Reconciliation and Settler Backlash
Scenario:
In the wake of Colten Boushie’s death and Gerald Stanley’s acquittal, the Liberal government proposes a bill that would abolish peremptory challenges in Canada’s judicial systems. The bill is passed. It is likely that there will be backlash from Canada’s settler communities, especially in rural areas. In order to reduce tensions between settler and Indigenous communities and to begin the process of building trust between those communities, the Canadian government should adhere to several calls to action made by the Truth and Reconciliation commission that would target the root causes of rural crime.
BACKGROUND
In Foreign Minister Chrystia Freeland’s June speech to Parliament, she said the following:
In the months following Freeland’s speech the injustices suffered on the part of Indigenous peoples and the tensions between Canada’s white settler community and Indigenous peoples, especially in rural Canada, have come into the spotlight.
The tragic death of Colten Boushie, a 22-year-old Cree man from the Red Pheasant nation near North Battleford, Saskatchewan, and the subsequent acquittal of the man who killed him, Gerard Standley has inflamed dialogues - both public and private - concerning the Canadian justice system.
Gerald Stanley not guilty in death of Colten Boushie
Tenets of This Proposal
CONTEXT
Colten Boushie’s Death and The Gerald Stanley Trial
Two Opposing Views: [1]
Colten was the victim of a racially motivated killing
Colten’s friends were trespassers and thieves who met swift, vigilante ‘justice.’
Rising Tensions:
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Five days after Colten was killed Saskatchewan’s Premier called for “an end to the flood of racist comments on social media directed at Indigenous people.” [2]
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Indigenous community members raised questions over the progress of reconciliation efforts under the Trudeau administration:
If we are making progress why would it have exploded so much when he got shot? [3]
Towards Action:
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February 12, 2018, Justice Minister Jody Wilson-Raybould stated that the Liberal government was “looking at peremptory challenges.” [4]
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Justice department had already started a study of peremptory challenges
Peremptory Challenges and Discrimination
The Rise of the Alt-Right and Indigenous-Settler Tensions
The Alt-Right movement has recently grown, but white nationalists have been active in Canada for many years. It is a movement focused on:
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The “Canadian identity,” which is code for “white identity.”
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Opposition to traditional state structures, the “other,” and the advancement of civil rights [8]
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A hatred for political correctness.
Aryan Guard supporters in Calgary in 2009.
Barbara Perry’s three-year study on right-wing groups revealed that at least one hundred alt-right groups exist in Canada, many of which are located in Western Canada. The loudest of these groups are called the Sons of Odin, Soldiers of Odin, and the Three Percenters, all with strongholds in Alberta. [9] Perry believes that the rise in white nationalist sentiment is due to the fact that rural, homogenous, and white communities are changing, and “for some residents, this change of complexion, culture and religion represents a threat.” [10]
Many of the new members of the alt-right, or sympathizers, discovered the movement online. The focal point of alt-right groups is Islamophobia, and many white Canadians are motivated by their hatred for Islam to seek out alt-right groups, forums, or figures online. However, in rural areas close to reservations, tensions are often high between Indigenous peoples and settlers.
POLICY RECOMMENDATIONS
Eliminate Peremptory Challenges: Build Canada’s International Credibility
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Specific action towards reducing discrimination against Indigenous peoples, and other marginalized groups within Canada.
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Specific action towards conforming with international mandates on Indigenous rights, such as the United Nations Declaration on the Rights of Indigenous peoples.
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Canada has repeatedly fared poorly in international audits of its treatment of Indigenous peoples.
The latest report on Canada’s human rights compliance released in August of 2015, cited concerns that “Aboriginal people continue to face obstacles in recourse to justice.” [11]
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Eliminating peremptory challenges would provide evidence to the next auditing that the Canadian government is working to eliminate barriers to justice for Indigenous peoples in Canada.
Beyond Peremptory Challenges
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A means of reducing newly heightened tensions between Indigenous peoples and settlers, especially in rural Canada is needed
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Settlers in rural Canada have cited concerns for their safety due to the length of police response times
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The Canadian government should work collaboratively with the RCMP, Indigenous communities, and settler communities to develop a solution that is both feasible, and sensitively implemented.
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The issue of crime in rural Canada should be addressed.
The community of North Battleford Saskatchewan where Colten Boushie was killed is “the most dangerous place in Canada. [12]
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More post-prison supports for criminal offenders is needed. Canada’s Truth and Reconciliation commission provided the Canadian government with several calls to action that could help to mitigate the present circumstances:
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Implement community sanctions for Indigenous offenders that would provide an alternative to imprisonment, and a means of rehabilitation that would address the root causes of the offending behavior. [13]
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Provide culturally relevant services to inmates that would address issues such as substance abuse, domestic violence, and overcoming experiences of sexual abuse
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Provide more support for Indigenous programming in halfway houses and parole services. [14]
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Culturally relevant programming, and programming that addresses the underlying causes of offending behaviour would provide the means for Indigenous offenders to reintegrate into their communities and into wider Canadian society.
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The more frequently and consistently Indigenous offenders can get out of the pattern of re-offending, the more crime rates will come down, and consequently, trust can begin to be rebuilt between settler and Indigenous communities.
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Adherence to the Truth and Reconciliation Commission calls to action was one of the mandates that was included in the last UN Human Rights report on Canada.
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Implementing the above-mentioned calls to action would improve Canada’s performance on future human rights audits.
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Canada’s international human rights reputation could improve, providing further opportunities for Canada to position itself as a leader in the international human rights regime.
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MAKING A STATEMENT AGAINST THE ALT-RIGHT
As alt-right movements grow in size and popularity, it is imperative that the Canadian government use the legal system to speak out against racist movements. If peremptory challenges were to be abolished with the ultimate goal of reducing racial discrimination, the Canadian government would be able to send a message to domestic and international alt-right movements. In this sense, the abolition of peremptory challenges will act as a type of proactive law that shapes, rather than reacts to, public opinion.
The message the Canadian government will be sending if peremptory challenges are abolished is of commitment to ending discrimination against Indigenous peoples. As previously discussed, peremptory challenges impede judicial standards of fairness and enable racist stereotyping. What ultimately occurs as a result of peremptory challenges is the violation of every Canadian’s right to be judged by a jury of their peers, as enshrined in section 11(f).
11. Any person charged with an offence has the right
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
Other instances in which the Canadian government has successfully been able to shape public perception through legal reform is same-sex marriage and reproductive rights.
Reproductive rights have also evolved over time and benefited from proactive laws.
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1970s and 1980s had its most intensive period of debate over reproductive rights. Anti-abortion rhetoric took on a new incredibly sexist and dehumanizing tone thanks to then cabinet minister Joe Borowski. [15]
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However, R v. Morgentaler ruled that forcing a woman to carry a foetus against her will violated section 7 of the Charter safeguarded women’s rights.
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Today, some have tried to re-open the debate in terms of foetal, not women’s bodily autonomy.
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Abortion rights in Canada have remained firmly entrenched ever since the judicial decision to anchor abortion rights in the Charter.
What both of these examples prove is that legal reform is a powerful tool in changing the tides of public opinion. With rulings like R v. Morgentaler and bills like the Civil Marriage Act, it is clear that the government can and should move to protect the rights of vulnerable populations through legal reform. To abolish peremptory challenges would be to valorize the rights of Indigenous peoples as enshrined in the Charter which the Canadian government has sworn to protect.
Smith, Matt. Colten Boushie's uncle Alvin Baptiste raises an eagle's wing at a rally outside Battleford Court of Queen's Bench a day after Gerald Stanley, 56, was found not-guilty of murdering the 22-year-old Saskatchewan man.
REMOVING PEREMPTORY CHALLENGES
Following the Example of Britain and the United State
Unlike Britain and the United States, Canada allows peremptory challenges for any reason. Both Britain and the United States have either abolished, in the case of Britain, or reformed, as per the United States, peremptory challenges. Considering the closeness of all three countries not only in terms of trade and diplomatic relations, but in our similar legal frameworks and societies, it is necessary that Canada examine its own process of jury selection. Britain has removed peremptory challenges altogether, whereas the United States has mandated that peremptory challenges must be “race neutral.”[16] As Canada is a country that prides itself on progressive policies and as a proponent of human rights, it stands to reason that Canada must reflect on the negative impacts of peremptory challenges as Britain and the United States have.
The U.S. & Peremptory Challenges
Britain & Peremptory Challenges
From the American and British example, it is clear that Canada should not only follow in the footsteps of other states, but take this opportunity to stand out on the international stage. The Canadian government should learn from the American example that peremptory challenge cannot be reformed away. From the British example, it is evident that peremptory challenge needs to be abolished for both the crown and the defence, and anchored in the idea of representation. Canada should take a proactive lead in ensuring judicial representation, and the first step in doing so is the abolishment of peremptory challenges.
CONCLUSION
The Canadian government should commit to legal reform that reduces the capacity for discrimination in the Canadian judicial system. In specific, the government should commit to abolishing peremptory challenges in Canadian courts. It is important for the Canadian government to set a precedent of anti-discrimination policy in the present social context. Increased settler-Indigenous tensions following the death of Colten Boushie, and the broader global context of the rising Alt-right necessitates action on the part of the Canadian government. The government should send a clear message, in policy and in public discourse, that discrimination against Indigenous peoples and violence on the basis of such discrimination is unacceptable in this country.
Further, the Canadian government should commit to abolishing peremptory challenges to begin the process of recognizing and reconciling its colonial legacy, and the means through which it is perpetuated in the Canadian Judicial system. The Canadian judicial system plays a significant role in perpetuating Canada’s colonial legacy. Moreover, numerous reports starting in 1988 up to 2013, at the provincial and national level, have called for the abolishment of peremptory challenges on the basis that they discriminate against Indigenous peoples. Given the history of the use of peremptory challenges, and the repeated calls to remove them from the Canadian judicial system, it is common sense for the Canadian government to abolish them. Removing peremptory challenges, as has already been stated, would represent a concrete action towards reconciliation, and would improve Canada’s standing in terms of its Indigenous populations on future international human rights audits.
The abolishment of peremptory challenges is a straightforward action that can be taken on the part of the Canadian government to respond to the calls for justice from Colten Boushie’s family, the Red Pheasant Nation, and the greater Indigenous population who have been marginalized by the Canadian judicial systems. Further, abolishing peremptory challenges is neither a hugely controversial action, nor is it without precedent. The Canadian government would be following in the steps of the United Kingdom and the United States in removing this discriminatory measure.
In the wake of the tragedy of Colten Boushie’s death, the Canadian government has the opportunity to take an action that will prevent greater damage from being done to Indigenous communities, and to reconciliation efforts in the future. Canada needs to prove its commitment to reconciliation to the citizens of this country, and to the wider international communities and the human rights organizations that continue to hold valid concerns about the welfare of Indigenous peoples in Canada.
- Minister Chrystia Freeland