One of Canada’s most prominent law professors was at the U of M Thursday to discuss one of Canada’s most prominent legal cases.
The U of M faculty of law’s Robson Hall Distinguished Visitors Lecture Series welcomed University of Toronto professor of law Kent Roach to deliver a lecture based on his latest book, Canadian Justice, Indigenous Injustice: The Gerald Stanley/Colten Boushie Case, Thursday.
On Aug. 9, 2016, 22-year-old Colten Boushie of the Cree Red Pheasant First Nation was killed by 56-year-old Gerald Stanley in the rural municipality of Glenside, Sask. Stanley was charged with second-degree murder.
Upon the conclusion of the trial in January 2018, the jury found Stanley not guilty after 13 hours of deliberation. What followed was a nation polarized by the decision, and a public outcry of injustice from the Indigenous community and its supporters.
Roach said exploring the history between the Canadian government and Indigenous communities reveals a significant catalog of what he called “Indigenous injustice,” which in turn presented itself through the jury selected to decide the Stanley murder case — none of whom were Indigenous.
Roach said with nearly 17 per cent of Saskatchewan being Indigenous, the absence of any Indigenous representation on the jury “triggered” his initial concern with the case.
It was later reported that a pool of 750 potential jurors had been summoned to the town of Battleford, Sask. According to Roach, when the trial was announced, only 178 of 750 potential jurors attended at the Battleford Community Centre.
“My own reconstruction, based on the transcript and media accounts, suggests that there were at least 20 Indigenous people out of that 178, so it was underrepresentation but still a significant amount,” he said.
Eventually, potential Indigenous jurors were excused.
“About a dozen were excused for hardship reasons and these often reflect socioeconomic factors,” Roach said.
“Three were excused because they were related to the Boushie/Baptiste family and then five visibly Indigenous people were subject to peremptory challenge by Stanley’s lawyers.”
Peremptory challenges allow defence counsel to excuse a juror from the selection process without reason, a practice that has been historically used in a discriminatory manner.
Roach said the final 12 jurors were selected following over a year of public unrest motivated largely by undertones of racial division. This came to a head in August 2016, when then-premier Brad Wall made a plea on Facebook urging citizens to stop exchanging racist comments across different social media platforms.
Roach said he believes the jurors were not properly analyzed for possible racial discrimination, and said he does not know “why no attempt was made on the public record to ask that question.”
“I’m also not saying if that question was asked it would necessarily have cleansed racism from any of the jury’s deliberation, but at least it would have tried.”
Roach noted that while there were a couple of Indigenous witnesses brought before the jury, including Eric Meechance, the trial transcript reveals some worrying details.
“All of a sudden, during this testimony, there is something wrong with Eric Meechance.”
He said Meechance was approached by Stanley’s lawyer with a picture in hand of the loaded gun found in Boushie’s vehicle.
“He wanted him to identify the gun, but the picture that was chosen also showed Colten Boushie dead on the ground.”
Roach said that in Cree customs, “showing someone dead interferes with their journey, their after-death journey.” He added that the situation was indicative of a wider misunderstanding of Indigenous cultural practices in Canada’s justice system.
“Again, I mention this because too often there has been misunderstanding and too often Canadian justice has been Indigenous injustice,” he said.
Two months following the acquittal of Stanley on second-degree murder charges, Bill C-75, which proposes to institute several changes to the criminal code, was introduced before the House of Commons.
Roach said the most important proposal is to remove peremptory challenges, which follows recommendations made by Chief Justice Alvin Hamilton and Justice Murray Sinclair more than 25 years ago in the 1991 report of the Aboriginal Justice Inquiry.
Although Roach said he supports the bill, which is currently under final review in the Senate, he emphasized his belief that the goal of more representation on the jury is a “starting point.”
“We need to think about guns, self-defence and violence,” he said.
“And we need to go to back the treaties, self-government, Indigenous law systems […] We cannot allow this to continue.”