By Andy Crosby
Colten Boushie – a 22-year old Cree man from Red Pheasant First Nation – and his girlfriend and three friends drove onto Saskatchewan farmer Gerald Stanley’s property on Aug. 9, 2016. The friends later testified that their Ford Escape blew a tire and they exited the vehicle to seek assistance.
Stanley and his son Sheldon testified that two of the five – Cassidy Cross-Whitstone and Eric Meechance – exited the vehicle and tried to steal the family ATV. When confronted, they re-entered the SUV and attempted to drive away. Sheldon then smashed the SUV’s windshield with a hammer while Gerald kicked out a taillight before retrieving a gun – a Tokarev TT33, a semi-automatic pistol – in a nearby shed.
Stanley claimed that he fired two warning shots into the air and ran over to the vehicle. While he attempted to remove the keys from the ignition with his left hand he said that the pistol in his right hand went off by accident, shooting Boushie in the head, killing him instantly.
THE ALL-WHITE JURY OF STANLEY’S PEERS
Stanley’s trial began in Battleford, Saskatchewan on Jan. 30, 2018 following the selection of an all-white jury the day prior.
The jury would later acquit Stanley of second-degree murder, sparking outrage, protests, and a national conversation regarding systemic discrimination against Indigenous peoples in the Canadian justice system.
Yet, there is nothing new about what is being raised. Indigenous peoples and legal scholars have been imploring that this discrimination be dealt with for quite some time.
In this case, the defence’s use of “peremptory challenges” to exclude Indigenous peoples and ensure an all-white jury is highly problematic.
Doug Cuthand, an Indigenous columnist with the Saskatoon StarPhoenix, was in the courtroom during the jury selection process and told CBC Radio’s The Current that, “every time an Aboriginal person came forward from the jury pool, the defence lawyers would challenge them.”
Boushie’s cousin, Jade Tootoosis, was also present and told the media that “It was really difficult to sit there today and watch every single visible Indigenous person be challenged by the defence.”
“As one lawyer friend of mine told me, Stanley really did have a jury of his peers,” said Cuthand.
In addition to the jury being stacked in Stanley’s favour, Cuthand also believes that the Crown prosecution was weak.
He further spoke of the deep racial divide in Saskatchewan and the fear white farmers have of growing Indigenous populations perceived as threatening their land base.
Stanley was supported by a white rural Saskatchewan group, Farmers with Firearms, which was formed months before the Boushie murder. A Stanley supporter initiated a crowdfunding campaign on Feb. 9 – Help Support Gerald Stanley – which raised over $200,000 from over 3,000 donations in its first nine days.
The page sparked outrage and calls for Go Fund Me to take down the site, which it refused.
On the other hand, the Go Fund Me page for Justice for Colten has raised over $180,000 over five months. A separate Leadnow.ca petition demanding an appeal to the verdict has over 18,000 signatures. A groundworkforchange.org site provides multiple links to a variety of reports published over the years that decry a systemic problem of injustice faced by Indigenous peoples in the Canadian criminal justice system, including surrounding jury selection.
These include the 1991 Report of the Aboriginal Justice Inquiry of Manitoba, as well as Justice Frank Iacobucci’s 2013 report on First Nations Representation on Ontario Juries. Iacobucci’s report made 17 recommendations to address what he called a “crisis” for Indigenous peoples in Ontario’s justice and jury system, including a call for an end to peremptory challenges. His other recommendations included expanding the database of potential Indigenous jurors and allowing Indigenous people living on-reserve to volunteer for jury service.
“NO AIR OF REALITY”: STANLEY’S HANG-FIRE DEFENCE
Stanley claimed that the shooting had been accidental, due to a malfunctioning firearm.
In the aftermath of the acquittal, media reports quoted gun experts claiming that Stanley’s theory of how his gun discharged – a “hang-fire” where there is a delay after pulling the trigger and when the round fires – had “no air of reality.” Stanley had claimed that after firing the two warning shots, he continued to pull the trigger and removed the magazine for safety purposes.
Gun expert A.J. Somerset told VICE that the very rare hang-fire can happen, but usually within a fraction of a second, not for extended periods of time after pulling the trigger. Somerset questioned if the story was concocted for the jury to try and demonstrate how careful Stanley was, but Rob Feist, another gun expert and Saskatchewan lawyer, says that Stanley’s actions do not align with what is taught in firearms safety courses.
Feist posted a summary of his interpretation of the evidence on Facebook, questioning multiple aspects of Stanley’s story – including not knowing how many bullets were loaded, using questionable safety practices, and attempting to turn off the vehicle with his left hand while keeping the supposedly safe, unloaded weapon in his right. Feist concluded that, “it is an extreme stretch to suggest that a story of this level of credibility should raise a reasonable doubt as to Mr. Stanley’s intentions.”
SEEKING JUSTICE IN OTTAWA
Stanley was acquitted of second-degree murder and manslaughter on Feb. 9, 2018, the verdict read to a shocked courthouse.
“You’re a murderer. You murdered my son,” Colten’s mother, Debbie Baptiste, said.
“There was no justice served here today,” said Tootoosis. “We will fight for an appeal and answers to all the racism that my family has experienced from the day that Colten was shot until the jury delivered the verdict of not guilty.”
Numerous rallies were held in multiple cities bringing out thousands under the banner “Justice for Colten.” Boushie’s family members participated in a large demonstration in North Battleford.
“White people — they run the court system. Enough. We’re going to fight back,” said Boushie’s mother Debbie Baptiste. “They’re not sweeping us under the carpet. Enough killing our people.”
Alvin Baptiste, Colten’s uncle, called the verdict “white-privileged justice that has happened to my family. A whitewash.”
“I want to take this all the way to Ottawa… right to Justin Trudeau,” he said.
And that is exactly what they did.
Within hours of the verdict, members of Boushie’s family boarded a plane for Ottawa where they would meet with Indigenous and Northern Affairs Canada (INAC) ministers Carolyn Bennett and Jane Philpott on Feb. 12, and then Justice Minister Jody Wilson-Raybould, Public Safety Minister Ralph Goodale and Prime Minister Trudeau on Feb. 13.
“This is only the beginning of the conversation and calls to action,” Tootoosis told reporters after meeting with Bennett and Philpott. “We have little to no faith in the justice system and we’re here to talk about that.”
“Some people have stated that race has nothing to do with this process. Yet the defence felt threatened by an Indigenous person being on the jury,” she said. “I think that speaks volumes to what we went through and the justice that we were denied in this process.”
Following the Feb. 13 meetings, Trudeau told the House of Commons that, “We have a responsibility to do better, to be better. To do our best to make sure that no family has to go through what they went through.”
Boushie’s family spoke to the press after the meeting.
“There was a general consensus that there are systemic issues regarding Indigenous people in the judicial system and that each person has promised to work with us to make concrete changes within the system,” said Tootoosis. “That is exactly what we came here for.”
Eleanore Sunchild, an Indigenous lawyer who accompanied the family to Ottawa, told reporters that they were calling for changes to the Jury Act and the inclusion of Aboriginal jurors within the judicial process.
She said they were calling for changes to “ensure that Indigenous people are included from the moment a crime occurs to the time a jury comes back with a verdict, to ensure that all of the systemic bias and racism and everything that came out in this case is looked at.”
There is “deep-seated racism” in Saskatchewan, she added. “And even though people say this wasn’t a case about race, it was, because of how these people were excluded right from the beginning.”
The Boushie delegation came to Ottawa demanding change, and Colten’s death served as a catalyst for what came next, as the Liberal government announced the unveiling of a new rights framework for Indigenous peoples.
“RECOLONIZATION, NOT SELF-DETERMINATION”: TRUDEAU’S RIGHTS FRAMEWORK FOR INDIGENOUS PEOPLES
The day after Trudeau met with the Boushie family, he announced that Canada would undergo a “government-wide shift in how we do things” to “truly renew the relationship between Canada and Indigenous peoples.”
Government action, according to Trudeau, “must include and be grounded in the full recognition and implementation of Indigenous rights.”
This framework for Indigenous rights would be determined by a national engagement and developed in full partnership with Indigenous peoples, promised Trudeau.
Sabrina Williams, Press Secretary for the Office of the Minister of Crown-Indigenous Relations and Northern Affairs, told The Leveller via email that the specific contents of the framework will be determined through national engagement activities which “will continue throughout the spring, with the intention to have the Framework introduced in 2018 and implemented before October 2019.”
The proposed timeline as well as the power of the Liberal majority to dictate the terms of the rights framework is cause for concern, according to Mohawk policy analyst Russ Diabo.
“Our people won’t even have time to act or react,” he told The Leveller. “So in a way [Trudeau] issued an ultimatum and a deadline,” with a “stacked deck” to push through the legislation on the party’s terms.
“As far as I’m concerned it’s recolonization, not self-determination,” said Diabo. “They’re telling us what they’re going to do – what’s negotiable and what’s not negotiable.”
INAC claims that, “Ultimately, this work will help assist Canada to overcome the legacy of colonization and achieve true reconciliation with Indigenous peoples.”
Put this way, Canada is framed as the victim burdened to “overcome” its own legacy, the mishap of colonization.
“Making this shift is fundamental to the growth and prosperity of Canada,” implores INAC – implying that Canada is unable to reach its full economic potential due to the obstacles put forward by Indigenous peoples. A long-time goal of the government’s Comprehensive Land Claims Process has been establishing economic ‘certainty’ for settler enterprises.
This really gets to the unspoken heart of the matter: land.
In his speech Trudeau said that “We need to get to a place where Indigenous peoples in Canada are in control of their own destiny, making their own decisions about their future.” But the crucial issue related to returning or sharing land does not factor in Trudeau’s calculation, despite him referencing self-determination, the inherent right of self-government and treaty implementation.
The Liberals’ vision for relationship renewal has been to focus on on-reserve programs, which do not address the broader economic viability of Indigenous communities, according to Diabo.
“In my opinion they are weaponizing federal recognition of the scope and content of rights through this framework legislation,” he said.
“They call it the inherent right to self-government, but it’s not,” he said. “You have to respect the federal and provincial orders of government and their jurisdictions and their laws and harmonize your laws with theirs which means you are basically left with municipal powers.”
Incorporating First Nations into the bottom of the Canadian governmental order as municipalities has been Canada’s goal since John A. MacDonald’s 1885 Indian Advancement Act.
Until the week of the Boushie family meetings, the Liberals maintained that the modern treaty framework – the comprehensive land claims and self-government policies – was the way forward, including on how the Canadian government would implement the United Nations Declaration on the Rights of Indigenous Peoples.
However, what struck Diabo the most in Trudeau’s rights framework announcement was an indication that the modern treaty framework would be replaced.
He said that this is the closest they’ve come to talking about land.
Yet Liberal posturing surrounding the rights framework indicates that the Liberal approach will be business as usual, that self-determination means “better outcomes” in the on-reserve areas of education and health.
The Liberals are attempting to re-define what self-determination actually means.
“Art [Manuel]’s point was that you need access to lands, territories and resources, and Trudeau never talks about that,” said Diabo. Indigenous peoples languish in systemic poverty due to 99.8 per cent of their land being stolen over centuries of colonization.
Boushie’s Plains Cree home community, Red Pheasant First Nation, were specifically subject to starvation, war (during the 1885 Northwest “Rebellion”), and dispossession by the Canadian government. It took over a century for them to receive the full reserve land promised to them when they signed Treaty 6 in 1876, after entering the feds’ Treaty Land Entitlement Framework Agreement in 1992. This recovery, which added 154.7 km2 to the reserve’s original 98.4 km2 , still represents a small portion of their traditional territory.
On CBC Radio’s The House, Minister Bennett insisted that the Canadian-Indigenous relationship was “a marriage, not a divorce,” and that they are willing to come to the table “with a blank sheet of paper.” Yet, Diabo views the rights framework announcement – offering a blank sheet of paper – as the White Paper “re-wrapped with reconciliation.”
The White Paper was introduced by then-Indian Affairs Minister Jean Chrétien under Pierre Trudeau in 1969. It sought to eliminate Indigenous rights and completely assimilate Indigenous peoples into the Canadian body politic.
For Diabo, “the plan has been there for 30 to 40 years, I don’t see them deviating from it. They’re just repackaging it, from what I see, rebranding it.”
THE POLICING FACTOR: RCMP RACISM ALIVE AND WELL
Injustice surrounding the Boushie case goes beyond their ordeal in the court system. It also embodies a wider of problem of systematic discrimination at the hands of police.
The night of Boushie’s murder, his family awaited his return home. Instead of Colten, the family was unpleasantly greeted by a dozen RCMP officers who arrived after dark. “Is Colten Boushie your son?” an officer asked Debbie Baptiste, to which she affirmed yes. “He’s deceased,” said the officer, the Globe and Mail reported.
While several officers searched outside with guns drawn, a number of others entered the house uninvited and searched the house, waking up the children. The family was baffled as to why they were treated with such “callous” and as criminals, as though they had done something wrong in a moment of shocking grief. An officer told a weeping Baptiste to “get yourself together” and asked her if she was drunk when she asked to see the body of her son.
The treatment of Boushie’s family as though they were criminals when they were in fact victims prompted the family to file five complaints with the RCMP – for being treated with suspicion and in a “cold and insensitive” way, according to a letter written by RCMP Supt. Mike Gibbs in October 2017.
After an internal RCMP investigation found no wrongdoing, Boushie’s family appealed the decision to the Civilian Review and Complaints Commission.
When questioned in a press conference surrounding the meeting with the Prime Minister on Feb. 13, Boushie family lawyer Chris Murphy said that they had requested an external investigator to handle the complaint from the outset but that wasn’t done.
In the aftermath of the trial, APTN News received a screenshot of a post made by an RCMP officer who stated, “Too bad the kid died but he got what he deserved. How many of us work on or near reserves and are getting fed up with the race card being used every time someone gets caught breaking the law?”
APTN News claims that the officer polices a First Nations community on the Prairies, and made the post – which has since been deleted – in a private Facebook group used by cops across Canada.
The comments exemplify the systemic racism inherent in Canada’s national policing force, which has been instrumental in the displacement and containment of Indigenous peoples in the West for 145 years.
Yet, as always, and echoing countless colour-blind commentators across the country, issues of race are obfuscated and denied.
“This should never have been allowed to be about race … crimes were committed and a jury found the man not guilty in protecting his home and family,” reads the post. “It should be sending a message to the criminal element that this crap is not going to be tolerated and if you value your life then stay away from what isn’t yours.”
In a perverted twisting of logic of the case at hand, the officer implies that the Stanleys were the victims and that Boushie and his friends were the criminals. “The CC (Criminal Code) is there to protect the criminals and there’s a growing wave of hard working people who are sick of being victims of crime without real justice.”
A joint statement from the Indigenous Studies programs at the Universities of Manitoba, Alberta, and Saskatchewan asserted that the Stanley verdict should be understood “as yet another link in a centuries-long colonial chain of injustices that Indigenous peoples – and in this instance, prairie Indigenous peoples – are well aware of.”
“Indeed, from the official starvation policies, territorial dispossessions, the hangings following the 1885 resistance and residential school origins of the nineteenth century, to the current overrepresentation of our people in Canada’s child welfare system, jails and prisons, as well as the epidemic of missing and murdered Indigenous people in the twentieth and twenty-first centuries, Indigenous peoples continue to carry the weight and suffer the effects of these intergenerational policies and the traumas they produced.”
TRAGEDY IN TIMMINS
Throughout the ordeal endured by the Boushie family, Indigenous peoples continued to be murdered in Canada.
On the weekend of February 3-4, two members of the Fort Albany First Nation – Joey Knapaysweet (21) and Agnes Sutherland (62) – died following altercations with the Timmins Police Service. Knapaysweet and Sutherland had left the community to seek medical care in Timmins, according to a statement released by Nishnawbe Aski Nation Grand Chief Alvin Fiddler, Mushkegowuk Council Grand Chief Jonathan Solomon and Fort Albany First Nation Chief Andrew Solomon.
“Our people must continually leave their families and communities to come to cities to seek services that are not available in their respective communities,” according to the chiefs.
The Chiefs allege that Knapaysweet was tasered and then shot by police near Gillies Lake, and that Sutherland – who was confined to a wheelchair – was taken into custody, “treated roughly” and “suffered severe complications during her detention” before she was taken to hospital where she died.
The back-to-back incidents prompted the chiefs to ask: “We have seen systemic racism in the City of Thunder Bay, and must now wonder if this is also happening in Timmins.”
This article first appeared in the Leveller Vol. 10, No. 5 (Feb/Mar 2018)