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For the justice system to serve Indigenous people, it needs radical reforms including Indigenous justice systems. This requires political will and funding.

(This article has been translated into French .)

The recent acquittal by a jury of Gerald Stanley , a white farmer, in the shooting death of Colten Boushie, an Indigenous man from the Red Pheasant First Nation in Saskatchewan, has again raised issues about the way the criminal justice system deals with Indigenous people. The concerns the case raised focused not only on the verdict by the all-white jury but also on how the jury was selected, in particular the fact that the defence was able to rely on the use of peremptory challenges to prevent any Indigenous people from serving on the jury.

The Stanley case rightly became a major news item, and the Prime Minister and the Minister of Justice expressed their support for the Boushie family following the verdict, also to significant public notice. For Indigenous people, the case was simply another milestone on the long and well-travelled road of injustice.

Abolishing peremptory challenges — when lawyers do not have to give any reason for refusing to allow a person to sit as juror — was a recommendation of both the Manitoba Aboriginal Justice Inquiry , which reported in 1991, and the First Nations Jury Review in Ontario in 2013. These are but 2 of the 13 provincial and federal inquiries, commissions and studies that have looked at the issue of Indigenous people and the justice system since 1989. And there are more on the horizon, as the National Inquiry into Murdered and Missing Indigenous Women and Girls and the Public Inquiry Commission on Relations Between Indigenous Peoples and Certain Public Services in Québec will also be addressing issues of justice.

These commissions and inquiries have all come to the same conclusion: that the criminal justice system in Canada is failing Indigenous people.

This conclusion was also reached by the Supreme Court of Canada on three occasions. In 1998 in R. v. Williams , the Court found that jurors could be asked questions about their biases toward Indigenous people charged with criminal offences, since discrimination toward them was “rampant.” In 1999 in R. v. Gladue , the Court found that the over-representation of Indigenous people in Canada’s prisons was a “crisis in the Canadian criminal justice system.” The Court found that over-representation was “only the tip of the iceberg insofar as the estrangement of the aboriginal peoples from the Canadian criminal justice system is concerned.” In R. v. Ipeelee in 2012, the Court restated its findings in Gladue . It attributed the over-representation of Indigenous people to the impacts of colonialism, such as, but not limited to, the residential school system. The Court consistently pointed out in these cases that the issues facing Indigenous people are based on the direct and systemic discrimination they face every day in the justice system.

Gladue and Ipeelee both concerned themselves with interpreting section 718.2(e) of the Criminal Code, a provision that was introduced in 1996 as part of a comprehensive set of amendments dealing with sentencing in Canada. The section states that judges should look for alternatives to incarceration for all offenders, but with particular attention to the circumstances of Indigenous people. The Supreme Court in Gladue said judges had a role in over-representation and they should ensure that they had the information necessary to allow them to meaningfully address this provision of the code. In Ipeelee the Court decried the failure of the system to answer the call of Gladue and renewed its call for changes in the way […]

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