The Current

Fallout from Gerald Stanley verdict could have been avoided, says lawyer

A 2013 report highlighted the 'crisis' of Indigenous under-representation in the justice system, but its recommendations have not been acted on, says a criminal lawyer.
Debbie Baptiste, the mother of Colten Boushie, holds up a picture of her son during the trial in Battleford Sask., on Feb. 5, 2018. (Liam Richards/The Canadian Press)
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There is a five-year-old "blueprint" to stop the kind of shock waves caused by the acquittal of Gerald Stanley, according to a criminal lawyer.

David Butt said that retired Supreme Court Judge Frank Iacobucci wrote a report in 2013, calling the under-representation of Indigenous people a "crisis" in the justice system.

But neither Stephen Harper nor Justin Trudeau's administrations acted on Iacobucci's recommendations, he said.

"Judges don't deploy rhetoric irresponsibly," Butt said.  "When you have a measured judge using that kind of word, we have a problem."

"Justice Iacobucci is far too much of a gentleman to be doing this," he added, "but I'm sure he's sitting in a comfortable chair somewhere thinking: 'I told you so.'"

On Aug. 9, 2016, Colten Boushie drove on to a property in rural Saskatchewan and was shot to death. The 22-year-old was a Cree man from the Red Pheasant First Nation reserve.

Gerald Stanley, a farmer and the property's owner, was found not guilty of second-degree murder on Friday.

Colten Boushie died from a gunshot wound on Aug. 9, 2016. (Facebook)

"Lawyers are fond of saying that justice not only has to be done, but must be seen to be done," Butt told The Current's Anna Maria Tremonti.

Indigenous under-representation can leave the justice system open to criticism, he said, through the perception that justice is not being done.

In Stanley's trial, Butt expressed concerns about "the defence being able to use peremptory challenges to eliminate every potential juror who appeared Indigenous." 

A jury of your peers

There is a racial divide in Saskatchewan, said Doug Cuthand, a First Nations columnist with the Saskatoon StarPhoenix, and it's getting worse.

He said that as the Indigenous population grows and begins to occupy more positions of power, non-Native communities are shrinking and becoming more isolated.

"There's a lot of insecurity and fear," he said. "Fear is a very powerful emotion that's really affected a lot of people here in rural Saskatchewan."

Cuthand was in the courtroom when the jury was selected, and said that "every time an Aboriginal person came forward from the jury pool, the defence lawyers would challenge them."

The result was an all-white jury, he said.

"As one lawyer friend of mine told me," Cuthand recalled, "'Stanley really did have a jury of his peers."

Gerald Stanley was found not guilty of second-degree murder. (Canadian Press)

How jury selection works

This is part of the problem around perception, Butt argued, where justice is not seen to be done.

During jury selection, he explained, the Crown and the defence have an equal number of challenges which can be invoked to disqualify potential jurors.

In most cases, he said, there is a limit of 12 of these challenges available.

"If you have a jury pool in the hundreds and there is significant diversity in it," he said, "that small number of challenges makes it impossible to undermine the diversity of the jury."

Butt noted that problems arise if Indigenous people are disenfranchised from the legal system.

"If we have under-representation — and this is something Justice Iacobucci spoke to — we have the potential for a systemic problem, despite the best efforts of all the players."

The Current approached Jody Wilson-Raybould, the minister of justice, but she was not available to comment.

Addressing the case during Question Period today, she said:

"As a country have to do more in terms of the criminal justice system, the over-representation of indigenous peoples, black Canadians and other marginalized individuals within the system."

"In terms of the under-representation of Indigenous peoples on juries, this is something that I've had conversations about with my colleagues across the way."

"We'll continue to have these conversations," she said, "benefiting from former Supreme Court of Canada justices who have weighed in on this issue."
She also said that pre-emptory challenges during jury selection would be considered, as the government sought to "substantively improve the criminal justice system, and the jury selection process."

Wilson-Raybould was among politicians who tweeted support for Colton Boushie's family following the verdict on Friday.

Farmers with Firearms

Ryan is a farmer from Saskatoon who is a member of a group called Farmers with Firearms. The Current has agreed not to reveal his full name due to death threats he has received.  

The increasing isolation for rural communities is attracting criminals, he said, who realize that authorities cannot respond quickly to calls for help.

The group started after a farm worker was threatened by armed men, he said. Through online posts, neighbours can alert each other about suspicious activity in their area.

Ryan believes that racial tensions are exaggerated by the media, pointing out that the criminal activity recorded by his group is equally split between the Indigenous and white communities.

"I have a little bit of a problem when you read articles and it says, 'Indigenous man shot by white man,'" he said. "I don't know why we need to say that. That's half the problem here. It should just be 'man got shot by another man.'"

He believes the process of jury selection should remain random.

"When we start saying that we should be 100 per cent appointing a Métis or a Native person to a jury, well now that's the definition of racism," he argued. "You're allegedly favouring somebody to put them on something."

The verdict sparked protests across the country. (Terri Trembath/CBC)

Justice must be seen to be done

Butt does not know the proportion of Indigenous people in the jury pool for Stanley's trial, nor how the Crown or defence used their challenges.

"The appearance here is that an all-white jury acquitted a white man who was charged with shooting a Native person and that appearance is problematic."

"And if it had been a diverse jury — let's say six Indigenous people and six white people — nobody could say that that appearance problem existed."

This article was amended on Feb. 13, 2018, to clarify why Ryan did not want his full name to be disclosed.

Listen to the full interview at the top of this page, where you can also share this article across email, Facebook, Twitter and other platforms.


This segment was produced by The Current's Samira Mohyeddin and Ines Colabrese.