Canada’s justice system isn’t broken, but our society is

Just when we are beginning to convince ourselves that things are getting better, something happens to shatter that illusion and hold up a mirror to just how dysfunctional our society has become, particularly if someone is not white, middle class, and otherwise of the “right” sort.

Outrage has been reverberating across the nation this week following the acquittal of Saskatchewan farmer Gerald Stanley in the August 9, 2016 shooting death of 22 year-old Cree man Colten Boushie following an altercation at the Stanley farm. Calls for a major overhaul of the Canadian justice system have been at the centre of protest gatherings in light of what has been characterized by Mr. Boushie’s family and their supporters as yet another instance of an imbalance in the justice system that has led to justice denied  a young Native victim while his alleged murderer is set free by an all-white jury.

This is not the first time that the failings of the Canadian justice system have come to light. In fact, it is a reality that is played out across the nation countless times each year and one that has led in large part to an imbalance in the demographic makeup of our penal systems. Too many young Native men are imprisoned in this country and a disproportionate number of people of colour reside within our nation’s prison system, relative to whites.

‘First Nations Representation on Ontario Juries: The Report of the Independent Review Conducted by The Honourable Frank Iacobucci’ released in February, 2013 pointedly highlighted the shortcomings of the justice system several years ago, and outlined ways that the system might be brought into balance. These are things that we cannot ignore.

Legal systems only work if people believe in them, and an ever-growing portion of our population not only does not have faith in the system, they actively believe it is designed to work against them. To our great shame as a nation, they are right.

While our justice system is not “broken” per se, it does have flaws and a distinct lack of inclusion is a very major flaw.

There are clear recent cases in Saskatchewan where white defendants have found swift justice, even when the case was widely seen as sympathetic. The case of a father whose mercy killing of his disabled daughter springs readily to mind, also a Saskatchewan some 15 years ago. His daughter was reportedly in severe and constant pain.

Of course, that was a white father of a white daughter. Instances of a white individual charged with the murder of a Native being found swiftly guilty by a jury of his peers spring somewhat less swiftly to memory.

Not the kind of situation that builds trust in the system, at least not if you are not part of the white majority.

For generations, our justice system has dealt primarily with a relatively homogeneous population. Our demographics were overwhelmingly white, at least that is how the larger society viewed our demographics. Natives were largely out of sight and out of mind for those who controlled the media, and the levers of power at all levels of government, and yes, of the judicial system itself. Our justice system reflects that version of reality and, for those in positions of power and influence,, it worked.

But if we are to build an inclusive society, if we accept that following a path of reconciliation is a goal that we as a nation wish to follow, we have to come to the realization that without inclusion there will never be trust in the system.

Had the jury in Saskatchewan included a number of Native jurors (and by all accounts the number of potential jurors called up for review ran into the hundreds) it is unlikely that a guilty verdict would have been met with any less anger and outrage. The history of exclusion from the judicial system still runs far too deep and pervasive for that to have been the case. But unless juries standing in judgment of Indigenous peoples begin to take on a hue more reflective of society at large, things are guaranteed to get worse.

In the final analysis, our justice system is not so much broken as it is a reflection of our society and as such, it is our society that needs fixing. How we go about that will prove a test of how far we have come. As it stands, we can no longer kid ourselves for it is clear that we still have a very long way to go.