Kent Roach, Canadian Justice, Indigenous Injustice

The Abstract

Kent Roach, Canadian Justice, Indigenous Injustice: The Gerald Stanley and Colten Boushie Case, McGill-Queen’s University Press, Montreal, 2019. 309 pp. $34.95. ISBN: 9780228000730. In early 2020, when Joel Bernbaum, Yvette Nolan, and Lancelot Knight created Reasonable Doubt, a docu-drama that ran in Saskatoon’s Persephone Theatre, the audiences were thrown into a maelstrom of emotion. The play’s theme […]

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Book review by Jake Buhler

Kent Roach, Canadian Justice, Indigenous Injustice: The Gerald Stanley and Colten Boushie Case, McGill-Queen’s University Press, Montreal, 2019. 309 pp. $34.95. ISBN: 9780228000730.

In early 2020, when Joel Bernbaum, Yvette Nolan, and Lancelot Knight created Reasonable Doubt, a docu-drama that ran in Saskatoon’s Persephone Theatre, the audiences were thrown into a maelstrom of emotion. The play’s theme was an explanation of Indigenous relations in Saskatchewan in the wake of the Stanley-Boushie trial. Viewers left troubled and perplexed, with few answers but a profound insight into the two sides of justice: one for Indigenous peoples and one for Settlers.

Reasonable Doubt is, for the stage, what Canadian Justice, Indigenous Injustice is for the pen—an uncovering of the inequities in our midst. The author is Kent Roach, the Prichard-Wilson Chair in Law and Policy at the University of Toronto, a member of the Order of Canada, and author of seminal books on Canadian criminal justice. He does not pound out his message; instead, he tells us a story, whose words reveal and show that the Stanley-Boushie case is one hundred and fifty years in the making.

Will Brown has cleverly designed the cover jacket that shows the Battleford Courthouse divided down the middle—one side red and one side white—an ominous indication of what the book might be all about.

In August 2016, a twenty-two-year-old Cree man, Colten Boushie from the Red Pheasant Reserve, was shot dead by Gerald Stanley, a white farmer from nearby Biggar, Saskatchewan. In February 2018, an all-white jury in Battleford, Saskatchewan, acquitted Stanley of murder and manslaughter charges. The trial left Canadians bitterly divided.

So, what is Canadian Justice, Indigenous Injustice all about? It is not a commentary or an opinion piece. It is instead a search, a huge effort to discover why the results of the Stanley-Boushie trial turned out as they did. The audience Roach is writing for would include someone like me with not a lick of knowledge of law but with a desire to understand what Canadian justice is all about when it relates to Indigenous peoples. The 300-page search is done with utmost care that includes 800 footnotes and a full index that gives any critical reader confidence that the author is telling a valid story. Roach is a scholar, but his genius is that he understands how important it is to tell a story. He allows the dozens of cases he cites to be the links that chain one event to the next. And when the book is finished, there is a solid chain. Indeed, the book’s ten chapters are arranged with events that begin with the signing of Treaty 6 (1876) and end with the aftermath of the 2018 trial.

Roach’s first link establishes that Treaty 6, signed in 1876, was flawed with fundamental translation difficulties and cultural misunderstandings. Big Bear wanted a treaty “that would make our hearts glad” (19), and Alexander Morris was absorbed with “the Queen’s Law that punishes murder with death” (19). The differences would soon become apparent. The Battleford court trial in 1885, just a kilometer from where the Boushie-Stanley trial was held, convicted eight Indigenous men of insurrection, denying them legal counsel and translation services in the process. They were hanged and their bodies not returned to their families but buried in a secret place. The White Man Governs (34) principle would soon become an established pattern. In both the Battleford 8 trial and the Regina Riel trial, all jurors were white.

One hundred thirty-three years later, another all-white jury would acquit a white man of murder and manslaughter. Colten Boushie and his friends entered the Stanley farm on August 9, 2016, with the intent to steal a vehicle. In the bizarre events that followed, Gerald Stanley shot Boushie in the head with a handgun, killing him. Eighteen months later, when the trial would take place in Battleford, a number of key events had already occurred there. Roach carefully examines the method of jury selection, particularly the practice of peremptory challenge, whereby the prosecutor and the defense can challenge jurors. Stanley’s defense team objected to thirteen jurors. The end result was that an all-white jury was selected that would determine whether a white farmer with a stash of guns in his possession would be found guilty of second-degree murder or manslaughter.

Roach shows us with repeated examples that peremptory challenges have been used that resulted in all-white juries. In those cases, the white defendants were acquitted. Roach suggests the results are not wrongful convictions but rather wrongful acquittals.

If jury selection was a controversial issue, then a second sticky issue was the hang-fire phenomenon that defense lawyer, Scott Spencer, took up. It is the argument that, in rare cases, a gun does not fire immediately when the trigger is pulled. While there are cases where a gun has fired with a half-second delay, Stanley maintained that his gun fired thirty seconds later, something he claimed resulted in the accidental killing of Boushie. The jury may have been convinced.

Chief Justice Martel Popescul, who presided over the trial, banned television coverage in order to reduce tensions. But his banning of the visible eagle feather that the Boushie family brought to the court created doubt about bias. Belinda Jackson, Colten Boushie’s friend, was the only witness to the actual shooting. When she could not recall if one shot or two shots were fired, her testimony was suspect. Roach cites other trials where credibility of Indigenous persons is considered suspect.

Premier Wall made initial calls for anti-racial biases, and his successor, Premier Moe, followed suit. But the mood of rural Saskatchewan farmers, with their belief that guns protect against theft and robbery (especially before the RCMP arrive), was, and is, strong. Roach calls it a “phantom self-defense argument” (168) “that might lead to a belief that a farmer’s farm property trumps a thief’s life” (168).

Following Stanley’s acquittal, Roach asks, “Can we do better?” Prime Minister Trudeau introduced Bill C-75, legislation that banned peremptory challenges. But fundamentally, Roach concludes that until justice is served and outcomes like that of the Boushie-Colten case are an aberration and not a run-of-the-mill occurrence, there will be Indigenous injustice.

I attended the lecture at the University of Saskatchewan in 2019 when Roach spoke about the complexities of law and politics. He argued that it takes good legal minds to do many things. But he said only courageous politicians can effect change that will result in the removal of systemic bias in the legal system. I went away wondering when those courageous messianic politicians would arrive. Then I reflected that ordinary people like me can empower young politicians who will someday rise to become courageous game changers.

Jake Buhler was a school principal for fifteen years before serving with Mennonite Central Committee for six years managing Indochinese refugee programs in Thailand. He then worked for the Canadian Government in Vietnam and Thailand on poverty alleviation programs for fifteen years. He and his wife, Louise Wiebe Buhler, have two grown daughters. Jake currently lives in Saskatoon, is a member of Osler (Saskatchewan) Mennonite, and is active in all things Mennonite.