In Canadian law, an accused person has a right to a trial before his or her peers. It is the accused's right.
Saskatchewan farmer Gerald Stanley was represented by peers, while many Indigenous accused are not.
Stanley was found not guilty last week of second-degree murder and not guilty of the lesser offence of manslaughter in the death of Colten Boushie on his Biggar, Sask., farm.
Although no one can verify the ethnicity or background of any jurors in this particular case, the accused in this case was a non-Indigenous farmer, and the jury reportedly appeared non-Indigenous. Therefore, the accused's right to a trial before a jury of his peers was not violated.
The selection of his jury was legal. It was based on established rules. His counsel and Crown counsel followed those rules.
Many Indigenous people coming before our courts are charged with serious offences and are also being tried by juries.
They deserve greater representation from their peers on their juries. It is in those instances when our system can improve. This case has shed some light on this issue — but arguably from the wrong direction.
The Minister of Justice Jody Wilson-Raybould, a former Crown prosecutor tweeted:
Thank you PM @JustinTrudeau. My thoughts are with the family of Colton Boushie tonight. I truly feel your pain and I hear all of your voices. As a country we can and must do better - I am committed to working everyday to ensure justice for all Canadians. https://t.co/HvjV0bofrQ— @Puglaas
Our system isn't perfect. But our system remains something to be proud of. It deserves both scrutiny and respect. Sentiments of this respect must come from our leaders. Change must be measured, unemotional and rational. In this regard, "we can and must do better."
Why are so many Indigenous people victims of crime? Perpetrators of crime? Over-represented in custodial facilities? Denied bail and parole? Suffering from addiction? Missing? Unemployed? Living in poverty? "We can and must do better" to address these issues as well.
Indigenous people are not only underrepresented in our juries, they are underrepresented in policy development and legislative change. The system needs to better include all Canadians. Our system can always do better.
The shooting of Boushie polarized many in the province and indeed the country. Several questioned the RCMP's handling of the case, the jury selection process, the legal tactics utilized by the lawyers, and the verdict.
As a defence lawyer, I have felt both the jubilation of success and the heartache of defeat. I have bonded with clients and felt passionate about their innocence. Sometimes it is obvious to me how the trier of fact achieved the result. Other times, it is not.
It can be frustrating and infuriating. I cannot imagine what accused persons, victims and close family members feel. I only know how I feel.
Swiftly following the Stanley verdict, members of Boushie's family spoke of the tragic loss they have suffered. Their disappointment and grief were palpable and understandable.
Indigenous leaders spoke of the verdict being a symbol of the systemic racism and discrimination Indigenous people have felt from the justice system.
The Battlefords Agency Tribal Chiefs said in a media release that they were "deeply disturbed" by the verdict and called for "an immediate inquiry examining a number of injustices during this trial including problems with jury selection, the prosecution and trial processes."
Among the criticisms, two veteran and highly respected Crown prosecutors were called out as being "incapable of handling such a high-profile case" despite decades of experience on complex and difficult trials.
The members of jury, after having been lauded by the counsel for Boushie's family "as taking their oath very seriously," were being called racist hours later.
Chief Justice Martel Popescul, a highly experienced trial judge and former trial lawyer, was being referenced as the former RCMP lawyer who "tried to stop the inquiry into the murder of Cree trapper Leo LaChance" in 1991 — as if his former work as a lawyer somehow had a bearing on his conduct in this case.
Systemic discrimination is indisputable
So many people are calling the decision wrong, saying the process was "fixed" and that the "deck was stacked" against a fair trial from the outset.
It is understandable that Indigenous Canadians have felt excluded from the justice system. Systemic discrimination of Indigenous peoples has been recognized and codified in our Criminal Code. It is undeniable and indisputable.
Many individuals in the community are crying out for immediate change. Many speak of the lack of Indigenous representation on Canadian juries. Others speak about racism in all parts of the system.
The fact remains that the Canadian justice system remains one of the greatest, if not the greatest, in the entire world.
Trials are conducted before experienced trial judges, or juries that are being instructed by those judges. High-profile cases like these are prosecuted by experienced and highly qualified Crown prosecutors. The rules of evidence, procedures and substantive principles of law are those that are well-founded and thought out.
As a lawyer and citizen, I acknowledge we can always improve the system. But improvement can only occur if we are respectful.
We need to respect the jury in this case. Failure to do so can compound injustice. We need to respect their work, dedication and commitment to our system. They deliberated. They heard the evidence.
Most commentators, including myself, did not.
We don't have to agree with the decision, but we must respect it. Disrespecting these 12 men and women has no place in improving the system. In this regard, we also can and must do better.