To believe in justice, we must probe our sacred cow: the system itself - Macleans.ca

To believe in justice, we must probe our sacred cow: the system itself

Opinion: Our legal system gets one thing right: justice must be seen to be done. Acquittals in the deaths of three Indigenous people show its failures

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Family and supporters of Thelma Favel, Tina Fontaine’s great-aunt and the woman who raised her, march Friday, February 23, 2018, in Winnipeg the day after the jury delivered a not-guilty verdict in the 2nd degree murder trial of Raymond Cormier. (John Woods/CP)

Jean Teillet is senior counsel with Pape Salter Teillet LLP and specializes in Indigenous rights law.

In Regina, in the fall of 2017, I attended the 50th anniversary of The Trial of Louis Riel, a condensed, theatrical adaptation of the 1885 trial’s transcript. In watching the play, I was struck by the feeling that, as a litigator, I could have acted as Riel’s lawyer; I would have been comfortable in a courtroom in 1885 because everything is basically the same. The courtroom and the criminal law, the relationship between judge, lawyer, jury and defendant, are all the same. Even the clothing is the same. No technique or legal skills would be amiss, except for the fact that there were no women lawyers back then—but since most of our courtrooms today remain largely white, male and non-Indigenous, one could say that this has not changed much either.

Perhaps more to the point, the lawyers from Riel’s courtroom in 1885 would be completely at home in a courtroom today. In all likelihood, they would notice no change in our criminal justice system because it has not advanced much in 133 years.

Our justice system remains where it began centuries ago: firmly rooted in violence. It evolved, after all, out of trial by combat; in the past, that meant physical combat. We no longer put knights forward to resolve our disputes by fighting, but we should not pride ourselves on our evolution. We have not come very far from eye-for-an-eye justice.

We still think justice can result from combat—we just call it something different today. We call it an adversarial system, and we believe it is peaceful, fair, and reasonable.  The word “adversarial” tells us a lot about our system. The ultimate adversary is of course the devil, but in our modern secular justice system, an adversary is still an opponent that attacks to win. Winning, in fact, rarely solves the problem that brought everyone to court. The general public believes that our adversarial justice system reveals the facts and thereby arrives at truth—but most lawyers and judges know that is not what happens.

Debbie Baptiste, the mother of Colten Boushie, holds up a picture of her son as she leaves the Court of Queen’s Bench during a lunch recess on the fifth day of the trial of Gerald Stanley, the farmer accused of killing the 22-year-old Indigenous man, in Battleford Sask., Monday, February 5, 2018. (Liam Richards/CP)

We ask witnesses to swear to “tell the truth, the whole truth, and nothing but the truth,” but the idea that one witness knows and can testify to “the whole truth” is a preposterous concept. Indigenous witnesses are often taken aback by the magnitude of the presumption, and they offer something much more reasonable: they will tell the court what they know. Our justice system could learn much from that kind of honesty and modesty. Our adversarial system succeeds in establishing some facts, but it rarely—if ever—delivers the whole truth. Facts and truth do not equate to justice. Too many facts are excluded at trial to arrive at the truth; too much rides on the possibility of jail. Hence our criminal justice system reveres what is called the “golden thread”: the idea that an accused is innocent until proven guilty beyond a reasonable doubt.

It is that golden thread that has ultimately led to the most recent outrage from Indigenous people. We have seen a string of high-profile cases in which the Indigenous community has felt that justice was not done. In these cases an Indigenous man, woman and child were murdered. At trial, in each case, a jury acquitted a white man.  In two of these trials—the Edmonton trial of Bradley Barton and the Regina trial of Gerald Stanley—the facts showed that the accused did commit the act that ultimately killed 36-year-old Cindy Gladue and 22-year-old Colten Boushie, respectively. Despite this, the jury acquittals upheld the “golden thread” that neither Barton nor Stanley could be proven guilty beyond a reasonable doubt: There was reasonable doubt when Stanley’s lawyer argued that Stanley’s gun went off accidentally into Boushie’s head, and reasonable doubt exonerated Barton when he claimed that Gladue consented to have such violent sex that she bled to death. And in the Winnipeg trial of Raymond Cormier in the death of 15-year-old Tina Fontaine, Cormier was acquitted for lack of evidence. Each acquittal prompted gatherings and marches of justice-seekers. Each demands that we question the system itself.

READ MORE: A former Supreme Court justice on how not to appoint all-white juries

These are just three recent cases that reveal how committed we are to a legal system that has failed Indigenous communities in essential ways. We need to examine the fundamentals of our system, and we should not be afraid to undertake this examination. After all, there is nothing sacred about the way our system works now. We need to believe in justice, not in the inherent righteousness of the system.

If there is one thing our justice system does have right, it’s that it understands the importance of perception to the community—that justice must be seen to be done. Many are decrying the statements of sympathy from the Prime Minister and the Justice Minister after the Stanley trial, and similar statements after the Cormier trial from the Minister of Indigenous Services and the Minister of Indigenous and Northern Affairs. But I beg to differ: Those who object assume that silence is neutral. It is not; silence bends always in favour of the status quo. Statements that acknowledge the pain the trial has brought to the Boushie and Fontaine families do not automatically mean the juries in those trials were biased, or that future juries will be too, as some have suggested.  These statements from parliamentarians instead draw attention to the fact that these trials did nothing to solve the problem in the community, did not demonstrate that justice was seen to be done, and ultimately brought more harm. Further, I do not believe for a moment that such statements bring the justice system into disrepute or will affect the decision of the Crown or appeal judges: These people are professionals who will look at the law, not statements from politicians.

READ MORE: Did Trudeau cross a line by commenting on the Stanley verdict?

Minister of Crown-Indigenous Relations and Northern Affairs Carolyn Bennett, left, and Minister of Indigenous Services Jane Philpott speak to reporters after meetings with the family of Colten Boushie, in the Foyer of the House of Commons on Parliament Hill in Ottawa on Monday, Feb. 12, 2018. (Justin Tang/CP)

I hope these cases act as a catalyst and that the Justice Minister does take the opportunity to initiate changes to the justice system. She can start with the jury system: its representation problems are low-hanging fruit that have been already investigated by eminent jurists. We also have examples from other countries about how to fix the obvious wrongs. A jury is supposed to be representative of the community—the whole of the community, not just part of it—and because the jury represents the whole of the community, it is supposed to foster faith in the justice system. The jury in the Boushie trial did not represent the whole of the community, and so for the Indigenous part of the community, justice was not be seen to be done. Some have pointed to the fact that there were Indigenous people in the jury pool, but this is not an answer: it is the people who end up on the jury that matter. If there are no Indigenous jurors, it will not fulfill either of those two purposes. The Prime Minister and the three ministers who commented publicly are not wrong to observe this and say that we can do better; silence from those in power will do nothing to reconcile Indigenous people to the inadequacies of the justice system.

The justice system does not serve itself well if it is incapable of adaptation and if it makes no attempt to bring Indigenous people to a place where they can believe that the system is not simply set up to protect white men and property. I do not say that the justice system only does so, but if Indigenous people do not believe that the system protects them, and they see repeated instances where their people are murdered with no convictions, then our justice system has a problem that must be addressed.  If these trials provoke an investigation of the system, that should occur, and if the system is indeed fair and unbroken, it will withstand the probing. Our justice system will not achieve the goal of justice “seen to be done” if it insists it has no need of examination and should be left in its pristine 19th-century form.

READ MORE: What would reform look like, in the wake of this outrage?

But let’s look at some “what ifs.” What if we proceeded on the basis that it really doesn’t matter exactly how, when and perhaps even who accomplished the ill deed? What if we accepted the fact that something bad happened and we need to mend the rip in the community fabric, restore relationships and make peace, perhaps restitution?  What if we acknowledged the fact that there are many Canadians our justice system does not protect—Indigenous people, women, children and people of colour—and we set about finding a process that fully embraced and protected them?  What if we understood that we have built child custody, juvenile and criminal justice trains that have virtually one stop: jail? What if, instead of using an adversarial system to determine the guilt or innocence of an accused, our lawyers and juries were tasked with mending relationships? What if our juries were composed of trained peacemakers? What if their recommendations for implementing peace after the commission of a crime were mandatory?

The primary difference between these “what-ifs” and our justice system is that they acknowledge the ill deed and then work on community restoration.  Our current justice system is focused on guilt and punishment, which as we saw in the community outrage that followed the announcement of the verdict in each of the Gladue, Boushie and Fontaine cases, leave the victim and the community angry, hurt and feeling that the justice system is broken.  So these “what-ifs” are well worth examining. Do we really think more of the same “justice” is working? I don’t.

The cost of doing nothing has already brought the justice system into disrepute for women, people of colour and especially for Indigenous people. Let’s fix it.  I say bring on a wholesale examination of the entire system. Let’s bring the good minds of this country, including Indigenous people, together to bring our justice system into the 21st century.