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Government comment on trial outcomes

  • May 01, 2018
  • Kathy Hodgson-Smith

The death of Colten Boushie, a 22 year old Indigenous man, unquestionably resulted from a gunshot wound inflicted by a gun held by Gerald Stanley, a non-Indigenous farmer. The subsequent acquittal of Gerald Stanley of any wrongdoing in causing the death, has arisen in many Canadians, a questioning of the justice system and its ability to render justice for Indigenous victims as it is currently designed.  To acquit of manslaughter, one must find, as the jury did, on the consideration of all the evidence, that the gun fired by accident. The jury, unlike myself, heard all the evidence and in wading through the myriad of problems that evidence always holds, rendered its decision. The Crown has since determined that an appeal of the process would not render a difference in the evidence such that a different outcome could be achieved. The system aimed at rendering justice and finding truth had played out as designed and rendered an acquittal for Gerald Stanley, a verdict we must now accept.  And, yet, for thousands of others, questions remain about the administration of justice for the victim in this case.

Almost immediately upon the announcement of the verdict, and in the days that followed it, thousands of Canadians took to the streets and the airwaves raising questions of race and concern for the system that had rendered, in their view, an unjust result. The administration of justice was, as a result, under scrutiny. Many of those Canadians were Indigenous.  First Nations Governments took to the podium. The placards that called for “Justice for Colten” were clear statements in this regard. The public protests suggest at minimum a perception that an injustice had resulted and that in some way race relations may have played a part.  It is trite to say that racism against Indigenous peoples exists in Canada and that it has structural roots, roots which show themselves in the criminal justice system. The issue of overincarceration of Indigenous offenders is at the core of this debate and the Supreme Court of Canada has often stated that biases are presumed in cases involving Indigenous victims and non-Indigenous accused. The question is, what role, if any, it played in this case. The media covered the race issue throughout the trial and emotions were high on both sides of the debate when the verdict was finally rendered.

The extensive public outcry, on both sides of the courtroom, the public interest and protests which required extra security at the courthouse and additional seating to be arranged by court officials during the trial, the extensive national media coverage that informed the Canadian public of the days' outcomes, the trial issues raised by the family in relation to the jury selection process and the police investigation and the ultimate acquittal, were part of the context for the comments made by Prime Minister Justin Trudeau and Federal Justice Minister Wilson-Raybould when they tweeted and made appearances before the media after the verdict was in. The propriety of their comments has been the subject of ongoing discussion.

Some suggest that the Prime Minister and Minister of Justice should have stood silent, refused to acknowledge the division and remained indifferent to the outcome of the trial. Some suggest that the Prime Minister and Justice Minister should not have suggested that any responsibility for this divisive debate rested with the state, or from the operation of the criminal justice system and to have done so has put the administration of the justice system and its players into disrepute. In my respectful view, not responding would have been simply wrong.

One is left to question whether the constitution and the division of powers between parliament and the judiciary require them to stand silently by, and if so, what would have been the outcome if they had been silent in this racially charged environment? What have we learned about racial tension and the path to calm and change? Surely a comment from the Prime Minister and Minister Wilson-Raybould is a minimum requirement. And if a comment was required, surely an acknowledgement of the grief and loss of the victim’s family, followed by a commitment to do better for all Canadians is a reasonable minimal intervention.

Jonathan Chait of the New York Magazine that covered the Rodney King matter in the United States where a young black man was the victim of gratuitous police brutality, caught on video, a video shared with the public, wrote: “Racism has less force than the reaction to it.” President George Bush on the acquittal of the police officers for the beating, the racially charged trial overseen by what was alleged to be a prominently white jury, acknowledged that many American citizens felt betrayed by the verdict, that he himself was “sickened”. In response to the immediate rioting and racial violence which followed, he stated that it was a fundamental tenet of the justice system that every American, whether accused or accuser, was entitled to protection of their rights and that the state owed to all Americans who put their faith in the law to see that justice is served.

The comments of the Prime Minister and Minister Wilson-Raybould were required to ensure calm and confidence that such concerns would be taken seriously and the actions which followed, that is, in listening to the family’s concerns, seems like a reasoned and responsible approach to maintain confidence in the administration of a justice system that was clearly under question in the eyes of the public. The confidence in the system was, in this incident, also a race relations matter. Minister Wilson-Raybould stated: “As a country we can and must do better – I am committed to working everyday to ensure justice for all Canadians.”  The Prime Minister in his public comment to the media stated that we have been at this place too many times before and we have to do better. In order to judge these comments and their propriety, one must also look at the broader Canadian context on February 9, 2018.

Most recently, Canada has been witness to the national Idle-No-More protests, the national settlement agreement with First Nations and Inuit for the atrocities perpetuated upon them and their communities as a result of the Indian  Residential School process, the apologies and the resulting Truth and Reconciliation Report and Calls to Action, the protests related to the investigation of Missing and Murdered Indigenous women and the subsequent establishment of the national inquiry, the unfortunate mistreatment of families where family members are reported missing, the findings of discrimination in various sections of the Indian Act and the multitude of national issues arising from environmental impact analysis and resource management matters. These are but a few of the Indigenous-based disputes and concerns raised by Indigenous peoples and non-Indigenous Canadians that are before the Government of Canada and the provinces and territories at this time. This Government has committed to moving some of these historic matters through to resolution and there are several negotiation tables actively working to build relationships and address structural racism and other barriers to full involvement of Indigenous peoples in Canadian society. This is the context in which the Boushie family added yet another experience of alienation. Silence was just not an option.

We pride ourselves, as Canadians, for advancing human rights, for protecting civil liberties and celebrating diversity and when it comes to our treatment of and relationship to Indigenous peoples, all reasonable people recognize there is much work yet to be done. The rates of victimization for Indigenous women, reported in a 2006 study commissioned by Justice Canada, are reported in the area of 80-90% and rates of under-reporting range from 40-75%.  Explanations for the high rates of victimization and alienation suggest the close link to colonization and the resultant collective and individual trauma. The path to improved relationships with Indigenous peoples is arduous and long but it must have its leaders. Prime Minister Justin Trudeau and Minister Jody Wilson-Raybould must be commended for their calming words and for taking action and for steering us clear of the types of violent eruption that we have seen elsewhere around the globe on racial matters. Might they have used other words? Perhaps, but the outcome has been instructive and productive.  The alienation felt and articulated by the Boushie family in this matter rang in echo to a chorus of Indigenous voices seeking justice and truth. We all share in the hope of change.

Kathy Hodgson-Smith is an Indigenous rights and criminal defence lawyer from Saskatoon, Saskatchewan.