In response to a panel on The Sunday Edition, CBC Radio, Feb 18, http://www.cbc.ca/radio/thesundayedition/the-sunday-edition-february-18-2018-1.4538717/how-to-reform-canada-s-jury-system-1.4538728
I sent the following to the participants, and to Justice Minister Jody Wilson-Raybould, with minor edits:
Maybe my words can be helpful in some way.
Thank-you for the discussion of jury selection, arising from the all-white jury that acquitted Gerald Stanley of second-degree murder of Colten Bouchie.
My brother-in-law was in the pool for potential jury duty. He mentioned that the two people adjacent to him going through the process were First Nations. Both declined to go on the jury. I think, “Of course”. But I did not hear the reason I said “of course”, articulated in your discussion. Allow me to elaborate.
In the Battleford – Biggar area, there are white people, First Nations and Metis who live “in the country”, away from a town. If you are White, First Nation OR Metis, faced with the arrival of a car of people who have been drinking, unless you know them, your antennae would go up.
An event similar to Stanley – Bouchie happened in 1999, in Alberta. A pickup truck of young people (white) drove onto the farm of Wiebo Ludwig, in a manner that caused fear. Ludwig called 9-1-1. The situation escalated. Help didn’t arrive (understandably, the farm is a distance from town). Someone shot at the truck. Young Karman Willis was killed by a ricocheting bullet.
And so, it is possible that a First Nations person might have thought that no one, regardless of skin colour, should have intruded on the Stanley farm, especially when they had been drinking. But of course, when under the influence, people, regardless of skin colour, are more likely to make bad decisions, like going on the farm.
In that context, consider the dilemma of a First Nations person if they agree to go on jury in an adversarial system. They might not endorse the rules of the game (adversarial). But more importantly, remembering my own long-ago experience of being attacked by feminists (I was on their side, for heavens’ sake!), when my sin was to voice consideration for an older man who was a member of “the other side”:
If I am a member of a minority group that is fighting for civil rights, AND, in a particular situation I have some empathy for the actions of an individual, a member of the ones-who-dominate, I will be careful with what I say.
The truth is: we ALL know how that works, we’ve learned it just by living and interacting with others. It’s why we end up with academics, doctors, lawyers and others who conform. It’s why whistle-blowers have tended to be marginalized. . . . Human beings are subject to the pressure of their community, to stay within set boundaries. If you step outside, on issues important to the community, you can expect to be “not liked”, or ostracized.
I’m not too sure, if I was First Nations, that I would have agreed to go on the jury. I would have been nervous about the consequences I might face, in my community, after the trial, if it was seen that I had any empathy for Stanley. In the discussion among jurors, what could I say? The goal is to arrive at “Yes” or “No”. And little more. White jurors had far less at stake, they are from the dominant group.
Although the use of juries is 800 years old, it is not an obsolete practice. Part of the answer might be to re-think juries as members of community coming together to hear both sides, with dialogue to find answers. But that would require us to move away from what might be at root of the problem: an adversarial system, not designed to find answers in the usual sense of problem solving.
The Stanley-Bouchie case is a tragedy for all of us. It is so clearly another example: “the system”, whatever it is, needs to have, as a goal, the healing of community. Adversarial systems don’t, and can’t, do that; they tend to exacerbate the wounds. However, I am encouraged by
The Federal Government announcement, as relayed by the Globe & Mail editorial, Feb 15, 2018:
. . . The goal would seem to be uncontested self-governance for Indigenous peoples that want it. That notion is reinforced by the fact that Mr. Trudeau’s speech was informed by the 1992 report of the Royal Commission on Aboriginal Peoples.
The report bluntly stated that, in spite of the Constitution, Ottawa had prevented “aboriginal nations from assuming the broad powers of governance that would permit them to fashion their own institutions and work out their own solutions to social, economic and political problems.”
Traditional First Nations, as I understand, have a different understanding of themselves in community. Injuries brought by one upon another, are rends in the fabric of the community. They, seems to me, are more likely to design a Justice system that serves the needs of the community. I hope their endeavors will be fruitful, and influential. They might help us revise our idea of “jury” and how it functions.
Thank-you for your endeavors to help effect change, it ain’t easy in a complex world!