‘THE DECK IS STACKED’
TWO TRIALS RAISE CONCERNS ABOUT HOW INDIGENOUS PEOPLE ARE TREATED IN THE COURTS AND MEDIA
The justice system is “stacked against us.” The media is “victim blaming.”
Two high-profile murder trials playing out simultaneously in different provinces have prompted accusations of racial bias — both within Canada’s justice system, and the news outlets that cover the courts.
The deaths of Colten Boushie and Tina Fontaine were unique tragedies. He was the family hope, a dogged worker who dreamed of becoming a firefighter before he was shot on a farm in rural Saskatchewan. She was a lost girl, in free-fall after the violent death of her father, reported missing from care in downtown Winnipeg until her body was found in the Red River.
But as the cases against both Boushie’s and Fontaine’s killers unfold, critics express a shared anger: that the complexities of the Indigenous experience are not reflected in these trials, and that without a deeper understanding of the victims and their communities justice cannot be served.
At the start of the trial of Gerald Stanley, the Saskatchewan farmer charged with second-degree murder in the shooting death of Boushie, a 22-year-old Cree man, Boushie’s family expressed frustration when defence lawyers exercised their right to use a peremptory challenge — the ability to dismiss a potential juror without explanation — on all individuals who appeared to be Indigenous.
“The deck is stacked against us,” Alvin Baptiste, Boushie’s uncle, told reporters at the time.
In an interview with the National Post this week, Chris Murphy, a lawyer for the Boushie family, cited a moment during the trial that illustrates why diversity in juries matters.
Eric Meechance, a friend of Boushie, was asked to identify a firearm in a crime scene photo. But the photo that was presented to him also showed Boushie’s dead body.
Meechance became emotional and he would not look at the photo. Doug Cuthand, a Cree columnist for the Saskatoon StarPhoenix, later wrote that it was “cultural taboo” to do so.
“If you don’t know Indigenous traditions and customs, you might think they’re being obstructionist or trying to evade looking at the picture,” Murphy said. “And so having an Indigenous person on the jury would help explain the traditions and cultures so the remainder of the jury can understand why they reacted that way.”
Senator Murray Sinclair, who chaired the Truth and Reconciliation Commission, echoed that sentiment this week, tweeting: “Without Indigenous people on the jury, how will they understand?”
Murphy said the case should serve as a “national wake up call” to the systemic exclusion of Indigenous people from the justice system. Greater efforts must be made, he said, to make it easier for Indigenous people who live in remote regions to get to court when they’re summoned for jury duty.
He also suggested that the use of peremptory challenges be removed altogether because “to challenge a person who is Indigenous because you think that he’s more likely to convict your white client does not serve the interests of justice.”
The suggestion is not new. In 1991, Sinclair led an inquiry into Aboriginal justice in Manitoba. The final report, which called the underrepresentation of Aboriginal people on juries “disturbing,” stated that the use of peremptory challenges “must be brought to a halt.”
“We question the logic and fairness of allowing the practice to continue when its application can prevent Aboriginal people from sitting on a jury solely because they are Aboriginal.”
In a statement, federal Justice Minister Jody WilsonRaybould acknowledged that “the underrepresentation of Indigenous jurors is an issue in several provinces and it is a reality I find concerning.”
However, peremptory challenges have always been part of the common law and the Canadian justice system, so legislative reforms “would need to be carefully studied and considered.”
In a follow-up email, her communications director said Ontario Superior Court Justice Giovanna Toscano was granted a study leave last year to examine the issue.
“In conjunction with the University of Ottawa’s Faculty of Common Law and the National Judicial Institute, she is examining whether our juries presently reflect a cross-section of Canadian society and observe Charter values, or whether juries under-represent, over-represent or marginalize certain socio-cultural, racial or economic groups.”
The results of the study could be used to develop jury trial training for superior court judges.
“I’m not holding my breath,” said David Milward, a law professor at the University of Manitoba.
Meanwhile, at the highprofile trial of Raymond Cormier, the Manitoba man charged with second-degree murder in the death of Fontaine, a 15-year-old Anishinaabe girl, concerns have been raised about biased media coverage.
Fontaine’s body was pulled from Winnipeg’s Red River in 2014. She had been living in a hotel while in government care at the time of her death.
At one point during the trial, a toxicologist, under questioning by Cormier’s defence lawyer, testified that drugs and alcohol had been found in Fontaine’s system. The way this testimony was reported by some media outlets infuriated Aboriginal groups, who accused them of “victim blaming.”
“Victim blaming and focusing on narratives that perpetuate damaging stereotypes and myths about missing and murdered Indigenous women and girls serve no purpose but to harm victims, survivors, and their families as they try to begin their healing process,” the Native Women’s Association of Canada said in a statement. “Tina Fontaine is not on trial.”
Arlen Dumas, grand chief of the Assembly of Manitoba Chiefs, wrote a letter accusing the media of sensationalism.
“I can already hear the water cooler talk: ‘She was drunk, so she had it coming. She was high and with a stranger what did she expect? Maybe if she wasn’t drunk and high, she’d still be alive.’”
Milward, who specializes in Aboriginal justice issues, said he understands why families might perceive the media coverage as victim blaming. That said, sometimes it’s important to get a full portrait of a victim — “not to blame, but to show how they are more vulnerable to running afoul of men who do certain things to women.”
Lisa Taylor, a journalism professor at Ryerson University, said journalists cannot sanitize the truth and “start shaping the narrative to what good people think ought to be discussed in court as opposed to letting people know what is discussed in court.”
That said, journalists could be more sensitive and exercise “a bit of humanity” when crafting headlines.
In an effort to get journalists to avoid writing “shallow” and “formulaic” stories about Indigenous people, the Native American Journalists Association last year issued a new tool for newsrooms in the form of a Bingo card.
Each tile represents what the association described as hackneyed themes in Indigenous coverage — such as “alcohol,” “poverty,” “addiction” and “violence.”
In its final report in 2015, the Truth and Reconciliation Commission called on journalism schools to provide more education on Aboriginal history, residential schools, treaties and rights.
Taylor said schools, including Ryerson, have responded by introducing lectures in their reporting courses that cover Indigenous people and issues. She said she has observed newsrooms putting out more enterprising stories that go beyond stereotypes and caricatures — stories that focus on “change makers” as opposed to “hapless victims.”
They’ve also adopted more inclusive hiring practices and are now engaging in partnerships with Indigenous communities to tell their stories.
“Non-Indigenous journalists often understand very little of the communities they’re seeking to cover,” she said.
I CAN ALREADY HEAR THE WATER COOLER TALK: ‘SHE WAS DRUNK, SO SHE HAD IT COMING.’