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Systemic racism and the impact on juries

  • May 01, 2018
  • David Tanovich

The acquittal of Gerald Stanley was shocking. There’s no dispute that Stanley shot Colten Boushie, a 22-year-old Cree man from Red Pheasant First Nation, in the head at close range. By any reasonable account it was a wrongful killing that was either intentionally or negligently caused. However, the jury was not satisfied of either beyond a reasonable doubt.

Reasonable concerns have been expressed over whether overt or implicit racial bias played some role in the jury’s verdict. The very suggestion of a verdict tainted by racism has garnered a hostile reaction even from advocates who acknowledge the existence of systemic racism.

A prominent concern seems to be that it is unfair to talk about racism and this verdict in the absence of direct evidence of bias, and because of the inability of the jurors to defend themselves.

We will never know for certain, of course, how this jury came to its verdict. Unlike judges, a jury does not give reasons for its decisions, and we have strict jury secrecy rules that prohibit questioning them about their deliberations.

Nevertheless, public confidence in the administration of justice and justice itself requires us to examine the role of racism in the trial.

In my opinion, when we examine the case as a whole, it justifies the conclusion that racial bias likely played a role in the jury’s deliberative process. Proving that something probably happened is the standard of proof we use in our civil system of fact determination. It is a standard that can be met even if there is no direct evidence.

Not about shaming but understanding
While it’s true jurors cannot respond, the same is true for judges accused on appeal of bias or of erring. We do not refuse, however, to assess those claims simply because there is no opportunity to directly respond. The point is not to shame the 12 individuals who gave up their time to fulfil their civic duty, but to identify the problems with the trial process, one that was beyond their control.

This is a conversation that we must have if we are going to constructively address the problem of racism.

Systemic racism impacts juries
Our courts have recognized the existence of systemic racism towards Indigenous peoples and its effect on jury decision-making.

In R v Williams, a unanimous Supreme Court of Canada acknowledged in 1998 that “racism against Aboriginals includes stereotypes that relate to credibility, worthiness and criminal propensity” and that “this widespread racism has translated into systemic discrimination in the criminal justice system.”

The Supreme Court also recognized that systemic racism can “predispose the juror [to the party] perceived as representative of the ‘white’ majority against the minority-member … inclining the juror, for example, to resolve doubts about aspects of the … case more readily.” While Williams concerned bias against an Indigenous accused, the same displacement of the presumption of juror impartiality logically applies in cases involving an Indigenous victim and a white accused.

Indeed, in R v Rogers, the trial judge stated that “racism will be at work on the jury panel as soon as the victim is described as an Aboriginal.” The judge ruled that a race-based “challenge for cause” (a screening of the jurors) was therefore necessary to “prevent that bias from destroying the impartiality of the jury’s deliberations.”

In that case each prospective juror was asked whether their ability to judge the case impartially would be “affected by the fact that the deceased victim is an Aboriginal person and the person charged with the crime is a white person?”

In the Stanley case, there were a number of triggers and process failures that enabled racial bias to impact the jury in the ways recognized by both Williams and Rogers.

A racially charged case
Colten Boushie was killed on August 9, 2016. Almost immediately, racist narratives framed the public’s construction of the shooting and of Indigenous communities. As the Assembly of First Nations noted “to see racist, derogatory comments about this young man and about First Nations people … in response to this tragedy is profoundly disturbing.”

The online hate prompted a response by Saskatchewan Premier Brad Wall and RCMP hate crime investigations. Ben Kautz, a farmer and rural councillor, resigned after it was revealed that he had stated that Stanley’s “only mistake was leaving witnesses.”

In the absence of trial safeguards, this very public and racially charged battle between white farmers and residents and Indigenous communities could have predisposed some jurors to engage in jury nullification despite the judge’s instructions that they must not use their “own ideas about what the law is or should be.”

Jury nullification, according to the Supreme Court of Canada, refers to “that rare situation where a jury knowingly chooses not to apply the law and acquits a defendant regardless of the strength of the evidence against him.” It has characterized “the jury’s power to nullify as ‘the citizen’s ultimate protection against oppressive laws and the oppressive enforcement of the law.’”

Nullification would have occurred here if the jury acquitted because of a belief that Stanley was entitled to defend his property as he did, even though the law did not give him that right.

Indigenous jurors excluded
During jury selection, defence counsel used their peremptory challenges to remove every juror who appeared to be Indigenous, without objection from either the Crown or judge, to create what appeared to be an all-white jury.

This would have sent a powerful message to the jurors who witnessed this and who were selected to serve that Indigenous perspectives were irrelevant or could not be trusted. The “us” versus “them” racial dynamics of the case and any other pre-existing racial bias would have been reinforced by this exclusionary process. This made nullification even more likely.

No procedures to minimize racial bias
The Stanley jurors were not challenged for cause, that is, they were not screened for racial bias. There was not even a challenge based on exposure to pre-trial publicity, which would have included the racially charged nature of the case.

Moreover, in his instructions to the jury, the trial judge gave the Stanley jurors the standard instruction about the need to be impartial. He did not specifically address bias against Indigenous peoples and how that could contaminate their assessment of the evidence.

In Williams, the Supreme Court held that “the potential for prejudice is increased by the failure of the trial judge to instruct the jury to set aside any racial prejudices that they might have against Aboriginals.” Similarly, in R v Barton, a case involving a white accused and an Indigenous victim, the Alberta Court of Appeal stated:

Nor is there any reasonable chance for jurors to discharge their duties impartially if trial judges fail to warn them about relying on improper myths and stereotypes when jurors have been implicitly or explicitly invited to do just that. … [T]here still remains an undeniable need for judges to ensure that the criminal law is not tainted by pernicious and unfair assumptions … about … Aboriginal people … Failing to meet that need can undermine the jurors’ ability to apply the law objectively and correctl

In Stanley, such an invitation came from the racial dynamics of the case and jury selection. In addition, two Indigenous witnesses were cross-examined on their criminal record and the jury was instructed that they could take that into account in assessing their credibility.

Flawed evidence becomes believable
Outside of nullification, the only explanation for the acquittal for murder and manslaughter was that the jury had a doubt based on Stanley’s testimony. He testified that his finger was not on the trigger when his gun went off as it was facing Boushie’s head (that is, he claimed it to be an accident and not an intentional act) and that he reasonably believed the gun was empty (i.e. no negligence).

In support of his testimony, Stanley relied on a phenomenon known as “hang fire” – a delay between the pulling of the trigger and the gun firing. In this case, there was a significant delay between when Stanley said he last pulled the trigger as part of a series of warning shots and when the gun fired the fatal shot. That period of time included him taking out the magazine, getting to the car, reaching in to move a metal object and then across the steering wheel to turn off the ignition.

There was no expert evidence to corroborate that this length of delay was possible. Both the Crown and defence experts testified that the gun was functioning properly, not prone to misfires and that hang fires are exceptionally rare. According to the Crown expert, any delay is usually less than half a second.

Instead, the defence relied on two lay witnesses who testified about their experience with similar delays with different guns. One of them, who approached the defence to offer his story during the trial, testified about his experience 40 years ago while gopher hunting. Despite serious questions surrounding the admissibility of this evidence, the Crown did not object.

So how could this flawed evidence and spectacularly problematic hang fire accident defence become believable or raise a reasonable doubt? The most reasonable answer lies in the failure of the trial process to safeguard against racial bias. That failure likely opened the door to a dulling of the jurors’ critical thinking skills.

As the late law professor Andrew Taslitz noted in his work on racism and decision-making, “racial features trigger an unconscious process of stereotyping and selective inattention” that can lead fact-finders to “more likely conclude that such flawed evidence is in fact credible.”

Moving forward
Moving forward, there is much work to be done. I am part of a group of academics who have come together to examine the trial and better understand and explain to the public what likely happened. We plan to make recommendations for change. It is imperative that other justice officials including the RCMP, Crown prosecutors and the judiciary do the same.

Meaningful reform to address the process failures in this case and to ensure that they don’t happen again requires all of these actors to confront the questions raised here in a constructive manner.

This article was first published by The Conversation (

David Tanovich is a Professor at the Faculty of Law, University of Windsor where he teaches and researches in the areas of criminal law, evidence and systemic racism. He is a co-editor of the Canadian Bar Review. In 2017, Professor Tanovich was inducted as a Fellow of the Royal Society of Canada.