Time to fix the sys­tem

Cana­dian jus­tice needs work

Ottawa Sun - - NEWS - MICHAEL SPRATT Spratt is an Ot­tawa defence lawyer

It is a rare oc­ca­sion when a trial sparks a na­tional con­ver­sa­tion about sys­temic prob­lems with the jus­tice sys­tem. But that is ex­actly what hap­pened when Ger­ald Stan­ley was found not guilty by an all-white jury in the shoot­ing death of Colten Boushie.

Stan­ley is white. Boushie was an Indige­nous youth.

The trial was rel­a­tively straight­for­ward. It was al­most ir­rel­e­vant what Boushie did or did not do that night. The defence did not ar­gue self-defence or defence of prop­erty. Stan­ley said he was not-guilty be­cause his gun went off ac­ci­dently. An ex­pert firearms wit­ness dis­agreed. But even if the shoot­ing was ac­ci­den­tal, Stan­ley could have been guilty of man­slaugh­ter. One fact was not con­tra­dicted: Stan­ley shot Boushie in the back of the head at close range.

But the jury ac­quit­ted. We will never know why; it is a crime for a ju­ror to talk about what went down in the de­lib­er­a­tion room. Maybe race had noth­ing to do with it.

But in the jus­tice sys­tem per­cep­tion can be just as im­por­tant as re­al­ity and in this case the per­cep­tion of racial bias can’t be ig­nored.

Let’s start with how the RCMP treated Colten Boushie’s mother. The night of the killing the RCMP bluntly told Boushie’s mom that her son was “de­ceased” and then they barged into her home and searched each room. Then they asked the griev­ing mother if she had been drink­ing.

And then there was talk in the com­mu­nity of prob­lems of “ru­ral crime” — a no­to­ri­ous dog whis­tle term mean­ing Indige­nous peo­ple. It was from that com­mu­nity that Stan­ley’s jury was se­lected.

Ques­tions of racial bias were raised again dur­ing jury se­lec­tion. In every jury trial, both the Crown pros­e­cu­tor and the defence can au­to­mat­i­cally re­ject a set num­ber of po­ten­tial jurors through what are known as peremp­tory chal­lenges.

Stan­ley’s lawyers used them to re­ject sev­eral Indige­nous jurors.

But the de­lib­er­ate and se­lec­tive ex­clu­sion of jurors is not the only rea­son the Stan­ley jury — like so many Cana­dian ju­ries — was all white.

Racial bias is baked into the jury se­lec­tion process. Out-of-date and in­ac­cu­rate cen­sus in­for­ma­tion means that many po­ten­tial Indige­nous jurors’ names are com­pletely left of the jury rolls.

And then there are the prac­ti­cal bar­ri­ers to jury duty. Some prov­inces dis­qual­ify peo­ple from jury duty for even the most mi­nor of crim­i­nal records. When Indige­nous peo­ple are stopped, charged and ar­rested by the po­lice more of­ten than nonIndige­nous peo­ple, it means that they are more likely to be dis­qual­i­fied for a dated and mi­nor crim­i­nal of­fence.

And let’s not for­get the fact that most of the time jurors don’t get paid at all. That makes it hard for a sin­gle par­ent or those with pre­car­i­ous work to af­ford to do their “civil duty.“

But this is no sur­prise, at least to any­one who has both­ered to read for­mer Supreme Court jus­tice Frank Ia­cobucci’s 2013 re­port into First Na­tions rep­re­sen­ta­tion on On­tario ju­ries.

There is no ques­tion the jus­tice sys­tem treats Indige­nous peo­ple dif­fer­ently than white peo­ple. There is a dis­pro­por­tion­ately high num­ber of Indige­nous Cana­di­ans in our jails; they serve longer sen­tences, are held in higher se­cu­rity and are less likely to be granted pa­role than white in­mates.

This is not be­cause Indige­nous Cana­di­ans com­mit more crime than other Cana­di­ans; it’s be­cause of deep­rooted prob­lems in the jus­tice sys­tem.

Prime Min­is­ter Justin Trudeau re­sponded to the Stan­ley ver­dict by say­ing that he could not “imag­ine the grief and sorrow the Boushie fam­ily was feel­ing.” Min­is­ter of Jus­tice JodyWil­son Ray­bould re­sponded that “as a coun­try we must do bet­ter.”

I agree. But un­like you or I, Trudeau and Wil­son-Ray­bould ac­tu­ally have the power to take mean­ing­ful ac­tion to fix this mess. That’s what they promised to do dur­ing the 2015 elec­tion cam­paign.

Trans­for­ma­tive crim­i­nal jus­tice leg­is­la­tion was promised last win­ter, then again last spring, and then again last fall. We are still wait­ing.

Trudeau and Wil­son-Ray­bould can start to fix this mess — they just need to tweet less and leg­is­late more.

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