Tweet Less, Legislate More

February 17, 2018

It is a rare occasion when a trial sparks a national conversation about systemic problems with the justice system. But that is exactly what happened when Gerald Stanley was found not guilty by an all-white jury in the shooting death of Colten Boushie.

Stanley is white. Boushie was an Indigenous youth.

The trial was relatively straightforward. It was almost irrelevant what Boushie did or did not do that night. The defence did not argue self-defence or defence of property. Stanley said he was not-guilty because his gun went off accidently. An expert firearms witness disagreed. But even if the shooting was accidental, Stanley could have been guilty of manslaughter. One fact was not contradicted: Stanley shot Boushie in the back of the head at close range.

But the jury acquitted. We will never know why; it is a crime for a juror to talk about what went down in the deliberation room. Maybe race had nothing to do with it.

But in the justice system perception can be just as important as reality and in this case the perception of racial bias can’t be ignored.

Let’s start with how the RCMP treated Colten Boushie’s mother. The night of the killing the RCMP bluntly told Boushie’s mom that her son was “deceased” and then they barged into her home and searched each room. Then they asked the grieving mother if she had been drinking. Maybe the RCMP’s callous acts were motivated by a disregard for both the law and common curtesy. But probably not.

And then there was talk in the community of problems of “rural crime” – a notorious dog whistle term meaning Indigenous people. It was from that community that Stanley’s jury was selected.

Questions of racial bias were raised again during jury selection. In every jury trial, both the Crown prosecutor and the defence can automatically reject a set number of potential jurors through what are known as peremptory challenges.

Stanley’s lawyers used them to reject several Indigenous jurors.

But the deliberate and selective exclusion of jurors is not the only reason the Stanley jury – like so many Canadian juries – was all white.

Racial bias is baked into the jury selection process. Out-of-date, and inaccurate census information means that many potential Indigenous jurors’ names are completely left of the jury rolls.

And then there are the practical barriers to jury duty. Some provinces disqualify people from jury duty for even the most minor of criminal records. When Indigenous people are stopped, charged and arrested by the police more often than non-Indigenous people, it means that they are more likely to be disqualified for a dated and minor criminal offence.

And let’s not forget the fact that most of the time jurors don’t get paid at all. That makes it hard for a single parent or those with precarious work to afford to do their “civil duty.”

But this is no surprise, at least to anyone who had bothered to read former Supreme Court justice Frank Iacobucci’s 2013 report into First Nations representation on Ontario juries.

There is no question the justice system treats Indigenous people differently than white people. There is a disproportionately high number of Indigenous Canadians in our jails; they serve longer sentences; are held in higher security; and are less likely to be granted parole than white inmates.

This is not because Indigenous Canadians commit more crime than other Canadians, it’s because of deep-rooted problems in the justice system.

Prime Minister Justin Trudeau responded to the Stanley verdict by saying that he could not “imagine the grief and sorrow the Boushie family was feeling.” Minister of Justice Jody-Wilson Raybould responded that “as a country we must do better.”

I agree. But unlike you or I, Trudeau and Wilson-Raybould actually have the power to take meaningful action to fix this mess. That’s what they promised to do during the 2015 election campaign.

Transformative criminal justice legislation was promised last winter, then again last spring, and then again last fall. We are still waiting.

Trudeau and Wilson-Raybould can start to fix this mess – they just need to tweet less and legislate more.

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