The trial about Colten Boushie’s death exposed flaws in the criminal trial process and the justice system, including a reluctance to consider racism.
In many ways, I am inherently made and professionally paid to witness what the Stanley trial verdict in February 2018 revealed about the justice system, criminal trials and the place of Indigenous people and history within them. I am a writer, a lawyer and an instructor. I am also a Métis woman from Saskatchewan. When the jury’s decision to acquit Gerald Stanley was released, I ached. I had rules of evidence in my head, professional experiences in my memory, glimmers of a quiet confidence spurred by news reports. But the result seemed like an admonishment of my naiveté. Given the racism that plagues my home province, it was as if the acquittal was my slap back into what I might call “reality.”
Despite what I had learned and what I teach about criminal procedure, evidence and legal standards, so many things I was learning about the Stanley trial appeared to run contrary to the basic tenets of those subjects. After getting off the phone with my mom in Saskatoon, I reached out to people who, like me, worked in areas I knew were part of the larger story of R. v. Stanley. They included lawyers and scholars. How were they doing? What reaction did they have? What was their response when they were, like me, trained as lawyers and aware that a trial’s result might not go your way, while employed to openly analyze reasons why trials go whatever way they do? And were they, like me, leaning to the view that the trial did not seem to illustrate the rule of law in ways that we knew it?
Naming ourselves Project Fact(a), a small group of us decided together to learn as much as we could about the investigation leading to the trial, the hearing itself and the decision’s implications. We had originally come together to consider what issues we thought Saskatchewan could introduce to justify challenging the verdict. When we learned that the Crown was not going to apply for leave to appeal, we had to pivot to focus instead on raising the social and legal matters that we considered to have been underexamined leading up to and during the trial.
We found many flaws in the process, and in the overall system. The trial and the killing of Colten Boushie both occurred on Treaty 6 territory, but this legal relationship did not appear to be addressed or offered as important context during the proceedings. As part of their work with Project Fact(a), the scholars Alexandra Flynn and Estair Van Wagner explored how there were incorrect interpretations of trespass and defence of property law expressed during the trial and in public commentary around it. Despite the high percentage of Indigenous people living in the area of Boushie’s death and the courthouse, not one visibly Indigenous person wound up on the jury, as the University of Toronto’s Kent Roach has examined. Important questions have also been raised by UBC’s Emma Cunliffe about the RCMP’s handling of evidence and forensics related to the case.
After the trial, there were more disappointments — and criticism of those who would question how the process unfolded.
The Saskatchewan Trial Lawyers Association issued a statement arguing that “many of the comments directed to the judge [in the Stanley trial], the lawyers involved in the matter, and the jury, are unfair,” with a brief reference to “the historical inequities” faced by Indigenous peoples.
A complaint was filed against the Toronto lawyer Christopher Murphy, who was working with the Boushie family, when he publicly complained about funding levels for Saskatchewan Legal Aid and the overall treatment of Indigenous people by the justice system. The Law Society of Ontario wisely rejected the complaint, noting that Murphy was “fulfilling an important role.”
I feel recharged when I think of schools across the country that are adding Indigenous history, law and culture to their curriculums. But learning isn’t just a long-term project for our children. Adults, nonlawyers and lawyers alike, have an obligation to be informed about what “no trespassing” actually means in law (it doesn’t mean you have the right to shoot someone); about what it means to be a partner to a treaty; and about the biases and shortcomings that might influence the collection of evidence and the selection of juries. Not recognizing the anti-Indigenous racism that permeates our justice system and society is a choice.
All involved need to learn where the victim came from and how that placement ultimately influenced where he was and the attitudes of others. It is shameful that more was not brought up about the past, as has happened in trials elsewhere. A court should have a deeper understanding of land and the space in which we are located.
Our first set of findings was created for those interested in introducing the issues raised by R. v. Stanley in the law school classroom. We are also planning various publications for general audiences, the academy and the legal profession. As we continue our learning, we regularly wonder about how we can channel our frustration and our grief into positive action. How can we work our knowledge into tools to be used elsewhere?
Throughout our research around this trial we have been conscious about listening — making a deliberate effort to not impose a set of ways on others. That’s been the colonial way. If there’s one thing that we can do in the wake of the Stanley trial, it is to recognize that colonialism shuts certain voices down. We need to hear those concerns.
This article is part of What can we learn from the Stanley trial? special feature.
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