- Rebecca Bromwich
Public Legal Education and Juries: Contemplating Justice for Tina Fontaine and Colten Boushie
“You never really understand a person until you consider things from his point of view” -Atticus Finch [1]
Every year, I teach criminal law to legal studies students: undergrads who, in large part, will not become lawyers. We start by talking about the importance of juries. We start there, because it is they, as citizens, not I (a lawyer), who are eligible to be tasked with the crucial role of sitting on a jury and determining a verdict. The reliance of our system upon juries is foundational to why it is important for non-lawyers to understand the law - the jury is both the cross-section and conscience of the community.
Jury acquittals in relation to the deaths of Indigenous youths, Tina Fontaine and Colten Boushie, have given rise to a crisis of confidence in Canada’s criminal justice system. Recent, separate, devastating, jury verdicts of acquittal in the second degree cases against Gerald Stanley [2] in relation to Boushie’s death , and of Raymond Cormier [3] in relation to the death of Tina Fontaine , have highlighted the significance of juries to Canada’s criminal justice system. These acquittals have also raised profound concerns about the embeddedness of both that system, and our laws, in broader and oppressive cultural issues in Canadian society. I did not hear the evidence in those cases and can make no comment on the legal correctness of the verdicts themselves. However, it is evident from the outcry and protests arising from these cases that the justice system has fallen into disrepute amongst many; for many more, it is not seen as legitimate. The system is not majestically immune from inequalities, racism, bias, and colonialism. Regardless of what lawyers contend about technical issues, the verdicts do not feel like justice.
In the wake of these acquittals, Prime Minister Justin Trudeau and Justice Minister Jody-Wilson Raybould have both expressed grave concerns about aspects of the jury system and a review of the appointment of juries has been announced. [4] The demographics of juries have been called into question, as have uses to which peremptory challenges may be put to exclude racialized and indigenous jurors from being empaneled.[5] It is also significant that neither the Prime Minister nor the Minister of Justice can over-ride the decisions of the jury. They cannot overrule jurors, who are ordinary citizens. Only an appeal finding an error of law can do that.
Without diminishing the urgency of the calls for change to the ways in which juries are constituted, I would suggest that we should also spend energy considering not just who jurors are, but what they know. The decisions to be made by juries, particularly in murder cases, seem deceptively simple, but actually contain complexities that it would be difficult for a group of lay people with no prior instruction about, or study of, criminal law, to appreciate. I am thinking, with reference to these cases, particularly about the notion of lesser and included offences. [6] How well is the inclusion within a second degree murder charge of the lesser included offence of manslaughter popularly understood? How well do prospective jurors, for example, understand the doctrine of merger known as the Kineapple principle?[7] We will never know how well any Canadian jury understood that, for instance, a verdict of manslaughter was available as a lesser and included offence where a second degree murder charge was laid.
Lengthy jury instructions were given in the Stanley case. Similarly, jurors in the case against Cormier in relation to Fontaine’s death were instructed by the Judge for four and a half hours on the task before them before commencing deliberations. Certainly, at that late stage, the law was explained to them. However, especially because jurors cannot disclose their deliberations, due to Criminal Code prohibitions, even after the fact, we will never know how well that explanation was understood. We cannot know to what extent the conversation between them in either case included consideration of the possibility of manslaughter convictions. Additionally, the historical and longstanding problems with over-representation of indigenous and racialized people in Canada’s justice system are not intuitively obvious without at least some prior study. We will not conclusively know whether and what colonial biases informed their deliberations, or if they did.
Furthermore, although it is appropriate to hone in on jury process reform in this circumstance, in contemplating justice for Tina Fontaine and Colten Boushie, we should not lose sight of other dimensions of a complex problem. Systems in addition to the criminal courts should not get a free pass from scrutiny. Child welfare, police, and other government authorities, failed Tina Fontaine and fail Indigenous youths like Colten Boushie routinely and repeatedly.
As a student, I did not understand the criminal law intuitively. It is archaic in many ways; it is not necessarily easy to learn. Additionally, as a person of white settler heritage myself who has much to learn, and continues to grapple, with different understandings of the criminal justice system while studying and working in it, I do think that privileged people to whom oppression is not immediately obvious, can learn to understand more about it. As we must. Demographic diversity in the criminal justice system is important, but this does not mean that ethically, white people should get a free pass; the onus is not only on Indigenous people to educate us about the living legacy of our colonial history.
All of this is to say that, in addition to contemplating the need for better demographic diversity in constituting of juries, we should also be looking at how jurors are prepared for their tasks. There is much talk currently about education for judges. Perhaps we need to look at education for jurors. In reviewing the jury system, it may be worth considering that some form of public legal education should be presented to jurors after they are called upon, but before they are empanelled.
At a minimum, the profound significance of jury verdicts in these cases speaks to the importance of public legal education and critical study of law more generally, and why it is so very important for the criminal law not to be left to lawyers. As US President Barack Obama said in his farewell address [8] , and reiterated shortly before reporting for jury duty in Chicago a few months ago, “the most important office in a democracy is that of citizen.” [9]
References:
[1] Lee, Harper, To Kill a Mockingbird (New York: Warner Books, 1960).
[2] See e.g. Friesen, Joe, “ Gerald Stanley Acquitted in the Shooting Death of Colten Boushie” The Globe and Mail (9 February 2018) https://www.theglobeandmail.com/news/national/gerald-stanley-acquitted-in-death-of-colten-boushie/article37929427/
[3] See e.g. MacLean, Cameron, “Jury Finds Raymond Cormier Not Guilty in the Death of Tina Fontaine” CBC News (22 February 2018) http://www.cbc.ca/news/canada/manitoba/raymond-cormier-trial-verdict-tina-fontaine-1.4542319
[4] See e.g. Maloney, Ryan, “ Trudeau Promises to Reform How Juries are Selected” http://www.huffingtonpost.ca/2018/02/14/trudeau-promises-to-reform-how-juries-are-selected-pays-tribute-to-colten-boushies-family_a_23361900/ Huffpost Politics (14 February 2018).
[5] See Roach, Kent “ Colten Boushie’s Family Should be Upset: Our Jury Selection Procedure is Not Fair” The Globe and Mail (30 January 2018) https://www.theglobeandmail.com/opinion/colten-boushies-family-should-be-upset-our-jury-selection-procedure-is-not-fair/article37787115/
[6] See ss. 229 – 232 , Criminal Code of Canada RSC 1985, C – 46.
[7] Kienapple v R, [1975] 1 S.C.R. 729
[8] Farewell Address of President Barack Obama, (11 January 2017). Full text available at: https://www.cnn.com/2017/01/10/politics/president-obama-farewell-speech/index.html
[9] See e.g. Vasquez, Megan and Hackney, Deanna, “Obama Reports for Jury Duty in Chicago” CNN Politics ( 9 November 2017) Obama was dismissed from serving. https://www.cnn.com/2017/11/08/politics/barack-obama-jury-duty/index.html
