Let’s start with this. Any jury might have acquitted Gerald Stanley, the 56-year-old white Saskatchewan farmer who shot and killed Colten Boushie, a 22-year-old Indigenous man, on Stanley’s farm in August 2016.

There are two competing narratives about what happened, and even more about the meaning of what happened.

The Crown charged Stanley with second-degree murder, arguing he intended to shoot Boushie, who was killed by a single bullet to the head at close range. The defence countered that Stanley was protecting his property and the gun went off accidentally in the heat of an escalating confrontation between himself and a group of Indigenous young people who’d tried to steal his ATV.

The case got more complicated during the trial when two of the Crown’s key witnesses — Boushie’s companions — changed their stories in court. After initially denying it to police, one admitted they’d already tried to steal a truck at a neighbouring farm before arriving at the Stanley property. Another eyewitness originally told police Boushie was sitting in the front passenger seat when he was killed by a woman who fired two shots. Boushie, in fact, was seated in the driver’s seat and was shot once — by a man.

Witnesses often misremember details or change their stories, of course, but such changes do raise questions — and sometimes reasonable doubts — in the minds of jurors.

But Stanley’s testimony was not without its complications either. He claimed he’d heard someone starting his ATV, and ran to stop them. By then, the intruders were back in their own SUV. So Stanley grabbed his handgun, loaded it with two bullets, and fired off two warning shots into the air to scare them.

Then, concerned he couldn’t see his wife and worried she might have been run over in the confusion, Stanley testified he ran around to the SUV’s passenger side and reached in through the window to grab the car keys, the gun still in his other hand. “And — boom — this thing just went off.”

The defence claimed the fact the gun fired was an accident triggered by a common gun glitch known as “hang fire,” but expert testimony questioned that.

Chief Justice Martel D. Popescul

In his instructions to the jury, Chief Justice Martel Popescul said jurors had three choices:

  • agree with the Crown and convict Stanley of second-degree murder;
  • conclude that Stanley should have known someone could get hurt and been careless handling the weapon, but that the shooting itself was accidental, meaning they should convict him of the lesser charge of manslaughter;
  • or determine that Stanley’s response was reasonable in the circumstances, and acquit him.

The jury chose door number three — acquittal.

From 4,000 kilometres and six provinces away, I find that incomprehensible.

But I also know, from too-many-years’ observation that the view from inside a jury room inside a courthouse is often very different, and that even the most serious, best-intentioned jurors sometimes get it wrong — or at least different from me.

But that, at the end of the day, is not the key issue here.

The issue is one of representation, of fairness.

About 16 per cent of Saskatchewan’s population is Indigenous. In the region of the province where the trial took place, that percentage climbs to closer to 25 per cent.

There were not only no Indigenous people on the Gerald Stanley jury, but defence lawyers also used what are called pre-emptory challenges to eliminate the only five “Indigenous-looking” people who had been called from serving on the jury.

Under the Criminal Code, the Crown and defence in murder cases are each entitled to up to 20 “peremptory” challenges, essentially allowing them to reject that many potential jurors without having to give a reason.

On the one hand, this gives often over-worked, under-resourced lawyers the opportunity to use their “gut” instinct to look for the most favourable jury for their purpose.

On the other hand, as Regina Leader Post political columnist Murray Mandryk asked pointedly: “Is there anywhere else in today’s society where you can simply take a look at someone and — solely based on skin colour or gender — determine that he or she is not fit for the job?”

Think about that for a moment.

And then think about this.

Britain did away with preemptory challenges 30 years ago. In the US, the Supreme Court has clamped tight restrictions on their use, in large part to avoid bias — even the appearance of bias — in racially charged cases.

More than 25 years ago, Canadian Justice Murray Sinclair argued the practice of preemptory challenges should be abolished here too, a view more recently endorsed in former Supreme Court Justice Frank Iacobucci’s 2013 report on the underrepresentation of Indigenous peoples on Ontario juries.

The central issue then is not just what happened in Gerald Stanley case — which might have been the outcome, no matter the composition of the jury — but the fairness of the system itself. Noted the Iacobucci report: “The public is more likely to perceive trials, and by extension the legal system as a whole, as being fair if prospective jurors are representative of the wider community from which they are drawn.”

Today, thanks in part to the verdict in the Gerald Stanley trial, many Canadians are rightly questioning the fairness of our legal system.

Ottawa seems to recognize that — and has vowed, belatedly, to take action.

That’s a positive development. But, as federal Justice Minister Jody Wilson-Raybould herself noted, jury selection is one small piece of a much bigger issue.

Consider this about Saskatchewan, for example. Less than two per cent of the province’s judges are Indigenous; more than 80 per cent of Saskatchewan’s prison population is.

“This a broader problem about the colonial legacy,” Wilson-Raybould explained, “about the treatment of Indigenous people in the system generally. The lack of hope is an absolutely devastating thing and we need to do everything we can to prevent people from having a lack of hope.”

If changing the jury selection process is one baby step on the path to real change in the legal system, let’s do it. And then let’s get on with the tougher business of that lack of hope…

Stephen Kimber is an award-winning writer, editor, broadcaster, and educator. A journalist for more than 50 years whose work has appeared in most Canadian newspapers and magazines, he is the author of...

Join the Conversation


Only subscribers to the Halifax Examiner may comment on articles. We moderate all comments. Be respectful; whenever possible, provide links to credible documentary evidence to back up your factual claims. Please read our Commenting Policy.
  1. This case is not only about a white jury letting off a white murderer of a black man in racist Saskatchewan.

    From what I’ve read, the RCMP there are unable to respond in a timely manner to what are claimed to be frequent cases of theft of ATVs, vehicles and other property allegedly stolen by natives from farmers over such vast tracts of territory. As a result, farmers have taken to defending these expensive items with firearms. Until this can be corrected, farmers apparently have little choice but to take matters into their own hands, and that is always dangerous.

    It would appear that Boushie and his companions had attempted to steal a vehicle from a neighboring farm, and had tried to take a truck and an ATV from the Stanley farm. He was not an innocent bystander. Theft of farm property by natives is said to be commonplace in the area, so it’s easy to see why Stanley would have been quick to defend his property and his family.

    I read the forensic examination determined the gun was operating correctly although the fatal cartridge had an odd shape. I would have thought that challenged claims the gun fired accidentally and supported the second degree murder charge. The jury thought that could not be sustained beyond reasonable doubt. I don’t envy the task they faced.

    Defense counsel deliberately chose an all white jury by challenging anyone who looked native. Their job was to defend their client using all available legal tools, and this one was allowed. To me this feels wrong (UK ended peremptory challenges 30 years ago). The verdict can be read as being motivated by racist objectives, when that may well not have been the case and jurors are not allowed to discuss it, so we may never know. This is clearly a defect in law that must be corrected.

    Undoubtedly motivated by bad political optics, PM Trudeau and Minister Wilson-Raybold also showed trigger fingers. They should not have immediately suggested there was something wrong with the verdict or that “we could do better”. That impugned the jury and inflamed the whole sorry mess. If there was no actual error in law, then the legal process for which they are currently responsible acted as designed. It’s that design that needs to be reviewed, and Wilson-Raybold says they will be doing that. We shall see.

    Sure, I feel sorry for the Boushie family’s tragedy, but Colten should not have trespassed on Stanley’s farm apparently with intent to steal equipment, and he put himself at risk by doing so.

    The one thing I haven’t heard mentioned so far is why young native people steal from farmers. Is this ultimately fueled by systemic poverty as well as (apparently) widespread racism? If so, will the Federal and Saskatchewan governments again avoid fixing these pervasive root causes of so much of what is wrong with our relationship with our native Canadians?

    My $CD 0.02

  2. ‘Defence lawyers also used what are called pre-emptory challenges to eliminate the only five “Indigenous-looking” people who had been called from serving on the jury.’

    That’s a problem. But it is misleading to state only five “Indigenous-looking” people had been called. 750 people were summoned for jury duty, but only 225 responded. Only 205 came to court, and about 50 of those asked to be excused. (CBC reporter, Guy Quenneville, http://live.cbc.ca/Event/Gerald_Stanley_Trial_Jury_Selection) Large numbers of people not responding to a jury summons is not unusual. (http://thechronicleherald.ca/metro/692898-judge-explains-rules-to-no-show-jurors)

    Before the pre-emptory challenges, 80 percent of the potential jurors eliminated themselves from the pool. We don’t know how many, if any, of those jurors might have been indigenous, but any improvements to jury selection need to consider the high levels of no-shows, and why that happens. Systemic problems might include out of date addresses, difficulty getting to court (especially in rural areas), unclear summons letters, and so on.

    1. Jurors in Nova Scotia receive the vast sum of $15 a day.
      Public sector employees continue to receive their normal rate of pay.
      Travel costs are not paid.
      Unemployed people are not allowed on a jury.

  3. In my opinion the two articles in the Globe and Mail strike the right chord :
    ” In 1994, a young Indigenous man, John Black, while pumping gas into his car at a gas station in Kelowna, B.C., was confronted by an unarmed white man riding a bicycle, who was taunting and threatening him. Mr. Black, fearing for the safety of his wife and child in his car, calmly took out a tire iron, and struck the head of Dale Anfield. Mr. Black then drove to the police station and turned himself in. He was charged with second-degree murder. I was his defence lawyer. My Indigenous client was judged by what appeared to be an all-white jury. My client was acquitted. The white judge correctly instructed the jury on the law. The members of the victim’s family were outraged at the jury’s verdict. No one suggested racism after this verdict.” https://www.theglobeandmail.com/opinion/no-criticism-needed-canadas-jury-system-works/article38022515/

    and this one: