Truly Criminal: Systemic Racism in the Justice System
There has been a general recognition in Canadian society that Indigenous people are overrepresented in the justice system. However, we have seen only minimal change. Bias and prejudice continue to perpetuate systemic inequities throughout the system. Verdicts rooted in racist ideologies continue to be presented. And while we speak of systemic racism, each act of injustice happens not in the abstract, but as a personal choice within the system everyday.
As Sigma A Daum Shanks writes, "too frequently [has] a (non-Indigenous) authority disregarded the power of racism directed at Indigenous peoples every day on our streets and in our courtrooms." As microcosms of society, courtrooms are powerful places to address bias and prejudice within society and engage in true allyship. However, allyship has been largely absent in recent cases involving significant bias and prejudice issues in Canada.
In R v Stanley , where an all-white jury acquitted a white farmer of shooting young Colton Boushie, bias and prejudice appeared as “racist policy that has disposed, imprisoned, and sanctioned violence against Indigenous peoples.”
The permissiveness in which counsel, judge, and jury allowed racism and colonialism to interfere with the actual or perceived process of justice is an antithesis to Reconciliation. Colton Boushie himself was not on trial, Gerald Stanley was. But that did not quell the underpinning of racial bias in the province of Saskatchewan, nor did it assure Indigenous people that justice for Colton Boushie’s murder would be served. Instead, Boushie was relegated to trespasser and criminal, and Stanley presented as a scared, working-class man with bad luck, both in having his land trespassed on by criminals and having his weapon unexpectedly fire. The Court deemed his fear of Indigenous youth was "presumptively reasonable," and the "lawfulness of his resort to violence […] was deemed by the Court, with the consent of the Crown, not to matter."
The majority of the Supreme Court of Canada again noted this “"invasive," "elusive," and "corrosive" nature of racism against Indigenous people" in R v Barton. In this case, the accused was charged with the murder of an Indigenous woman named Cindy Gladue. During the trial, the intersection of Cindy Gladue's identity as both an Indigenous woman and sex worker-led to acts of dehumanization, bias, and prejudice within the courtroom. At one point, the decision was made to allow the preserved pelvis of Cindy into the courtroom, an indignity not typical for cases of this nature. This decision was permitted by defence counsel, the medical examiners, Crown counsel, and the judge. It provided no indication that either Reconciliation or the necessary allyship involved in working towards it informed the decision. The “visual imprint of power on her body was displayed in a courtroom, the very place where that violence has for too long gone unacknowledged.”
This lack of acknowledgement is performative allyship. It is perpetuated by legal professionals who denounce bias and prejudice in the pursuit of justice but who openly allow it to exist and give it power in the convenience of the courtroom.
Despite a justice system which “holds out a promise to all Canadians [that] everyone is equally entitled to the law’s full protection and to be treated with dignity, humanity, and respect,” this promise was not provided to Cindy Gladue.
And without genuine allyship on the part of legal professionals, humanity may never be afforded.
To effect change we must then look to our justice system, not as a system at fault, but as a reflection of society. And in doing so may we create justice all around us, that moves forward Reconciliation within the law. For without personal responsibility there can never be systemic change.
Until next time,
Photo by Logan Weaver on Unsplash
 Signa A Daum Shanks, “Concluding Remarks: Miyo-wîcêhtowin, R v Stanley, and our Future as Lawyers” (2020) 98-2 Canadian Bar Review 388, 2020 CanLIIDocs 3189, <https://canlii.ca/t/szzk>, retrieved on 2021-11-15.
 See Ibram X Kendi for dialogue on how one can either be racist or anti-racist and allyship can look like in that space: https://www.theguardian.com/books/2019/oct/11/how-to-be-an-antiracist-by-ibram-x-kendi-review
 See R. v. Barton, 2019 SCC 33 (CanLII),  2 SCR 579, https://canlii.ca/t/j0fqj at para 196, R v Stanley, 2018 SKQB 27 (CanLII), <https://canlii.ca/t/hr0w8>.
 See https://www.youtube.com/watch?v=-dk1wkeXeLQ for short coverage commentary of the Gerald Stanley trial.
 This is one article which discusses the broader intersection of systemic racism and life in Prairie provinces where the agriculture industry has a strong foundation. Darcy Lindberg, “The Myth of the Wheat King and the Killing of Colten Boushie” (2 March 2018), online (newspaper): National Post <https://nationalpost.com/pmn/news-pmn/the-myth-of-the-wheat-king-and-the-killing-of-colten-boushie>.
 A critical commentary on the R v Stanley case. Alexandra Flynn & Estair Van Wagner, "A Colonial Castle: Defence of Property in R v Stanley" (2020) 98:2 Can B Rev 358. https://heinonline.org/HOL/P?h=hein.journals/canbarev98&i=358&a=dWFsYmVydGEuY2E.
 R. v. Barton, 2019 SCC 33 (CanLII),  2 SCR 579, https://canlii.ca/t/j0fqj at para 196. See also https://ualbertalaw.typepad.com/faculty/2019/10/weekly-reflection-the-supreme-court-of-canadas-decision-in-r-v-barton.html for a reflection on the Supreme Court of Canada’s decision from former ReconciliACTION YEG members.
 Sherene H. Razack, “Gendering Disposability” (2016) 28:2 Canadian Journal of Women and the Law: 285–307.
 Ibid at 289.
 R. v. Barton at para 210.