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Colten Boushie: Our Justice System isn’t Broken, It’s Working as Intended.

After a day spent drinking and swimming in August 2016, Colten Boushie and his friends had a flat tire. The group of young men drove onto Gerald Stanley’s farm, planning to take an ATV. Stanley ran into his shed and grabbed a semiautomatic handgun because, as he testified, he feared for his life. Stanley fired two warning shots into the air as two of Boushie’s friends ran from their car. Boushie and two of his friends remained in the vehicle.

Stanley testified that he ran towards the vehicle, scared his wife had been trapped underneath, and as he tried to turn off the vehicle he fired a shot from his gun into Colten Boushie’s head.

“Boom. The thing just went off,” said Stanley.

Not guilty verdict.

The jury did not find Gerald Stanley guilty of the second-degree murder charge. Stanley was acquitted of all charges. He walked from the courthouse a free man.

Stanley’s defence was based on such a thin argument, it’s offensive: an accident. His council used the argument of a ‘hang fire’ – a delay from when a shot is fired to when the bullet leaves the gun. Despite the expert testimony stating this phenomenon is extremely rare and lasts under one second, the jury found it convincing. They decided it was this ‘freak accident’ that ended Boushie’s life – not that Stanley grabbed a gun from his shed, approached the car with Boushie in it, and pointed the gun at his head.

The ruling in this trial suggests a terrifying reality: in the eyes of our justice system it’s okay to shoot and kill an unarmed Indigenous man. You do not deserve consequences, you do not deserve to be labelled a criminal.

Indeed, in this case, it was not criminal to kill an Indigenous person. Not only did the jury decide that Stanley was not guilty of second-degree murder (which requires intent), they also found Stanley not guilty of manslaughter (which requires only the act itself). In their ruling of not guilty, the jury found that Stanley was devoid of blameworthiness for killing Colten Boushie.

It’s not broken, you can’t fix it.

Many people are distraught, furious and devastated by the verdict. Many people are shocked, and many others are not surprised at all.

 Those who disagree with the ruling, surprised or otherwise, are calling for our reforms to our system. They are claiming that the justice system is broken and we must fix it.

But to demand that we need to ‘fix’ our system is to presume it once worked or that it’s currently not working as intended. But our justice system is not broken. There’s no missing button, no loose screw. It’s working exactly as it was intended – to protect private property, defend the privileged, and silence marginalized groups.

We need to stop saying our justice system is broken. We need to stop pretending that somehow, somewhere along the path of Canadian colonial history – pop! – a chord snapped and our system became a little off balance. That kind of ignorance and apathy has allowed these racial injustices to persist for decades.

Our justice system is predicated on the oppression of Indigenous communities. While we no longer outright ban the Potlatch and the Sun Dance, our colonial blood still runs through the veins of our justice system. Canada has no laws that condemn Indigenous people simply for being Indigenous, but based on the way our citizens and institutions treat them, it certainly seems like it.

Demanding that we ‘fix’ our justice system is a band-aid for a bomb. As activist Desmond Cole said, it is asking our imperialist justice system “to be a little less racist, a touch less violent.”

Bad from the beginning.

Points of concern, to put it lightly, existed long before the trial. Canada failed Colten Boushie’s family at every turn.

The RCMP conducted the investigation as they typically do for Indigenous cases – apathetically. They lost the car in which Boushie was shot. They did not do a blood spatter analysis. They took four hours to charge Stanley.

The night that Boushie was murdered, the RCMP approached his family’s trailer with guns drawn. They barged into their home without a search warrant, turned it upside down, and accused Debbie Baptiste (Boushie’s mother) of drinking. When the RCMP told Ms. Baptiste that her son had been killed, they told her to “get herself together.” There were no condolences, no explanations, and no details of available services they could access.

In December 2017, Ms. Baptiste filed a complaint with the RCMP about how they treated her. The RCMP conducted an internal investigation and, to no one’s surprise, dismissed the complaint. The family also petitioned for a Crown prosecutor from outside the province to lead the case.

A jury of (not Boushie’s) peers.

The Stanley trial had an all-white jury. How did we arrive at twelve white jurors? Due process. In jury selection for any trial, council can make ‘preemptory challenges’ whereby they can reject any potential juror without providing any reason. In the Stanley trial, every Indigenous juror was rejected.

“Indigenous people are tired of being part of a justice system that excludes them,” said Tanya Talaga, author of Seven Fallen Feathers. “Tired of being tried by white judges and juries and then thrown into jails that in some parts of Canada…are almost entirely Indigenous.”

We cannot ignore the absence of Indigenous people on this (or any) jury. We cannot have an all-white jury and deem them to be the entire conscience of Saskatchewan’s community, as 16% of the population is Indigenous. How is it that we’re okay with having Indigenous people being vastly overrepresented in our prisons, yet we’re not okay with having a single Indigenous juror?

Only 2 of 101 judges in the province are Indigenous, yet 81% of the inmates are Indigenous. Have we ever stopped to wonder whether the fact that Indigenous people are so overrepresented behind bars because they are so underrepresented in our courts?

If we fear that an Indigenous juror would be biased and automatically side with the Indigenous victim, is it not logical to assume that the white jurors would side with the white accused? Every juror will bring their own biases - on race, gender, ability, etc. - to the trial. That’s human. But if that’s the case, we need to let Indigenous people bring their biases courtroom too.

In the same vein as a juror’s biases, we must also speak of a juror’s lived experiences. How can we expect twelve non-Indigenous people to truly understand the systemic racism that Colten Boushie, an Indigenous man, faced? We cannot characterize our trials as ‘fair’ if they so heavily favour the accused over the victim.

As Professor Ken Roach of the University of Toronto wrote, if trials are to be fair they must, “respect the equality rights of victims, as well as the rights of the accused. As the Aboriginal Justice Inquiry warned, "both the Crown and defence counsel have too many opportunities, through the use of peremptory challenges … to make decisions on the basis of racist or sexist stereotypes.” In this report, former Supreme Court judge Frank Iacobucci noted that Indigenous people are routinely underrepresented on juries. It’s unjust, Iacobucci said, and Canada should end the practice of peremptory challenges, just like the UK.

“The only way to have a say in the justice system in Saskatchewan, if you're an Indigenous person, is to get on a jury, and it's almost impossible to do so," said a Toronto-based criminal lawyer.

Too little, too late.

Both the Prime Minister and the Justice Minister have publicly expressed their concerns. The government has said it’s going to plan a “broad-based review” of the justice system. During question period on Monday, Trudeau said: “We have a problem, we have much we need to do together to fix the system…”

At a healing forest event in Winnipeg on Monday, Senator Murray Sinclair says he intends to lobby lawmakers in Ottawa for concrete changes. The former Manitoba judge served as a co-commissioner on the Aboriginal Justice Inquiry and was the chair of the Truth and Reconciliation Commission. To avoid a similar result in other trials, Sinclair said, politicians need to review provisions in the Criminal Code regarding peremptory challenges as well as provincial jury processes.

But as NDP MP Charlie Angus said, our justice system “…didn’t just fail Colten Boushie. This system has failed Indigenous people all the way back to [Chief] Poundmaker…” And if this system has failed Indigenous people since its inception, then perhaps it isn’t broken, perhaps we must admit to ourselves that that’s just how it was built.

These calls to fix our system are admirable and well intentioned. But they are too little, too late. It’s too far gone. We don’t need to repair the engine, we need a whole new car.

How far we haven’t come.

When looking at the Stanley trial, it isn’t difficult to imagine Alabama in 1948. An all-white jury, presided over by a white judge, found a white man who shot an Indigenous man in the back of the head to be completely inculpable.

But this isn’t Alabama and this isn’t 1948. This is Canada in 2018. This is here and now.

Our headlines today read the same as seventy years ago.

“White Man Kills Indigenous Man. Lawfully Walks Free."

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