SUE THE POLICE: THE ROLE OF CIVIL LIABILITY IN ADDRESSING INDIGENOUS HARMS IN CUSTODY

Abstract

The persistent crisis of Indigenous deaths and harms in custody can be understood as a crisis of accountability – the predictable result of ongoing systemic failures to hold police and prison officials responsible for the harms suffered by Indigenous people in their care. This article considers the role of civil liability as a mechanism of such accountability, drawing on a range of case examples involving both individual and class actions. It outlines potential avenues for suing police for harms suffered in custody, as well as the legal, financial, and logistical hurdles faced by would-be plaintiffs. It also analyses how vicarious liability can either undermine or support the accountability impacts of liability. Reflecting on lessons from other jurisdictions, it argues that while civil actions may bring reparations for individuals and their families, targeted reforms are necessary for civil liability to function as a mechanism of accountability and thereby drive meaningful, systemic change.