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Former judge and First Nations advocate weighs in on flaws in Canadian justice system

The Boushie/Stanley matter has highlighted the problem of racism in Canadian society, but in my view, the more important aspect is its demonstration of the inadequacies of the Canadian Criminal Justice system.

The Boushie/Stanley matter has highlighted the problem of racism in Canadian society, but in my view, the more important aspect is its demonstration of the inadequacies of the Canadian Criminal Justice system.

The Royal Commisssion on Aboriginal Peoples stated that the Canadian Criminal Justice system had failed the aboriginal people of Canada, and the Supreme Court of Canada agreed with them.

In 20 years as the judge dealing with the cases from the First Nations Community in this jurisdiction, I came to the conclusion that it was not only failing the indigenous people, it was failing everyone.

The Boushie case failed the indigenous people and failed the people of Canada, not because Stanley was acquitted, but because the process polarized one group of Canadians against another.

The punitive adverserial system is the real problem. In this system the crown prosecutor picks a charge and then has to prove it beyond a reasonable doubt. If he succeeds in proving it, the accused will be punished. But we mustn't punish wrongfully, so we have a very strict set of rules called 'due process'. The objective of the system is not to find the truth. It is just a contest between the crown and the defence. All the defence has to do is 'raise a doubt'. In this case the 'magic gun' theory worked and the accused 'walked'.

I see it as a stupid and archaic system that goes back to the middle ages in Europe. A time when they believed that truth could be determiined through trial by combat, because God would have the virtuous combatant prevail. All that was really determined was which combatant was the most skilful. Unfortunately this is true of many of the trials in the present system.

The other stupid and archaic idea that the system relies on is deterrence. If we punish wrongdoers, they will refain from wrongdoing. The recidivism rate proves this is not so. Canada spends billions of dollars operating a prison system in which the vast majority of wrongdoers are imprisoned on the principle of deterrence, but do not constitute a danger to the public. There are the dangerous few that require imprisonment in order to protect the public. They amount to one or two per cent of the total prison population.

Supposing Stanley were convicted, would it be necessary to keep him in jail for the ten years? This would be the minimum period of imprisonment on a conviction for second degree murder. The cost of a federal prisoner is over $100.000 a year, so the cost, to the Canadian taxpayer, for his imprisonment, would be over a $1,000,000. For what? He is apparently a family man, operating a farm, doing mechanical repairs for his neighbors.

He may have handled the situation badly, but the brutal consequences that would flow from a conviction were probably foremost in the minds of each of those jurors. My theory is that this is the reason they acquitted and racial bias had nothing, or very little, to do with it. A conviction and imprisonment would do nothing to solve the conflicts between rural residents and misguided young people who steal from them.

The fact that Stanley was acquitted of murder does not mean that he is innocent of any wrongdoing. The very unfortunate fact that Colin Boushie died, does not mean that he was innocent of wrongdoing.

I believe the indigenous process was a much better way of dealing with these situations. In the case of Crow Dog v Spotted Tail, Crow Dog shot and killed Spotted Tail. He was dealt with according to the customs of the Sioux tribe, of which both were members. He was made to pay compensation to Spotted Tail's family. The ability of indigenous communities to solve cases in this manner was ended in the United States by the passage of the Major Crimes Act in 1885. The Euro-centric Americans believed their brutal justice system was more civilized than the process used by 'pagan savages'. In Canada the passage of the Indian Act in 1976 took away all jurisdiction from Indigenous people.

If I were able to direct the process in the Boushie/Stanley matter, I would convene a Community Justice Conference. The Boushie family would come with their supporters and advisers, the Stanley family would come with their supporters and advisors. There would be a facilitated conference in which all aspects of the matter would be discussed. Stanley might speak of his insecurity in rural Saskatchewan and his near panic at the intrusion by Boushie and his friends. The Boushie's might talk about their love of the deceased and what they had lost.

The discussion might result in the Boushie's seeing that Colten and his friends were out of line and that Stanley did the best he could. It might result in Stanley seeing how wrong it was for him to have that Russian semi-automatic pistol and to use it as he did. He might offer to compensate by transferring a piece of land to the family. Whatever the resolution, the process would be peaceful, and it would not polarize Canadians on one side and the other.

Here in Alberta rural residents are rallying for Edouard Maurice, a rural resident who shot and wounded a young intruder. The Alberta government has responded by pledging $10,000,000 for increased law enforcement in rural areas. My view is that the money would be far better spent on programs for youth development. This would reduce the number of young people with nothing better to do than steal from rural residents. An ounce of prevention is worth a pound of cure.

John Reilly, spent most of 33 years as a judge hearing cases from an aboriginal community. He saw the injustices of the justice system in relation to aboriginal offenders, and became an outspoken advocate for better justice for aboriginal people, something for which he is still fighting. He now speaks professionally to improve understanding between indigenous and non-indigenous people. He is the author of the best selling book, "Bad Medicine - a judge's struggle for justice in a First Nations community", and "Bad Judgment - the Myths of First Nations Equality and Judicial Independence in Canada".