Listen Up! Trudeau’s ‘fix the justice system’ proclamation could actually break it



Hugh Mackenzie
Huntsville Doppler

A Disturbing Incident … 

Usually, when I write a column, I have a pretty good idea of where I stand on whatever I am writing about. This time however, I am not so sure.

There was a disturbing incident this week that caught my eye and has also caused quite a kerfuffle in the media and in political circles in Ottawa. A jury in Regina rendered a not guilty verdict in the case of a farmer charged with second degree murder. What makes this interesting is that the victim, 22-year old Colten Boushie, had an indigenous background. He was a member of the Cree Nation. There was no question about the fact that Gerald Stanley, the Saskatchewan farmer, shot and killed Boushie. That was admitted. Nevertheless, the all-white jury, with no aboriginal representation, returned a verdict of Not Guilty.

We will probably never know what really happened on that sad day in 2016. It is clear that Colten Boushie and two friends left a nearby Reservation and at some point that afternoon, drove on to the Stanley Farm. Police believed that prior to doing so, the trio had broken into a truck on a neighbouring farm. Boushie’s friends argued that they were only on the Stanley farm to seek help for a flat tire. Gerald Stanley and his son were, at the time repairing a fence and contended that the young people had entered their truck and also started an ATV. Gerald Stanley said that he feared for his wife who was outside at the time. He said that he retrieved a gun from his barn and fired two warning shots in the air. Subsequently there was an altercation and his gun fired again, killing Boushie. Stanley said it was an accident. The jury obviously agreed.

Following the verdict, there was a huge hue and cry, many believing that the victim, Colten Boushie, did not get the justice he deserved and that there were racial undertones to the verdict. Both Prime Minister Justin Trudeau and his Justice Minister raised doubts about the outcome of the trial. This was somewhat surprising as only a few years ago, Trudeau was all over then Prime Minister Stephen Harper for expressing an opinion on judicial issues.

In recent days, the Prime Minister has met with the Boushie family, following which he promised to “fix the system” and create a new legal framework for indigenous people. Later, in the House of Commons, he said, “We have a problem. We have much to do to fix the system in the spirit of reconciliation.” My question is, what exactly are they going to fix?

Are they going to differentiate between how an indigenous Canadian faces trial for a criminal offence from other Canadians? Are they going to insist on indigenous representation on juries where a First Nations individual is involved? Who would those individuals be representing? An especially important question, since a single juror can affect the entire outcome of a trial. Will there be different standards or procedures at trial, when indigenous Canadians are involved? Will Crown Counsels be instructed to treat cases involving indigenous people differently? Will the sentencing structure be different? How can the system be “fixed” without giving special status to a particular group of people?

I have had a considerable amount of experience in my lifetime as it relates to indigenous issues. I have seen first hand the abject poverty, the depression, the addiction and the mental health issues and the sense of hopelessness, all at a much greater rate than other Canadians. I am fully aware that we have not solved any of these issues and that many indigenous people are treated as second class citizens. There is much to be done and the need for reconciliation is real.

But when it comes to the criminal justice system I wonder if it is wise to differentiate between one group of Canadians and another. Where could it lead? What kind of precedent will it set? With Canada’s growing diversity who else will feel that our justice system should be geared to their particular heritage or way of life? For example, would we be one step closer to Sharia law for Muslim Canadians? How can we say no to one culture when we say yes to another?

Gerald Stanley was acquitted of second degree murder by a jury of his peers. That is the way it is in Canada. It’s not a perfect system but it works fairly well. Was racism involved in this particular verdict? We will never know for sure. Did Colten Boushie get the justice he deserved? Possibly not. But before we tinker with the criminal justice system in Canada based on the outcome of this one trial, we should be very careful about where that will lead us. At least, that is the way I see it.

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  1. Michael Mackenzie on

    Hugh – a very articulate discussion on one of the many touchy issues of current times. How to fix without losing the entire structure of a functioning society. As always – politicians pander.

  2. “Stanley said it was an accident. The jury obviously agreed.” The jury didn’t have to agree, there only had to be reasonable doubt.

  3. Isn’t the purpose for ‘random’ selection of jurors to ‘avoid’ discrimination of any kind…discrimination against the rich or the poor, discrimination against racial minorities, discrimination against men or women, discrimination against a particular religion and discrimination against the young or the elderly? I can’t imagine how a ‘perfect’ jury of 12 could include someone from each of these groups if the selection were done any way other than ‘random.’

  4. Hugh my sentiment exactly, better written than I might have penned. Laws should not be determined in the media, social or otherwise. I am sure those jurors randomly chosen took their civic duty very seriously and came up with a verdict based on the evidence presented to them. Trudeau’s comments show his lack of support for the judicial system this country was built on. When he says our system has to be fixed is he referring to it as in a horse race or a prize fight? For the Prime Minister to hint any impropriety in this case adds grease to an already slippery slope.

  5. Granted, the Prime Minister – with all due respect – needs to ‘put a sock in his mouth’ more often than not. But on the other hand, event after event and study after study has revealed the obvious – that there are significant systemic problems associated with our criminal justice system in relation to the treatment of our Indigenous people, past and present. One of the lessons a study of the Canadian past should teach us is that a repetitive cycle of empty promises and glib sanctimonious platitudes create fertile ground for the eventuality of social turmoil and even political violence (e.g. the Northwest Rebellion of 1885).
    Here’s a link to an informative article with supportive footnotes by a historian who has studied this whole area of jury selection that is so fraught with controversy currently, and in the English, Canadian past:

  6. Mr. Trudeau always has the answers!
    Why could he not have said, “The Jurors have spoken, and we must abide by the verdict that was reached. That is the Law.”
    As we have seen so often, this young Prime Minister has taken “Fuddle Duddle” to new heights.

  7. You have to wonder what evidence the jury was permitted to hear in this case. I have served on several jurys and in every case I learned after the verdict was reached, that there was evidence that was withheld from us that might have changed at least my decision. I am sure there was lots in the media which the jury was not permitted to consider and moved a lot of public opinion.

  8. Any time our Prime Minister DOES consent to make a statement, it creates a lot of reasons for worry, based on his current record. A definite sense that an inexperienced, narcissistic man-child seems to be at the helm of our country is cause for concern by all.

  9. While it may have been inappropriate for our Prime Minister to say that our justice system needs to be “fixed”, there’s no denying that our jury system has some inherent flaws which manifested themselves in the Stanley trial. First of all, “a jury of your peers” means you’re often judged by men and women from your own community who share your perspectives and prejudices. This was the case in the Stanley trial. It was a pretty homogeneous group. And the reason for that is the second flaw in our jury system, the peremptory challenges, which allow the prosecutor and the accused to reject jurors without giving any reason. This is used by both sides to build a jury that will be most favourable to their side, and in the Stanley case, was reportedly used to reject Indigenous jurors. Maybe the “fix” that our Prime Minister is referring to would be as simple as eliminating the peremptory challenge. That way a jury of your peers would include folks from both sides of the tracks, as it were, and not just people who look and think like you do.

    • Trisha Pendrith on

      It’s great that you’ve mentioned peremptory challenges. But I’m wondering… if there are flaws within the system, why is it inappropriate for our PM to identify and ‘fix’ them? Isn’t that part of his improve the system?

    • Thank you Ruby. To some of the other comments: you don’t even realize the “white privilege” you are displaying in your comments.

  10. Trisha Pendrith on

    Let’s leave political partisanship aside when discussing issues such as improving the inherent bias in our excellent but not PERFECT judicial system. Over more than three decades I was privileged to interact with thousands of young people. I taught critical analysis of World and Canadian issues – geopolitical, environmental, and social justice – as well as writing textbooks on these themes for Ontario secondary schools. The most important legacy I left my students was media literacy and practise of steps they could take for intelligent analysis of the many issues they would face in their lives.
    I taught the value of making INFORMED opinions. Students used “real”, accurate, but selected facts to prove completely opposing viewpoints. That’s easy to do and it shows how very inaccurate, misleading and frankly ignorant, some opinion commentary can be – including some comments following a Commentary or Listen Up! column.
    We can’t rely on mainstream media to shape our views. We have to dig deeper, read alternative sources, evaluate website reliability, listen to the voices not often heard. Because I worked so hard at helping kids develop these skills, essential for good citizenship and democracy, it’s frustrating when I read some commentary in media, including Doppler.
    Our judicial system is one of the best but is CERTAINLY not perfect. Inherent biases have been clearly identified that do need to be improved. Ask anyone who works within the system. [One of the ways to reach an informed opinion is to talk to people who know from experience! They won’t all have the same opinion, but searching for that information is part of good critical analysis.]
    Is our Prime minister trying to “lose the entire structure of a functioning society”? Of course not. That‘s an unreasonable statement. The PM’s statements in no way show lack of support for our judicial system. They show that he intends to make it fairer for everyone, not just indigenous peoples. He is not suggesting discrimination; or that we say no to one culture, yes to another. Raising the fear of Sharia law becoming part of Canada’s justice is an outlandish and provocative red herring.
    One of the concerns is that we don’t have a truly random selection of jury members NOW. There is built in bias and discrimination, partly because of peremptory challenges that can be used by the defense to shape a jury to their advantage. That is one of the problems the PM intends to fix. Both the U.K and the U.S. have done away with peremptory challenges.
    Read the article suggested in Peter Kear’s comment and thanks for that, Peter. Along with a long history of the role of juries, some directly relevant paragraphs can be found in the introduction and near the end of that article. The article refers to the 2013 report by well-respected former Supreme Court Justice Frank Iacobucci on his investigation of the lack of indigenous people on juries and other issues of bias inherent in the system. Even better, to be well informed, search for and read Justice Iacobucci’s actual report to find out why the PM is referring to “fixing the system” in this time of reconciliation when we are making attempts to right some historic wrongs. Improvements made by Parliament will benefit all people not just indigenous people.

  11. Frances Botham on

    I can’t help but wonder how the Gerald Stanley trial would have played out if even one indigenous person sat on the jury. One person can change the end decision. If that juror voted “not guilty” with his peers, how would he/she face the indigenous community when all was said and done? Wouldn’t be a good position for that juror and family to be in, would it?
    The judicial system is not perfect, but it also doesn’t need fixing.

  12. Edward Johnson on

    Well done, Hugh – you’ve rung the chimes and the barking dogs have come running to the trough for another feeding frenzy. Problem is, your piece (and many of the comments) is off-base.
    As Ms Truax and other commentators have ably pointed out (above), the problem with the current jury selection system is that Defense counsel can reject jurors, with no duty to explain, resulting in a stacked jury unrepresentative of the community- the very evil that you would appear (rightly) to want to avoid.

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