Playing the Indian Card

Monday, February 12, 2018

Nice Precipice There. Shall We All Hold Hands and Jump?

There is much furor across Canada over the acquittal of Gerald Stanley for the murder of Colten Boushie.

It seems to me hardly debatable that justice was served. It would have been a travesty were Stanley convicted. To recap the basic facts, Boushie was shot while trespassing, with a group of friends, on Stanley’s property, in an attempt to steal an ATV. Stanley fired two warning shots. Obviously, the group of intruders did not withdraw. The shot that killed Boushie, however, Stanley maintained, was inadvertent. His gun discharged as he was reaching for the keys to Boushie’s vehicle.

Stanley has a natural and a legal right to protect his property. On a farm, he cannot expect police to arrive in time to protect himself, his property, or his family. Boushie and his companions were responsible for creating the situation in which something dire might happen; Stanley was not. They were the aggressors. Granted, shooting someone might be excessive force—even though Stanley was outnumbered by Boushie and his companions, and they had a gun in their truck. But not so obviously excessive as to justify a murder conviction.

And how can you prove beyond a reasonable doubt that Stanley fired intentionally? He says it was an accident. Boushie’s companions were blind drunk at the time, and not reliable witnesses.

So it seems that justice was served.

The outcry against the verdict, however, has stretched from coast to coast. It almost immediately prompted the prime minister to say “we can do better,” and that we need a systemic change to our justice system.

It may be relevant here to note that Boushie was aboriginal, and Stanley was not.

It is irresponsible to second-guess a jury decision: they have heard all the facts, we have not. It is irresponsible, without good cause, to question the justice system. Our freedoms, our prosperity, and our personal safety depend, to a far greater extent than most seem to realize, on preserving a social consensus that matters are fair and the laws are on the whole just. Laws are useless without a general will to obey them, and no amount of enforcement can replace that general will if absent. Without that, societies must veer either into chaos or totalitarianism. Or, often, both.

Now the prime minister himself has publicly insisted the justice system is unjust. A very grave claim.

The claim is that the verdict was racist.

The grounds for the charge are that the jury in the case did not include any “aboriginal” members.

Superficially, this looks like a valid concern. Jury trials in the US South reputedly used to always acquit white suspects charged with harm to black accusers/victims. It is an obvious danger for hated or despised minorities. If a minority of the general population, they are bound to be a minority on any jury. If the minority is despised, they are not likely to get justice.

As it happens, our system takes that into account. To prevent such injustice, a defendant can choose not to have a jury trial, but to go before a judge. Judges, too, may be biased, but they are supposedly strictly trained not to be, and disqualified if found to be. This protects from mob rule. The jury option emerged, historically, to protect from the opposite danger, of oppression by an autocratic government.

And there is a third option. If the local community is felt to be biased, the case can also be heard in a different jurisdiction, with a more disinterested jury pool. This is a well-established practice.

The system is set up to protect the rights of the accused. In the present case, the argument is about the rights of the victim. The issue is supposed unjust acquittal, not unjust conviction.

Still, the crown as well as the defense, if this was thought to be a problem, could have requested a change of venue. Problem, if problem there be, solved.

It is absurd, however, to think that this was a problem here. There is no prejudice in the majority population in Canada against aboriginals, that might lead to an injustice in a jury trial. Rather, the popular prejudice is strongly in favour of aboriginals. The great public outcry from coast to coast against the verdict in this case dramatically proves this. This is exactly the opposite of what would happen were there a general popular prejudice against aboriginals. So does the fact that the prime minister himself immediately spoke against the verdict. There is, accordingly, obviously no risk in Canada of an aboriginal person not getting a fair trial. The risk is of an accused middle-aged white male, like Stanley, not getting a fair hearing should the victim be aboriginal. From, it seems, either the general popular consensus or the powers that be.

It is worth pointing out that, if there were no aboriginals in the jury in this case, there were also no middle-aged white males. If the defense counsel were doing their job in objecting to jurors who might identify too closely with the victim, crown counsel was doing the same job in objecting to jurors who might identify too closely with the accused. The system is built to ensure, as much as possible, an impartial jury. It looks as though the system worked rather well to prevent bias either way.

How might one improve on this system? What concrete measure might be better? Requiring by law that, in any case involving aboriginals, at least one juror must be aboriginal? In contrast to the present system, this would bake in racial prejudice. Surely only an ignoramus could assume that a minority could not be prejudiced against a minority, or in favour of its own members. Hardly an improvement.

Nor would it be likely to materially change anything, if the problem really is racial prejudice; other than making trials more expensive. Jury decisions must be unanimous, to prove there is no reasonable doubt. If the white jurors are all racists who will not convict a white, they are not going to change their mind because one, or five, or even ten, jurors are aboriginal. All that happens then is that, instead of a straight acquittal, you get a hung jury. And perhaps a new trial, which will reach the same result, at great expense; and on to trial after trial until the crown drops the case.

There is no problem here, but any solution would be terrible.

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