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The ONW Salon: Should The Liberals Act On The Boushie Verdict?

This week relatives of the late Colten Boushie met with two Liberal cabinet ministers, just days after Saskatchewan farmer Gerald Stanley was found not guilty of his murder. The family's lawyer says the meetings were not about an appeal.  Were the meetings helpful? We asked Richard Mahoney, Will Stewart and Tom Parkin to answer that.


Tom Parkin:

The shooting death of Colten Boushie, a young First Nations man, and a not-guilty verdict from an all-white jury, has some Canadians saying there is no justice for First Nations people in our country.

We can’t allow that feeling to grow. The very success of our country depends on widespread acceptance that our justice system works for everyone and is not systematically rigged.

The Conservative Party response has been disgraceful. They have offered no compassion to the Boushie family, which has lost a young son, or to First Nations people who feel hurt and stunned by this decision.

Instead, the Conservative MP and their pundits criticize the Prime Minister for saying “we can do better.” They criticize the Prime Minister for offering empty words and interfering in the court’s business. That those are contradictory accusations hints at their disgrace.

The Prime Minister has offered needed comforting words. But we also have a Prime Minister who is famous for words that don’t reflect actions.

His government has failed to live up to his education promises to First Nations people. He refuses to comply with multiple orders from the Canadian Human Rights Tribunal to stop racial discrimination against First Nations people in providing public services.

Given the skepticism about Trudeau, in the Commons it will fall to the NDP to guarantee progress and ensure the PM takes specific actions. To do that the NDP needs to be positively engaged with the Trudeau government.

Most immediately, a focus has fallen on the defense tactic of “peremptory challenge.” These challenges remove a potential juror without explanation. According to the Boushie family and trial reporters, these challenges were used to eliminate anyone who appeared to be Indigenous.

The debate about peremptory challenges isn’t new. A 1988 Manitoba report by then Justice (now Senator) Murray Sinclair called for their elimination. A 2013 Ontario report by former Supreme Court Justice Frank Iacobucci called for their use to be subject to conditions.

On Monday, the Boushie family and their lawyer asked the Minister of Justice to address the peremptory challenge provisions from the Criminal Code. On Tuesday, NDP Leader Jagmeet Singh, himself a criminal defense lawyer, said he may back that call with specific recommendations. These are wise first steps.

There are other issues that may result in Indigenous people being underrepresented on juries, many covered in the reports by Sinclair and Iacobucci. Calls for new commissions and inquiries should be pushed away and those recommendations should be a starting point for action. It is now time for Ministers to do their jobs.

Whether a representative jury would have come to a different verdict is unknowable. But without doubt we would not be facing today’s crisis if the verdict had come from a representative jury including Indigenous people. Past failures to act have created today’s crisis. Today’s failure would guarantee future crises. Enough words—it’s time to act.


Will Stewart:

While I disagree with some of Tom's rhetoric, I think we agree on the need for the questioning of the judicial system from our elected officials to end.

I really do enjoy that our moderator never gives us easy, straight forward topics to discuss here on Ontario News Watch. Far too often in our hyper partisan lives we are consumed with gotcha politics and quick soundbites. The topics discussed here are rarely clean cut, and certainly not easy to discuss on partisan lines. It’s perhaps a lesson for our interactions with "real" people!

I am torn on the Stanley/Boushie case. I think at the outset we can all agree that it is a terrible set of circumstances and a horrific, life altering, and very public heartache for the Boushie family who, regardless of the judicial process, have lost a loved one in a violent and public way. I cannot imagine their grief.

Based on the accounts I have read, it is clear that justice was not served here. A man is dead, and the man who held the gun at close range to his head has not been punished. In any definition of justice that is clearly unacceptable.

The challenge I think that I have with this issue, leaving aside the shooting itself, is far more complicated. In Canada, we simply have to rely on the judicial process and the judicial system as separate and distinct from politics. This does not mean that they are un-related. Quite the opposite.

Courts frequently change public policy. Medical cannabis legalization, assisted death, abortion, LGBT rights, and even now potentially province to province alcohol sales. The list goes on and on. The point is that the judicial system and the political system are linked, but each has its own clear domain.

As Aaron Wherry points out in his CBC piece Tuesday "A government that questions a particular verdict, or suggests the legal system itself is deficient, can expect to be accused of weakening the reputation and independence of the judicial process itself."

It is certainly my belief that the elected officials in Ottawa, with the Prime Minister included, overstepped in their commentary about this case recently. Their comments are entirely inappropriate on the face. They seemingly (and I am sure others will disagree with me) indicate that they are not pleased with the decision that was reached. To me, this strikes the core of our democracy and sets a horrible precedent.

It is not the place of the elected officials to pass judgement on, well, judgements in the court of law. The court room heard the case, not the PMO; the jurors made a decision, not cabinet. The government seems more occupied with the public relations on this rather than the public policy that should inform their actions. This is a natural extension of government by selfie as we have discussed previously.


Richard Mahoney:

As both my colleagues have pointed out, the Colten Boushie case is not only heartbreaking—the death of a young man—but a very pointed example of what appears to be a problematic result: no conviction, not even for the lesser charge of "manslaughter".

Conservatives across the country have railed against the comments made by Justice Minister Wilson-Raybould and Prime Minister Trudeau on the faux grounds that their comments are somehow inappropriate because they are an intervention in a particular case.

First, it is true that an Attorney General and Justice Minister should not comment on the merits of a case before the courts because she is the Minister that oversees the administration of justice and the criminal code. Justice Minister Wilson-Raybould is well aware of that—she is a former prosecutor herself. If you look at her remarks, they were clearly made cautiously, with the intention of not commenting specifically on the case itself.

She expressed sympathy to the Boushie family who lost a son—no problem there. In fact, I think we would all insist that Ministers express sympathy for the victims here. Secondly, I think we all know this is an extraordinary circumstance. A First Nations man is dead, shot point blank. And the white person who pulled the trigger, accidentally or otherwise, has received no sanction.

This occurs during the wider context of a crisis in our law enforcement system: massive over representation of aboriginal Canadians in our prisons; an inequity in sentencing; and evidence that aboriginals are much more often the victims of crime. This has given rise to a government more committed to addressing these issues than any other in our history.

So it is right the Minister, the Prime Minister and their colleagues speak out on our system, and underline that we need to do better. That is what reconciliation is about—it starts in reform of our legal system, and much of that work is underway. But there is much more to do, and it will take a very long time.

But good on Jody Wilson-Raybould for being a leader on this. And good on Prime Minister Trudeau for making her historic appointment—the first Indigenous Canadian to hold the post of Justice Minister. It is certainly a timely appointment, as Canada works through this crisis.


Tom Parkin:

It should be absolutely embarrassing that a young man is killed, an all-white jury is drawn from an area with a high population of First Nations people and the Conservative Party has no comment whatsoever.

I have no hesitancy to say there is something wrong when a jury does not reflect the community and such juries will not be seen to be serving justice.

But it’s not just the jury selection process that was an issue in the case. There appeared to be problem with the police work. The RCMP treatment of Colten Boushie’s mother was unacceptable and reeked of bias. Their failure to cover the car at the centre of the incident and allow rain to wash away finger and footprints is amazing. RCMP command needs to look into these issues.

But I want to cut a different way—to point out that while Saskatchewan has its share of racists and bigots, there is a large progressive population that appreciates the province’s Indigenous history and culture and wants to ensure Saskatchewan is a strong and inclusive province.

Premier Moe has said “emotions are raw” and “difficult discussions” must take place. The son of former Premier Wall wrote a widely distributed tweet expressing frustration about the racial divisions the trial caused. Members of the Saskatchewan NDP were present at rallies over the weekend. And the NDP will be making specific proposals because of the division in Saskatchewan society caused by this trial outcome.

About 16% of the Saskatchewan population is Indigenous—and it is a young and growing population. The success of Saskatchewan and the success of young Indigenous people are intertwined. While outside of Saskatchewan there are comparisons with 1950s Alabama, I think those are wrong and unhelpful.

This is a good time for progressives and First Nations in Saskatchewan to recommit to reconciliation and the eradication of rural and reserve poverty. If that comes from this situation, Colten Boushie's death will not have been in vain.


Will Stewart:

It seems clear to me that there needs to be some reform to ensure that juries are actually made up of a panel of peers. And yes, that clearly means that there should not be an all-white jury for a case such as this. But that is a public policy issue that must be discussed independently from the gut-wrenching situation in this case.

And while Richard indicates in his comments that it’s Conservatives who are saying that the PM's comments and the comments of the Justice Minister are problematic, even a casual glimpse at the media would show him that it is a view that is shared by the media in written word, multiple times, in multiple columns, across the country. So, I guess he would have you believe all the media are in fact card carrying Conservatives…

The Prime Minister, and his Ministers, cannot be setting public policy in a reactionary way. Can this case inform decision making? Yes. Has this case shed a light on the jury selection process? Absolutely.

Meeting with the family, so soon after the verdict, is also a public relations stunt by the government. I have no idea what was discussed in the meetings and we never will have an accurate report. To me, that is also part of the problem.

We know that the Boushie family is very upset. We know that Colten’s mother starts from the point of view that "the justice system needs to stop locking up our youths. All of our loved ones are in jail. White people—they run the court system. Enough. We're going to fight back."

So we can only assume the tone of the conversation was very direct from the outset.

I can't speak for any of the sides in this debate, nor will I even try. But I think we should actually look at what is being suggested here. Everyone, on all sides, seems to point to the fact that an all-white jury cannot possibly be impartial towards an indigenous person. Indigenous people have long been faced with racism and systemic persecution since before we were even a country on their traditional lands.

Their view of our great country is forever tarnished by the actions of our ancestors and past leaders of this country. No one can question their perspective, lived experience, or natural frustration with the result of this case.

But if we accept that this was a miscarriage of justice, and that the jury selection was flawed, then we as Canadians are essentially saying that white people are racist to a point that they would willingly release a killer back to the community based solely on the colour of their skin.

I would further offer that our elected officials, based on quotes and tweets in the last few days, agree that it is impossible for an Indigenous man to get a fair trial by white people. That is a sad commentary on our country. Meeting with the family in their official capacity as ministers of the crown, and Prime Minister, furthers this belief.

It is clear that change has to happen moving forward. It is clear that Canada can do better, and should do better for all its citizens. But as John Ibbitson so rightly pointed out in his Globe and Mail piece Tuesday, we as citizens can demand better, but ministers of the crown cannot be seen to be questioning the judicial system via social media or traditional communications tools. They are not average citizens anymore and need to focus on policy as Tom suggested in his initial comments, not reactionary comments on Twitter.


Richard Mahoney:

It is difficult to say, but we cannot avoid the issues of race and reconciliation raised by this case. Those issues were there long before this trial and they will be there long after this case fades to memory. It is hard not to compare these cases to the problems the U.S. has faced in dealing with race and their legal and penal system. And that horrifies many of us. Most of us would prefer not to have this discussion, because it forces us to confront some unpleasant truths.

For too long, many of us lived in benign neglect of these issue because we did not have to confront them on a regular basis. But the problem itself, and federal leadership on the issue generally has put an end to that comfortable but false peace. The Prime Minister and various ministers including Minister Wilson-Raybould met with the Boushie family. They were there to listen to them (the family said themselves that the point of these meetings is relationship building, it’s just the beginning—the PM and Ministers said that they would not comment on the specifics of the Stanley case.) But the Prime Minister also said that we have come to this point as a country far too many times. People are angry, and they are heartbroken. That is why I said these are extraordinary times.

There are systemic issues in our criminal justice system that we need to address. Too many Indigenous and marginalized people are victims of crime. Too many are in in jail. Too many find themselves asking why they are not serving on juries.

Broad-based criminal justice reform is in the Minister of Justice’s mandate letter. These reforms, already under way, will help reduce delays in our courts, provide support for victims, and provide off-ramps from the criminal justice system—particularly for over-represented and marginalized groups, such as Indigenous Canadians. The government is also looking at measures to address how juries are selected—but this has to be done with caution as there are constitutional issues in play.

They are also at work on other root causes of the challenge we face. Massive investments in housing across the country, and a restoration of Kelowna Accord levels of funding to Indigenous education are two examples. The government lifted 11 long-term drinking water advisories this week; the residents of Slate Falls Nation can now safely drink water from their taps after the community lifted long-term drinking water advisories that have been in effect since 2004. The Trudeau government has invested in 349 water and wastewater projects in 275 communities across the country, which serve over 270,000 people.

Since November 2015, 52 long-term drinking water advisories on public systems on reserves have now been lifted, leaving 81 long-term drinking water advisories on public systems on reserves still in place that will be lifted by March 2021.

This is all difficult, and many Canadians wish we didn’t have to deal with these problems. But if Canadians pull together, across communities, provinces, and political parties, we can do this. It is massive work to reshape some of our laws and traditions. But it is important and we have the resources as a people to do it. Let’s hope this case, and so many others, spur us all to action.


Richard Mahoney is a lawyer with deep experience in politics and governance.  He is a former senior advisor to the Rt. Hon Paul Martin, a former Campaign Chair and President of the Ontario Liberal Party. Will Stewart is Managing Principal at Navigator, served as Chief of Staff to several Ontario Ministers and often appears as a national affairs commentator.  Tom Parking is a veteran NDP strategist, columnist and a frequent commentator on national issues.  



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