Indigenous Peoples & Wrongful Convictions: Preventing Overrepresentation in the CJS - Chase Baxter
Indigenous peoples are at a higher risk of wrongful convictions since there is an overrepresentation of Indigenous people in the criminal justice system. (1) This higher risk is not exaggerated in any sense, as Innocence at Stake displayed a statistic demonstrating that 25% of cases involving major crimes being investigated by Innocence Canada involved Indigenous persons. (2) This number can be expected to increase, as federal incarceration rates for Indigenous persons have been increasing despite an overall decline in the inmate population. (3)
There are two factors that play into this overrepresentation that occur before the laying of a charge by the police. The first is over-policing and can be described as “… the fact that Indigenous people are more likely to be investigated by the police for crimes and therefore, more likely to be imprisoned as a result.” (4)
The second factor has a theoretical basis in the ‘colonial model’. When the model pertains to the law, Indigenous persons are at an increased risk of incarceration due to multiple risk factors stemming from “residential school systems, the colonization of traditional values and culture, and institutional racism.” (5)
These two factors intersect with tunnel vision and results in Indigenous peoples being increasingly targeted and are at a higher chance of being wrongfully convicted and subsequently incarcerated.
Tunnel vision is removing all other theories, plausible explanations and exculpatory information that could eliminate an individual during an investigation. (6) There are several factors behind the occurrence of tunnel vision, but the ultimate effect is that once an individual is targeted, cognitive processes operate unconsciously to reinforce initial suspicions about a suspect. (7)
The case of Donald Marshall Jr. is a primary (and well-known) example of an Indigenous man being targeted via tunnel vision backed by over-policing and the colonial model and wrongfully convicted in Canada. This case concerned the murder of Sandy Seale, which was overseen by John MacIntyre of the Sydney, Nova Scotia police force. MacIntyre conducted the entire investigation on the belief that Marshall Jr. was the one who murdered Seale after they got into an argument. (8) There were multiple miscarriages of justice that occurred as a result of over-policing and the colonial model.
When looking at over-policing in the context of this case, MacIntyre took steps to ensure that Marshall Jr. was the man police were looking for. The first being telling his superiors that Marshall Jr. was the perpetrator of the crime before interviewing any witnesses or taking a formal statement from Marshall Jr. himself. (9) The second was MacIntyre interfering with, and intimidating, two apparent eyewitnesses to change their stories to MacIntyre’s version of events. (10) One would wonder why MacIntyre went to such great lengths to do something he must have known was fundamentally wrong. As mentioned above, tunnel vision operates on unconscious processes and there is a possibility that MacIntyre was so confident in his theory that this particular Indigenous person committed the crime that he began to change the actual reality of the situation. There is also a possibility that MacIntyre’s targeting of Marshall Jr. was through the operation of the colonial model.
When we examine the colonial model in the context of this case, the authors of The Royal Commission reviewing the case believe that a shared sense in the Sydney community that Indians did not have as much “worth” as Whites played a role in MacIntyre targeting Marshall Jr. (11) This racism was still in place ten years after Marshall Jr.’s conviction, when attempts at appealing the conviction were being made. (12) Since the effects of colonialism have been so pervasive and damaging across Canada, it is not surprising that the Sydney community and the RCMP may have held these views. It is possible that the impact of the colonial model and the related racism had an unconscious effect on the community and could be a reason why tunnel vision occurred in this case. As depressing as these implications seem, there are two ways in which over-policing and the colonial model can be combated in preventing tunnel vision and the wrongful conviction of Indigenous peoples.
The first is an often-suggested idea to implement pre-screening of charges by prosecutors. This involves exploring all possible leads at early stages of an investigation and letting the Crown see the file before laying a charge. (13) The push for pre-screening is also echoed in the Innocence at Stake report recommendations (2011 and 2018) where jurisdictions that do not have a policy to pre-screen charges should have prosecutors review said charges with an eye towards critical assessment, discussion and contrarian thinking. Part of this critical assessment could include an in-depth consideration of tunnel vision and the contributing factors of over-policing and the colonial model that cause it when the accused is Indigenous. (14) While there are indeed many additional factors that need to be considered during pre-screening, proactive rather than retroactive attention (such as sections 493.2 and 718.2(e) of the Criminal Code focusing on interim release and sentencing, respectively) should be paid to the disadvantages that Indigenous people face in the criminal justice system. (15)
Another way to prevent Indigenous peoples from being wrongfully convicted via tunnel vision is through the major case management model (MCM) which has seen success in reducing instances of tunnel vision. (16) Integrating the factors of over-policing and the colonial model may increase instances of reducing tunnel vision since practitioners will have additional tools within the MCM model. Although there has been success, the MCM model is not standardised across Canada and only takes place in individual police organizations, with multi-agency MCM only occurring when investigators agree. (17) This is concerning, since tunnel vision has been continually discussed in the literature as a contributing cause of wrongful convictions. As well, since Indigenous peoples are already sitting at a disadvantage in Canadian society by being an over incarcerated population within the correctional system, it might be beneficial to automatically implement MCM principles in cases involving Indigenous persons.
1. Public Prosecution Service of Canada, Innocence at Stake: The Need for Continued Vigilance to Prevent Wrongful Convictions in Canada, Report of the Federal Federal / Provincial / Territorial Heads of Prosecutions Subcommittee on the Prevention of Wrongful Convictions – 2018 (Ottawa: Public Prosecution Service of Canada, September 2018) [Innocence at Stake]. Available online at: https://www.ppsc-sppc.gc.ca/eng/pub/is-tp/toc-tdm.html
3. Ottawa, Office of the Correctional Investigator, “Indigenous People in Federal Custody Surpasses 30% Correctional Investigator Issues Statement and Challenge” (21 January 2020), online: Office of the Correctional Investigator <oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx> [perma.cc/8XZD-FSFM].
4. Malini Vijaykumar, “A Crisis of Conscience: Miscarriages of Justice and Indigenous Defendants in Canada” (2018) 51:1 UBC L Rev 161 at 165.
5. Charles Reasons et al., “Race and Criminal Justice in Canada” (2016) 11:2 International Journal of Criminal Justice Sciences 75 at 91.
6. Kathryn M. Campbell, Miscarriages of Justice in Canada: Causes, Responses, Remedies (Toronto: University of Toronto Press, 2018) at 52.
8. Supra note 4 at 172.
9. Supra note 4 at 172-173.
10. Canada, Royal Commission on the Donald Marshall, Jr., Prosecution: Digest of Findings and Recommendations (Halifax: Province of Nova Scotia, 1989) at 3. Available at: novascotia.ca/just/marshall_inquiry/
12. Supra note 4 at 173.
13. Supra note 6 at 53.
14. Supra note 1.
15. Criminal Code, RSC 1985, c C-46.
16. Supra note 1.
17. Missing Women Commission of Inquiry: Issues Related to the Structure and Organization of Policing Arising from the Missing Women Investigations, by Dr. Melinda Buckley, (British Columbia, April 2012). Available at: missingwomen.library.uvic.ca/index.html%3Fp=24.html