When Gerald Stanley walked out of a Saskatchewan courthouse last week a free man, acquitted in the shooting death of 22-year-old Colten Boushie, the justice system itself was placed on trial in the court of public opinion.
The fallout spilled onto the streets of downtown Yellowknife last Saturday during a rally, as cries of “justice for Colten” were joined by a chorus of calls for answers, reconciliation – and change. Jonathan Park, a defence lawyer left “furious” by the verdict, was one of those voices.
"The system is designed in a very specific way. It's built on principles and foundations of white supremacy and … anyone who doesn't fit into that mold is not taken seriously as a person,” said Park.
Underlying prejudices, coupled with inter-generational trauma felt by many in the North, makes it difficult for Indigenous people to make their case in court, said Park.
Jonathan Park, a defence lawyer who spoke during Saturday's Justice for Colten rally in Yellowknife, said he sees a combination of racism and inherent flaws in the criminal justice system, resulting in Indigenous people being disadvantaged in the courtroom.
“I see white RCMP officers take the stand, tell their side of the story and then I see a traumatized Indigenous person try to get up there and tell their story. But the way the stories are told, they're shattered, broken by trauma,” he said.
But not everyone in the legal community believes the outcome in Stanley's second-degree murder trial is as clearly defined by racism and flaws in the justice system.
Garth Wallbridge, a “proudly” Metis lawyer who has practiced law in the NWT for over 25 years, told Yellowknifer he was troubled and “taken aback” by the not-guilty verdict – but that one case shouldn't be grounds to cite a system-wide breakdown.
“Most often when a decision comes down that kind of defies logic, from my perspective, I think the lawyers and judge probably didn't do as good a job as I would have liked to imagine they should,” said Wallbridge, adding “the jury did it's job as it was supposed to.”
But the jury itself – and the process that selected its 12 members – has come under increased scrutiny following Stanley's acquittal. During the trial, no visibly Indigenous people sat on the jurors' bench, as the defence, within its rights under the Criminal Code of Canada, used peremptory challenges during the selection process. Both defence lawyers and Crown prosecutors are able to veto or exclude potential jurors without providing a reason.
The move, a major source of contention in the ongoing social and political fallout following the verdict, has been criticized for opening the door to prejudice by not producing a “jury of your peers,” a staple in Canadian law.
Wallbridge, however, isn't convinced the longstanding trial procedure played a role in Stanley's acquittal.
“ … People need to understand that just because someone has fairly white skin, that doesn't mean, necessarily, they're not Indigenous. So there may have been Indigenous jurors there. I think that's important,” he said.
Lorraine Land, a partner at Olthuis Kleer Townshend LLP, Canada's largest specialized Aboriginal law firm, deals with land rights and claims, a field, she said, that often intersects with criminal law.
Land wants peremptory challenges done away with – for good.
“It has to be abolished. Doing away with peremptory challenges (is) a way of guarding against bias and other problems in jury selection. But, it's also something that would benefit the non-Indigenous community as well in terms of people having faith in the system to function fairly,” said Land.
Noeline Villebrun, a Dene woman who attended Saturday's rally along with lawyer Jonathan Park, calls for justice following the acquittal of Gerald Stanley in the shooting death of Colten Boushie.
“It's entirely possible that a jury that was a mix of Indigenous and non-Indigenous jurors may have reached the same verdict, the problem is we'll never know because there was never the opportunity to have that kind of jury with mixed representation,” said Land.
On Tuesday, federal Justice Minister Jody Wilson-Raybould said efforts to combat racism in the justice system in the wake of the Stanley verdict could result in the elimination of peremptory challenges.
But Paul Falvo, a criminal defence lawyer based in Yellowknife, said the prospect of scrapping to procedure could end up hurting the many Indigenous clients he represents.
“If the federal government is concerned about the use of peremptory challenges, they ought to restrict their use by their own agents. I often see federal prosecutors using peremptory challenges to shape a jury they want, presumably with the aim of procuring a conviction – against an Aboriginal Canadian, in many cases,” stated Falvo in an e-mailed response to Yellowknifer.
On the possibility of strengthened “prosecution tools” stated Falvo, “it concerns me how these new measures might affect my Indigenous clients, who already face a powerful juggernaut of prosecution in our justice system …”
“There is a pain every day in the legal system. Frequently in the North it's Indigenous people charged with crimes against Indigenous people. Many of my clients are themselves survivors, or inter-generational survivors of residential schools … There are no protests when they are prosecuted."
On Wednesday, following calls from Trudeau to undo the “colonial legacy” still ingrained in the country's justice system, Wilson-Raybould announced a new Indigenous framework that would give Indigenous people more autonomy over their land and lives.