Jury Colonialsim Against Indigenous People in Canada, 1885 - 2018

Paul C. Thistle's picture

Rercent news items in February & March 2018 relating to how the so-called “justice” system has disadvantaged Indigenous people in Canada for more than 133 years prompted blogger, Paul C. Thistle, to post an long-format fully-documented paper “Indian-Hating” & “Massive Injustice of the Most Profound Kind”: Jury Colonialism Experienced by Indigenous People from Miserable Man (Kit-Ahwah-Ke-Ni), 1885 to Colton Boushie, 2018 (Thistle 2018).

The subject that stirred me to write this historical analysis of colonialism of Indigenous people perpetrated by the justice system in Canada was the recent news on 9 February 2018 that the jury in a second-degree murder trial in Battleford, Saskatchewan, Canada of a white settler accused in the shooting death of a young Indigenous man returned a not guilty verdict.

I stress at the outset, that I am not a lawyer and I can have no problem whatsoever with the ideals of presumed innocence or the rule of reasonable doubt in the acquittal at trial.

However, press and other witnesses to the pre-trial jury selection process for the trial in question reported that potential jurors who appeared “Indian-looking” were dismissed by the defence under the practice of “stand-asides” or “peremptory challenges.” In Canadian courts—as opposed those in Britain for example—such dismissals occur without the need to provide any reason for excusing a potential juror. As demonstrated in the the above article, this is a long-standing injustice imposed on Indigenous people in Canada that can— and does—license racialisation of jury makeups in Canada.

The absence of Indigenous members on the 2018 jury in question above struck a chord with me because of my earlier research on the trials of First Nations participants in the Riel Resistance of 1885 in Saskatchewan, Canada. Juries in these 1885 murder & treason-felony trials were composed only of white settlers.

Years later, I also learned of at least 3 separate, authoritative reviews (2 judicial) that had—beginning 27 years ago—recommended specifically that the Canadian government eliminate the peremptory challenge process in jury selection. This was strongly recommended to protect Indigenous people from Crown attorneys and/or defence lawyers barring them from juries on concealed racism grounds.

The “Indian-hating” term leading the title of the article follows from the applicability in Canada—from 1885 through 2016—of the extensive classic work Facing West: The Metaphysics of Indian-Hating and Empire-Building by Richard Drinnon (1980). Drinnon conclusively demonstrates that the racist idea of Indigenous ‘savagery’ held by imperialists functions as part and parcel of colonialism against Indigenous peoples who are perceived and treated as "non-persons."

The essay presents the following sections that provide an historical context that I believe is absolutely necessary for full comprehension of the jury selection process that remains the issue at hand in 2018 Canada:

  • Epigraph from the 1991 Report of the Aboriginal Justice Inquiry of Manitoba [a Canadian province]
  • Preface on the issue of jury selection & peremptory challenges of potential Indigenous jurors
  • Impetus for this Article arising from the fact of the entirely non-Indigenous jury resulting from defense peremptory challenges that gave the not guilty verdict in the second-degree murder trial relating to the shooting death of a young Indigenous man in 2016
  • Immediate Reactions by Indigenous People
  • Immediate Reactions by Some Non-Indigenous People
  • History of Juries Failing Indigenous Peoples from the Late 20th Century
  • Jury Colonialism Imposed on Indigenous People, 1885
  • Conclusion
  • Postscript consisting of the Sinc Murr 10 February 2018 Facebook post on the 2018 verdict in question by Hon. Murray Sinclair, former Commissioner of the Aboriginal Justice Inquiry of Manitoba, Canada, later head of the Truth & Reconciliation Commission of Canada, & now Canadian Senator
  • Two Breaking News reports, the last of which tells of the tabling of a new bill in the Canadian Parliament that purportedly will amend the jury selection process to eliminate peremptory challenges of potential Indigenous jurors.

The fully-documented article ‘“Indian-Hating” & “Massive Injustice of the Most Profound Kind”: Jury Colonialism Experienced by Indigenous People from Miserable Man (Kit-Ahwah-Ke-Ni), 1885 to Colton Boushie, 2018’ is available via the link in the Thistle (2018) reference below.

References Cited:

Drinnon, Richard. 1980. Facing West: The Metaphysics of Indian-Hating and Empire Building. Minneapolis: University of Minnesota Press.

Thistle, Paul C. 2018. ‘“Indian-Hating” & “Massive Injustice of the Most Profound Kind”: Jury Colonialism Experienced by Indigenous People from Miserable Man (Kit-Ahwah-Ke-Ni), 1885 to Colton Boushie, 2018.’ Saskatchewan River Region Indian-European Trade Relations web site Jury Colonialism 1885 -2018 page at https://indianeuropeantraderelations.wordpress.com/indian-european-trade-relations-in-the-lower-saskatchewan-river-region-to-1840-thistle-1986/jury-colonialism-1885-2018/ .