Tansi Nîtôtemtik,
We would like to begin this week by reflecting on the loss of a young Indigenous man, Colten Boushie, whose killer was found not guilty by a jury this past Friday. The accused, Gerald Stanley, claimed that his gun went off by accident and shot Colten in the head. He claimed he was using the gun to “fire warning shots” when Colten and his friends approached his farm and after he fired those shots, he thought the gun was empty.[1] The jurors had three choices: guilty of second degree murder, guilty of manslaughter, and not guilty. The outcome of this trial was beyond disappointing—it is frustrating, it is heartbreaking, it is an injustice. I feel naïve for feeling hopeful that a guilty verdict would be the outcome. But, alas, it turns out that in Canada it is okay for a white man to use a gun to threaten Indigenous people and he won’t be held for responsible for killing one of them.
The discourse around this case has turned into a dividing conversation throughout the country. Many non-Indigenous people have commented that this isn’t about racism, but that the man had the right to protect his property. First off, the legal issue was not regarding defence of property-- that was not advanced by the defence. Second, trespassing and mischief are summary offences. It is not okay to take the law into your own hands and take someone's life. We as a society should be beyond this thinking. For Indigenous people, however, this is about Indigenous lives and overt racism in our legal system. This case was tried in Battleford, Saskatchewan where a pool of 750 people was summoned to attend jury selection.[2] The area surrounding Battleford has a large Indigenous population, however, none of the 12 jurors selected were Indigenous. The reality is that jury selection is not a favourable process for Indigenous people.[3] First, there is often a travel issue for many who have been selected from remote Indigenous communities. Transportation from a remote area to the city where selection takes place can be an issue for many reasons. Second, our criminal judicial system allows for “peremptory challenges”.
When a person is called up to determine if they will sit on the jury, Crown and defence look at that person and either party can “challenge” this person. This means that this person will not sit on the jury. Our own law professor, Steven Penney, argues that this process “invites bias on the basis of race, but also gender and other factors”.[4] University of Toronto law professor, Kent Roach, says that it is “a stone-cold invitation for jury selection to be infected by conscious or unconscious racist stereotypes”.[5] I don’t think that either of these legal professors are wrong. Colten’s cousin, Jade Tootoosis, commented that “"It was really difficult to sit there today and watch every single Indigenous person be challenged by the defence."[6] This is a reality across Canada, particularly in the prairies where the Indigenous population is higher, yet few Indigenous people sit on juries. In 2015, the Supreme Court of Canada held that there does not need to be Indigenous representation on a jury, reasoning that the jury selection accounts for a fair selection process.[7] The actual jury selected tells a different story. Since this trial, many legal professionals, including Senator Murray Sinclair, have called for the peremptory challenge process to be abolished.
I personally am feeling frustrated and disgusted by this horrific outcome. I am frustrated that this case tells us that it is okay to hold a gun and “accidentally” end an Indigenous person’s life. I understand those who feel as though reconciliation is meaningless when our system is rampant with racism and the odds are stacked against Indigenous people. We hope that isn’t the case. We hope these outcomes inspire you to be an advocate in law for those who need it and to call for necessary change within our justice system. We hope that reconciliation is given more substance because of this case and spurs our lawmakers to make changes. Colten Boushie is in our thoughts and prayers today.
Until next time,
Team ReconciliAction YEG
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[1] Jason Warick, “I just wasn’t thinking straight: Gerald Stanley cross-examined at his 2nd degree murder trial” (5 February 2018) CBC News, online: <www. http://www.cbc.ca/news/canada/saskatoon/gerald-stanley-trial-lawyer-defence-case-1.4519655>
[2] Guy Quenneville, “Huge pool of 750 people summoned as potential jurors for Colten Boushie case” (28 January 2018) CBC News, online: < http://www.cbc.ca/news/canada/saskatoon/huge-pool-750-people-summoned-potential-jurors-colten-boushie-1.4504633>.
[3] Kent Roach, “Colten Boushie’s family should be upset: Our jury selection procedure is not fair” (20 January 2018) The Globe and Mail, online: < https://www.theglobeandmail.com/opinion/colten-boushies-family-should-be-upset-our-jury-selection-procedure-is-not-fair/article37787115/> [Roach].
[4] Jason Warick, “Stanley trial exposes problem with jury selection, says legal experts” (4 February 2018) CBC News, online: < http://www.cbc.ca/news/canada/saskatoon/jurors-indigenous-representation-1.4517610>.
[5] Roach, supra.
[6] Ibid.
[7] R v Kokopenance, 2015 SCC 28.
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