it is poorly defined and then evaded. Until racism

is properly confronted and addressed, Aboriginal people will continue to be marginal.

One particular consequence of the refusal or inability to address racism can be seen in

Saskatchewan and Manitoba, particularly where youth are concerned. When an

139


there are more Aboriginal police services in Canada. There are culturally sensitive

criminal justice processes in place. For example, Aboriginal Courtworkers are available

in almost all of the provinces and territories across Canada (Indian and Northern Affairs

Canada, 1998). Manitoba has the Hollow Water healing project that has been touted as a

success across Canada, as well as one of the first Aboriginal Justice of the Peace Courts,

Kewaatinowi Okimakinak36. There are correctional facility healing lodges that are

intended to provide culturally appropriate healing programs specifically for Aboriginal

people when jail is not seen as an appropriate response for an Aboriginal offender.

The Aboriginal Justice Inquiry of Manitoba, charged with looking into the deaths

of Helen Betty Osbome and J.J.Harper, the Leo LaChance Inquiry, the Neil Stonechild

Inquiry and the Commission on First Nations and Metis Peoples and Justice Reform all

have taken place in Saskatchewan and Manitoba. Saskatchewan and Manitoba have

some very progressive Aboriginal justice initiatives going forward in response to the

commissions and inquiries, yet the statistics for criminal behaviour in Aboriginal

populations, particularly for Aboriginal youth, continue to grow (Statistics Canada,

2002). It is clearly apparent that the problem in not the relationship between Aboriginal

people and the criminal justice system; otherwise, the problem would have at least been

alleviated, particularly in provinces that have supported the work of inquiries and

commissions.

The problem is racism and how it is poorly defined and then evaded. Until racism

is properly confronted and addressed, Aboriginal people will continue to be marginal.

One particular consequence of the refusal or inability to address racism can be seen in

Saskatchewan and Manitoba, particularly where youth are concerned. When an

139


Aboriginal person is socially excluded from the cultural, educational and economic

activities of a community, they become angry, and they do not want to participate in non-

Aboriginal mainstream life. This is what happened with Marshall Jr., who as a youth

who would rather quit school and rebel against authority. When "society" pushes

Aboriginal youth away, whether through fear or hate, and degrades them, they have three

options. One is to succumb and accept the definitions and retreat and become isolated.

Another is to resist and continue to try to do well for yourself, which requires a strong

family and social support network — something that many Aboriginal youth do not have.

The third option, which is in some way could be more comfortable for many youth who

find comfort in youth in positions similar to theirs, is to resist and retaliate, as Marshall

Jr. did. It is arrogant to believe that Aboriginal people, particularly youth, could desire to

be a part of a society just because we think it is better than where they come from.

In order to address racism in a way that works, Canada must acknowledge the

past in ways that confront racism for what it is. Racism is not about cultural difference,

so cross-cultural awareness programs and strategies to help citizens engage diversity will

not prove fruitful exercises. To confront racism involves all citizens acknowledging that

racism is not about difference, and all citizens recognizing that they have an interest in

confronting racism. Acknowledging racism is not necessarily about blame, but about

taking responsibility, and making the effort to challenge the ideology that has sustained

it, and to change the structures that perpetuate it. To deal with racism effectively,

governments have to take the lead in acknowledging their role as well.

Racism can be confronted when the interrelationship between structure and ideas

is realized. Society has no impermeable boundary between the individuals and the

140


Aboriginal person is socially excluded from the cultural, educational and economic

activities of a community, they become angry, and they do not want to participate in non-

Aboriginal mainstream life. This is what happened with Marshall Jr., who as a youth

who would rather quit school and rebel against authority. When “society” pushes

Aboriginal youth away, whether through fear or hate, and degrades them, they have three

options. One is to succumb and accept the definitions and retreat and become isolated.

Another is to resist and continue to try to do well for yourself, which requires a strong

family and social support network - something that many Aboriginal youth do not have.

The third option, which is in some way could be more comfortable for many youth who

find comfort in youth in positions similar to theirs, is to resist and retaliate, as Marshall

Jr. did. It is arrogant to believe that Aboriginal people, particularly youth, could desire to

be a part of a society just because we think it is better than where they come from.

In order to address racism in a way that works, Canada must acknowledge the

past in ways that confront racism for what it is. Racism is not about cultural difference,

so cross-cultural awareness programs and strategies to help citizens engage diversity will

not prove fruitful exercises. To confront racism involves all citizens acknowledging that

racism is not about difference, and all citizens recognizing that they have an interest in

confronting racism. Acknowledging racism is not necessarily about blame, but about

taking responsibility, and making the effort to challenge the ideology that has sustained

it, and to change the structures that perpetuate it. To deal with racism effectively,

governments have to take the lead in acknowledging their role as well.

Racism can be confronted when the interrelationship between structure and ideas

is realized. Society has no impermeable boundary between the individuals and the

140


structures, but rather, individuals provide a fluid link between structure and the realm of

ideas. Once we realize our role and responsibility, people as conscious actors have the

capability to learn, to resist, and to challenge and change structures. Canadians have

lacked this courage to date.

141


structures, but rather, individuals provide a fluid link between structure and the realm of

ideas. Once we realize our role and responsibility, people as conscious actors have the

capability to learn, to resist, and to challenge and change structures. Canadians have

lacked this courage to date.

141


Notes

I While there is a generally accepted correlation between poverty and crime, this thesis does not support the notion that poverty in itself causes crime. The author of this thesis would argue that the complex history of colonization and marginalization of Aboriginal peoples by non-Aboriginal peoples causes both poverty and crime. In this sense, it is marginalization that causes crime, not poverty. 2 Although the word "victim" carries with it a particular passivity, I would like to emphasize that this implication is not what is intended by indicating Aboriginal people as being victims. Rather, it indicates that despite even the strongest resistance, Aboriginal people continue to be on the subordinate end of the power imbalances that characterize Canadian society. 3 Although there have been many attempts to control Aboriginal people, the Indian Act is undoubtedly the most influential, having been initiated as a tool of control, assimilation; and is still in existence today. 4 The Northwest Resistance was led by Louis Riel and Gabriel Dumont, who led the Metis in a battle resisting the Canadian military in Batoche. This battle is also known as the Northwest Rebellion or the Riel Rebellion. "Rebellion" is not the accepted term in this thesis, as it refers to "rebels" who resist order rather than a people who were protecting themselves and their interests. 5 There was some belief that the First Nations supported the Metis in this battle, and that prohibiting or severely limiting movement off the reserve would prevent them from coming together again. 6 In 2003, the Elizabeth Fry society reported that over half of all youth in Canadian custody were Aboriginal. This number is particularly high, considering Aboriginal people make up just under 4% of Canada's population; so it must be assumed that Aboriginal youth make up substantially less than 4% of the Canadian population. The author was not able to find statistics to identify a total actual proportion of Aboriginal youth. 7 There were a lot of ways that an Indian could lose their status under the Indian Act. Once disenfranchised, Indians lost the right to live on reserve, essentially denying them the right to be near their families and communities, and thrusting them into a world that did not necessarily welcome them. 8 I put "address the needs" of Aboriginal people in quotation marks because I am somewhat confused by this common statement. Similarly, one often hears about "responding appropriately to the needs" of Aboriginal people. In reality, such statements often refer to different forms of government damage control responses such as criminal justice system initiatives. As such, the "needs" that various systems respond to are also defined by the system, and are just another source of social control. 9 I refer to a plurality of systems because I am referring to services and not a government department. While there is nothing in policy or writing to indicate it, the latest trend for the Department of Community Resources, recently changed from the Department of Community Resources and Employment, is to offload responsibility onto "community", whether or not "community" exists. In effect, there is an increase of responsibility of community service organizations, which tend to be under-funded and understaffed. The

142


Notes

1 While there is a generally accepted correlation between poverty and crime, this thesis does not support the notion that poverty in itself causes crime. The author of this thesis would argue that the complex history of colonization and marginalization of Aboriginal peoples by non-Aboriginal peoples causes both poverty and crime. In this sense, it is marginalization that causes crime, not poverty.2 Although the word “victim” carries with it a particular passivity, I would like to emphasize that this implication is not what is intended by indicating Aboriginal people as being victims. Rather, it indicates that despite even the strongest resistance, Aboriginal people continue to be on the subordinate end of the power imbalances that characterize Canadian society.

Although there have been many attempts to control Aboriginal people, the Indian Act is undoubtedly the most influential, having been initiated as a tool of control, assimilation; and is still in existence today.4 The Northwest Resistance was led by Louis Riel and Gabriel Dumont, who led the Metis in a battle resisting the Canadian military in Batoche. This battle is also known as the Northwest Rebellion or the Riel Rebellion. “Rebellion” is not the accepted term in this thesis, as it refers to “rebels” who resist order rather than a people who were protecting themselves and their interests.5 There was some belief that the First Nations supported the Metis in this battle, and that prohibiting or severely limiting movement off the reserve would prevent them from coming together again.6 In 2003, the Elizabeth Fry society reported that over half of all youth in Canadian custody were Aboriginal. This number is particularly high, considering Aboriginal people make up just under 4% of Canada’s population; so it must be assumed that Aboriginal youth make up substantially less than 4% of the Canadian population. The author was not able to find statistics to identify a total actual proportion of Aboriginal youth.

There were a lot of ways that an Indian could lose their status under the Indian Act. Once disenfranchised, Indians lost the right to live on reserve, essentially denying them the right to be near their families and communities, and thrusting them into a world that did not necessarily welcome them.81 put “address the needs” of Aboriginal people in quotation marks because I am somewhat confused by this common statement. Similarly, one often hears about “responding appropriately to the needs” of Aboriginal people. In reality, such statements often refer to different forms of government damage control responses such as criminal justice system initiatives. As such, the “needs” that various systems respond to are also defined by the system, and are just another source of social control.9 I refer to a plurality of systems because I am referring to services and not a government department. While there is nothing in policy or writing to indicate it, the latest trend for the Department of Community Resources, recently changed from the Department of Community Resources and Employment, is to offload responsibility onto “community”, whether or not “community” exists. In effect, there is an increase of responsibility of community service organizations, which tend to be under-funded and understaffed. The

142


applicability of much of the programming to the needs of Aboriginal people is also Questionable. ib I first heard the term "social pathologies" from David Gullickson, Senior Policy Analyst for Saskatchewan Justice, in his much more brilliant re-interpretation and explanation of my argument that we tend to look at the impacts of racism as they exist in the social inequalities that exist in Aboriginal communities, rather than at the structures which cause them. Analyses that focus on outcomes of social inequality rather than structural causes tend to blame the victims, in the case being discussed here. Victims would be Aboriginal peoples. 11 This is based on a notion developed by Christopher LaFontaine, Executive Director of the Aboriginal Courtworker Program at Saskatchewan Justice. Although it was not researched for this thesis, it is an idea that is developed in Mr. LaFontaine's Master's thesis entitled "Using the Experience of a First Nation Principal with Student Suicide in a First Nation School for Structuring Policy Problems," 1998. 12 This statement generally refers to the fact that all Canadians are beneficiaries of treaty and that in fact, as the disparity between them shows, non-First Nations people benefited far more than First Nations people. This is a commonly described fact in many Aboriginal Awareness training sessions, such as the "In Partnership Training" conducted by the Saskatchewan Association of Health Organizations. 13 Although the author of this thesis drew upon field research (Babbie, 2001: 275-276) that assisted in shaping the content of this thesis, this field research was included as background information for the Final Report of the Commission on First Nations and Metis Peoples and Justice Reform (2004), and is not specifically referenced in this thesis. 14 Babbie (2001) has written extensively about the methods of social research in his book The Practice of Social Research. The author worked with the Commission on First Nations and Metis Peoples and Justice Reform, and as a part of this work, researched the methods of other commissions and inquiries. As a result, the author understands that inquiries and commissions utilize almost all forms of research methods to inform their work. The work that is published by the commissions and inquiries is the end product of these methods, and as such, the author felt comfortable using these documents as the primary reference material for this thesis. 15 The implementation of the Youth Criminal Justice Act is responsible for bringing these numbers down somewhat in its directive to divert young offenders. However, these diversions are currently taxing the resources available in communities. The result is backlog. 'The Canadian Centre for Justice Statistics reports that incidents of family violence in Aboriginal families are high. 20% of Aboriginal people report being victimized by a past or current spouse in the past 5 years as compared to 7% of non-Aboriginal people. As many incidents are not reported, it can be assumed that the rate is much higher in both Aboriginal and non-Aboriginal populations. Furthermore, these statistics reflect only incidents of abuse where spouses are concerned, and does not reflect other forms of family or interpersonal violence. 17 Despite current popular thinking and the hard work of family advocates, Aboriginal people do not always share a favourable opinion of jailing their abusers. After much consideration, I believe this is because Aboriginal communities recognize that, due to the

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applicability o f much of the programming to the needs of Aboriginal people is also questionable.I I first heard the term “social pathologies” from David Gullickson, Senior Policy Analyst for Saskatchewan Justice, in his much more brilliant re-interpretation and explanation of my argument that we tend to look at the impacts of racism as they exist in the social inequalities that exist in Aboriginal communities, rather than at the structures which cause them. Analyses that focus on outcomes of social inequality rather than structural causes tend to blame the victims, in the case being discussed here. Victims would be Aboriginal peoples.II This is based on a notion developed by Christopher LaFontaine, Executive Director of the Aboriginal Courtworker Program at Saskatchewan Justice. Although it was not researched for this thesis, it is an idea that is developed in Mr. LaFontaine’s Master’s thesis entitled “Using the Experience of a First Nation Principal with Student Suicide in a First Nation School for Structuring Policy Problems,” 1998.12 This statement generally refers to the fact that all Canadians are beneficiaries of treaty and that in fact, as the disparity between them shows, non-First Nations people benefited far more than First Nations people. This is a commonly described fact in many Aboriginal Awareness training sessions, such as the “In Partnership Training” conducted by the Saskatchewan Association of Health Organizations.13 Although the author of this thesis drew upon field research (Babbie, 2001: 275-276) that assisted in shaping the content of this thesis, this field research was included as background information for the Final Report of the Commission on First Nations and Metis Peoples and Justice Reform (2004), and is not specifically referenced in this thesis.14 Babbie (2001) has written extensively about the methods of social research in his book The Practice of Social Research. The author worked with the Commission on First Nations and Metis Peoples and Justice Reform, and as a part of this work, researched the methods of other commissions and inquiries. As a result, the author understands that inquiries and commissions utilize almost all forms of research methods to inform their work. The work that is published by the commissions and inquiries is the end product of these methods, and as such, the author felt comfortable using these documents as the primary reference material for this thesis.5 The implementation of the Youth Criminal Justice Act is responsible for bringing these

numbers down somewhat in its directive to divert young offenders. However, these diversions are currently taxing the resources available in communities. The result is backlog.16 The Canadian Centre for Justice Statistics reports that incidents of family violence in Aboriginal families are high. 20% of Aboriginal people report being victimized by a past or current spouse in the past 5 years as compared to 7% of non-Aboriginal people. As many incidents are not reported, it can be assumed that the rate is much higher in both Aboriginal and non-Aboriginal populations. Furthermore, these statistics reflect only incidents of abuse where spouses are concerned, and does not reflect other forms of family or interpersonal violence.17 Despite current popular thinking and the hard work of family advocates, Aboriginal people do not always share a favourable opinion of jailing their abusers. After much consideration, I believe this is because Aboriginal communities recognize that, due to the

143


nature and origins of violence in many communities, Aboriginal violence requires healing rather than punishment. Similarly, in many Aboriginal communities, removing and charging the offender can result in harsh retribution and isolation for the complainant. This is particularly significant in areas that are isolated and that have no family or protective services. 18 In 2001, 48% of the Aboriginal population in Saskatchewan had less than a high school level of education http ://www. fnmr. gov. sk.c a/h 1,1111/m0r/dem ographic s/s1d020- 1 .htm. This indicates that Aboriginal children are commonly having difficulties in school, and supports for them and their families are warranted. I would also argue that school boards and government departments need to start looking at their own environments as a source of discouragement for student attendance. Specifically, they need to address racism, and not just cultural diversity, in schools. 19 This information is a summary of the book by Michael Harris (1990) called Justice Denied: The Law Versus Donald Marshall. See bibliography for full reference. 20 This information is a summary from the book Conspiracy of Silence, by Lisa Priest (1989). See bibliography for full reference. 21 Moorlag was the police investigator who re-questioned Colgan after the death of his attorney, D'Arcy Bancroft. 22 I mention that they were employed by the provincial government as a reminder that this problem extends into all areas, even areas of the public service, similar to how it exists in the United States. For example, the Hayden Lake compound had ties to American political leaders, including David Duke, former Louisiana State representative and United States presidential candidate. 23 This information is summarized in the website Missing/Murdered Native Women in Canada. http://www.missingnativewomen.ca/ . This site tells some of the stories behind the over 500 missing Aboriginal women in Canada. 24 This is a very common statement and refers to the fact that real justice must be apparent to the general public. 25 I will include more of this in Chapter 4, which deals with theory. 26 There is a significant difference between the two. While there is undoubtedly racism against visible and ethnic minorities in Canada, it is not the same as the racism that exists towards Aboriginal people because of the history of colonialism, and the legislated and enforced attempts at assimilating Aboriginal people into a non-Aboriginal population that was not agreeable to integrating them. 27 Volume 2 of the Public Inquiry Into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba / Associate Chief Justice A.C. Hamilton, Commissioner; Associate Chief Judge C.M. Sinclair, Commissioner presents very specific details about the deaths of Helen Betty Osborne and J.J. Harper. See bibliography for Manitoba, 1991, for full references. 28 There has been a move away from cultural awareness education/training as it used to exist, particularly where Aboriginal people are concerned. Much of the material now indicates legal/social/economic processes that have impacted Aboriginal people negatively. I still do not see how this will eradicate racism, as it simply puts a logical historical process around Aboriginal marginalization. In other words, it seems to say that Aboriginal people are oppressed and that is why they are bad. Instead, we should look at

144


nature and origins of violence in many communities, Aboriginal violence requires healing rather than punishment. Similarly, in many Aboriginal communities, removing and charging the offender can result in harsh retribution and isolation for the complainant. This is particularly significant in areas that are isolated and that have no family or protective services.8 In 2001, 48% of the Aboriginal population in Saskatchewan had less than a high school

level of education http ://www. fnmr. gov, sk.ca/html/mor/demographics/sld020-1 .htm.This indicates that Aboriginal children are commonly having difficulties in school, and supports for them and their families are warranted. I would also argue that school boards and government departments need to start looking at their own environments as a source of discouragement for student attendance. Specifically, they need to address racism, and not just cultural diversity, in schools.19 This information is a summary of the book by Michael Harris (1990) called Justice Denied: The Law Versus Donald Marshall. See bibliography for full reference.20 This information is a summary from the book Conspiracy of Silence, by Lisa Priest (1989). See bibliography for full reference.21 Moorlag was the police investigator who re-questioned Colgan after the death of his attorney, D’Arcy Bancroft.22 I mention that they were employed by the provincial government as a reminder that this problem extends into all areas, even areas of the public service, similar to how it exists in the United States. For example, the Hayden Lake compound had ties to American political leaders, including David Duke, former Louisiana State representative and United States presidential candidate.23 This information is summarized in the website Missing/Murdered Native Women in Canada, http://www.missingnativewomen.ca/ . This site tells some of the stories behind the over 500 missing Aboriginal women in Canada.24 This is a very common statement and refers to the fact that real justice must be apparent to the general public.251 will include more of this in Chapter 4, which deals with theory.O f t There is a significant difference between the two. While there is undoubtedly racism against visible and ethnic minorities in Canada, it is not the same as the racism that exists towards Aboriginal people because of the history of colonialism, and the legislated and enforced attempts at assimilating Aboriginal people into a non-Aboriginal population thatwas not agreeable to integrating them.00 Volume 2 of the Public Inquiry Into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba / Associate Chief Justice A.C. Hamilton. Commissioner: Associate Chief Judge C.M. Sinclair, Commissioner presents very specific details about the deaths of Helen Betty Osborne and J.J. Harper.See bibliography for Manitoba, 1991, for full references.28 There has been a move away from cultural awareness education/training as it used to exist, particularly where Aboriginal people are concerned. Much of the material now indicates legal/social/economic processes that have impacted Aboriginal people negatively. I still do not see how this will eradicate racism, as it simply puts a logical historical process around Aboriginal marginalization. In other words, it seems to say that Aboriginal people are oppressed and that is why they are bad. Instead, we should look at

144


http://www.missingnativewomen.ca/

and address constructive ways of addressing these processes instead of denying them so we can stop the oppression. 29 As quoted from Newkirk, R. and Rutstein, N. (2000), Racial Healing, by the Commission on First Nations and Metis Peoples and Justice Reform. See bibliography. 313 Bourgeault, Ron (1983). "The Indians, the Metis and the Fur Trade: Class, Sexism and Racism in the Transition from 'Communism' to Capitalism." Studies in Political Economy, 12, 1983: 45-80. 31 I use the term "white" with some hesitation because I do not want it confused with race. I believe that the concept of what is "white" changes over time, and often includes people of other races, cultures and ethnicities, and that it is more associated with social and economic class now. However, I do not want to suggest that non-white people of professional classes do not encounter racism either.

Giddens uses Weber's conception of power, which is in Giddens' words "the capability of an actor to achieve his or her will, even at the expense of that of others who might resist him." (1979: 69) 33 Malcolm Waters identifies meanings, morals, and power as the pregiven resources (Waters, 1994: 47). I am positing that these are also those rules and resources that constitute the social structure of society, and am using these terms interchangeably with Giddens' conception of rules and resources. 34 This information came from a paper entitled "Two Worlds Colliding: Police Misconduct in Saskatoon" (2001) by Braun C. and Sanders S.L. This paper was provided to the National Film Board of Canada and was subsequently made into a documentary. 35 The United Nations Special Rapporteur paid a visit to Canada where the issue of strained relations between the Saskatoon Police Service and Aboriginal people was brought to his attention. Unfortunately, the Rapporteur recommended cultural awareness and diversity training (2004). On a broader scale, the Rapporteur recommended an intellectual strategy, however, he did not define it. One would hope that it would involve actually doing an analysis of what racism really is. See bibliography for full source. 36 There are few publications about this project. See Correctional Service Canada (1997) The Four Circles of Hollow Water and the Provincial Court of Manitoba's 2002-2003 Annual Report of the Provincial Courts of Manitoba for more information. See bibliography for references.

145


and address constructive ways of addressing these processes instead of denying them so we can stop the oppression.29 As quoted from Newkirk, R. and Rutstein, N. (2000), Racial Healing, by the Commission on First Nations and Metis Peoples and Justice Reform. See bibliography.30 Bourgeault, Ron (1983). “The Indians, the Metis and the Fur Trade: Class, Sexism and Racism in the Transition from ‘Communism’ to Capitalism.” Studies in Political Economy. 12,1983: 45-80.311 use the term “white” with some hesitation because I do not want it confused with race. I believe that the concept of what is “white” changes over time, and often includes people of other races, cultures and ethnicities, and that it is more associated with social and economic class now. However, I do not want to suggest that non-white people of professional classes do not encounter racism either.

Giddens uses Weber’s conception of power, which is in Giddens’ words “the capability of an actor to achieve his or her will, even at the expense of that of others who might resist him.” (1979: 69)33 Malcolm Waters identifies meanings, morals, and power as the pregiven resources (Waters, 1994: 47). I am positing that these are also those rules and resources that constitute the social structure of society, and am using these terms interchangeably with Giddens’ conception of rules and resources.34 This information came from a paper entitled “Two Worlds Colliding: Police Misconduct in Saskatoon” (2001) by Braun C. and Sanders S.L. This paper was provided to the National Film Board of Canada and was subsequently made into a documentary.35 The United Nations Special Rapporteur paid a visit to Canada where the issue of strained relations between the Saskatoon Police Service and Aboriginal people was brought to his attention. Unfortunately, the Rapporteur recommended cultural awareness and diversity training (2004). On a broader scale, the Rapporteur recommended an intellectual strategy, however, he did not define it. One would hope that it would involve actually doing an analysis of what racism really is. See bibliography for full source.36 There are few publications about this project. See Correctional Service Canada (1997) The Four Circles of Hollow Water and the Provincial Court of Manitoba’s 2002-2003 Annual Report of the Provincial Courts of Manitoba for more information. See bibliography for references.

145


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