At Odds: Justice for Indigenous Peoples and the Canadian System
Recently, the experiences of Indigenous peoples in the justice system has been especially disheartening. Controversial back-to-back acquittals in the Cormier and Stanley cases have demonstrated serious flaws with how our justice system works (or perhaps more accurately, doesn't work) when the victims are Indigenous. While widespread criticism and the eruption of public demonstrations in response to these verdicts have given these issues more of the attention they deserve, this sort of injustice is not just limited to the courtroom.
A (Fruitless) Search for Equality and Justice
After taking office in 2015, Prime Minister Justin Trudeau outlined some key values shared by Canadians that, when combined, shape the essence of what he believes it means to be Canadian. Among these values were respect, compassion, and a search for equality and justice. But how much has Canada’s behaviour throughout history really reflected those values? When considering the relationship between Indigenous peoples and the Canadian justice system, the answer is not much.
The Government
Since initial colonization, the Government of Canada has systematically discriminated against Indigenous peoples. Some examples of this discrimination are the dishonoured land treaties, Residential Schools, and racist legislative provisions. Many see the Numbered Treaties as one of the most significant examples of unjust treaty processes, as they codified an agreement to transfer First Nations' land to the Crown. In return, the Crown promised to fulfill certain obligations laid out in the treaty. Many of the promises made in these treaties remain unfulfilled today.
Another form of systemic discrimination was the Indian Act of 1867, which defined who is and is not recognized as an “Indian”, imposed the pass system as well as hunting and fishing restrictions, forbade the Sun Dance and Potlach, and made Residential School attendance legally compulsory. The inter-generational trauma caused by this discrimination still affects the country today and persisting problematic legislation like the status system and vague or unenforced land title rights also disadvantage Indigenous peoples today. Trudeau has recently promised to move away from Indian Act-era legislation and collaboratively create a new framework with Indigenous partners, claiming this new approach will reframe how the federal government recognizes Indigenous rights and title, while fostering self-government.
The Police
The RCMP and local police forces have also contributed to the tense relationship between Indigenous peoples and the Crown. As enforcers, they historically arrested those who practiced outlawed aspects of their culture or parents who wouldn’t give their children to Residential Schools. The police also systematically killed thousands of Inuit sled dogs on Baffin Island between 1950 and 1975. Even more recently, the police were the cause of a number of deaths in the infamous “starlight tours” of the early 2000s. Reports published by Human Rights Watch in 2013 and 2017 were also highly critical of police treatment and negligence in cases regarding Indigenous women in British Columbia and Saskatchewan (respectively).
The Courts
The court system has also contributed, ironically, to the great injustice experienced by Indigenous peoples in Canada. Before contact with European powers, various Indigenous systems of justice functioned effectively. Upon colonization, the Crown deemed these systems illegitimate and subjected cases to judgment by the Queen. An example of this was the method of dealing with “wendigo” spirits. It was traditionally a shaman's duty to euthanize members of their band who were possessed by cannibalistic wendigo spirits; this practice was in accordance with necessary rites. With the euro-centric state monopoly on violence, the courts now viewed shamans as criminals. This was the case with Zhauwuno-geezhigo-gaubow, an Anishinaabe ogimaa (shaman), who escaped Canadian captivity and committed suicide in 1907.
Since then, the court system has continued to interpret and apply the Criminal Code in accordance with Canadian values that overlook the value of Indigenous ways of life and peoples. Two tragic examples are the infamous murder cases of Helen Betty Osborne and Pamela George. Both victims were Indigenous women and all-white juries heard both court cases. Only one of Osborne’s killers was convicted and is serving a life sentence while George’s killers were sentenced to only 6 ½ years on the charge of manslaughter. Today Indigenous women are still at least seven times higher risk than non-Indigenous women to be the victim of a homicide.
Considering this history, perhaps the Cormier and Stanley verdicts don’t seem that surprising.
Tina Fontaine Tina Fontaine was a First Nations girl who grew up under the care of her great-aunt on Sagkeeng First Nation. Tina moved to Winnipeg three years after her father was violently killed. Once in Winnipeg, Manitoba Child and Family Services (CFS) took Tina into its care. In late July, Tina left her CFS placement and, within ten days, was killed. After a year and a half-long investigation, police charged Raymond Joseph Cormier with Fontaine’s murder. In 2016, PM Justin Trudeau responded to requests by civil society and the Canadian Human Rights Commission by announcing a national inquiry into the staggering number of missing and murdered Indigenous women and girls. At the time it seemed that Canada was perhaps taking strides to understand how its justice system had failed Indigenous peoples and seek to improve it. Recent events, however, have proven otherwise. On February 22, 2018, a jury found Raymond Cormier not guilty of second-degree murder in the death of Tina Fontaine. A number of people consider this verdict, and the entire situation, to be indicative of a failed system. Considering the fact that Tina had come into contact with police, paramedics, hospital staff, and CFS in the days before her passing, community leaders feel that negligence is to blame for the death of Tina Fontaine. “It is unacceptable” Grand chief, Arlen Dumas said. “Everything has failed. How can we talk about reconciliation when the very nets that we're asked to participate in do not fulfill what they're supposed to fulfill?”
Colten Boushie On August 9, 2016, Boushie and his friends from Cree Red Pheasant First Nation got a flat tire in their Ford Escape. Unable to carry on, they pulled into Gerald Stanley’s property. Blurry and conflicting testimonies make intentions and exact events unclear: Stanley states they came to steal his vehicle, while Boushie's friends state they were on the property to ask for help. What is clear is that Stanley took a handgun from his shed and approached the group’s SUV with Boushie in the driver seat. Shortly thereafter, an altercation ensued and Stanley shot Boushie in the back of the head at point-blank range. On the night of Colten's death, RCMP officers arrived at the house of Colten’s mother, Debbie Baptiste, to inform her of his death. Upon entry, the officers searched Baptiste's house. Rather than speaking to her with respect and empathy, they asked her if she had been drinking. This is the same problematic behaviour that has created conflict and distrust between communities and officers in the past. Many have raised concerns about the all-white jury in Stanley’s trial hearing, which acquitted Gerald Stanley. This all-white jury was the result of a legal tool called a peremptory challenge, which allowed the defence to get rid of all potential jurors that appeared Indigenous. The story has attracted widespread attention and comments, including from Canadian Justice Minister and Attorney General of Canada Jody Wilson-Raybould, who wrote that Canada “can and must do better.”
Looking Forward Wilson-Raybould is right. Canada can and must do much better. But genuine improvements will require substantial shifts. The denial of justice in both Tina and Colten's cases demonstrate and reinforce an adversarial relationship between the Canadian justice system and Indigenous peoples and are telling about the state of race relations in Canada. In order to truly “do better” and develop sustainable nation-to-nation relationships, the Canadian justice system needs to demonstrate that this type of systemic racism is no longer acceptable. As a citizen, it is easy to feel helpless - but every voice truly does matter. You can drive change by:
Attending protests
Contributing to indigenous resistance causes
Volunteering and supporting community development initiatives
Contacting your representative and voting for politicians who will meaningfully address structural issues
Stopping casual cultural violence and racism on the street
Support the revival and preservation of languages and cultural practices