Jim Coyle: Colten Boushie case a reminder that justice system’s biases go beyond race

If the wronged are not always people of colour, they are almost always people of meagre resources and connections, writes Coyle.

A vigil in support of Colten Boushie's family in Montreal this week, following farmer Gerald Stanley's acquittal in his death.

The Canadian Press / Ryan Remiorz

A vigil in support of Colten Boushie's family in Montreal this week, following farmer Gerald Stanley's acquittal in his death.

The wrongs of Canada’s justice system have been many and tragic over the last half-century and the likelihood of being failed by the law, often at horrific cost, seems disturbingly related to race or class.

The furor over the latest controversial court ruling — the acquittal last week of white Saskatchewan farmer Gerald Stanley in the 2016 shooting death of 22-year-old Cree man Colten Boushie — threatens to add new names to a dubious pantheon of celebrated miscarriages of justice.

Steven Truscott. Donald Marshall. Guy Paul Morin. David Milgaard. Robert Baltovich.

The list is long of Canadians robbed of years or decades of their lives by flawed justice.

Most often, of course, such outrages involve wrongful convictions rather than acquittals such as Stanley’s — a decision that outraged First Nations leaders who suggest it had less to do with the merits of the case than a jury without an Indigenous member.

Indigenous scholars from Western Canada issued a joint statement on the verdict this week, saying “few of us are surprised.

“Most Canadians believe deeply in the image of Canada as a fair and tolerant nation,” they said. “The verdict gives the lie to that myth.”

The heads of Indigenous studies departments at the universities of Alberta, Saskatchewan and Manitoba promised to continue researching, teaching and encouraging Canadians institutions “to do better and to be better.

But it is up to Canadians, they said, to educate themselves and to ensure such incidents are “held up to the same moral compass Canada uses to evaluate other countries.”

The Saskatchewan ruling did prompt a quick meeting between the Boushie family and Prime Minister Justin Trudeau, who promised to “fix the system in the spirit of reconciliation.”

It may be impossible, of course, to tease out where race ends and class begins as a contributing factor to such cases. But a recurring pattern seems to be the justice system’s failure of people who, for whatever reason, reside outside society’s mainstream.

If the wronged are not always people of colour, they are almost always people of meagre resources and connections.

As far back as 2000, the National Council of Welfare issued a report on justice and the poor.

“The evidence points to a staggering degree of discrimination against the poor at all levels of the criminal justice system,” the council wrote.

“For the same criminal behaviour, the poor are more likely to be arrested; if arrested, they are more likely to be charged; if charged, they are more likely to be convicted; if convicted, they are more likely to be sentenced to prison; and if sentenced, more likely to be given longer prison terms than members of the middle and upper-classes.

“In other words, the image of the criminal population one sees in our nation’s jails and prisons is an image distorted by the shape of the criminal justice system itself.”

If juries are more likely to see the “other” as criminal, or to see white, middle-class accused as innocent, perhaps it’s because they’ve been groomed to such vision.

Donald Marshall Jr. was a Mi’kmaq, the eldest son in a family of 13 children, an adolescent scrapper from Sydney, N.S., with a reputation as a hell-raiser.

He was convicted in 1971 — by an all-white jury — of murdering his friend Sandy Seale. After he spent more than 11 years in prison, Marshall’s conviction was overturned and another man found guilty of manslaughter in Seale’s death.

A public inquiry concluded that, among other things, systemic racism contributed to Marshall’s conviction.

Since the reversal of Marshall’s conviction in 1983, more than 20 convicted murderers have been freed on the basis of DNA proof of their innocence or serious doubts about the fairness of their trials.

In 1969, David Milgaard was one of legions of teenagers tripping across Canada. While he and two travelling companions were in Saskatoon, 20-year-old nursing student Gail Miller was found murdered.

Milgaard was convicted on dubious testimony, sentenced to life in prison at 17, and remained for at total of 23 years. He was eventually exonerated.

As The Tragically Hip famously sang, when you’re a kid in the frame, without means or name, no one’s interested in something you didn’t do.

In 1992, after being acquitted by a jury at a first trial, Guy Paul Morin was convicted of the murder of 9-year-old neighbour Christine Jessop.

Investigators, according to Kirk Makin’s book Redrum the Innocent, were told Morin was “a weird one,” a loner who lived with his parents and liked his dog, beekeeping, his clarinet and flowers.

A detective wrote in his notebook: “Paul Morin, Clarinet player. Weird-type guy.”

In the eventual judicial inquiry into that case, a judge concluded Morin had been the victim of police and prosecutorial tunnel vision and stereotypical thinking about his purported eccentricity.

Stereotypical thinking seems near the heart of most justice-system failures, either in presuming the guilt of some accused or rendering to others the benefit of all doubts.

Innocence Canada, a non-profit organization dedicated to identifying, advocating for and exonerating those convicted of crimes they did not commit, has said tunnel vision is the single-minded focus on a particular investigative or prosecutorial theory so as to unreasonably colour evaluation of information received.

“Police and prosecutors affected by tunnel vision are not necessarily malicious nor do they realize they are suffering from its insidious effects.”

Research has shown that race and socioeconomic status play a significant role in putting suspects under police suspicion in the first place and in the path of those “insidious effects.”

In short, the system — like society — is shot through with discrimination.

“Canada’s persistent systemic social inequality causes certain individuals and groups to become socially, politically and economically powerless,” argued the authors of Manufacturing Guilt: Wrongful Convictions in Canada.

“These marginalized people become the most frequent victims of wrongful conviction,” they wrote.

“There must be efforts designed to achieve legal equality for the marginalized people of Canadian society.”

Of course, authors Dawn Anderson and Barrie Anderson wrote that in 1998.

Twenty years before the case of a slain Cree man would be decided by a jury entirely absent of his peers.

Twenty years before yet another prime minister would promise something closer to legal equality.

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