home Editorial A Turning Point in the Legal System’s Relationship with Aboriginal Canadians

A Turning Point in the Legal System’s Relationship with Aboriginal Canadians

We’ve reached an awkward moment in relations between the legal system and First Nations people in Canada. In recent weeks, two criminal trials relating to crimes against young AborIan cbc dot ca fontaine-boushieiginal Canadians did not end in a guilty verdict, and unsurprisingly, there was more than a little backlash. Two young First Nations persons (one a child, one barely more than a child) died awful deaths, and both of their alleged killers walked, something neither of the victims will ever do again. The pain of their parents, families, communities, and Aboriginal Canadian community at large was heard across all ten million square kilometres of the country. And really, who could blame them? One more gross indignity to people who have been mistreated by invaders from across the Atlantic since that first Viking drove his axe into a “skraeling” skull.

Our track record with the First Nations people has never been something to celebrate, to say the least. The best we could say in our defence is that we weren’t as openly genocidal as our American neighbours, and even that faint praise comes with caveats, asterixis, and cries of “bullshit!” Residential schools, one-sided treaties we could barely be bothered to honour, Davis Inlet; we legally did as we pleased to people who had more right to be here than we ever did, and feigned disgust at our conduct when someone shouted loudly enough to be heard. Then we kept doing it anyway because we knew that cry from the distance was all the recourse they had. If there was enough public indignation, we’d put a price on meaningfully rectifying the injustice, and watch the left go quiet and the right blame the victims. Game, set, and match.

And I remember being galled by how this problem was framed in our first-year Ethical Lawyering classes. Professors and guest speakers ruminated about legal reforms intended to do right by our First Nations people. Then they ruminated about new ways they were going to reform the system because the old reforms hadn’t worked. Then I got enraged and left, because the underlying theme of the discussion was that they kept coming up with reforms and never actually implemented them. We were supposed to consider all alternatives to incarceration before imprisoning convicted First Nations persons, but incarceration rates continued to rise. There was nothing wrong with the foundation of that plan! We just refused to meaningfully implement it! It was little more than a celebration of insincerity, and while I won’t say the inaction is motivated by malice, it was certainly tainted with apathy. I haven’t studied Aboriginal Law because it’s too depressing and enraging, and this is coming from someone who’s likely to start off as a divorce lawyer!

Before I continue, I’m going to briefly acknowledge the two First Nations people who died so tragically. It is inadequate to hope that their tragic deaths yield some real results in Aboriginal Law reform, and even if meaningful reforms are enacted, they should not just be remembered as a name preceding a procedure.

Tina Fontaine was born on 1 January 1999 in Winnipeg, Manitoba. She was mostly raised by her great-aunt in the nearby Sagkeeng First Nation. According to her great-aunt, she loved baking, school, and playing with babies. Her father was beaten to death in 2011, and while his killers were convicted of manslaughter, the death deeply troubled Tina. She moved to Winnipeg where she was under the care of Manitoba Child and Family Services. She was reported missing on 9 August, 2014 and had last been seen in the company of a man who had solicited her for a sex act. Her body was found in the Red River, wrapped in plastic, on August 17, 2014. She was 15 years old, and weighed only 72 pounds.

Colten Boushie was born in Ronan, Montana on 31 October 1993 and was a resident of the Cree Red Pheasant First Nation in Saskatchewan. He spent most of his childhood in Montana, but moved to Canada in 2008 to be nearer to his mother and her community. He was a jolly, sensitive young man who once compiled a set of poems about moving forward in life following the death of his mother’s dog. Members of his family could rely on him to help with tasks like shingling a roof, and he cut wood for community ceremonies. On 9 August 2016, he went out drinking, shooting, and swimming with friends. Their car got a flat tire as they were returning to the reserve, and the group allegedly tried to steal vehicles from a local ranch. As the group tried to escape, Colten Boushie was shot in the back of the head and killed. He was 22 years old.

The acquittal of the persons charged with murdering Fontaine and Boushie inspired nationwide outrage, particularly from Aboriginal Canadians. This is unsurprising, especially considering that Boushie’s killer was acquitted by an all-white jury, thanks to peremptory challenges by the defence. Racial tensions were a major factor in the trial and aftermath of the Boushie killing. Canada visibly split between people who felt the shooter was justified in defending his property and people who felt that the shooting, investigation, and acquittal were massively tainted by racism towards Aboriginal Canadians. Fontaine’s case is simpler, but no less tragic: one more First Nations child dead after falling between the cracks of a system apathetic to her plight. Two young lives, ended cruelly, pointlessly, and unjustly.

Just take a minute to imagine being either one of those victims, or one of their family members. Picture spending your last moments as a child of no means, selling your body to men three times your size to get a drink that will numb the traumatizing memory of your father’s demise. Imagine hearing the news that your son was shot and killed doing something far from extraordinary for a lot of 20-somethings, and then constantly hearing how he was a bad egg who deserved it, from people who never knew him, and who somehow seem to hate him more than the man who shot him. Just a minute.

That wasn’t entirely a lead-in to my next point, by the way. Just a call to humanize people who will never be human again.

I honestly don’t care about the acquittals themselves. Someone being imprisoned will not bring back Fontaine or Boushie. Tina Fontaine was hardly comforted by the conviction of those who killed her father. Perhaps there would be an element of closure in a guilty verdict, and in the vacuum left by your child’s demise, maybe the vengeance wrought by decades in prison would provide some fleeting comfort. I don’t know and wouldn’t want myself or anyone else to find out. Beyond a reasonable doubt is a very high threshold, and we can’t be sure what reasonable doubt the jury had that led to the acquittals. Even in the event of an appeal, we can’t know.

And perhaps, despite all the dreadful tragedy of the situation, the acquittals are not necessarily a bad thing. A conviction of a guilty party is justice, but the deaths of Fontaine and Boushie may yet lead to something much more significant than two more federal inmates. Fontaine’s death already sparked the Commission on Missing and Murdered Indigenous Women, and the acquittal of her alleged killer can inspire a redoubling of efforts on their part. Changes can be pushed for in policing, child and family services, youth mental health supports, or anything else that may have prevented her tragic end. Boushie’s death could lead to RCMP and jury selection reforms, and is already inspiring Canadians to stand against anti-Aboriginal sentiment. Their deaths do not have to be in vain, nor should they be responded to with nothing more than a simple conviction. Their lives can be honoured with something great if we are willing to push for changes and reforms that are long due. The travesty endured by the First Nations of Canada need not continue, and these tragedies can be the spark that burns the dark past away.

But whatever may come, we must first remember their names, their lives, and our shared humanity.

Tina Fontaine (January 1, 1999-August 10, 2014)

Colten Boushie (October 31, 1993-August 9, 2016)