• L. Campbell (law student)

Indigenous Injustice: A Brief Summary of Distinguished Visitor Professor Kent Roach’s View on the In

“Too often Canadian justice has been Indigenous injustice.”

On Thursday, January 24, 2019, Robson Hall played host to Kent Roach, Professor of Law and Prichard-Wilson Chair of Law at University of Toronto as part of Robson Hall’s Distinguished Visitors Lecture Series. In recognition of his new book Canadian Justice, Indigenous Injustice, Professor Roach decided to share some of his opinions on the controversial case of Colten Boushie and Gerald Stanley, which just so happens to be the topic of his new book.

For those of you unfamiliar with the case, on August 9, 2016, Gerald Stanley shot and killed Colten Boushie, a 22 year-old Indigenous man and member of Cree Red Pheasant First Nation.[if !supportFootnotes][1][endif] While the details of the case are rather convoluted, what is clear is that Colten Boushie alongside four other friends encountered a flat tire and went onto Stanley’s property where one member of the group attempted to start an ATV which was stored on the property.[if !supportFootnotes][2][endif] Stanley fired two warning shots to scare them away. He then approached the vehicle where Boushie sat in the passenger seat and shot Boushie in the head.[if !supportFootnotes][3][endif] Most egregiously, on February 9, 2018, Stanley was found not guilty of second degree murder and manslaughter.[if !supportFootnotes][4][endif]

According to Professor Roach, the criminal trial of Gerald Stanley was fraught with issues which stem from Canada’s historic and continued discrimination towards Indigenous people. However, Professor Roach suggested that to best understand the current issue in the Stanley case we have to look to the past- all the way back to the 1876 negotiations of Treaty 6 between Lieutenant Governor Alexander Morris and Cree Chief Mistahi-maskwa (Big Bear). As mentioned by Professor Roach, Chief Mistahi-maskwa made it clear during negotiations that his people were afraid of hanging. It should be noted that this didn’t mean ‘hanging’ in the literal sense, but rather Chief Mistahi-maskwa’s fear that his people would lose their freedom. In addition, Professor Roach points to several high profile Canadian cases to illustrate how the Canadian justice system has failed Indigenous people; ranging from the all white and protestant jury responsible for the hanging of Métis leader Louis Riel and the grossly unjust hanging of the Battleford 8.

In light of these past injustices, the Stanley case appears to follow a common trend of discriminatory injustice when handling cases involving Indigenous people. Professor Roach highlighted several issues in the case which perpetuated Indigenous injustice. First, Professor Roach raised the “uphill battle” that Indigenous people face in achieving fair representation in a jury. It’s clear that this was an issue in the case since, as Professor Roach noted, Stanley’s counsel made a peremptory challenge to exclude all visible Indigenous people from the jury. Despite this obvious injustice, Professor Roach maintained the position that the treaties actually require Indigenous representation on juries where Indigenous people are involved in the trial. When asked about how even one Indigenous jury member may have changed the trial, Professor Roach speculated that the decision may have been affected, but is something we will never know. Additionally, because of the lack of cultural and ethnic diversity of the jury in tandem with the lack of racial bias and pre-trial publicity questions posed to the jury during the selection process, Professor Roach made it clear that the jury most definitely affected the results of the trial and perpetuated Canada’s belief in Indigenous injustice.

A second major issue which Professor Roach noted was the lack of sensitivity given to Cree cultural traditions in the trial. During the lecture, Professor Roach said, “When you read the transcript, it’s almost as if Colten Boushie being Cree doesn’t exist…” During the trial itself, Roach pinpointed several cultural insensitivities illustrated by the Court; ranging from the fact that the trial judge requested that Alvin Boushie (Colten’s father) should not wave the symbolic Eagle feather in Court, to the utter violation of Cree traditions when the defence showed photographs of Colten’s lifeless body to his friend Eric Meechance during his testimony- something which Roach said not only interferes with Colten’s spiritual journey after death, but also severely disturbed Meechance to the point that he couldn’t finish giving his testimony.

Finally, Professor Roach emphasized the holes in Stanley’s ‘hang fire’ defence; something which the jury effectively turned a blind eye to out of racial bias or other notions determined prior to or external to the trial. According to Professor Roach, the ‘hang fire’ defence which Stanley’s counsel successfully argued (that he pulled the trigger and it was 30 to 60 seconds later that the gun accidentally fired) is not scientifically proven. In fact, we were fortunate to have Mr. David Brown, a firearms safety and training specialist in attendance at the lecture, who confirmed that the ‘hang fire’ effect is something that hasn’t been proven since the 1700s and wouldn’t ever occur with a cartridge style gun (like that used by Stanley). This means that Stanley likely shot the gun approximately 0.5 to 1 second before the bullet flew out of the barrel of the gun. Thus, Professor Roach intoned that the logical conclusion is that Stanley purposefully aimed the barrel of the gun at Colten’s head and pulled the trigger- something which the jury with their inherent racial bias or preconceived notions ignored entirely.

At the end of the lecture, Professor Roach provided some suggestions on how the Canadian criminal justice system can be improved so that racial bias and Indigenous injustice doesn’t continue to be implicit in the justice system. While Professor Roach mentioned that Bill C-75 helps to ensure that there’s no peremptory challenge of jurors for racial reasons, he stressed that even more change needs to occur: from creating Indigenous police forces, to altering the role of the RCMP, or even increasing the involvement of Indigenous people in juries, these are all partial solutions to the historic problem of Indigenous injustice.

Nonetheless, what may truly be most powerful is the support of Canadians from different backgrounds, ethnicities and beliefs, coming together to act as allies and rally with Indigenous people to turn what has been coined the Indigenous injustice system into the Canadian justice system; a fair, balanced and impartial system where people from all cultures are equally represented without fear of racial, religious or other forms of bias and discrimination. Of the whole lecture in its entirety, perhaps the most profound and resonating thing wasn’t what was said during the lecture, but rather something that arose after Professor Roach finished speaking, when Danielle Morrison (a third year Robson Hall student) said and wrote on social media,

“We had [have] an overflowing room of attentive listeners - criminology students, professors, academics, community members - all listening with enraptured minds to the same thing that Indigenous people have been saying for years. Which leads me to an unsurprising conclusion… That it takes a white male to deliver the truth for people to care.”[if !supportFootnotes][5][endif]

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Footnotes

[if !supportFootnotes][1][endif] Guy Quenneville, “What happened on Gerald Stanley’s farm the day Colten Boushie was shot, as told by witnesses” (9 Aug 2016), online: CBC <www.cbc.ca> [https://perma.cc/BH4T-LE3P].

[if !supportFootnotes][2][endif] Ibid.

[if !supportFootnotes][3][endif] Ibid.

[if !supportFootnotes][4][endif] Ibid.

[5]Morrison, Danielle. “We have an overflowing room of attentive listeners…” (24 Jan 2019), online: Facebook <www.facebook.com/dainjahrous> [https://perma.cc/MW5M-27MQ].[endif][if !supportFootnotes]