There is much to learn from the trial of Saskatchewan farmer Gerald Stanley on the dangers of not directly confronting the potential impact of racial bias on the trial process. Stanley was acquitted in February 2018 by an all-White jury in the shooting death of 22-year-old Cree man Colten Boushie. The law gives us tools to safeguard trials from racial bias that we shouldn’t ignore. One of these tools is the law of evidence.

What is the law of evidence? It is a set of rules aimed at regulating the admissibility and use of evidence, in order to fairly promote the search for truth. It recognizes that judges and jurors bring to court every day assumptions about human experience and behaviour that are grounded in unreliable, stereotypical or discriminatory assumptions. That is precisely why it gives judges a discretion to exclude evidence where its prejudicial effect outweighs its relevance or probative value. And why we have rules, for example, that make prior sexual history evidence in sexual assault cases or evidence that paints an accused in a negative light (bad character evidence) presumptively inadmissible.

Unfortunately, despite the fact that Indigenous, Black and Brown lived experiences are disproportionately before courts consisting of largely White jurors or judges, we have failed to ensure that our rules of evidence protect against racial bias in the same way that they do against other types of unreliable and discriminatory generalizations. The Stanley trial is a stark reminder of this reality.

There were a number of admissibility issues in this case that could have triggered racial bias, or could have served as sites for racial bias to shape the jury’s understanding of what happened when Boushie was shot and killed by Stanley. The admissibility of the “hangfire” evidence, supporting the defence’s claim that the gun malfunctioned, was one such issue. Another was the cross-examination of Eric Meechance and Cassidy Cross, two friends of Boushie’s who were with him on the day he was killed.

The Crown called three Indigenous witnesses (Meechance, Cross and Belinda Jackson). Meechance and Cross fled the farm before the fatal shooting. Jackson was in the vehicle when Boushie was shot in the back of the head, in the driver’s seat. It is difficult to understand why the Crown called Meechance and Cross. They had little relevant evidence to give.

By calling them, the Crown opened the door to an extensive cross-examination on their alcohol consumption and purported criminal conduct that day and on their criminal records. There was no Crown objection to any of this questioning.

Here are some exchanges from the transcript between defence counsel and Cross:

Q. Let’s talk about – well, 30 shots. [of alcohol].
A. Around there, 25. I don’t know…

Q. Do you think you should have been driving?
A. No, I shouldn’t have.
Q. Why are you driving if you’re that hammered?
A. I honestly don’t know.
Q. And you actually have a driving prohibition right?
A. I did.
Q. So the driver for the day is the guy – were you the drunkest of the group?
A. No, I was not.
Q. You would have been up there in the top couple drunk guys?
A. Yeah.…
Q. So your record includes – you had a fail to comply with an undertaking…Flight while pursued by peace officer? …

Q. …November 5th of 2015 is when you were convicted of that – fleeing from a police officer? You agree with me there?
A. Yeah…

Q. At the same time, you have theft of motor vehicle. Do you acknowledge that one?
A. Yeah.
Q. Mischief under 5,000?
A. Yes.
Q. Theft – another theft of a motor vehicle?
A. Yes.

The prejudicial effect of this impeachment evidence (evidence used to impugn the credibility of a witness) far exceeded its probative value. It likely triggered negative stereotypes about Indigenous people that further reinforced the racial “us versus them” dynamics of the case. It invited the jury to perceive Boushie and his friends as dangerous and drunken “Indians” who got what they deserved. This was a racist narrative that played out on social media and many fora before, during and after the verdict.

So how can the law of evidence be used to address the concerns raised by the admissibility of this evidence?

There are a number of Supreme Court of Canada precedents dealing with stereotyping in cases involving Indigenous claimants or accused. They provide a solid foundation for lawyers and judges to approach questions of relevance, probative value and prejudicial effect from a culturally competent perspective – that is, to ensure that the perceived value and use of the evidence is not compromised by the potential for bias or stereotyping.

In Mitchell v. MNR, a case involving the admissibility of oral history evidence in Indigenous rights cases, the Supreme Court cautioned judges to resist the natural temptation to apply their own subjective understanding of human experience as a basis to assess questions of evidence admissibility and weight. Chief Justice Beverley McLachlin, held that “[o]ral histories reflect the distinctive perspectives and cultures of the communities from which they originate and should not be discounted simply because they do not conform to the expectations of the non-aboriginal perspective.” It is unfortunate that Mitchell has gone unnoticed in our criminal courts. It represents a rare occasion where the Supreme Court set out a coherent theory of evidence admissibility for all cases including a caution that we ensure that we recognize our own biases when we make such determinations.

In R. v. Williams, the Supreme Court acknowledged the existence of systemic anti-Indigenous racism in our criminal justice system and how it corrodes the reasoning process. Chief Justice McLachlin held that “racism against aboriginals includes stereotypes that relate to credibility, worthiness and criminal propensity.” The Supreme Court urged our courts to do better to safeguard against racial bias.

And finally, in R. v. Gladue and Sauvé v. Canada (Chief Electoral Officer), the Supreme Court recognized that when we decide how to apply legal principles or constitutional guarantees, we also need to acknowledge the effects of broader social conditions and systemic factors. As Chief Justice McLachlin put it in Sauvé, in response to the argument that it is reasonable to deny inmates the right to vote because they have committed crimes: “[t]o the extent that the disproportionate number of Aboriginal people in penitentiaries reflects factors such as higher rates of poverty and institutionalized alienation from mainstream society, penitentiary imprisonment may not be a fair or appropriate marker of the degree of individual culpability.”

The Canadian Civil Liberties Association made a similar point in their comprehensive bail report “Set-Up to Fail” on our courts use of prior criminal records in determining whether to release (or under what conditions) individuals on bail. It noted that “courts should view prior convictions” as the product of systemic factors like colonialism, alienation, poverty, and over-policing “rather than as intentional disregard for the law, particularly in relation to prior breaches of court orders.”

And so, when courts are assessing the admissibility (or use) of evidence such as the criminal record of an Indigenous defendant or witness, consideration should be given to whether the evidence really speaks to the issue it is being proffered for. So, for example, is an Indigenous witness’s criminal record truly reflective of their character or willingness to testify truthfully, or is it more likely the product of racial profiling or other background factors?

This very issue is before the Ontario Court of Appeal in R. v. C(M), where the appellant is arguing that systemic factors are relevant in assessing how much weight to give to an Indigenous accused’s criminal record when assessing their credibility.

Moving forward, we need to insist that whenever we are interrogating the admissibility of evidence in cases involving Indigenous and racialized accused or victims, that we ask the following questions:

  • Is there a danger that the logical connection or inference we seek the judge or jury to draw from the evidence is rooted in stereotypical assumptions?
  • Is there a danger that the evidence does not support the purpose for which it is being led, because it is likely connected to systemic factors such as colonialism or structural racism?
  • Is there a danger that the evidence will trigger stereotypical assumptions and thereby distort or taint the reasoning process?

Every day in our criminal courts, evidence is led that has the potential to corrupt the trial process because it triggers racial bias. All lawyers and judges have the ethical and moral obligation to ensure that all available steps are taken to protect our trials from this.

This article is part of What can we learn from the Stanley trial? special feature.

Photo: People take part in a vigil in support of Colten Boushie’s family on February 13, 2018, in Montreal. The Canadian Press, by Ryan Remiorz.

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David M. Tanovich
David M. Tanovich is a professor of law at the University of Windsor and a fellow of the Royal Society of Canada.

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