Kent Roach. Canadian
Justice, Indigenous Injustice: The Gerald Stanley and Colten Boushie Case. McGill-Queen's University Press, 2019. 307 pp. ISBN:
9780773556386. https://www.mqup.ca/canadian-justice--indigenous-injustice-products-9780228000730.php
It is
more than three years since Colten Boushie, a young man of the Red Pheasant
Cree Nation, was murdered on the Stanley family farm in rural Saskatchewan. Gerald
Stanley, the defendant whose case was constructed upon a sequence of tragic and
remarkably unlikely coincidences operating in concert, was acquitted on
February 9, 2018. The murder, trial, and eventual acquittal were each seismic
reaffirmations of the intrinsically violent cornerstones of a settler colonial legal
doctrine that serves to dispossess Indigenous peoples in Canada. In Stanley's
trial, as Ken Williams (Cree from the George Gordon First Nation) commented, "the
system did not fail the colonisers" and Kent Roach seeks to show his readership
how and why this case is emblematic, not aberrative, of the Canadian criminal
justice system (Media Indigena). In Canadian Justice, Indigenous
Injustice, Roach unpacks the negligent policework, sub-par prosecution, and
judicial irregularities that yielded a not-guilty verdict. In doing so, he illustrates
that these very inexplicabilities are deeply embedded within the settler
colonial imaginary of a lawful Canada.
Canadian
Justice, Indigenous Injustice traces a
significant instance of the "gap between law and justice" in the Colten Boushie
murder trial, wherein a more fundamental legal argument unfurled by proxy (179).
A shift occurred, incrementally but steadily, whereby the defence of one's property
mutated from being the source of Gerald Stanley's exculpation from blame, to being
his tacit justification for the murder. The transformational undercurrents at
play resemble the dynamics of what Unangax scholar Eve Tuck and K. Wayne Yang
term "settler moves to innocence... those strategies or positionings that attempt
to relieve the settler of feelings of guilt or responsibility without giving up
land or power or privilege, without having to change much at all" (10). Roach's
account follows a path that is acutely attuned to this fraught context, and his
analytical methodology draws on histories that exist within and without the
Canadian legal canon to underscore "the impossibility of reconciliation unless
there is a full accounting of the truth, and specifically, the multi-faceted
and multi-generational harms of colonialism on Indigenous people" (12).
Of
course, many would curtail that quoted sentiment at reconciliation. Numerous scholars,
including Billy-Ray Belcourt (Driftpile Cree Nation), have argued compellingly that
reconciliation represents "an affective mess... stubbornly ambivalent in its potentiality"
with a tremendously disproportionate pressure on Indigenous peoples to accede
to the state's levelling terms. That Roach's contribution so effectively
demonstrates the fundamental absurdity of what Yellowknives Dene scholar Glen
Coulthard calls "the optics of recognition and reconciliation" which "produce
neocolonial subjectivities" in the legal sphere is, however, ironically
inconsistent with his reluctance to question reconciliation as a vehicle for
the Indigenous justice he champions (156). I raise this tension here to give a lens
for my review; Roach does timely and impressive work in Canadian Justice,
Indigenous Injustice, but it is work that is sometimes flecked with strange
foci and odd critical omissions. If it is the case that truth "may be a barrier
to reconciliation," then a more rigorous examination of the criteria that coalesce
to constitute reconciliation is required (12).
Roach explains at the
outset that his project uses "a criminal process approach" to undertake a
holistic study of the justice process from policework through to sentencing, across
legal representation and media representation. This slant is deployed to "place
the Stanley/Boushie case in its larger historical, political, social, and legal
context," and thus exposes a slew of deeply lodged, interwoven deficiencies of
the Canadian judicial system that contravene the superficial equality and
plurality of sovereignties that the nation espouses (11). Roach identifies the
most egregious aspects of the trial to be ones that sit well within the bounds
of Canadian judicial protocol, encapsulating the structural inequities that
exacerbate these issues. It is an impressive take-down of the fallacious paradigm
of neutrality that buttresses Canadian (and more generally settler colonial)
law writ large; a framework that "enables actors of the settler state [to]
continue their predictable looped playback of regret, apologies and promises for
a better tomorrow" (Nunn, 1331), as evinced by Prime Minister Justin Trudeau's
controversial "we must do better" afterword contribution to the proceedings.
The first chapters
establish the lattice of historical, socio-economic, and political contexts that
precipitate the current legal relationship between the settler province of
Saskatchewan and its Indigenous peoples. Roach is firm that "[c]riminal trials" such as Gerald Stanley's "should not be a
contest of historical grievances. But if they become one, there should be equality
of arms" and any such parity must begin with a sustained inquiry into Canada's
grievous colonial history (169). The bulk is subsequently dedicated to examining
the trial with this social history foregrounded, taken in tandem with a number
of criminal cases that share parallels with Boushie's
murder. Roach then turns to the legislative and social legacies of the case for
Indigenous and non-Indigenous folks. He gestures toward proposals for judicial
reform that stress the remedial potential of Canada's Numbered Treaties and the
inclusion of Indigenous legal frameworks, congruent with Shiri Pasternak's claim
that "simultaneous operations of law may take place in a single area, across
distinctive epistemological and ontological frameworks" (148).
The cloaked
prejudices that feed into demographic jury selection, the controversial use of
peremptory challenges, and the racialised denigration of Indigenous witnesses
in the Boushie murder to preclude Indigenous presence in the trial all receive
a wealth of scrutiny. These are patently unsurprising--yet unexpectedly
complex--phenomena that Roach guides his reader through adroitly. Indeed,
the author excels at expressing dense legal traditions in a near-narrative
manner that is simultaneously comprehensible for the non-expert reader and
compelling to the specialist. Legal argot is accompanied not just by
explication, but by direct application to verbatim, human excerpts from the
trial transcript, then extrapolated to comment on the structural fabric of the
Canadian justice system. Stanley's defence peremptorily dismissed five "visibly
Indigenous jurors" from an already underrepresented pool of eligible candidates
and, in a move entirely compliant with the Canadian legal mechanisms, was not
obliged to provide a reason (95). Roach conceptualises the notoriety of these
challenges not just in terms of the lightning rod that they represented to the
case, but also the myriad concealed prejudices and clusters of structurally
racist policies that such tactics reinforced. Implicit bias is one such factor
that Roach grapples with throughout, with particular reference to the
inadequacy of combatting it via the specious notion of randomness in the
judicial process.
"Eliminating"
bias, in fact, simply transfers it to a faux point of neutrality within an
inherently discriminatory legal architecture. This is not to say that the
elimination of bias is not a worthwhile pursuit, but that this purported
panacea is often yet another settler move to innocence. Roach observes that the
court and, by extension, the settler-Canadian social imaginary have "elevated
random selection that treated everyone the same over substantive equality that [is]
attentive to disproportionate impact" (101); random selection unfailingly
privileges the majority at the expense of minorities. This is the type of
ersatz parity that comes under steady fire throughout as a covert tool of
Indigenous suppression, and Roach emphasises that it is incumbent upon members
of a just society to "question public exercises of power even by twelve
anonymous fellow citizens who are conscripted to do a difficult job" (13).
Roach
concomitantly forwards a persuasive take on just how entrenched property has become
to the notion of just cause. This is not necessarily new ground, but Roach does
give an especially cogent interpretation. A self-defence gambit was never
employed by Stanley, yet Roach calls out the inferred omnipresence of defence
of property throughout the trial to reveal that "the boundaries between defence
of property and self-defence are fluid" in this and other murders of Indigenous
people (204). I hear Roach's argument as echoing the type of critical charge
levied against the similarly "neutral" anatomy of the sciences by Ojibwe pedagogist
Megan Bang and Douglas Medin; Roach ceaselessly foregrounds the notion that the
hard questions and answers that arise from Colten Boushie's murder "depend on
who's asking" (Medin and Bang 10). Roach even goes so far as to suggest that a
jury comprising both Indigenous and non-Indigenous representatives could be
parsed as a right conferred by the peacekeeping clause of Treaty 6. It is in
such moments of bold acuity that Canadian Justice, Indigenous Injustice
excels.
Unfortunately,
these elements are occasionally lost in a barrage of procedural information. It
is creditable that Roach endeavours to write for a lay-audience, but one gets the
sense that he does not always trust them enough to grasp the salient points
informing his perspective. Passages in the text where Roach lingers on details
of the trial that he has already covered comprehensively could be sacrificed to
more fully explore Indigenous legal alternatives, as he does with the appeal to
the Treaty 6's peacekeeping clause and the Numbered Treaties more generally.
Essential yet ultimately swollen sections on Stanley's hang fire defence and
the peremptory challenges that were evoked in the trial could be condensed to
good effect. In return for this trade-off, Roach could devote sufficient space
to begin to follow up the question posed by the final chapter "Can We Do
Better?" with "How Can We Do Better?"
Gerald Stanley's
acquittal generated international ripples within Canada and without. Bill C‑75,
passed into law in June 2019, amended the Criminal Code to abolish peremptory
challenges, in order to nullify discriminatory deployment. Writing prior to the
bill's Royal Assent, Roach argues that C-75 is a necessary step, yet still insufficient
on the greater scale. Alongside other band-aid measures, there "may be
improvements" that arise from such piecemeal reforms, "but they do not even
begin to address the legacy of colonial and systematic discrimination" that
they purport to solve (207). Abolishing peremptory challenges amounts to
papering over the problem of Indigenous exclusion within the judicial system
without confronting the lack of active Indigenous inclusion, two issues which
Roach locates as intimately related, but not diametric. Consequently, Roach
proposes a remedial tactic that foregrounds Indigenous treaties in the redress
of the Crown's racist justice system.
His line
of reasoning here is promising but unavoidably inchoate, in line with Mi'kmaq scholar
Bonita Lawrence's contention that the settler colonial formation "produces a
way of thinking--a grammar--which embeds itself in every attempt to
change it" (25). As Anishinaabe legal theorist John Borrows explains in his
foreword, "treaties between Indigenous Peoples and the Crown are foundational
agreements. They formed our country on the Prairies and beyond. They are also
our highest law because they are constitutionally recognized and affirmed" (viii).
This is a reconciliatory sentiment that Roach carries forward, and indeed one part
of an important discussion that goes otherwise untouched. Though sophisticated
and astute, Roach's critique fails to adequately interrogate the dicey
presupposition that the Numbered Treaties are themselves appropriate rubrics
for harmony between an inherently possessive settler colonial state and Indigenous
peoples. Borrows attests that "[c]olonization has
broken both the Treaty and Aboriginal law and cultural teachings" (xii). Yet we
must also remember that colonization brokered the terms of Treaty 6. Not
unilaterally, of course--I do not mean to diminish the roles that
Indigenous Peoples had in the design and negotiation of treaties--yet the
very presence of The Crown as a party to this negotiation is proof positive of
colonialism's embeddedness as an actant in the diplomatic process, not just the
cause of its failure. Indeed, Scott Richard Lyons (Ojibwe/Dakota) has argued
forcefully against the reductive and racist narrative of Indigenous gullibility
that clings to the idea of informed assent via the use of "X-marks" in early treaty-making with colonising forces.
By and
large, Roach follows in just this spirit. He refuses to rest on a deleterious
dichotomy of Indigenous absence and presence, and this complexity underpins
most of his thesis. Yet where Lyons' complication of the internal agonistics of
such "coerced signs of consent made under conditions not of our own making but
with hopes of a better future" executes a difficult balancing act (40), Canadian
Justice, Indigenous Injustice leans at times a little too far towards a reading
that implies a jarring colonial ambivalence. Roach acknowledges that Treaty 6
was finally fully signed in the December of 1882 when many of the Indigenous
peoples it was to apply to faced starvation, and "the physical hunger of
Indigenous people and colonial government's fears about possible conflict with
them were factors in the negotiation of Treaty 6" (17). Despite this awareness,
he hesitates to trouble the matrices of power that inhere in that embryonic
political context. For all of the excellent work that Roach performs to
foreground Indigenous legal understandings in Canadian Justice, Indigenous
Injustice, he consistently couches this work in a tenor of mutual aid which invariably conjures an attendant implication of
mutual responsibility. I do not doubt Roach's intentions, but as the breadth of
his investigation should suggest, enriching the state of Canada "by greater
awareness of, and respect for, Indigenous law" (232) is unequivocally not a
responsibility of Indigenous communities; it is a hitherto enforced
legacy.
Roach
asserts regularly that the Treaties held between the Crown and First Nations
hold the potential to provide informative guides for the future of justice as "a
foundation to reclaim common ground on the basis of mutual consent and assistance"
but without the specificity one would hope to see (37). Roach seems to expend a
lot of energy on the premise that the Treaties can work and perhaps not
enough on looking at the manifold material and social conditions that have fed
into their historical inefficacy in buttressing the rights of Indigenous
peoples in Canada. Scholarship on the subject of the politics of reconciliation
by Indigenous theorists is rich and somewhat conspicuous by its absence from
Roach's argument. Nonetheless, his approach reminds us that observance of treaties
is not optional, and that adherence is not somehow gracious on the part of the
settler state. Despite the aforementioned paucity of Indigenous critics, Roach
never descends into prescription--there is no pretension to fully understand nor judge Indigenous laws, only a demand for
the space for Indigenous communities to define and apply these laws
(229).
During
his analysis of the Indigenous witnesses at Stanley's trial, Roach relays the
important ways in which the Canadian court was complicit in the infringement of
Cree law. Eric Meechance and Belinda Jackson were both friends of Colten Boushie's
and witnesses to his murder. Quite aside from disparaging their trustworthiness
with barely veiled racial prejudice, Stanley's lawyer Scott Spencer "confronted
Jackson with a photo of the deceased as he had already done the day before with
Meechance... a violation of Cree law with respect to a deceased's journey after
death" (156). On neither occasion did anyone outside of the court's gallery pay
mind to this significance. Key here is the way in which Roach situates this
instance of injustice within a frame that is not constrained to a discussion of
mere cultural difference, which, in the hierarchical settler purview, is a
category that occupies a position below that of the law. Roach is talking about
Cree laws, not Cree beliefs, and this is where his work exhibits a generative
deviation from the settler colonial historical norm which
presumes Indigenous alternatives to be "a soft form of law" (228). Liberal
Canada pays ample lip-service to ambiguous notions of
Indigenous self-determination yet tends to hold fast to its juridical
singularity without any substantive concession. The nation is consistently
recalcitrant towards accepting that the "normative lifeways and resurgent
practices" expressed by Indigenous peoples might nourish "alternative
structures of law and sovereign authority" that are "grounded on a critical
refashioning of the best of Indigenous legal and political traditions" (Coulthard
179). By illuminating the pervasiveness of this national systemic attitude
against Indigenous legal self-determination, Roach makes the intrinsic violence
that attends to it abundantly clear. Perhaps even to a fault.
Roach
made the decision not to involve Colten Boushie's family during the book's production, a decision which I think bears some coverage
here. As a methodological choice, Roach conscientiously elects not to interview
anybody personally involved in the case to "avoid increasing the trauma they
already have experienced" (11). However, according to a report by Ntawnis
Piapot (Piapot Cree Nation), aspects of Roach's rehashing of the story have performed
this traumatising work regardless. Colten's cousin Jade Tootoosis was critical
of the fact that the Boushie/Baptiste family were neither asked for their
consent nor forewarned of the book's production and release, which fell near
the one-year anniversary of Stanley's acquittal (Piapot). Tootoosis also
objected to the book's original cover: a vertically split panel, half black,
half red, with Gerald Stanley's face set in dotwork style alongside one of the
photos of Colten Boushie most used by the media. It is an admittedly coarse
image that has since been changed by the publisher at Roach's request.
That being
said, with its timeliness and potential for wide-ranging appeal, Roach's
contribution to this conversation could have a wide influence on reading lists
in the field of Canadian law and settler colonial jurisdiction more broadly. This
book provides crucial insight into the areas where the law and justice
enjoy scant nodes of commonality, avowing that Indigenous laws must not be
blithely binarised as adversarial to Canadian law but instead as concurrent and
coherent alternatives. Roach offers a narrative of inequity that, despite its
maddening injustices, starts to desanctify the monotheorism of settler law and
instead travels toward an understanding of "the many-tentacled system by which
indigenous law and federal Canadian law can relate" in ways that are not de
facto antagonistic (Garcia 268). This work delineates
a vital move. But instead of being a move towards settler innocence, the kind
of mutually integrative relationships between Indigenous and settler laws that
Roach marks out a nascent trajectory for start to move away from settler
innocence or, at the least, rigid settler definitions of innocence. One would
hope for further scholarship to continue along this trajectory and to readily understand,
as Roach does here, that "Indigenous laws" are just that and not a euphemism
for something else. This kind of scholarship is already emerging apace. Spearheaded
by John Borrows and Val Napoleon (Saulteau First Nation), The University of
Victoria in Canada launched the "world's first Indigenous law program" in 2018 from
which students will "graduate with professional degrees in both Canadian Common
Law (Juris Doctor or JD) and Indigenous Legal Orders (Juris Indigenarum Doctor
or JID)" ("World's First Indigenous Law Program"). Though interactions between
Indigenous peoples' laws and settler laws will doubtless be characterised by "[c]ontingency and incommensurability," endeavours like this
engage in the "complex process of affective labor" (Rowe and Tuck 8) needed for
any wider imbrication of legal frameworks to occur. And it is within the
reading lists of such projects, subject to approbation and problematisation,
that Roach's work could be of assistance.
With his
incisive interrogation of the various settler moves to innocence made during
the Stanley trial, the incendiary media coverage, and what the legislative
aftermath represents, Roach's contribution reminds us that declaring "'[n]ot this' makes a difference even if it does not
immediately produce a propositional otherwise" (Povinelli 192). The recognition
and integration of Indigenous legal and cosmological understandings that Roach
advocates will help to orient discourses of Indigenous law and serve as an augmentative
perspective to the decolonisation of Canada's legal system.
Jake
Barrett-Mills, University of East Anglia
Works
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