Kent Roach is the Prichard-Wilson Chair in Law and Public Policy and the author of Canadian Justice, Indigenous Injustice: The Gerald Stanley and Colten Boushie Case published by McGill Queens Press last month.
What has changed in the year since Gerald Stanley was acquitted, on Feb. 9, 2018, for the killing of Colton Boushie on Mr. Stanley’s Saskatchewan farm?
Indigenous people remain underrepresented on juries throughout Canada, despite being grossly overrepresented among both accused and crime victims.
In places such as Spiritwood, Sask., and Okotoks, Alta., farmers continue to fire warning shots to ward off rural crime.
And last June, Peter Khill was acquitted of both murder and manslaughter for the death of Jon Styres from Six Nations outside of Hamilton; unlike in the Stanley case, the Crown appealed that acquittal on the basis of alleged errors in the interpretation of Canada’s self-defence law that was expanded in 2012.
There are a few changes coming, though – but results might be mixed.
The Trudeau government has proposed legislation that would abolish the peremptory challenges that allowed Mr. Stanley’s legal team to keep five visibly Indigenous people off the jury, but the bill may not make it out of the Senate before the federal election. In any event, it promises to be almost as controversial and polarizing as Mr. Trudeau’s comments about the need to do better in the wake of the Stanley acquittal.
There will be a new advisory board for the RCMP, but it is unlikely to make local RCMP detachments, which provide contract policing for many rural areas, more accountable to the many communities and Indigenous people that they serve. The Boushie/Baptiste family members have started litigation against the RCMP for the way they were treated by the organization.
The Supreme Court of Canada will rule later this year on the Bradley Barton/Cindy Gladue case and might approve (or disapprove) of the Alberta Court of Appeal’s ruling that trial judges should tell jurors to leave behind stereotypes and assumptions that they may have about Indigenous people.
Nevertheless, the legal system continues to lag behind our increased understanding of implicit racial bias. It continues to prioritize juror privacy and efficiency when selecting juries. It too often ignores the impact of social media and polarization on jurors. And it bluntly dismisses calls for reform and for more representative juries on the basis that perfectly proportionate juries are not possible.
The Saskatchewan Attorney-General’s office decided not to appeal Mr. Stanley’s acquittal while arguing that “no one should be discouraged or distrust the system.” That tone-deaf response to protests and history ignored many things.
It ignored how the Crown did not object to the use of peremptory challenges to exclude visibly Indigenous prospective jurors, or seek to question any jurors about racism and pretrial publicity that was so prevalent that then-premier Brad Wall appealed to his fellow citizens to stop “racist and hate-filled comments on social media”.
It ignored how the Stanley case’s outcome provided yet another good reason why many Indigenous people are reluctant to serve on juries in a criminal justice system that so often has failed them.
It ignored how the Indigenous witnesses in the Stanley case had effectively been placed on trial themselves, as they were asked what they did before Mr. Stanley shot Mr. Boushie. It ignored how the jury, just before Mr. Stanley’s cross-examination, expressed concerns about an eagle feather that had been brought into the court.
It ignored how Mr. Stanley, who testified that he was unaware of a loaded gun in the vehicle Mr. Boushie occupied, was allowed to make a phantom claim of self-defence that his family was “on their own,” and that he said he was thinking of a 1994 murder on a nearby farm when he approached Mr. Boushie, without the jury being told that claims of self-defence have to be reasonable and hopefully non-racist.
That ignoring continues, one year later. Saskatchewan has introduced legislation to no longer require landowners to post no-trespassing signs, despite opposition from First Nations groups that this violates treaty rights and relationships, and might lead to more violence.
Saskatchewan has not appointed a public inquiry or a coroner’s inquest to examine the case, even though the inquest could, under Saskatchewan law, have had a jury of three Indigenous and three non-Indigenous people. Such an inquest could examine treaty relations, policing, rural crime and the use of guns in defence of property, factors that all were relevant to the interaction that left a 22-year-old dead and people on all sides afraid and divided.
A year after this controversial case, there remains much more difficult work that needs to be done to avoid similar deaths in the future. It is vital that Canadian justice does not continue to be experienced by Indigenous people as injustice.