Justice and Reconciliation Are Not the Same Thing - part two

It with some sense of optimism that I note that the family of Colten Boushie have already met with two federal ministers in Ottawa and will be meeting the Prime Minister today (Tuesday). The fact that they can summon the energy to face members of a government who have not done nearly enough to address the issues of racism within our legal system is remarkable. I am not too sure if I would have been able to do what they have done. I also find it somewhat reassuring that the three ministers have responded so quickly to the request to meet with Colten Boushie's family. But I hope the family's expectations for rapid or even any changes in Canada's legal system have not been raised too high. Because I do not think that changes are likely - at least not in the short term.

One of their requests appears to have been that there are changes made as to how juries are selected. It being argued that that jury should have had some Indigenous members; that the lawyer for the defence should not have had the ability to prevent individuals who appeared to be of an Indigenous background from being in the jury. It is not clear in reading many of the available reports whether or not the defence lawyer did use any of his twelve peremptory challenges to dismiss prospective jurors who appeared to have an Indigenous heritage.  But if he did,  the defence lawyer was doing his job -   any defence lawyer who did not do everything possible to have his client found not guilty (including ensuring there is the most favourable jury possible) would rightly be accused of mal practice. Both the defence and the prosecution have the same right to reject potential jurors.( A number of years ago I was called for jury duty. The accused had been charged with some dealing in drugs. I was excused as soon as the crown attorney saw me. I have always assumed it was because I had long hair and a healthy beard). 

 

 Other countries have done away with peremptory challenges and on the surface this would appear to address the issue. But I believe to do so would be a "knee jerk" reaction to a long standing, systemic situation - and potentially allow us to avoid dealing with the real problems. Such a political decision would be based on the premise that (1) all of the jury were racists,(2) that if there had been two or three Indigenous members of the jury, the outcome would have been different and (3) that the purpose of any trial is to ensure that the victim and their life story should be relevant to the prosecution's case.

 

 There is no way of ever knowing what or how the jury processed the information they heard at trial; we will never know what they talked about during those hours locked away in from public view. We do not know if the debate was tinged with constant racist comments or if their decisions was based solely on legal points. To assume that that if, in the future, that there always be a few Indigenous members of a jury whenever the victim is Indigenous would place an immense and unfair burden on those members. They would be expected to represent their race, not justice.  It would come perilously close to tokenism. 

 

 Finally, in spite of the many victim rights groups who have argued that their rights are ignored in trials - trials are not about the victim, their rights or the past 150 years of abuse. We have a legal system that insist that the accused has the right to a fair and unbiased trial (which of course may almost never happen when Indigenous persons are accused). Rightly or wrongly, a trial is not the place to discuss all of the multitude of examples of cultural genocide perpetuated upon the Indigenous people. While the trial may have been a form of proof that they system is at best dysfunctional in terms of justice being served, I think there are other solutions that (1) would be less cumbersome to enact and (2) be more meaningful in terms of engaging all communities.

 

 I think that the easiest way of ensuring that juries would be more racially diverse would be to ensure that the jury pool is expanded. Quite simply every jury pool needs to reflect the racial diversity of the area. At the same time, the government would need to invest sufficient resources to educate all members of the community of their responsibilities in serving as jury members.

 

 I am delighted that the Prime Minister and two of his cabinet have met with the Boushie family. I would like to belief that they have done so with the absolute belief that to start to eradicate racism, that things need to change in all facets of our society. I need to believe that while the wheels of government and real justice may grind exceedingly slow - that the small changes to the system can start immediately. It is not enough to promise to change some things in the future, or that we will have more studies. We need to and can start to change things right now to make all aspect of our lives more inclusive. It is not enough to appear to be more just - we must be.