Aboriginal Justice Implementation Commission
The AJI and Policing
The relationship between police services and Aboriginal people was central to the Aboriginal Justice Inquiry. The AJI itself was established in the wake of the controversy that surrounded the fatal shooting of J.J. Harper by a Winnipeg Police Department officer in 1988. Issues of racism, cultural sensitivity, and accountability all emerged during the course of the AJI hearings. As a result, the AJI made an extensive number of recommendations in the area of policing. These recommendations on policing were based upon seven core principles:
The AJI concluded that in Manitoba, Aboriginal people "believe they are being provided with inappropriate levels and quality of policing. The most frequent complaints were that police force members are not in touch with the culture and needs of the Aboriginal communities they serve. Many communities feel that service is unavailable when needed. Aboriginal people see a large gap between the community and the police, a gap which cannot be bridged as long as the community is unable to exert some control or guidance over the police who are present in it." (AJI, Volume I, page 595)
The AJI report stated that Aboriginal people experience both under- and over-policing. The issue of over-policing arose from evidence of Aboriginal people being stopped on the streets and questioned about their activities, being charged with more offences than non-Aboriginal people as a form of harassment, and being kept in custody in situations where a non-Aboriginal person may not have been kept in custody. The issue of under-policing arose from situations in which Aboriginal people came to the conclusion that police only came to their communities to make arrests. In many Aboriginal communities, police were seen as a remote and foreign authority. These concerns led to support for measures that refocussed policing away from what the AJI Commissioners viewed as a narrow approach to policing, to a broader, community-based and community-controlled approach.
Police Forces in Manitoba in 1991
In 1991, when the Aboriginal Justice Inquiry report was released, policing services in Manitoba were provided by a number of different agencies. Winnipeg, Brandon, and eight smaller communities had their own police forces. According to the AJI report:
The AJI's comments on the Provincial Police Act
The Aboriginal Justice Inquiry report raised a number of important concerns about the Provincial Police Act. The AJI report concluded that:
While the Manitoba government has jurisdictional responsibility for policing, it has only a very limited ability to affect the operating policies and practices of the various Manitoba police departments. A Manitoba Police Commission would provide the government with one tool to influence policing policies and practices. The AJI report stated that a major revision of the Provincial Police Act was vital to providing an appropriate framework for the Manitoba Police Commission and for any Aboriginal police forces or commissions.
The AJI's Comments on Public Complaints
The AJI was also critical of the structures that existed for handling public complaints about policing in Manitoba. It concluded that the Law Enforcement Review Agency (LERA) was not as effective as it needed to be because:
The Law Enforcement Review Agency's resources were not sufficient for the investigation and resolution of complaints in a timely manner.
The AJI report also judged the RCMP's Public Complaints Commission process to be lacking in both independence and transparency.
The AJI Recommendations:
The AJI policing recommendations can be roughly sorted according to the seven principles that the AJI report enunciated. In the following section the principles are stated, then followed by the appropriate AJI recommendations.
The adoption of Aboriginal community-based policing as the favoured strategy for policing in all Aboriginal areas.
The development of professional, fully trained, regional Aboriginal police forces, reporting to and serving Aboriginal communities, with a broad mandate for law enforcement and crime prevention.
A significant strengthening of employment equity programs, particularly in the case of the Winnipeg and Brandon police forces, including targets and remedies.
A significant expansion of the availability and quality of cross-cultural training and field experience, including processes for the orientation of new staff to the Aboriginal communities to which they were assigned.
Major improvements to the Provincial Police Act and Regulations, and in the role and function of the Manitoba Police Commission, to properly support the development of standards and procedures to guide all aspects of policing in Manitoba.
The development of Aboriginal police commissions to support the rapid recruitment, training and effective support of Aboriginal police forces.
The development of an effective public complaints body to hear all complaints concerning police.
Before reviewing the progress that has been made towards implementing the Aboriginal Justice Inquiry's recommendations on police, it useful to take note of a number of important contemporary trends in policing in Canada.
Costs: The cost of policing has been growing, over the past two decades, at a pace that has required governments across Canada to take measures to limit the rate of growth in police budgets. The increases in costs have been driven by a number of factors: wages, technology, and increases in public expectations.
Funding: Over the last decade, governments have slowed the growth in spending on police, often by reducing the number of police officers per capita.
Regionalization: One of the strategies that governments have adopted in an effort to reduce police budgets is regionalization. By merging smaller police departments, it is hoped that economies of scale can be achieved.
Staffing: It is expected that most police forces will experience a high rate of retirements over the next five years. This is likely to create problems in recruiting and training.
Crime: While there has been a decrease in crime rates in recent years, the crime rates have not declined to the levels they were at in the 1970s. Without significant socio-economic changes, many communities will continue to experience serious, and possibly increasing, crime rates.
Services: Budgetary pressures are leading police forces to focus more intently on the delivery of core services (crime suppression), with an increasing expectation that the community and or the private sector will take on a greater portion of what was once considered the role of the police.
Governance: Concerns over costs have led to changes in governance. Increasingly, the police are seen as another branch of the public service, and subjected to similar forms of measurement, monitoring, and comparison to other services. This process challenges the traditional independence of the police.
Family violence: In response to pressure from victims and women's groups, there has been a growing movement to criminalize family violence. This has led to an increase in both charges and prosecutions related to family violence. (The issue of family violence will be explored in detail in Chapter Nine.)
Community policing: While the idea of community policing has received a great deal of attention over the past two decades, there is no single definition as to what it constitutes. Many police forces have formally committed themselves to community police approaches, but they are often add-ons to traditional approaches. Such initiatives are vulnerable to budget cuts and are, potentially, at odds with the other policing trends that have been identified.
Implications for Aboriginal Communities and Aboriginal Policing
In large measure, the trends identified above often run counter to the spirit of the Aboriginal Justice Inquiry recommendations. The AJI favoured community policing, the creation of Aboriginal police forces, and affirmative action hiring policies in non-Aboriginal forces.
The evidence presented to the AJI favoured an approach to policing that provided a high level of traditional police services, and an innovative community policing approach that dealt with issues such as public order and dispute resolution.
At least in the short-term, the establishment of community-based Aboriginal police forces is going to incur a number of cost increases. Start-up costs--in terms of both training and acquisition--will be considerable. Even if Aboriginal forces are organized on a regional basis, the economies of scale may be limited. It may well be that this process will lead to an increase in staffing (indeed, such an increase might be required simply to provide many small and remote communities with adequate policing under current policing models). Furthermore, it is not appropriate to expect new models of policing, such as community policing, to be both innovate and inexpensive.
The expected staff turnover in traditional police forces will create more employment opportunities for Aboriginal people. However, it may well be the case that Aboriginal officers will leave Aboriginal forces to take positions with urban and national police forces when job openings occur, since the urban and national forces offer better pay and more career opportunities. This could only increase the staffing problems experienced by Aboriginal forces, which currently have higher than average turnover rates.
The pressure to standardize police governance at higher levels may also result in conflict with desires for more community control over policing.
As a concluding note, it is important to acknowledge the legitimacy of the views expressed by the Aboriginal community. Unless there is a new approach to justice and policing, the rates of criminalization of Aboriginal people are likely to remain high. Local knowledge and an understanding of local culture are crucial to improvements in policing in Aboriginal communities, but this knowledge may not be valued in a modernized and regionalized police service.
Status of the AJI Principles in 2001
Given the time constraints placed on the Aboriginal Justice Implementation Commission, it has not been possible to conduct an in-depth investigation into the current state of relations between Aboriginal people and the police in Manitoba. The AJIC did commission a survey paper by University of Manitoba criminologist Dr. Rick Linden, who also prepared background materials for the Aboriginal Justice Inquiry. Linden's paper (which was prepared with the assistance of professors Donald Clairmont and Chris Murphy) was posted on the AJIC website and circulated for discussion. It forms the basis for the AJIC's following assessment on the degree to which the AJI policing recommendations have been implemented.
1. The adoption of Aboriginal community-based policing as the favoured strategy for policing in all Aboriginal areas.
2. The development of professional, fully trained, regional Aboriginal police forces, reporting to and serving Aboriginal communities, with a broad mandate for law enforcement and crime prevention.
3. The significant strengthening of employment equity programs, particularly in the case of the Winnipeg and Brandon police forces, including targets and remedies.
4. The significant expansion of the availability and quality of cross-cultural training and field experience, including processes for the orientation of new staff to the Aboriginal communities to which they are assigned.
5. The development of major improvements to the Provincial Police Act and Regulations, and in the role and function of the Manitoba Police Commission, to properly support the development of standards and procedures to guide all aspects of policing in Manitoba.
6. The development of Aboriginal police commissions to support the rapid recruitment, training, and effective support of Aboriginal police forces.
7. The development of an effective public complaints body to hear all complaints concerning police.
The Aboriginal Justice Implementation Commission has identified three priority areas in the area of policing that must be addressed. They are:
All three points are interconnected. It will be very difficult for the Manitoba government to make real progress in the area of either community policing or Aboriginal policing until it adopts a new Provincial Police Act. Such an Act ought to establish standards, appointments, governance, discipline, policy, and philosophy. It must also ensure adequate, efficient, and effective oversight. Such an Act would create a framework for progress in the areas of community policing and Aboriginal policing.
Community policing and Aboriginal policing are interconnected in that Aboriginal communities regularly have expressed a desire for community policing, and Aboriginal forces will be most effective if they make use of community policing approaches. Furthermore, as noted above, the implementation of community policing and the expansion of Aboriginal policing initiatives are both frustrated by similar trends and developments in contemporary policing.
Accountability and Oversight
The Manitoba government's failure to address the AJI recommendations on police accountability amounts to a failure to properly monitor and assess a public service. This is a clear responsibility of the Manitoba government under section 92(14) of the Constitution. Under this section, Manitoba has the authority to establish a police force with the authority to enforce provincial laws and federal criminal laws. Manitoba also has the authority to appoint, control, and discipline members of the force.
In the paper prepared for this Implementation Commission, Linden et al. state:
As the AJI noted, the Manitoba Police Commission had broad powers that included:
The AJI concluded that the Manitoba Police Commission was severely underfunded and did little more than fulfill its quasi-judicial functions under the Act. Since the Commission was abolished in 1992, the Law Enforcement Services Branch has been responsible, on paper, for the tasks previously assigned to the Commission. However, in large measure, the branch has not taken on this role.
The AJI called on the Manitoba government to make "Major improvements to the Provincial Police Act and Regulations, and in the role and function of the Manitoba Police Commission, to properly support the development of standards and procedures to guide all aspects of policing in Manitoba." (AJI, Volume I, page 594) The AJIC fully endorses the need to take action in this area.
One of the issues that led to the creation of the AJI was the shooting death of J.J. Harper. Considerable attention was devoted, both prior to the establishment of the AJI and during its hearings, to the rapid internal review that the Winnipeg Police conducted into that death. There was a concern at the time that in matters such as this, police forces should not be investigating themselves. For this reason, the AJI proposed a method of outside review for all police forces in Manitoba. However, little has been done to address this issue. The AJIC believes, with the AJI, that it is necessary for the provincial government to establish an effective and independent oversight mechanism.
As noted earlier, community policing is a widely embraced, but often vaguely defined, approach to policing. For this reason it is not a simple matter to say whether a police force has or has not implemented a community policing approach. It is apparent that moves to implement community policing have the potential to run counter to many other contemporary policing trends, particularly policies that focus on core services, regionalization, and centralization. Aside from the various trends that run counter to the implementation of community policing, it should be noted that police training itself focusses in large measure on traditional criminal justice approaches to crime prevention that tend to delegitimize alternative approaches.
The Aboriginal Justice Implementation Commission associates community policing with the following elements, which Linden et al. identified as being necessary in a meaningful community policing program.
Community involvement in decisions about policing. The community members who receive police services should help set policing priorities and influence the policies of police departments. The police should not just have a one-way relationship with their communities. They must develop institutionalized ways of consulting with their communities and they should actually listen to what the communities say. A common failing of community policing has been a reluctance of the police to give the public meaningful input into police priorities.
Decentralized management. Communities and neighbourhoods vary widely and policies that are appropriate in one area may not work in another. In recognition of this diversity, a community policing program should assign responsibility and authority to the police at the local level. This means that officers must be trained to handle this responsibility and authority and must be held accountable for their work.
Problem orientation. Problem-oriented policing means that police are encouraged to work with the community to solve local problems rather than just focussing on enforcement. In addition to their traditional task of reacting to calls for service, the police work with the community to identify and to resolve the community problems that underlie the service calls. This proactive, preventive approach has great potential in some Aboriginal communities where social and economic problems lead to high levels of calls for service. (Linden et al., page 30)
Community policing approaches mesh with the approaches that Aboriginal communities wish to see taken on justice issues, they fit with Aboriginal concerns over self-government, they adapt to community variety, and they bridge the gaps of culture and class that currently separate police and Aboriginal people. For these reasons, the AJIC believes it is important that governments and police services continue to work together towards the implementation of these policies.
However, the AJIC also recognizes the numerous barriers and countervailing forces that police services face when they attempt to implement such a policy.
The lack of progress that has been made in Manitoba in the development of Aboriginal police forces must be viewed in the context of national policing trends in this area. In 1992 the Government of Canada approved a First Nations Policing Policy (FNPP). This policy transferred Aboriginal policing from Indian Affairs to the Solicitor General. The government committed itself to negotiating agreements with First Nations and provincial governments under which the federal government and the province would pay for the costs of on-reserve policing, although First Nations governments had the option of topping up funding to provide additional services. The intent was that the police services that were to be developed under this agreement would be:
The negotiations between the federal government, the provincial government, and the First Nation were to lead to community tripartite agreements. The agreements promoted two police service delivery models:
In addition, the negotiations could lead to a Developmental Policing Arrangement, which was designed to smooth the transition from one type of policing arrangement to another. Provincial governments had an incentive to participate in these programs since under the new agreement their share in the funding of the policing of Aboriginal communities would drop from 70 per cent to 52 per cent. In practise, this has not led to a decline in provincial spending on the policing of these communities, since the costs of Aboriginal forces under either model have been higher than under the previous policing model.
There has been considerable progress towards implementing this policy outside Manitoba. Over 112 tripartite agreements had been signed by 1998, and almost 66 percent of eligible First Nations persons were being policed under the agreement. The policy had led to the creation of over 50 self-administered First Nations police services. Most of these forces have been created in Ontario and Quebec. In Saskatchewan there is a province-wide agreement under the FNPP.
In Manitoba DOPS remains the only First Nations Administered Police Service. Since DOPS predates the FNPP, it is not appropriate to view its creation or existence as the result of the FNPP.
Three First Nations--Chemawawin First Nation, Swan Lake First Nation, and Waywayseecappo First Nation--operate under the terms of the tripartite RCMP-FNCPS agreement and are policed by Aboriginal members of the RCMP. Furthermore, MKO is involved in negotiations with the federal and provincial government that could lead to the establishment of a regional Aboriginal force.
The fact that Manitoba has made slow progress in establishing Aboriginal police forces at a time when significant progress has been made nationally appears to be due to a number of factors. Two of the most significant are costs and issues of service delivery. While a number of provincial governments entered into First Nations policing agreements with an expectation that their costs would decline, or at least remain the same, the experience has been that Aboriginal policing is more expensive than the previous police services. Secondly, there have been a number of concerns with the level of service provided by Aboriginal services, both in Manitoba and elsewhere in Canada.
Several assessments of First Nation police services have been conducted over the past five years. They have concluded that while the policy was being implemented in terms of its overall goals (Aboriginal officers, self-administration, and the number of agreements reached), there were concerns about the conventional nature of the policing strategies pursued by these forces, their lack of resources compared to the crime levels they must address, and high public expectations.
For example, there is an expectation that Aboriginal forces provide a high quality of traditional, autonomous law enforcement. Simultaneously, there is an expectation that good policing in an Aboriginal context will go beyond crime suppression and do so in a manner that is distinctive and under community control. Aboriginal police forces are being asked to blaze a new trail in policing with resources that may not be adequate. The generic trends in policing, noted earlier in this chapter, all evolved in response to shortfalls in resources. However, many of these trends (regionalization and standardization) run counter to the thrust of Aboriginal policing. Recently, two Alberta First Nations police services closed, temporarily, while other Alberta forces are reported to be facing difficulties.
One apparent solution to the challenge of creating economically viable and culturally sensitive Aboriginal police forces is the development of regional Aboriginal police forces. This approach was endorsed by the AJI. Such forces would also have to enter into collaboration agreements with non-Aboriginal police forces. This approach has governed the growth of Aboriginal police forces elsewhere in Canada, with the Alberta government currently giving consideration to the creation of a province-wide Aboriginal force.
Aboriginal communities must play the lead role in developing these services. The Commission is in favour of an approach that provides communities with a reasonable degree of choice in determining how they are to be policed. The options currently available to Aboriginal people for policing (regional Aboriginal forces, local Aboriginal forces, continuing with the current style of policing with the RCMP, and working with the RCMP to develop a more satisfactory form of policing) should be sufficiently flexible to allow for the development of community-appropriate policing arrangements.
The process of establishing such a force should involve each Aboriginal community in a needs assessment, a thorough review of options, and ongoing monitoring and evaluation. (These issues are discussed in detail in Linden et al.) The AJIC encourages the Manitoba government to work with Aboriginal communities that express an interest in establishing Aboriginal forces, and to work with the RCMP to develop improved approaches to policing Aboriginal communities.
Another approach that might be worth considering is the creation of a Prairie Region Aboriginal Police Force, or a Prairie Provincial Police Force with an Aboriginal component. Given the pressures facing police services, noted above, prairie forces may be an answer to the need for increased efficiency and effectiveness, while at the same time bringing greater local control.
The issues outlined in this chapter are complex. While significant progress has been made in a number of areas of policing, the issues of accountability and oversight, community policing, and Aboriginal policing, are far from resolved. The issues involve several layers of government, and the public, as well as fundamental questions of funding, policy, and governance. While the Aboriginal Justice Implementation Commission believes that progress must be made in all three areas, the Commission believes that what is required to break the current impasse is a provincial task force on policing that is mandated to make recommendations on a new Police Act for the province of Manitoba.
A systematic review of all policing issues in Manitoba, culminating in the adoption of a new Act, would ensure that all the issues and trends identified in this paper are fully examined and that appropriate strategies are developed and adopted. Such a review would undoubtedly raise and examine other policing issues that do not directly touch on the relationship between Aboriginal people and the police. Conventional law-enforcement approaches, which are being reinforced by numerous trends, must be held up to close scrutiny. This process must ensure that the proposed beneficiaries of changes in police policy have effective participation in the review process. If Manitoba is committed to community policing--and, therefore, in Aboriginal communities, to Aboriginal policing--then it may the case that a new model of policing is required for the entire province. The AJIC believes that a more transparent and independent governance system, coupled with a community policing approach that requires use of peacekeeping or restorative, community-based, policing philosophies and strategies (and that is properly funded), will create a police force that is more credible, legitimate, and effective.
It is apparent that the provision of police services in Manitoba is quite complex, involving both municipal and provincial, governments in providing services off of First Nations, and involving First Nations, provincial, and federal governments in providing police services on First Nations. In addition, the RCMP's role as the provincial police force, and federal/provincial arrangements to share the cost of the RCMP, further complicate matters.
Given the nature of the issue, the limitations in the Commission's mandate with respect to time, and the need to focus on those issues solely within the responsibility and accountability of the provincial government, the Commission has decided not to make detailed recommendations in this area. Recommendations in this area will require extensive consultation with all interested parties. The Commission will recommend parallel, short-term, and medium-term approaches. Before setting out its recommended approaches, the Commission wishes to review the conclusions it has reached in its investigations into policing issues and the Aboriginal Justice Inquiry (AJI) recommendations dealing with police.
Medium-Term (1 - 3 years)
The Aboriginal Justice Implementation Commission recommends that:
Ongoing work to improve the provision of police services to Aboriginal people should not stop while this review is being conducted.
The Aboriginal Justice Implementation Commission recommends that: