The killing of Colten Boushie by Gerald Stanley, and the outcome of Mr. Stanley’s trial, has led to a national discussion on the justice system’s handling of cases with Indigenous victims. Gerald Stanley, a white man, was found not guilty by an all-white jury of second-degree murder and manslaughter for his shooting of Mr. Boushie, an Indigenous man.
On March 1, students and staff at the Faculty of Law engaged in this discussion at an Indigenous Law Students’ Association (ILSA) panel moderated by Leslie Anne St. Amour (1L). The panel was preceded by a community smudge ceremony, intended to prepare both the speakers and the listeners for the discussion.
The first panelist was Professor Kent Roach. He spoke at length about the dark history of the Canadian justice system’s treatment of Indigenous persons. In the town of Battleford, where the Stanley trial was held, an all-white jury sentenced eight Indigenous men to death, in 1885, for their alleged participation in the North-West Rebellion.
Professor Roach stressed the importance of the make-up of the jury, explaining that fact-finding in any case requires very human ideas and intuitions to decide what likely happened. The criminal process, he said, “is always going to remain a very human process.” But this highly human process is also extremely inscrutable. Juries do not give reasons and, by law, jury deliberations must be kept secret. As a result, there is never a way of knowing a jury’s line of reasoning, nor whether any racist or racially-tinged remarks were made during deliberations.
In the Stanley trial, it was not recorded how many Indigenous persons were summoned. What is known is that all visibly Indigenous jurors who attended were subject to peremptory challenges. The result of this was an all-white jury. All-white juries in trials related to Indigenous persons have been found constitutional by the Supreme Court of Canada in the 2015 case R v Kokopenace. As long as “reasonable efforts” are made when selecting the jury, the results do not matter.
Professor Roach suggested that we move to a results-based approach: Parliament should reverse Kokopenace with new legislation. He had several suggestions for the shape this legislation could take. One was to amend s. 629 of the Criminal Code to allow jury panels to be challenged if they do not achieve substantive equality. This might also put pressure on the provinces to make changes to the formation of their jury pools. Professor Roach suggested considering volunteer jurors, similar to how coroner panels are currently formed. Alternatively, removing some exclusions, such as the exclusion of potential jurors who do not speak English or French, or who have previous convictions, could allow for a more representative jury, especially in the Indigenous context.
Professor Roach also discussed the contentious issue of eliminating peremptory challenges altogether. Although he cautioned that he does not think that eliminating peremptory challenges alone would be able to improve jury make-up, he believes that, along with other reforms, their removal could lead to a more representative jury by preventing Indigenous jurors from being removed without cause. A more robust system of challenges “for cause” would then allow lawyers to remove potentially racist jurors where they might otherwise have used peremptory challenges.
The next speaker was Shannon McDunnough, a Mi’kmaq lawyer specializing in criminal law. Ms. McDunnough practices primarily in Kenora and spoke about her experiences with systemic racism in the criminal justice system.
In Kenora, 90–95% of the individuals in remand are Indigenous. Due to the geography of northwest Ontario, Indigenous persons from communities hundreds of kilometres away are brought to Kenora for jailing. Being so far from their families and homes, this creates significant difficulties in posting bail. There are serious issues with accessibility as well. Indigenous persons visiting Kenora for routine reasons, such as medical treatment, are frequent victims of carding and other forms of harassment by police. If they are arrested for minor offenses, they risk become stranded by missing their return flights back to their communities.
Ms. McDunnough explained that systemic issues exist inside the courtroom as well. She said that there is a strong sense of paternalism in the justice system. Judges often see sentencing as an opportunity to “improve” Indigenous persons, such as by setting bail conditions that require alcohol abstinence where the convicted person’s offenses had no connection to alcohol.
Ms. McDunnough also shared her opinions on improving jury composition. As a practicing criminal lawyer, she disagreed with Professor Roach regarding peremptory challenges, which she sees as a valuable tool. Nonetheless, she agreed that it is essential to address the systemic issues in jury selection.
She explained the structures that affect one’s ability to participate as a juror, such as employment. Jury pools tend to be overwhelmingly white, older, and middle-class, as these jurors come from public-sector jobs with contracts that allow them to be paid at their normal wages during jury duty. In contrast, potential jurors who make minimum wage will often ask to be excused as they cannot afford to miss work.
Similarly, the justice system needs to take into account the difficulties Indigenous persons face in travelling to towns often hours away to serve on juries. Many lack vehicles or access to reliable transit, and these potential jurors are often heavily involved in child or elder care and cannot be away for days to attend a trial.
Ultimately, the only way to address these systemic issues is with financial support. Serving on a jury, Ms. McDunnough pointed out, is a public service, and it must be compensated in the same way as other public services.
The last speaker was Métis Senator Constance Simmonds, an Elder and Senator for the Métis Nation of Ontario, who works to improve the justice system through participation on the Indigenous Advisory Group for the Law Society of Ontario.
Senator Simmonds stressed the importance of creating constructive dialogue between the current justice system and Indigenous voices. She suggested attempting to return to traditional justice circles, which could also incorporate judicial supervision from the conventional justice system. A system like this, Senator Simmonds explained, would allow Elders to have a voice and bring knowledge of Indigenous communities and their experiences to the justice system.
Despite the ongoing issues in the justice system discussed by her co-panelists, Senator Simmonds carried a sense of optimism that changes could still be made. Simmonds concluded the panel by reminding everyone of the strength of the Indigenous communities and their ability to overcome: “We are resilient. We are still here.”