As a long-haired man stood up in a Saskatchewan courtroom to be vetted as a potential juror in the second degree murder trial of a white farmer accused of killing an Indigenous man last week, Chris Murphy looked on. The defence lawyer didn’t expect a single Indigenous person to make it onto the jury, but in that moment, he felt a glimmer of hope.
The man looked at the accused, as instructed, and the accused looked back at him. Then, the defence said “challenge,” and just like that, it was over — he wouldn’t be allowed to serve as a juror. And neither would the four other visibly Indigenous people who came after him.
This, many Indigenous leaders and legal experts have argued this week after the acquittal of Gerald Stanley for the 2016 death of Colten Boushie, a young Indigenous man, is a problem.
'MY HEART CRIES'
Outrage over Stanley’s acquittal has been accompanied by renewed calls for an overhaul of Canada’s criminal justice system in terms of how it treats Indigenous people. When it comes to jury representation, the Liberal government says, it’s ready to act.
The demands have grown louder since the verdict was handed down on Friday, with protests in solidarity with the Boushie family erupting in cities across Canada over the weekend.
“We will fight for generations to come," Alvin Baptiste, Boushie's uncle, told reporters in Ottawa on Monday. "I don't want my grandkids to live like this, to see this day that we have suffered, or any other families that suffered. My heart cries today."
The shooting, the trial, and the verdict have become flashpoints for the relationship between Indigenous people and their white neighbours. Legal experts are questioning why, despite a mountain of research concluding that urgent change is needed, Canada has failed to make the criminal justice system more accessible to Indigenous people.
Stanley, 56, was acquitted — by an all white jury, as Boushie’s family pointed out — of both second degree murder and manslaughter; he testified that his gun went off accidentally, shooting the 22-year-old from the Red Pheasant First Nation in the head and killing him.
The verdict sent shockwaves through Indigenous communities, and for the Boushie family the status quo is unacceptable.
"This is only the beginning of the conversation and calls to action," Boushie's cousin, Jade Tootoosis, who flew to Ottawa on Sunday to meet with federal ministers, said. "We have little to no faith in the justice system and we're here to talk about that."
'REFORMS ARE COMING'
Speaking with reporters on Monday, Justice Minister Jody Wilson-Raybould said the government had already been studying the issue of peremptory challenges to prospective jurors, and the Boushie case has made this a priority. Peremptory challenges, which allowed Stanley’s defence to challenge every visibly Indigenous potential juror without providing a reason, allow racism into the system and are dangerous because they create juries that don’t understand Indigenous culture and traditions, legal experts say.
"Those reforms are coming. The reality of the Boushie family coming here and the elevation of the national consciousness on the challenges and systemic barriers that marginalize people facing the criminal justice system is very welcomed," Wilson-Raybould said, following her meeting with the family.
Following her meeting with Trudeau on Tuesday, Boushie’s mother Debbie Baptiste told The Globe and Mail that the Prime Minister told her, "Things need to change. Colten's death was not in vain and we will move forward."
"I said that things for native people have never changed," Ms. Baptiste replied.
But for others, who have been calling for changes to the justice system for decades, and the jury selection process in particular, proposed actions from the government come as too little too late.
“We didn’t want this to be the case, but we’ve been here too many times before to realistically hope for justice,” Pam Palmater, chair in Indigenous Governance at Ryerson University, said of the verdict. “You could tell from the police statements minimizing the death, the blocking of native jurors that this would not end well.”
Last week, Murphy told VICE News the lack of Indigenous jurors meant no one was able to express the “consciousness of the community,” which may have led to a lack of understanding among jurors.
The issue has been raised repeatedly over the years, with the first call to change the jury selection system coming in Manitoba in 1991 in a study chaired by Senator Murray Sinclair.
In Ontario, it’s been almost five years since former Supreme Court Justice Frank Iacobucci released his report on the under-representation of Indigenous people on juries in the province. He also recommended that Ontario urge the federal government to end peremptory challenges.
While some have called for a national inquiry into Boushie’s death and further study of the jury issue, Palmater urged the government to read all the inquiries and reports that have been done already and implement their recommendations rather than spending more time and resources pondering the issue.
“Without a radical departure from the current system in all its iterations, there can be no trust,” Palmater told VICE News.
After Marlene Pierre’s grandson Jacy Pierre died at the Thunder Bay District Jail in 2007, she and his mother walked out of the inquest to protest the lack of Indigenous representation on the jury. For her, the changes can’t come soon enough.
“It’s not a get out of jail ticket. It’s a way to bring an element of fairness and understanding,” she said of increasing Indigenous participation on juries. “It’s been such a disappointment and the problem isn’t fixed. I just don’t have words to describe how that feels. It’s so disenchanting the way the whole jury issue has been handled.”
But getting rid of peremptory challenges isn’t a magic solution, said University of Toronto law professor Kent Roach, who points to issues like how difficult it is for jurors to travel to courthouses, distrust in a system that imprisons Indigenous people at disproportionate rates, and language barriers as some of the obstacles to creating representative jury pools — the key step that comes before the selection process.
“If you’re a unionized postal worker, it’s easy for you to be on a jury,” said Toronto-based criminal lawyer David Butt, adding that inadequate compensation for jurors is also a challenge. “If you’re a subsistence trapper in an isolated community, how likely is it that you’re going to end up on a jury?”
HISTORY OF VIOLENCE
Along with the logistical issues of getting people from remote communities to court to potentially serve on juries, some Indigenous people don’t want to participate in the courts at all because they associate the legal system with colonial abuses like scalping laws, forced sterilizations and residential schools, said Palmater.
“Right now, there appears to be a high degree of impunity for violence and murders of Indigenous peoples - and governments and their police agencies are the worst culprits,” she said. “Once you get to the jury selection process, it’s already too late.”
Palmater said taking steps to add Indigenous people to juries isn’t decolonization in justice, but “ineffective window dressing.”
“You have racist farmers who believe that their farm equipment is worth more than our lives, racist organizations that support race-based violence, racist police officers who don’t do their job and protect the white killer, then on and on you have non-native crown prosecutors, judges, juries. What chance did he have?”
Many experts question whether Indigenous people will ever be able to attain justice through systems rooted in colonial structures.
Damien Lee, a University of Saskatchewan professor, believes Indigenous justice systems need to be part of the current dialogue.
“If we’re going to be talking about reconciliation or decolonization or even justice for Indigenous peoples, none of that can take place if we’re trying to constantly fit Indigenous people into a non-Indigenous system,” he told VICE News. There needs to be room for Indigenous justice systems, he said, because “After all, these are Indigenous territories.”
There are principles and values in Indigenous legal systems that are directly at odds with the criminal justice system, he said. In the Stanley case, for example, there was the issue of Cree mourning protocols, which restrict people from saying the name of the person who died. In court, however, witnesses were required to do so.
“Reconciliation seems to be constantly defined as being about inclusion of Indigenous peoples into the existing system, which is more about multiculturalism and tolerance than it is about deconstructing that system to allow Indigenous peoples’ legal systems to take up that space,” Lee said.