Colten Boushie, a 22-year-old Cree man , was fatally shot by white farmer Gerald Stanley on Aug. 9, 2016, on Stanley’s farm near Biggar, Sask. Stanley’s acquittal on murder and manslaughter charges last Feb. 9 was heavily criticized by some Canadians, including the prime minister. A new book by Kent Roach, the Prichard-Wilson Chair in Law and Public Policy at the University of Toronto, looks at how the case can shed light on issues of racism and how the criminal justice system treats Indigenous people.

It was not long after Colten Boushie’s death that the media started reporting on the tragic event that had occurred on Stanley’s farm. The early media reports, with some exceptions, reflected stories told by Eric Meechance that denied attempted theft of a vehicle on the Stanley property. This contributed to the early polarization of opinion that would continue to dog the case.

On Aug. 11, 2016, a story quoted Colten Boushie’s uncle, Alvin Baptiste Sr., that Boushie’s companions “pulled into that farmer’s yard to see if they could get any help with the vehicle.” The next day, the press reported Eric Meechance’s statements that they were looking for help with a flat tire and that “running is probably what saved our lives, you know, because if he is going to shoot one, he probably would have shot us all.”

This early press, which was at odds with the reference in the RCMP press release to detaining three people and seeking a fourth in a “related theft investigation,” probably helped to ignite the social media firestorm that pitted Boushie supporters, who believed the initial press reports, against those who viewed the RCMP’s reference to a theft investigation through the lens of their concerns about rural crime and, perhaps, their fear of Indigenous youth.

One example of the social media backlash to the early press was a post on a GoFundMe page for the Stanleys (subsequently removed) that stated, “These dirty Indians off the Rez stopped in at our farm and tried to steal our vehicles and when they couldn’t, they vandalized it. After our farm pitstop, they carried on to Gerrys where things got out of hand.”

Some of the early press, however, hinted at the possibility of threats from the Indigenous people more serious than theft. The self-defence narrative that had been put to Stanley in his RCMP interview started to emerge in the mainstream media. On Aug. 12, 2016, the CBC ran a story entitled “Deadly Shooting near Biggar Sask Sparks Debate over Right to Defend.” It featured a statement by a criminal defence lawyer that “when there doesn’t appear to be any reasonable alternative, lethal force is no doubt permitted.”

The CBC story also discussed a recent case where Saskatoon police did not lay charges against a woman who killed an intruder in her home. For Stanley supporters, this raised questions about why Stanley had been arrested, detained and charged. At the same time, it also raised the notion of self-defence without any factual foundation, perhaps reflecting negative stereotypes about Indigenous people as often drunk and dangerous.

There were 24 complaints about the CBC story and the CBC ombudsperson subsequently found that the story prematurely declared that self-defence would be a matter before the courts. Although Stanley did not formally claim self-defence at the trial, it will be suggested in Chapter 8 that he made implicit appeals to self-defence.

An Aug. 13, 2016, press story repeated reports that the “natives stopped in the farmyard to seek help with a flat tire.” It also painted a picture of polarization by juxtaposing Cree and subsequent Boushie family lawyer Eleanore Sunchild’s comments about “100 years of stereotypes and racism” and the Battleford’s “particular history” with statements that many local farmers are “raising money online and scheduling a steak night” in support of the Stanleys.

An employee of the hotel, where the steak night was to be held, stated that the Stanleys “are awesome people. We want to help as much as we can. Nobody should have died, but we knew it was going to come to this. Things are out of control.” The idea that “things are out of control” played into the rural crime narrative, which was freighted with racial overtones.

The planned steak night to support the Stanleys captured the public imagination. It evoked images of cowboys versus Indians. It reflected the comparative wealth of the non-Indigenous population compared to the Indigenous population. The Boushie family urged that the steak dinner be cancelled, but National Post columnist Colby Cosh argued, “[h]elping to provide a legal defence for a friend — or just a fellow creature in deep trouble — ought to be acceptable.” He noted that his retired parents raise cattle in the region and “like Stanley, they live outside the immediate range of law enforcement, and they are armed … There is an omnipresent tension between reserve natives and non-native farmers.”

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Premier Brad Wall posted on Facebook on Sunday, Aug. 14, to respond to the social media comments. As the post is quite extraordinary and is no longer on Facebook, it will be quoted in full as taken from a screen shot in media coverage:

“Racism has no place in Saskatchewan. In the wake of the shooting near Biggar, there have been racist and hate-filled comments on social media and other forums.

“This must stop. These comments are not only unacceptable, intolerant and a betrayal of the very values and character of Saskatchewan, they are dangerous. There are laws that protect citizens from this kind of hate may be enforced. They will be enforced.

“I also have every confidence that the circumstances of Colten Boushie’s death will be fully investigated by the RCMP and that appropriate charges will be laid and prosecuted, based on the evidence. None of us should be jumping to conclusions about what happened. We should trust the RCMP to do their work.

“I call on Saskatchewan people to rise above intolerance, to be our best and to be the kind neighbours and fellow citizens we are reputed to be.”

Wall’s comments deserve praise for calling out and denouncing racism. It is surprising that they were not introduced at trial as evidence of a realistic possibility that some potential jurors may be biased both because of the pretrial publicity and the racist and hateful views expressed in some of the social media postings.

At the same time, Wall did not express sympathy to Boushie’s family or his community. He did not name the racism at play as anti-Indigenous. Indeed, the cbc reported a number of social media comments that painted the non-Indigenous majority as the victims of racism, including, “I’ve been called more names by Natives than I can count.” Also, “Wanna stop racism? Revamp those obsolete treaties and make every adult in Saskatchewan pay taxes. A society that treats people differently because of their race is an unjust society.”

Wall reminded people about criminal offences against the wilful promotion of hate propaganda and the RCMP echoed Wall’s comments about laws against hate speech. Such offences are notoriously difficult to prosecute. Saskatchewan’s most famous hate-speech prosecution involved two trials of Indigenous leader David Ahenakew for anti-Semitic remarks, the first resulting in a conviction reversed on appeal and the second resulting in an acquittal.

This may also have fuelled the idea that there was hate and racism on both sides. The false equivalence between Stanley’s murder charge and the theft and assault charges that Boushie’s friends faced was echoed in a false equivalence between long ingrained anti-Indigenous racism and Indigenous attitudes towards settlers of various origins and races.

Wall’s comments that “we should trust the RCMP to do their work” did not address the history of distrust of the RCMP by many Indigenous people. The RCMP appropriately respected Stanley’s Charter rights, allowing him several opportunities to talk to lawyers, but they informed Debbie Baptiste of her son’s death during a “tactical” search and issued a press release that twinned the investigation of Colten Boushie’s death with a related theft investigation.

In any event, Wall’s intervention did not stop some of the vile social media commentary. Ben Kautz, a municipal councillor in Browning, Sask., posted to the Saskatchewan Farmers Group on Facebook that “in my mind his only mistake was leaving witnesses.” A screen shot of the post was widely circulated. Kautz received threats, apologized for the post, and subsequently resigned his elected position.

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It is difficult to know exactly what effect the social media explosion after Boushie’s death had on attitudes among potential jurors. The Canadian justice system takes pains to impose publication bans on bail hearings and preliminary inquiries because of concerns about tainting the jury pool, but it is less experienced with dealing with prejudicial pretrial social media.

In any event, no questions would be asked of prospective jurors to establish if they had been exposed to, or had participated in, the social media firestorm that erupted after Colten Boushie’s death. Prospective jurors were not questioned about social media even though a few court decisions recognized “the reality of the new internet world” and allowed potential jurors to be questioned about their social media use in order to determine if they could be challenged as not being impartial …

Peremptory challenges

Both Stanley and the prosecutor were entitled to 14 peremptory challenges [challenges with no reasons given]. Stanley used 13 peremptory challenges and the prosecutor used only four. University of Saskatchewan law professor Glen Luther correctly predicted, before jury selection, that it was likely that the accused would use peremptory challenges to exclude Indigenous jurors, but less likely that the prosecutor would use them to exclude non-Indigenous people in an attempt to have Indigenous representation on the jury. This appeared to have happened with Stanley using five peremptory challenges to exclude visibly Indigenous and otherwise qualified prospective jurors. The Stanley trial was added to the significant, but non-official, list of cases decided by all-white juries.

Boushie’s family was dismayed by the jury selection. Colten’s mother refused to attend jury selection, but stated, “If it’s an all-white jury, I don’t think we have a chance.” Her statements underlined that the controversial acquittals and manslaughter verdicts by all-white juries in Saskatchewan had a lasting impact. The majority of the Supreme Court decided in 2015 that jury selection should not be the vehicle for addressing historical grievances, but its conclusion discounted how some jury verdicts themselves contributed to these grievances.

Jade Tootoosis, Boushie’s cousin, commented after the jury selection, “A lot of my family didn’t come today because they already felt that a decision had been made and I came with hopes that it would be different. It was really difficult to sit there today and see every single, visible Indigenous person be challenged by the defence. It’s not surprising but extremely frustrating and something that we feared would come true.” The Boushie family did not have standing in the trial, but they were directly affected by all aspects of it, including jury selection.

Peremptory challenges have long been a feature of British justice. William Blackstone defended them in the eighteenth century on the basis that they demonstrated the concern of English law for the accused and allowed the accused to act upon “sudden impressions and unaccountable prejudices.”

Quoting Blackstone with approval, the Supreme Court has described peremptory challenges as “purely subjective.” In 1982, a judge referred to peremptory challenges as “guess work,” noting that they could be used even if the prosecution or the accused could not establish that a prospective juror was not impartial, but because they “may be suspicious of the views of a particular juror because of his or her age, occupation, appearance, place of residence, dress, nationality, race, religion and numerous other reasons.”

Peremptory challenges were abolished in England in 1988. Since 1986, the United States Supreme Court has attempted to prevent discriminatory uses of peremptory challenges by the prosecutor, and since 1992, by the accused. The American courts require a neutral non-discriminatory reason for using a challenge, but have often been unsuccessful in preventing the exclusion of African-American jurors, except in cases of a clear intent to discriminate.

The Manitoba Aboriginal Justice Inquiry observed three trials in Thompson, Man., in 1989 and found that 35 of 41 Aboriginal people called to serve on juries were rejected, often by the prosecutor, but sometimes by the accused. It also documented how the two white men accused of murdering Helen Betty Osborne used six peremptory challenges to exclude all Indigenous people from the jury. The inquiry recommended that peremptory challenges should be abolished. In his 2013 report, retired Supreme Court justice Frank Iacobucci warned, “First Nations jury service could still be significantly undermined through discriminatory use of peremptory challenges.” …

Even trial judges, who have recognized that the prosecutor could challenge discriminatory uses of peremptory challenges by the defence, have concluded that the Charter would not assist such challenges. They have also reasoned that the accused’s Charter right to silence would prevent the court from requiring the defence to justify their use of a peremptory challenge. This is different from the American experience where the accused, like the prosecutor, must provide some non-discriminatory reason for the use of a peremptory challenges when racial discrimination may be in play.

Some courts have indicated that abusive use of peremptory challenges by the prosecution might be reviewable, but have not found such discrimination in cases where it was alleged. The Supreme Court avoided the issue in a 1995 case where a prosecutor used a form of peremptory challenge to keep all males off the jury.

The courts subsequently rejected an allegation that the prosecutor had engaged in a discriminatory use of a peremptory challenge in a Yukon case, but the press reported that the prosecutor had explained he challenged the prospective juror, not because he was Indigenous, but because he worked for an Indigenous band. This underlines the skepticism that often accompanies attempts to regulate discriminatory uses of peremptory challenges. It casts doubt on whether legislation that attempted to stop the discriminatory use of peremptory challenge would actually be effective.

Also, the limited Saskatchewan experience does not suggest that challenges to discriminatory uses of peremptory challenges would likely have been successful. After Stony Lee Cyr lost his Treaty and Charter challenges to Indigenous under-representation on a Regina jury, his lawyer complained to the press that when “the opportunity came for a clearly aboriginal person to sit on the jury, the Crown chose to exercise their challenge.”

The Crown prosecutor replied that there were many reasons for using peremptory challenges, including criminal history, and that a person was not a right fit for the case. This demonstrates the range of excuses that can be made for the exclusion of Indigenous people and others from the jury. The forensic difficulties of proving a discriminatory use of a peremptory challenge were also underlined by the prosecutor’s statements: “I don’t even remember who I peremptorily challenged” and “it’s difficult to say, based solely on last name or physical appearance, whether or not people are aboriginal.”

The trial judge declared a mistrial the next day, not on the basis of the prosecutor’s alleged use of peremptory challenges to exclude an Indigenous juror or that the aid and assistance clause of the Treaty prohibited First Nation persons being “shut … out of the criminal justice process,” but on the basis that the defence counsel’s comments “strike to the very heart of the jury system as they imply that Mr Cyr cannot receive a fair trial based on the ancestry of the jurors which have been selected.” The judiciary’s defensiveness about juries again resurfaced. No attempt was made in court to challenge what the accused alleged was a discriminatory peremptory challenge of an Indigenous prospective juror.

If the prosecutor had challenged the accused’s use of peremptory challenges to exclude visibly Indigenous jurors in the Stanley trial, he might have faced an arduous task. We will never know, because the prosecutor made no objection as the accused used peremptory challenges to keep five visibly Indigenous persons, as well as seven other persons, off the Stanley jury. The trial judge was also passive in the face of these peremptory challenges and did not raise the issue on his own initiative.

Correction — January 21, 2019: This excerpt was edited from a previous version that mistakenly referred to William Blackstone as a former British prime minister.

Excerpted from Canadian Justice, Indigenous Injustice: The Gerald Stanley and Colten Boushie Case by Kent Roach (McGill-Queen’s, January 2019). Roach will be speaking at McNally Robinson, Grant Park, Winnipeg on Jan. 26 at 7 p.m.

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