National Justice Network Update

February 2018

Volume 24, Issue 2

Doing justice for Indigenous peoples; how the families of Colten Boushie and Tina Fontaine were let down

Social media platforms exploded in February following the failure of the criminal justice system to convict the persons accused of the murders of Colten Boushie and Tina Fontaine. Many Canadians feel Boushie, a 22-year-old Cree man, and Fontaine, a 15-year-old female member of the Sagkeeng First Nation, were acquitted due to deeply entrenched systemic racism in the courts and legal system. Protests were held across Canada in solidarity with the families.

Colten Boushie was shot and killed in August 2016 in Saskatchewan. Gerard Stanley was charged with second-degree murder, after he shot Boushie in the back of the head believing that he was trying to rob him. Stanley claimed that the shooting was an accident, and he was acquitted on February 9th.

According to observers, none of the jurors in Stanley’s case were Indigenous. This fact has led to criticism of peremptory challenges during the jury selection process, which allows prosecutors and defence lawyers to remove a potential juror (up to a certain number) without articulating an explicit reason. The defence used the peremptory challenges to eliminate anyone who appeared Indigenous. It was a transparent defence strategy, and it worked.

Tina Fontaine’s body was found in August 2014 in a Winnipeg river, wrapped in a duvet and weighed down with rocks. Although three witnesses testified that Raymond Cormier owned the same kind of duvet cover as the one in which Tina's body was found, no forensic evidence linked him to it or Tina's body. Pathologists could not determine the cause of her death and there was no sign of sexual assault, stabbing or blunt-force trauma. Raymond Cormier was found not guilty of second-degree murder by a jury, just weeks after Stanley’s acquittal. Jury composition was not a point of contention in the Cormier trial.

Professor Milward, writing for CBC News, has suggested that these cases may necessitate a reconsideration of the extent to which the system protects jury secrecy. Jury secrecy, he says, is meant to ensure anonymity so that jurors can be free to deliberate on evidence and reach an objective verdict without outside pressure. However, this anonymous space can lead to jury nullification, whereby a jury understands the law and evidence, but makes their decision from an emotional standpoint. This can result in sympathy or prejudice seeping into major legal decisions, where they have no place.

The absence of Indigenous peoples from the jury selection process is a cruel irony, given that they experience the brunt of systemic racism, and are also disproportionately incarcerated. Statistics Canada reported in 2016 that 23% of murder victims that year were Indigenous.

We know that racial considerations in exercising the peremptory prerogative are common. Former Supreme Court Justice Frank Iacobucci spelled it out in a report five years ago. Indigenous people are routinely underrepresented on juries, he said, and it's unjust, and Canada should end the practice of peremptory challenges, just as the United Kingdom has done.

Justice Minister Jody Wilson-Raybould has acknowledged how the justice system fails Indigenous peoples and perpetuates Canada’s negative colonial legacy. She has said that she intends to effect change. These comments came after Colten Boushie’s family travelled to Ottawa for discussions with senior cabinet ministers and Prime Minister Trudeau.

Minister Wilson-Raybould was careful to note that jury selection is not the only issue at hand; she said that the Government is working with Indigenous partners on other issues, including bail reform, the administration of justice, and restorative justice. A government official has said that a bill may be introduced in late winter or early spring to suggest reforms in response to the calls for change.

The verdicts in Colten Boushie and Tina Fontaine’s cases are a harsh blow to Indigenous peoples, to whom the Government of Canada has promised reconciliation efforts. Canada’s cultural genocide against Indigenous peoples has had far-reaching effects and left many families with intergenerational trauma. The Boushie and Fontaine verdicts have further diminished faith in the justice system, the Government, and the supposed commitment to reconciliation.

We need to make a real effort to remediate the long problem of Indigenous people being disproportionately victimized and over represented in Canadian prison populations, particularly in the West. As an act of reconciliation, we must address this serious problem facing our justice system. Indigenous peoples need to have hope they too can access justice in Canada.

Gabrielle Scrimshaw, a co-founder of the Aboriginal Professional Association of Canada, wrote in the New York Times that “until our leaders – and regular Canadians – state plainly that Canada has a problem with racism, indigenous people will continue to have their lives cut short.”