Changes to justice system cannot be rushed

Make improvements after careful consideration, James Korpan says.

The sole function of a criminal trial is to determine whether the Crown has proven guilt beyond a reasonable doubt. Until then, the accused is presumed innocent. These principles are fundamental to our Canadian identity and our liberty. It distinguishes Canada from countries where the state can drag people from their homes never to be seen again. Our justice system protects us. Nobody is locked away without a fair trial. This is something we must protect.

You wouldn’t know Gerald Stanley was presumed innocent from the comments surrounding his trial. If some had their way he would have been summarily locked away on the basis that an Aboriginal man lost his life as the result of a white man’s actions. Never mind the lack of Crown evidence against Stanley or his own uncontroverted testimony. To many, anything short of a conviction is racist. One can understand this coming from Colten Boushie’s family. Theirs is a human response from a family of a young man who met an untimely death. More troubling are the comments from our prime minister and federal justice minister suggesting the verdict is unjust. These comments are dangerous.

Let’s be realistic about what a criminal trial can accomplish. A criminal trial is never a happy event. The result can never undo the harm. Nor can it rectify historical wrongs and systemic failings still impacting Aboriginal people today.

A criminal trial ensures an accused is afforded due process and the opportunity to challenge allegations made against them. The reason for this is simple: it is the accused whose liberty is at stake. If convicted, the impact on the victims and families is considered when deciding an appropriate sentence. However, these factors must only be considered after a finding of guilt.

The narrow issues in this case were whether the Crown had proven beyond a reasonable doubt that Gerald Stanley intended to kill Colten Boushie or that he killed Boushie during the commission of a criminal act.

The jury had to be satisfied as to Stanley’s intentions beyond a reasonable doubt. They asked to re-hear evidence from Sheldon Stanley, Gerald’s son, on what his father said immediately after Boushie was shot: “(He) looked at me like he was going to be sick and he said, ‘I don’t know what happened. It just went off. I wanted to scare them.’ ” Requesting to re-hear this critical evidence, suggests the jury did its best to discharge its sworn duty to decide the case based on the judge’s instructions. The evidence raised a collective reasonable doubt among the jury. Quite properly, there is no evidence that the jury’s decision was based on race or public opinion.

Jurors don’t volunteer.

It is a civic duty imposed upon them. Jury members are prohibited from discussing their deliberations. They can’t explain why they decided the way they did. The judge is similarly restrained from commenting. To throw ugly labels on those unable to respond is unfair. No matter how you look at it, the jurors in the Stanley case have been branded as racists, including by people in positions of power. They do so without any hard evidence of this, knowing that the 12 jurors who decided the case cannot respond.

The justice system is not perfect. Just ask David Milgaard. There is always room to improve. We see this in the dynamic nature of the law. Indeed, it was the justice system which first acknowledged the injustices facing Aboriginal people when the Supreme Court of Canada in R. v. Gladue directed that these disadvantages be taken into account when sentencing Aboriginal offenders.

Further judicial innovations include the use of sentencing and healing circles to augment the work done in criminal courtrooms. Further evolution may be warranted to ensure better Aboriginal representation on juries, particularly when an Aboriginal accused’s liberty is at stake.

There is a legal adage that hard cases make bad law. Changes to the system should not be rushed in a reactionary fashion to satisfy a perceived injustice. Change should come from careful consideration with a view to strengthening the integrity of due process.

Unfortunately, opportunistic and inflammatory statements made by those in power have rushed any careful or constructive consideration of the issues and have made it more difficult to have the dialogue that is so badly needed in this country.