Justice reform a necessary step forward
It has been one year since a Battleford, Sask., all-white jury said farmer Gerald Stanley was free to go after he was found not guilty of intentionally shooting 22-year-old Colten Boushie in the head.
The Stanley verdict left Indigenous people reeling in a state of sickened disbelief, wondering how this possibly could have happened again. How, once again, could a white man be charged with killing a First Nations man and walk free?
Demonstrations demanding justice for Colten, a member of the Red Pheasant First Nation, were held across the country. First Nations despair was palpable. The anger, seething.
The verdict laid bare what we already knew — Canadian justice means something entirely different if you are Indigenous.
After Stanley’s acquittal, Prime Minister Justin Trudeau took the unusual step of publicly commenting on a trial and said Canada has to “do better.” Trudeau met with Colten’s mom, Debbie Baptiste. He promised change and chose to start with an attempt at jury reform.
This is needed. Indigenous people are disproportionately likely to get caught up in the justice system. In Saskatchewan, for instance, Indigenous men are murdered at an alarming rate of 31 per 100,000 people. For Indigenous women, that number is 7.2 per 100,000. For everyone else, it’s 1.94 per 100,000.
The province’s prisons, meanwhile, are almost entirely full of Indigenous inmates. Seventy-six per cent of the prison population is Indigenous. The numbers are even worse among young men, with Indigenous youths making up 92 per cent of youth admissions to custody.
Yet Indigenous people are grossly underrepresented on juries. The fates of First Nations people are too often determined by those who understand little of our experience. So Trudeau was right to propose, among other things, to end so-called peremptory challenges — the right of the Crown or the defence to refuse a jury member without providing a reason. In practice, this often means that prospective jurors are dismissed because of their gender or the colour of their skin.
The reform is wrapped in omnibus Bill C-75, which is currently languishing in the Senate and may not pass before the writ drops.
But even if this modest re- form does pass, it won’t on its own redress the problem of unrepresentative juries.
Provinces have different ways of populating jury pools, not all of which lead to greater fairness and representativeness. Alberta and Manitoba use health cards, for instance, while Ontario uses property rolls, a system that has served to leave entire groups of First Nations people off the jury roll. Ottawa could have led a national effort to tackle this problem.
Nor is jury reform alone nearly enough to tackle the larger issue of a colonial justice system too often rigged against Indigenous peoples. Just look at the Stanley case. Saskatchewan has refused to call a coroner’s inquest into Colten’s death, even though there were clear failures and questions from the start, says Kent Roach, a University of Toronto law professor and author of Canadian Justice, Indigenous Injustice: The Gerald Stanley and Colten Boushie Case.
Holes not only in the jury process, but also in the RCMP investigation — officers treated Baptiste like a criminal instead of a mourning mother — and in the use of forensic science, including Stanley’s “hang fire” defence. His lawyers argued that the third shot he fired on his farm that day somehow malfunctioned and caused a delayed shot, though experts have cast doubt on this.
Saskatchewan’s inaction will come as no surprise to those familiar with our history.
Look at the hanging of the Battleford Eight — the last mass public execution in Canada. Eight Indigenous men, put on trial without translators or proper legal representation, were hanged on Nov. 27, 1885.
Or Leo Lachance, a Cree trapper who was shot and killed in a pawnshop owned by Carney Nerland, a neo-Nazi who served only four years in jail for his crime. Nerland’s defence included that he fired two shots to the floor and he didn’t know the chamber held a third when he fired it as Lachance fled. A new statue has been put up remembering Lachance in front of the Prince Albert courthouse.
The Truth and Reconciliation Commission was right that Canada must confront its past and then atone for it. But that requires much more than statues and tweets of sympathy from our elected leaders.
True justice reform in Canada, reform that will actually correct the gross power imbalance that currently plagues our system, will require decades of work at every level of government.
Yes, Canada, we can do better.