In Saskatchewan, a trial’s jury selection reveals a legal injustice

Andray Domise on the possible consequences of removing Indigenous people from the jury pool for the trial of the man accused of killing Colten Boushie

Colten Boushie, a 22-year old First Nations man, was shot and killed on Aug. 9 after the vehicle he was in drove onto a farm in the rural municipality of Glenside, west of Saskatoon. (Liam Richards/CP)

In February of 2016, rumours about Indigenous people robbing and stealing from farms were swirling about the farms of rural Saskatchewan. So it was fortuitous when the RCMP conducted a search warrant in the rural municipality of Montrose, about 45 minutes southwest of Saskatoon. They entered the home of Iain Stables, a cattle rancher whose property held far more equipment than needed to run his small farm. They found nearly $1.2 million in tractors, balers, trucks, and other equipment stolen primarily from two Saskatoon dealerships.

Stables’s arrest and conviction was a significant development for the area where, despite the evidence a white man had been responsible for many of the thefts, social media posts indicated many locals instead listened to their gut. An attempted robbery of a farm worker later that year prompted many in the community to arm themselves—a move so alarming that the RCMP made a public plea for them to back off the vigilantism and let police do their jobs.

This is the social environment—white farmers arming themselves against supposedly theft-prone Indigenous people—in which Gerald Stanley finds himself on trial for the killing of Colten Boushie, a 22-year-old Indigenous man. Stanley’s trial began this week, before a panel of 12 jurors culled from the original call of 750. In the jury selection process, according to Boushie’s family, Stanley’s defence attorney used peremptory challenges—in which the Crown and defence attorneys have a limited number of opportunities to eliminate potential jurors without cause or explanation—to remove every visibly Indigenous candidate from the pool.

READ MORE: What the tragedy of Colten Boushie says about racism in Canada 

Boushie’s family was upset with the process, and his cousin Jade Tootoosis said as much when she spoke with assembled media on Tuesday. “It was really difficult to sit there today and watch every single visible Indigenous person be challenged by the defence,” Tootoosis said. “It’s not surprising, but extremely frustrating, and it’s something that we feared has come true.” Her sentiment was validated by University of Toronto professor Kent Roach, writing for the Globe and Mail:  “Fair trials have to respect the equality rights of victims, as well as the rights of the accused. As the [Aboriginal Justice Inquiry] warned in 1991: ‘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.’”

None of this is to say that a visibly white jury cannot fairly try a murder case. But where race is a social factor in the case, if not a material factor, the social impact travels far past the courtroom walls. In racially charged cases, convictions rendered by all-white juries against defendants of colour can cause cause widespread community distrust of the criminal justice system. Acquittals of white defendants, by all white juries, where the victim is a person of colour, can do even more damage. Not only can it create a similar loss of trust in the system, it can inculcate self-appointed vigilantes with the belief that the law is engaged in a secret handshake with them.

Discriminatory acquittals via all-white juries have a lengthy history in North America, often accompanied by waves of racialized terrorism and vigilantism. The acquittals afforded to the Ku Klux Klan in the post-reconstruction era of lynching (i.e. United States v. Cruikshank, wherein two Black men were lynched by more than three hundred Klansmen) functioned as the midwife to the 20th-century mass resurgence of racial terror in the early 1900s, and again during the Civil Rights era. The legacy of those eras left laws, if not morals, that deputized white men to inflict punishment on nonwhite people for wrongs—real or imagined—as they saw fit.

Florida’s Stand Your Ground law, for example, deputized Sanford resident George Zimmerman in accosting and killing Trayvon Martin. Zimmerman was acquitted by an almost all-white jury (one of the jurors was visibly Latina). In the wake of that outcome, Jacksonville’s Michael David Dunn drew and fired on an SUV after an argument over loud music coming from a vehicle, killing 17-year-old Jordan Davis. Dunn attempted to invoke the Stand Your Ground law by claiming he feared for his life, and was ultimately convicted. The outcome of those trials did not change the senseless killings of Martin and Davis.

READ MORE: Canada’s most dangerous place, North Battleford, Sask., fights for its future

Past the anecdotal, there is plenty of North American scholarship backing up concerns that jury makeup can affect the outcome of justice. Tania Tetlow, a law professor at Tulane University, described as much in a 2009 essay for the William and Mary Law School’s Bill of Rights Journal: “Jurors today are less likely to perceive themselves as overtly and proudly racist against victims. Instead, social science shows that Americans tend to engage in a more subtle racial allegiance to their own race and discomfort with others. This ‘racially selective empathy’ remains a powerful influence in the under-enforcement of criminal law.”

North of the border, Ontario Superior Court justice Cynthia Petersen spent years advocating for legislative changes to the jury selection process for this very reason. While a professor at the University of Ottawa, she detailed the harm done both to the process of justice, and the appearance of justice rendered in a 1993 paper for the McGill Law Journal: “White jurors are most likely to be influenced by racial stereotypes because they tend to have the least awareness of the dynamics of racism and they tend to have the least contact with communities of colour…(People of colour) are least likely to adopt stereotypical beliefs about members of their own race because they are likely to have contact with a community which exposes the falsity of those stereotypes,” she wrote. “Jurors of the defendant’s and victim’s race may therefore correct an imbalance of attitudes which might otherwise govern the outcome of a trial.”

Only eight years prior to Petersen’s essay, the quiet town of Weymouth Falls, N.S., came into national focus when Graham Jarvis, a Black labourer, was shot and killed by Jeff Mullen, a white man from nearby Weaver Settlement. Mullen and Jarvis had been drinking and playing pool at Mullen’s house, and according to the facts of the case, Mullen went to his outhouse, retrieved a shotgun—a shotgun borrowed from his brother-in-law under the premise of putting down a dog—and fired at Jarvis from roughly two metres away. The shot punctured Jarvis’s leg near the waist, and severed an artery. Jarvis stumbled, then crawled into the middle of Highway 340, where a crowd of onlookers gathered as he bled and died. When a bystander asked if Jarvis would be alright, Mullen replied: “I hope not.”

The panel of 50 potential jurors for Mullen’s second-degree murder trial included only one Black person, who was struck from the pool. Mullen claimed self-defence, and after a four day trial by an all-white jury, Mullen was found not guilty. There exists no transcript of the case because none was made. The Toronto Star attempted late in 1985 to obtain a recording or court notes from the trial, and was refused. But presiding judge John J. Nichols was asked by the Star about the case, and said he wouldn’t have let the case go to trial if he had known all of the facts at the preliminary hearing. “You know what happens when those Black guys start drinking,” Justice Nichols told the Star.

Despite the outward claims and appearances that give our justice system legitimacy, racial stereotypes have long polluted the process. The stereotype of the Native who drinks, and who steals, as with the stereotype of the negro who kills and rapes, has existed in Canadian culture for generations. There is no person alive who has escaped them, not even the jurors who will decide Stanley’s fate. As Justice Thurgood Marshall pointed out in his opinion rendered in the Batson v. Kentucky decision, a legal process that permits peremptory challenges will “not end the racial discrimination that peremptories inject into the jury selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.”

Perhaps the evidence alone will acquit Gerald Stanley, and perhaps the evidence alone will convict him. But whatever the outcome, two injustices have already happened. Colten Boushie died in a social environment that has worked for centuries to reduce the lives and bodies of Indigenous people to the mercy of the white imagination. And the man who is accused of killing him will be tried after a jury-selection process that the greatest legal minds of our generation, including two decisions by the Supreme Court of the United States, have damned as unjust.

Maybe it’s time we stopped listening to our gut, and started trusting the experts instead.

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