First Nations suffer under stacked system
As mothers of young men the same age as Colten Boushie, our hearts ache for Boushie’s mother. Debbie Baptiste first had to face the tragic death of her youngest child, and now confronts the anguish of seeing the man who shot Boushie acquitted of the crime. Farmer Gerald Stanley was found not guilty of second-degree murder by a jury in Battleford, Sask., on Friday evening.
Our sons have been known to party with friends and get into trouble. It is highly unlikely, though, that “trouble” for white boys from middle-class families would end in one of them being shot in a farmer’s field. Indigenous youth often find responses to their behaviour shaped and escalated by ancient stereotypes about “thieving,” “lazy,” “drunken” and “dangerous” “natives.”
As historians, we find the persistence of such stereotypes chilling. These kinds of assessments were applied to Indigenous peoples across the globe, as imperial powers including France, Britain, Holland and Spain sought to justify their seizure of land, human beings and resources. These assessments informed British Columbia legislators who reduced extensive Indigenous territories to small, often unproductive reserves, then criminalized Indigenous political action to resist such land theft.
They informed criminalization of cultural rituals such as the potlatch, and the jailing of parents who resisted sending their children to residential schools. Such views are with us still, lurking in the background of many settler-Indigenous interactions.
Nearly 130 years ago in a Calgary courtroom, a white man named William Fisk was found not guilty in the brutal murder of a Cree woman known to the historical record as Rosalie. The all-white jury reached this verdict despite Fisk’s confession to the crime. As historian Sarah Carter showed in her analysis of the case, Fisk’s guilt was outweighed by the fact that he was a popular young man from a well-respected eastern Canadian family, and that the woman he murdered was “only a squaw.”
Judge Charles Rouleau rejected the jury’s decision in the Fisk case as a miscarriage of justice. He ordered a retrial, in which Fisk was convicted of manslaughter and sentenced to 14 years at hard labour.
At the new trial, Judge Rouleau felt the need to carefully instruct the all-white jury. His instructions from 1889 bear repeating in 2018. He told them to “forget the woman’s race and to consider only the evidence at hand.” It made no difference, he insisted, “whether Rosalie was white or black, an Indian or a negro. In the eyes of the law, every British subject is equal.”
An important element of equality before the law is jury composition, as the Stanley case makes clear. Defence lawyers for Stanley exercised their legal right to “challenge” (that is, reject) potential jurors without having to provide a reason. The Boushie family voiced concern that the defence team rejected all candidates who appeared to be Indigenous. Boushie’s uncle Alvin Baptiste warned at the time of jury selection that “the deck is stacked against us.”
Legal scholar Steven Penney agrees, noting that this practice, called peremptory challenge, “invites bias on the basis of race, but also gender and other factors.” Judge Rouleau recognized the problem in 1889.
As long ago as 1986, the U.S. Supreme Court ruled that it was unconstitutional to strike people from juries on the basis of race. The continuation of the practice in Canada is surely a shortfall in “access to justice” for Indigenous peoples, a systemic failing the United Nations Human Rights Commission slammed in 2015. Juries that represent local communities are a necessary feature of access to justice, as Boushie’s family asserts.
Indigenous people in this country need some evidence that the Canadian justice system is no longer stacked against them, as it so often has been in the history of Canada. We hope the tragic death of Colten Boushie will be a catalyst for change, for the sake of all our children. Elizabeth Vibert and Lynne Marks are historians at the University of Victoria.