The system could have done better, but convictions are never guaranteed
By Don Norman
Two recent court cases have shed light on an issue that greatly affects people in our communities. The two trials, the Tina Fontaine murder trial and the Colton Boushie trial came out with acquittals for the defendants. The victims in both cases, of course, were aboriginal.
Many have criticized the court system for the lack of conviction. This was especially true in the Colton Boushie case where the jury selection process ostensibly eliminated all potential aboriginal jurors. And this really is a problem. I don’t think it’s a problem because the jury was necessarily racist, or because the accused’s acquittal was necessarily the wrong choice. It’s that the optics of a system that can eliminate potential jurors based on skin colour is just plain bad. It reduces confidence in the impartiality of the justice system.
The process that created these optics come from the peremptory challenge provision in Canadian law. That provision came from the England in the 12th century. The UK did away with it in the 1980s. The US still allows it, but made it illegal to make the challenge based on race.
It allows lawyers from both the defence and prosecution to dismiss potential jurors based on nothing more than gut feelings. There’s no interview. They can dismiss them based solely on their look and their name. In this case, people at the trial said that during the procedure, the defense eliminated as many as five potential jurors because they looked aboriginal. To be fair, it’s sometimes used to balance juries. NDP leader, Jagmeet Singh said that when he was a trial lawyer, he used them to make sure juries were more diverse. But is it necessary? Probably not. The UK’s justice system seems to be doing just fine without it.
We don’t know if a jury with better aboriginal representation would have come to a different verdict. The outcome of the case and the jury itself was not necessarily racist (even if their verdict was wrong) But because the preemptory challenges process, that will remain uncertain. And that’s unfair to the victim, the accused and the jury.
We didn’t hear anything in the Tina Fontaine trial about a lopsided jury, so I think it’s safe to assume that most observers didn’t see that as the problem in that case.
The problem in that case is the same reason that Tina Fontaine’s murder became the catalyst for the Murdered and Missing Indigenous Women (MMIW) inquiry in the first place. It’s heart-wrenching that a 15 year old girl would fall victim to the end that she met. I can only imagine how much more that would be magnified in Sagkeeng, the community from which she came. To simply answer the question of who did that to her and to know that they faced justice, would go a long way to help with closure. But a conviction was never likely. I suspect that had there been no outcry for justice; had Tina’s case not set in motion the MMIW, that Winnipeg Police wouldn’t have even pressed charges. There wasn’t enough evidence to convict. This sounds cynical, but they likely knew that, but proceeded because the political climate necessitated it.
I think it’s useful to compare this to the Candace Derksen case over 30 years ago. Despite the differences on the surface, there are similarities. In that case, a 13-year old white girl went missing and her body found frozen in a shed six weeks later. Police in that case didn’t have enough evidence to move ahead with the trial, either. But they went ahead and charged someone anyway. In that case, they got a conviction, one that was later overturned, but because the public was so devastated by the young girl’s death, police had to pin the crime on someone. Then years later, they convicted someone else. And then that verdict was overturned. Then they appealed and tried him again in 2017, 33 years after the crime and they still couldn’t get a conviction.
Now, you could argue that if an aboriginal girl went missing in 1984, it wouldn’t have received the attention that Candace’s murder did. That could very well be true. It is certainly a truth of human nature that we relate more closely to people who we view as similar to us. The whole impetus of the MMIW is to address the inherent racism that exists in a white dominated society as a result of that reality. But that’s not really the point of my bringing up this case. I know this is not what people want to hear, but sometimes a conviction isn’t possible. There’s no question that the system failed Tina, she fell through the cracks and was murdered as a result. And systemic racism played a role in her demise. I really do hope that Tina’s killer is identified, tried and brought to justice. But if he isn’t, it’s not because of racism in the court system. It’s because some murders will always remain unsolved.