Kent Roach’s Talk on Indigenous Injustice in the Gerald Stanley Trial

Kent Roach is a Professor of Law and Prichard-Wilson chair of Law and Public Policy at the Faculty of Law in the University of Toronto. He has also been a significant contributor to the academic landscape of criminal law in Canada. He has authored 14 books and co-authored 200 articles on criminal law. His newest endeavour brought him to Robson Hall on January 24, 2019 to speak to both members of the public and the Robson Hall student body about his new book Canadian Justice Indigenous Injustice: The Gerald Stanley and Colten Boushie Case.

His presentation drew on four focuses from his book: jury selection, hang fires, self-defence and indigenous witnesses on trial. Standing in front of a full room with people lining the back walls and stairs, Roach was quick to not waste any time. He jumped right into a brief tracing of Saskatchewan’s history of, as he articulated, all white juries and questionable acquittals that have occupied Saskatchewan’s courts prior to the Stanley case of 2018. However, the underrepresentation of indigenous individuals serving on juries is, as Roach articulated, “an issue from coast to coast to coast in Canada”. Diving specifically into the Stanley case, Roach explained how Saskatchewan jury pools are pulled from provincial health cards. The day of jury selection, 750 were summoned, 178 showed up to the community centre, with at least 20 of these individuals being indigenous (this number being suggested from media accounts). While Roach recognized that 20 of 178 was an underrepresentation, he noted that the amount was still significant. However, the representation diminished due to 12 individuals being excused for hardship, 3 being excused because of relation to the victim and 5 being subjected to peremptory challenge by Stanley’s counsel. Significantly, the 5 that were subjected to peremptory challenge were visibly indigenous. Roach also drew attention to the inability of the prosecutor to ask the potential jurors during this selection stage if they could be truly impartial.

To highlight how he felt this was illogical, Roach pulled up a post that was made on Facebook from the premiere of Saskatchewan at the time. Roach summarized the post as ultimately saying, if you read between the lines, “knock off with the racism on social media”. He then muses how if the premiere of the province was concerned about the racism surrounding the Stanley trial so much as to make a social media post, a prosecutor asking potential jurors if they could be impartial should not have been out of the realm of possibility. Rather, no attention was paid to the pre-trial publicity and Saskatchewan’s jury selection traditions continued on. Simply put, Roach states that special care should have been taken in selecting the jury in this case because of the multitude of issues that could and should have been anticipated. However, special care was not taken.

Roach then begins his discussion of hang fires by openly admitting he had to do significant research on the topic prior to the writing of his book. Recognizing the audience listening to him had also likely only heard the term hang fire in the context of the Stanley case, he broke it down in simple term for us: a hang fire refers to a scenario where the trigger of a gun is pulled and there is a misfire that causes a delay in the exit of the bullet from the gun, which is more likely to happen if you are using old ammunition. And Gerald Stanley was using quite an old gun that day. Roach then draws focus to the curious aspect of this case, which was the period of time that occurred before the fatal bullet exited the gun. Stanley moved from one parked car to another car, which held Colten Boushie, during this time. It was put to the jury that first, on the bases of two articles about experimental hang fire that were introduced by the Crown, that a hang fire should have occurred within half a second, or alternatively, between 30 and 60 seconds. Both of which appear to be an extremely short time period for an individual who was walking from one parked car to another that was metres away. Significantly, once Roach had finished his discussion, a member from the audience rose to say that he had written Canada’s handbook on firearms and that not only is the hang fire a complete “myth”, but him and his multitude of colleagues across the country have never been able to duplicate such a scenario.

Roach then moves on to discuss the concept of rural self-defence. Stanley’s counsel argued that police in rural areas are too thinly stretched and as a result, people rightfully rely on themselves more to defend their property. The supporters of Mr. Stanley, Roach mentions, attempted to draw attention to the issue of rural crime and how statistically, as supported by Stats Canada, crime rates are higher in rural areas then in the city. This, in combination with the minimal police resources that are available, led both the Crown and Defence in Stanley’s trial to agree that if two warning shots had been fired, that that was therefore justified because Stanley was acting in defence of his property in an area where no one else could defend it. Significantly, Roach points to two cases since Stanley where warning shots were fired and no one was charged. However, it was the third shot, the one that hit Mr. Boushie that was in contention. In addressing this shot, Roach further notes another strategy of the defence to be as he coins, a “phantom self defence argument”. Mr. Stanley testified that as he was walking over to the car that held Mr. Boushie, he was thinking about incidents where people had used their vehicles to crash into crowds. However, self-defence was never actually put to the jury, and as a result, the judge in the jury charge did not properly instruct them on it. So, the jury was not informed that the subjective belief that you are acting in self-defence is not enough without that belief also being objectively reasonable. Rather, they were left to hear Mr. Stanley’s testimony without proper guidance on how to interpret or understand it. Even if self-defence was not officially put to the jury, his testimony would have undoubtedly influenced their deliberations.

Roach concluded his specific chat about the trial by discussing the indigenous witnesses that testified and the insensitivity that occurred when they were being questioned. There was a moment during the cross-examinations of two indigenous witnesses where Roach notes that they visibly looked quite shaken to the point where the trial judge as well as the lawyers recognized that something was wrong and called for an adjournment. He said it occurred after the witness was showed a photograph of Stanley’s gun to identify it. Significantly, that picture also showed Mr. Boushie deceased in the background. Unfortunately, counsel was not aware that in Cree law, if you are shown a picture of someone who has passed, it interferes with their after journey. Roach drew attention to this as another way that indigeneity was put to the wayside in this trial.

Ultimately, as many are aware, Mr. Stanley was acquitted of all charges. At this time, Roach asks: can we do better? He mentions another case, the Peter Khill trial, where the accused was acquitted of murder and manslaughter, the verdict of which is in the process of being appealed. Significantly, Roach mentions that here, jurors were screened about whether they held any bias against the indigenous deceased. He also draws attention to Bill C-75 that was first introduced 2 months after Stanley’s acquittal. This bill would abolish peremptory challenges of jurors, including for reasoning based on race or background. However, Roach asserts that in no way does he think this bill will be sufficient and rather that, “radical reform is necessary”. Roach further says that “we need to think about guaranteed representation of indigenous people on juries”. He asks his captive audience if three or four indigenous people had served on the jury in Stanley’s case, would that have made a difference? He is quick to answer his own question by asserting that we are never going to know. Roach then poses another question to his audience, which he answers himself: Are things going to change? To which he answers, “I’m not terribly optimistic”. There is a huge polarization that will contribute to the difficulty in being able to fully address these issues. On one side, Roach articulates there is the belief that these people should not even be charged, and on the other side, there is the belief that if someone dies there should be a murder conviction. Roach concludes by saying that Canada needs to begin to understand itself in a more global sense and injustice against indigenous people is a global problem. While he isn’t optimistic about change in the near future, he says he wrote his book because he doesn’t think it is a case Canadians should forget and by staying quiet, we don’t do ourselves any service.