The acquittal of Gerald Stanley, the Saskatchewan farmer charged in the fatal shooting of Colten Boushie, a 22-year-old Cree man, has provoked widespread despair and anger in Canada's Indigenous communities. Those feelings are justified. The federal government must respond in a meaningful way, so that some good can come from this painful episode.
The verdict itself is no longer the main issue, so much as the context in which it was reached.
Mr. Stanley was found not guilty of second-degree murder by jurors who did not believe that he intended to kill Mr. Boushie – something that is always difficult to prove beyond a reasonable doubt, but especially so after two of the Crown's key eye-witnesses change their stories in court.
The jurors also let Mr. Stanley off on the lesser charge of manslaughter, finding that it was reasonable for him to go get and load a semi-automatic pistol during a confrontation on his farm property with Mr. Boushie and three of his friends.
Mr. Stanley said he only meant to fire warning shots and scare away the trespassers, who had apparently attempted to steal his all-terrain vehicle. In the heat of an escalating conflict, the gun went off at extreme close range, fatally wounding Mr. Boushie in the head. The evidence never conclusively explained why a properly functioning weapon would fire a round without the trigger being pulled.
Perhaps any jury faced with the same evidence would have reached the same conclusions. One likes to think so.
But there was something about this particular case that prompted both the Prime Minister and the federal Minister of Justice to tweet unprecedented comments in the immediate aftermath of the verdict on Friday.
"As a country we can and must do better," Jody Wilson-Raybould, the Justice Minister, wrote. Her tweet followed one from Justin Trudeau in which he said, "I can't imagine the grief and sorrow the Boushie family is feeling tonight."
It's unusual for cabinet ministers to comment on a jury verdict. They exposed themselves to criticism that they were interfering with the justice system, and they appeared to be insensitive to the rights of the accused.
But they were also touching on a fact of Canadian life that is often discounted: that Indigenous people – who are vastly overrepresented in federal and provincial jails – are deeply suspicious of the justice system in general, and the process of jury selection in particular.
Mr. Stanley was tried by a jury on which there were no Indigenous people, even though they make up 16 per cent of the Saskatchewan population, and as much as a quarter of the population around Battleford, where the trial was held.
The killing of Mr. Boushie occurred in the context of ongoing antagonism between white farmers and First Nations members. There were racial overtones, which is why Mr. Stanley's lawyers systematically kept anyone who looked Indigenous off their client's jury, and allowed on anyone who appeared more sympathetic to his experience.
The defence lawyers were able to do this using "peremptory challenge" – a no-questions-asked right of refusal of any person presented as a potential juror. It's a controversial practice long considered unfair to Indigenous people.
A recently as 2013, Frank Iacobucci, a retired judge, investigated the under-representation of Indigenous people on juries in Ontario and recommended that Ottawa look at ending the discriminatory use of peremptory challenges.
"The public is more likely to perceive trials, and by extension the legal system as a whole, as being fair if prospective jurors are representative of the wider community from which they are drawn," the report said.
That wider community was absent in the trial of Mr. Stanley. Hence the despair and anger of Indigenous people, and a lingering sense of unease shared by us. It is impossible to say what the verdict of a more representative jury might have been, and unfair to Mr. Stanley to speculate about it. But it is safe to conclude that, whatever the outcome, it would not have have raised the issues that this one has.
The United States and other countries have eliminated or restricted peremptory challenges to avoid the obvious conflicts created by racially imbalanced juries. In Canada, those types of juries are still a fact of life. The government should move from tweet to action and do away with peremptory challenges. We are well past the days of being able to tolerate the implications of "all-white" juries.