When speaking on the phone with friends who live on-reserve, it’s often amusing to begin the conversation with the customary caution that the line is tapped. In recent days though – having learned that Mohawk activist Shawn Brant, along with his friends and family members, had had their conversations recorded by the OPP without a court order – this amusement has turned to dread. And the dismal reality that is the relationship between First Nations people and the justice system has been illuminated as well.

In this particular case, the OPP and Commissioner Julian Fantino, sought to end a blockade of Highway 401 during last summer’s “National Day of Action” in late-night telephone negotiations with Mr. Brant. Fair enough. But it’s unclear why a wiretap was necessary. It certainly didn’t help bring the action to a close as Mr. Brant endured into the morning despite Mr. Fantino’s threats of “grave consequences.”

For First Nations people, injustice is nothing new. This example is only the latest in a disastrous history whereby the Canadian legal apparatus has been used or abused to persecute First Nation, Métis and Inuit peoples. For that reason, First Nations people represent a majority in our prisons (despite being a minority of the population). They are also more likely to be charged with a crime, sentenced for longer periods, and denied parole more often. Indigenous women are 28 times more likely to be sent to prison than non-indigenous women. Yet, when crimes are committed against them, rarely are they investigated or prosecuted. How else can we explain the hundreds of unsolved cases of missing or murdered First Nations women?

If there is such a thing as a two-tiered justice system, First Nations, Métis and Inuit peoples are on the bottom tier. It was only a few weeks ago that the Chief and Council of Kitchenuhmaykoosib Inninuwug First Nation were released from prison. They had been sentenced to six-month terms for refusing to allow mining on their territory, but an Ontario Court of Appeal reduced their six-month sentences to time served, saying imprisoning the protesters only magnified the “estrangement of aboriginal peoples from the Canadian justice system.” On the other side of the country, a commission of inquiry is investigating the death of Frank Paul. He was a heavily intoxicated aboriginal man left by Vancouver police in an alley where he froze to death in the middle of winter. Perhaps the inquiry should recall the findings of the Aboriginal Justice Inquiry of Manitoba of 1991, which determined that the legal system has institutionalized the oppression of First Nations, Métis and Inuit peoples.

Of course, Canadian governments pay little attention to findings such as these. The Hawthorne Report in the late 1960s indicated that the past 100 years of Indian policies had done more harm than good, yet the government maintained course. The Royal Commission on Aboriginal Peoples in the mid-1990s described challenges within the justice system and prescribed apt solutions; the government completely ignored them.

The Ipperwash Inquiry recommendations, released last spring, noted that policing confrontations with First Nations peoples must be handled with fairness and understanding, yet, the Commissioner of the OPP threatens Shawn Brant.

Canadians, First Nations or otherwise, should be concerned. The emergency wiretap power has recently been found by judges in British Columbia and Ontario to violate the Charter of Rights. Such “emergency” phone taps, which don’t need court approval, are only permissible in “in circumstances where there is a likelihood that an unlawful act will be committed and a likelihood that an unlawful act will cause serious harm to a person or to property,” according the Ontario judge. In the Brant case, where such an emergency wiretap was used, not a single person was hurt, nor was there serious potential. There are also reports the OPP posed as the media to get close to Mr. Brant, a tactic that undermines freedom of the press and only serves to enhance suspicion and distrust.

Most readers will likely react to the police antics with apathy. Natives are terrorists anyway and probably deserved it, as public sentiment generally goes. But at the least, this myth of special treatment for First Nations people under the law should be dispelled. For them, in the Canadian legal system, justice is relative. Indeed, the next time I call friends on-reserve, I’ll be wondering who else is listening.

The Globe and Mail (archived)