4. Race and Crime
4.2 Colonialism and Criminal Justice
Dr. Michael Ma
As a term of reference, “colonialism” often refers to how European expansionism moved throughout the world beginning in the 15th century. The “new world” of the Americas was “discovered” by European explorers who understood their colonial expansion as a way to claim territory and riches and tame “savages” through the introduction of European logic, science, rule of law, government, trade and religion (Said, 1978). This “doctrine of discovery” is based on the legal concept terra nullius—meaning that the “newly discovered” territories belonged to nobody and could therefore be claimed by occupation (see Why Pope Francis faces calls to revoke the Doctrine of Discovery).
The European colonisation of the “new worlds” took different forms. In Canada, colonisation and settlement followed a process of agreements or treaties that were allegedly settled between Indigenous nations and colonial forces of Britain and France. However, these agreements and treaties were also wilfully ignored by the colonial powers. The emergence of the Canadian confederation (1867) fundamentally altered the relationship between Indigenous peoples and the newly formed Canadian government (Coyle & Borrows, 2017; Kirkby, 2019).
Coinciding with European expansionism was the rise of nationhood—the idea that the world is divided into distinct nations made up of peoples with inherent ethnic, cultural, and even biological characteristics (Calhoun, 1997). During colonial expansion, however, European notions of difference began to focus on categorising human groups based on skin pigmentation and facial/bodily features associated with emerging scientific notions of human evolutionary development. Scientific racism proved to be a useful tool for colonialism. Studies like Blumenbach’s seemed to provide an objective confirmation of a hierarchy of racial order and helped generate a myth of Western European racial superiority that allowed for the colonisation of the Americas (Painter, 2010). Our contemporary everyday use of the term “Caucasian” is an illustration of the long-lasting and ongoing power of this discredited scholarship. It was the scholar W.E.B. du Bois who pointed out that the 19th and 20th centuries were organised by a “color line”, whereby society is organised by a logic of “the darker to the lighter races of men in Asia and Africa, in America and the islands of the sea” (Du Bois, 1996, p. 7).
Colonisation is the implementation of a political, legal, and economic system that is controlled through a foreign sovereign authority. Therefore, under the British Empire, a common flag represented all colonies that were part of the nation. The colonising force views the relationship between the “metropole” (or “motherland”) and its colonies as paternalistic, whereby the metropolitan centre of the Empire led a civilising mission that extended throughout the colonies. Part of this mission involved the maintenance of order and the assertion of authority over the new territories via criminal justice systems based on European models.
English criminal law, which applied to the early colonies, became the basis for the first Canadian criminal code after the confederation of Canada in 1867. In 1873, Sir John A. MacDonald deployed the Royal Canadian Mounted Police (RCMP)—originally named the “Royal Northwest Mounted Police”—which was modelled on existing British police forces. The British criminal justice system developed as part of a tradition of governance based on Western European notions of property, ontology, and religion. The British tradition of maintaining order was radically different from Indigenous practices, and its practices were often deployed against the interests of the Indigenous population.
Canadian colonialism was based on resource extraction and trade. Earlier treaty agreements between Britain/France and Indigenous peoples put limits on the colonial appetites for expanding the lucrative fur trade and exploiting the land and natural resources. Eventually, treaties stripped Indigenous peoples of title to land and sovereignty and restricted their movement and freedom on the land (Asch, 2014; Borrows, 1997). The RCMP was an important party to this history of dispossession because they were used to enforce the Indian Act (1876) that controlled and disciplined Indigenous peoples without their consent (see Historical events in RCMP-Indigenous relations for more information on the role of RCMP). Indian agents working in conjunction with the RCMP enforced a repressive pass system that denied entry and exit from a reserve without the permission of the state agent. As a system of border control, which led to the criminalisation of Indigenous life, the reserve became a central part of Canada’s system of colonial control.
The RCMP played a key institutional role in ensuring the cooperation and subjugation of Indigenous peoples. For example, to protect and expand settler-colonial interests, the RCMP helped remove the legitimate Métis government established in Manitoba in 1870 through military engagement. It fought Indigenous peoples to help expand the Canadian Pacific Railway that allowed settler-corporate expansion over unceded Indigenous territory. It was instrumental in relocating Indigenous peoples who were dispossessed of their lands and territory. They enforced the illegal pass system, suppressed cultural practices (e.g., the sun dance and potlatch, see About Potlatch 67–67) and helped distribute lands to settlers that were illegally acquired and in breach of Numbered Treaties. As truant officers, the RCMP captured and returned children who ran away from residential schools.
the practice of controlling a territory, or another nation, and populating it with settlers in an exploitative manner. In this regard, colonization is also closely correlated with the practice of “settler-colonialism.”
an edict given by the Catholic church to Western European nations to discover, colonize, and spread the Christian message. It gave countries like England, France, Spain, and Portugal the god given right to conquer and colonize new lands that were uninhabited by Christians.
the concept of “land belonging to nobody,” a territory without a master, or uninhabited land. It was a legal concept used to justify settlements in the new world.
the idea that the world is divided into distinct territorial entities, or nations, comprised of peoples with inherent ethnic, cultural, and even biological characteristics. Such nations are almost always territorially-based where a specific land or geography is claimed. The imagined community and territory are often based on an ancient or long established history and identity allowing the group to claim a primordial right to sovereignty and territorial occupation.
a categorization of a group of people who share a national, cultural, religious, or language commonality. Such categorizations could be either an external labelling or one that is self-defined by the group. A concept of ethnicity can also overlap with a concept of race because ethnic categorization may also use skin colour, hair texture, and other physical characteristics to describe membership in an imagined ethnic community.
the philosophical examination of being. As an invention of Western thought, the concept is often referred to as a “theory of being” and paired with the term “epistemology” that refers to the sister concept of a “theory of knowledge” or how something is known. In this regard, ontology refers to the study of the “thing in itself” and not how it may be represented or interpreted.
the notion of authority, supremacy, and control over a territory and/or a population. It is derived from the concept of the “sovereign” who is a supreme ruler or monarch. Independence, autonomy, self-determination, and freedom from external control are implied by the use of the term.
Indigenous peoples in Canada were originally referred to as “Indians” by Western explorers because they were looking for a western passage to the East Indies. When Christopher Columbus arrived in the Caribbean in 1492, he incorrectly thought he had discovered a new passage to the imagined territory of the Indies (i.e., China, Japan, and India). The inhabitants were hence thought to be “Indians.”
a form of colonization where newcomers resettle a territory that is already inhabited by Indigenous peoples. The resettlement erases and reterritorializes the land in such a way that the land becomes both foreign and inaccessible to the indigenous first inhabitants.
the historical fact that many Indigenous peoples did not surrender their lands to the Crown, nor to settler-colonial forces in Canada. Much of the territories that make up the nation of Canada resides on land that was never surrendered in a process of treaty-making. For example, it is estimated that much of the province of British Columbia resides on unceded territory—as much as 95% of the province resides on unceded First Nations land—that was never treatied or legally signed away to the Crown.
An indigenous and traditional dance that celebrates the earth and the sun. The dance ceremony is performed with songs and dances that have been passed from one generation to another. Sun dance was prohibited by the Indian Act of 1895 in Canada.