Vancouver Sun

Two mur­der tri­als prompt ac­cu­sa­tions of racial bias

TWO TRI­ALS RAISE CON­CERNS ABOUT HOW INDIGE­NOUS PEO­PLE ARE TREATED IN THE COURTS AND ME­DIA

- Dou­glas Quan Crime · Society · Canada News · Discrimination · Justice · Human Rights · Law · Saskatchewan · Saskatoon · Truth and Reconciliation Commission · Manitoba · Justice Ministry · Ontario · University of Ottawa · Ottawa · Ryerson University · Ralph Goodale · Winnipeg · Murray Sinclair · University of Manitoba · Native American Journalists Association · Cannabis Act · Ginette Petitpas Taylor

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.

• Peo­ple shouldn’t “jump to con­clu­sions” about when they’ll be able to buy mar­i­juana legally, as a key fed­eral bill makes its way through Par­lia­ment, Pub­lic Safety Min­is­ter Ralph Goodale says.

There will be an im­ple­men­ta­tion phase that takes a “short pe­riod of time” af­ter pas­sage of the bill le­gal­iz­ing re­cre­ational mar­i­juana use, Goodale said Wed­nes­day.

But he wasn’t say­ing whether that means peo­ple will be able to legally smoke pot as of July, as many have come to ex­pect.

“This is a ma­jor, ma­jor change in the law. That re­quires a lot of re­ori­en­ta­tion in the sys­tem,” Goodale told re­porters.

“And peo­ple need to do this in an or­derly fash­ion. Un­til the law is changed, the law re­mains the law, and it must be re­spected. And you can­not jump to con­clu­sions un­til Par­lia­ment has ac­tu­ally fin­ished its work, en­acted new leg­is­la­tion, and the royal procla­ma­tions have been made and so forth.”

The Lib­er­als say the cur­rent sys­tem of pro­hi­bi­tion does not stop young peo­ple from us­ing mar­i­juana and too many Cana­di­ans end up with crim­i­nal records for pos­sess­ing small amounts of pot.

But the leg­is­la­tion is just one el­e­ment of the plan and the fed­eral and pro­vin­cial gov­ern­ments are sort­ing out myr­iad ques­tions about the avail­abil­ity and sale of pot, as well as al­lo­cat­ing re­sources to im­ple­ment the new regime.

Some pro­vi­sions of the pro­posed Cannabis Act would come into force at royal as­sent, while oth­ers would take ef­fect on a pre­scribed date — or pos­si­bly in phases.

A fed­eral back­ground doc­u­ment pub­lished in May 2017 said the gov­ern­ment in­tended to bring the pro­posed leg­is­la­tion into force no later than July 2018.

Health Min­is­ter Ginette Petit­pas Tay­lor said this week that prov­inces and ter­ri­to­ries have in­di­cated once the fed­eral bill re­ceives royal as­sent, they’ll need another eight to 12 weeks to pre­pare for re­tail sales.

 ?? LIAM RICHARDS/THE CANA­DIAN PRESS ?? Deb­bie Bap­tiste, the mother of Colten Boushie, holds up a pic­ture of her son as she leaves the Court of Queen’s Bench dur­ing a lunch re­cess on Mon­day, the fifth day of the trial of Ger­ald Stan­ley, the farmer ac­cused of killing the 22-year-old...
LIAM RICHARDS/THE CANA­DIAN PRESS Deb­bie Bap­tiste, the mother of Colten Boushie, holds up a pic­ture of her son as she leaves the Court of Queen’s Bench dur­ing a lunch re­cess on Mon­day, the fifth day of the trial of Ger­ald Stan­ley, the farmer ac­cused of killing the 22-year-old...
 ??  ?? Ralph Goodale
Ralph Goodale

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