Canadian Justice, Indigenous Injustice by Kent Roach
Author:Kent Roach
Language: eng
Format: epub
Publisher: MQUP
Published: 2018-03-08T16:00:00+00:00
7
Indigenous Witnesses on Trial
INTRODUCTION
As discussed in chapter 5, no effort was made in jury selection to confront the danger that some jurors might be influenced by racist stereotypes about Indigenous victims and witnesses. Stereotypes and possible racism was relevant because Stanley’s defence strategy effectively placed all the Indigenous witnesses on trial. Even though their evidence was of minimal relevance to the ultimate issue because they did not see Boushie get killed, much of the testimony of Eric Meechance and Cassidy Cross focused on how much they had been drinking; their knowledge of, and use of, a .22-calibre rifle in the grey Escape; and their actions in relation to vehicles on the Stanley and the neighbouring Fouhy farms. This testimony, along with the entry of their criminal records as evidence, played into anxieties about rural crime and stereotypes relating Indigenous people to alcohol, theft, and danger.
The testimony of Belinda Jackson was critical because she testified, both at the preliminary inquiry and the trial, that she saw Stanley shoot Boushie, twice. The problem was that the physical and autopsy evidence suggested that Boushie was shot only once. Jackson was subject to aggressive cross-examination by Stanley’s lawyers. The trial judge and even the prosecutor also expressed concerns that Jackson did not tell the RCMP, when she was detained on 9 August 2016, that she saw Stanley shoot Boushie.
Borrowing again from growing research on wrongful convictions, I will suggest that Meechance, Cross, and Jackson can be understood as incentivized witnesses, defined by the inquiry into Guy Paul Morin’s wrongful conviction as anyone whose statements can be influenced by self-interest or other strong motivations not to tell the full story.1 The most well-known incentivized witnesses are jailhouse informers who, for example, contributed to about fifteen known wrongful convictions in Canada, including those of Guy Paul Morin and Thomas Sophonow.2 But an incentivized witness could be anyone under arrest and facing charges, just as Meechance, Cross, and Jackson all were when they gave their initial statements to RCMP. Another important human factor is that they were, in the words of Chief Clinton Wuttunee of the Red Pheasant First Nation, “traumatized beyond belief” by having their friend killed on the Stanley farm.3
The way that judges and jurors find facts, including their decisions about who is telling the truth and who is lying, are often critical contributing factors to miscarriages of justice. Comparisons will be made between fact-finding as it related to the credibility of Indigenous witnesses in the Stanley trial and the way that an all-white jury wrongfully convicted a seventeen-year-old Mi’kmaq man, Donald Marshall Jr, of murder in 1971. In this case, a five judge panel of the Nova Scotia Court of Appeal also wrongfully convicted Marshall of robbery and perjury even while it corrected his wrongful murder conviction in 1982. Some comparisons of the fact-finding by courts and inquiries will also be made in the context of Carney Nerland’s killing of Leo Lachance discussed in chapter 3.
The treatment of the Indigenous witnesses also raises the question of whether the Canadian legal system can effectively accommodate Indigenous difference.
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