As a Métis person I struggle with the recent decisions in the killings of Colten Boushie and Tina Fontaine. I struggle because I know the history of this country, and how the murder or killing of young Indigenous people is not new, and is not going away. I know the history of the apathy of police to the investigation of crimes against Indigenous people, and I understand the systemic factors that impact the investigation, prosecution, and treatment of Indigenous people in the justice system, whether as victims or as accused individuals.
But I struggle harder with all of this because I am also a criminal defence lawyer. And by virtue of that privilege, I have a particular insight into the frailties of the justice system, as well as the importance of concepts like reasonable doubt and the burden of proof on the Crown. I also know that unless you are sitting in the courtroom through every day of a trial, it’s unlikely that you can form a good picture of the case.
It’s hard to resolve my feelings of anger that Colten Boushie’s killer -- a man who openly admitted pointing a firearm at Mr. Boushie’s head, having previously discharged that firearm -- was acquitted of even the lesser offence of manslaughter. It’s hard to resolve my feelings of anger that Tina Fontaine’s killer will not be identified, due to a lack of forensic evidence and no reliable confession evidence, and that she was faulted for having drugs and alcohol in her body at the time of her death. As though that somehow justifies the death of an Indigenous child. As though Colten’s death is somehow justified because he was trespassing and possibly stealing.
I know I’m not alone in this. I know there have been protests in the streets. I have not attended these. I know there have been cries to our government to fix the jury system. I have not participated in those cries.
You might ask why.
The jury system is an important part of our justice system. A person who is accused of a crime has the right, subject to certain restrictions, to ask a panel of his or her peers to review the evidence and determine his or her guilt. And while there are obvious flaws, which I will discuss, those flaws are mitigated by the importance of this.
I often struggle in court with the notion that the more time a judge spends on the bench, the less connected he or she becomes with the realities of a community. This is more prevalent at higher levels of court. For example, an Alberta Court of Appeal judge was recently brought under fire for making comments about her fear at walking into a room full of dark people. Being a judge requires some isolation from the community. It is necessary to maintain independence. But it comes at a cost that causes people to forget what life is like for those who do not earn six figures.
I don’t mean this as a criticism. Judges by and large do an excellent job. But there is a reality here that cannot go unmentioned.
Juries are different. Juries understand what it is like to be the average person, because they are supposed to represent a cross-section of the community. And so a jury can mitigate the idea that a judge may not understand the reality of life for a community member. A jury member may be better able, in some circumstances, to put themselves in the shoes of the accused.
The criticism in the Colten Boushie killing is about the makeup of the jury. It is about the right of a lawyer to use a feature called a “peremptory challenge” to restrict a potential juror for any reason from being a member of the jury. The criticism in that case is that peremptory challenges were used to keep Indigenous people from being on the jury.
And this is where the situation becomes much more complex. On the one hand, peremptory challenges are an important tool for both defence and Crown. They can be used to facilitate the defence or Crown strategy. They can also be used to dismiss jurors who are not fit for very good and legitimate reasons. But they can also be used to whitewash a jury. They can be used to ensure the jury does not represent a cross-section of the community but rather a specific group of people from within that community.
And that might impact trial fairness. Whether a trial proceeds by jury is the choice of the accused person, not the Crown. It would stand to reason then, that in selecting a jury an accused person accepts that the jury may contain individuals who are favorable to his position and unfavourable to his position. But to racially profile a jury to keep it from being what it is supposed to represent means that it is not a decision made by a cross-section of the community. The fair purpose of the jury is undermined.
So do we eliminate peremptory challenges?
Of course not. Doing that would undoubtedly result in more mistrials, more hung juries, more jurors who do not take their jobs seriously, or who are otherwise not fit to make up members of a jury.
Do we make lawyers explain why they are challenging a juror instead of keeping their reasons to themselves? This is as problematic as the proposed changes to sexual assault law set out in Bill C-51, which requires an accused person to explain the reason why he is calling certain evidence in a sexual assault case, if that evidence relates to the complainant. Defence has the right to keep their strategy to themselves, including why a juror is being challenged in a peremptory challenge.
We already limit the number of peremptory challenges, so that complete whitewashing of a jury is less likely to occur. This hasn’t seemed to be of much help.
But there is another option. In the United States, there is a process by which racial striking of jurors is prohibited. This seems like an easy solution. If it becomes clear through the jury selection process that the peremptory challenges are being used to limit the racial makeup of the jury, the other side can object to the peremptory challenge. Then, a foundation for the objection must be laid. If it is accepted, the other side is permitted to present a neutral explanation for the challenge. If that is accepted, the objection fails. If it is not, then the court can conclude there is purposeful discrimination and prohibit the challenge.
This seems like a reasonable approach, and one that would not add significant time to trials or complexity to the proceedings. In the Boushie killing, the use of peremptory challenges against any visibly Indigenous person was obvious. In other cases, it is not obvious and the objection may fail at first instance. But at least we aren’t tinkering with juries to make them more or less white to suit internalized bias.
A lot of people fault the jury system, or the flaws in the system, for the verdict in the Tina Fontaine case. And this becomes far more complex. Although I was not in the courtroom, a basic review of the evidence shows that there was not much to the Crown’s case. There was no forensic evidence. There was no certain cause of death. There were no eyewitnesses. Mr. Cormier, who was accused of killing Ms. Fontaine, had been last seen with her days prior to her death. And although there was something resembling a confession, the “confession” was qualified and unclear at the time it was made. It was not a solid case by any stretch of the imagination.
The outrage in Tina Fontaine’s death should not be against the jury, or against the proceedings in the courtroom. The fact that she had drugs and alcohol in her body was evidence that had to be put forward in the case, although it is difficult to separate stereotypes about Indigenous people from that evidence. The Crown could not hide this from the jury. But the acquittal was a just result on the evidence.
Where marginalization of Indigenous people is a more central issue in that case is more closely connected to the manner in which the investigation was conducted, the quality and standard of proof the Crown was willing to run with in an attempt to secure a conviction. The rule against double jeopardy prevents Mr. Cormier from being tried again; the investigation produced a weak case that demanded more before proceeding to trial. By running a weak case, the state demonstrated a disregard for the death of Ms. Fontaine. They were willing to give up their only shot at a conviction in running a weak case, rather than put further resources into having investigators build a stronger case.
An interesting comparator is the case of Carol Berner in British Columbia. Ms. Berner was not suspected of having murdered anyone; she was charged with impaired driving causing the death of a photogenic, blonde, blue-eyed toddler. This child went on to become the poster child for impaired driving legislative changes in British Columbia. But what is unique about this case is the great lengths the police went to in order to gather evidence against Ms. Berner. While the police in Ms. Fontaine’s case attempted a similar sting, the effort to obtain a clear confession was not the same. The repeated attempts to get certain evidence from Mr. Cormier did not happen.
It is hard to separate the fact that the difference here is a man was accused of deliberately murdering an Indigenous child, while a woman was accused of the drunk driving death of a non-Indigenous child.
The result of the decision to run the case on the evidence that had been collected was that the jury was left with a case that was full of holes, and full of reasonable doubt. In British Columbia, the standard for the Crown to approve charges is a substantial likelihood of conviction. Had this case, with this evidence, been brought in BC it is unlikely that charges against Mr. Cormier would ever have been approved.
And the system failed Tina Fontaine in other ways.
She was in the hotel where she died because she was being housed there by Child and Family Services. She was in the care of the state, and they put her in a place where she was vulnerable to being murdered. They left her in a hotel, where she was then able to form relationships with men forty years her senior, and did not intervene to protect her safety. She was in the system, and the system failed to protect her.
There has been a disturbing trend of Indigenous youth who have been failed by our child protective systems. Ms. Fontaine is not an anomaly. She is not an exception to the rule. She is the norm in a system that does not do enough for Indigenous children and for Indigenous people generally.
Indigenous people deserve better from the justice system. Everyone deserves better. Racial profiling through peremptory challenges should be detectable and discouraged, while still preserving the integrity and importance of peremptory challenges. The death of an Indigenous child should be given the same attention, energy, and resources as the death of a non-Indigenous child. Children in care should not be left to stay in a hotel, hanging around men in their fifties, and put in a position where they are murdered.
But in both cases it was not the justice system that failed these people. As much as the angry part of myself wants to blame the juries, and wants to say that racism motivated the verdict, the circumstances are more complex. The justice system functions the way it does for a reason, and the results were achieved because of how the justice system functions. Eliminating peremptory challenges won’t stop this -- Tina Fontaine’s case is proof enough of that. What we need is substantive change at levels before matters come to court.
But until we get that substantive change myself and other Indigenous people in this country will continue to struggle every time an Indigenous person is the victim of a crime that goes unpunished.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.