On February 9, 2018, a Saskatchewan jury constituted in accordance with the Criminal Code of Canada acquitted farmer Gerald Stanley in the death of Colten Boushie, a 22-year old First Nations man.  The death resulted from an incident on the Stanley farm in which Mr. Boushie and three friends arrived in a disabled vehicle and attempted to start Mr. Stanley’s all-terrain vehicle before being confronted by Mr. Stanley and his son.  Mr. Stanley was charged and tried for second degree murder and the lesser included offence of manslaughter.

On the basis of the portions of the testimony of the witnesses that are not in dispute, many commentators have noted that it would be difficult to support either a finding of guilt for second degree murder or an outright acquittal in this case.   The fact that the jury nonetheless acquitted Mr. Stanley has understandably given rise to questions with respect to systemic elements of racism in the justice system, including particularly the use of peremptory challenges in the process of jury selection.

Shocked and disapproving reaction to the acquittal by the First Nations community, the broader community and the Canadian government itself has been swift.  Rallies have been held across the country, and both the Prime Minister and the Minister of Justice expressed resolve to act to address systemic issues that may have contributed to this troubling verdict.  The Boushie family arrived in Ottawa only four days after the decision, and has already met with the Prime Minister and three Cabinet ministers.  The resolve for change is undeniable.

Meanwhile, on January 26, 2016, after five years of foot dragging, jurisdictional challenges and a full throated defence by the Government of Canada, the Canadian Human Rights Tribunal (“CHRT”) ruled against the federal government in a challenge brought to its chronic and undeniable underfunding of critical social services to First Nations children and families relative to the level of equivalent services provided to Canada’s non-First Nations citizenry.  Since the date of that decision, three compliance orders have been issued by the CHRT, and yet the government has still not come forward with any concrete plan to address the deficiencies detailed by the CHRT.

The government’s resolve to address the systemic issues that may have contributed to the Colten Boushie jury finding is admirable and should not be discouraged.  However, the issues to be addressed, including that of the availability and use of peremptory challenges, are complex, and have implications that can as often help as hurt victims and accused parties from minority communities seeking justice through the court system.  The solutions will not be simple, and will not be found and implemented quickly.

The CHRT ruling, on the other hand, specifies a funding formula for services that can be applied without further study and lengthy deliberation.  The finding of a court of competent jurisdiction with respect to the Canadian government’s abrogation of the human rights of child soldier Omar Khadr was sufficient to prompt a quick financial settlement in that case despite public outrage against that settlement.  It is both confounding and disappointing that the government has not found the same decisive resolve respect to the CHRT ruling.  I am certain that the First Nations’ community, and perhaps even the Boushie family itself, would agree that a far greater good could come from this tragedy and the collective frustration and goodwill that have emerged in the face of Colten Boushie’s death if the government addressed the specifics of the CHRT ruling in priority to the vagaries of jury selection mechanics.

Justice Minister and Attorney General Jody Wilson-Raybould had it right in her tweet last Friday: “As a country, we can and must do better”.