During the month of February, 2018, the Crown saw fit, in two separate cases, to put a white man on trial, one in Saskatchewan, the other in Manitoba, for wrongfully causing the death of a young aboriginal man and an aboriginal girl respectively. In each case an (apparently) all-white jury acquitted. And in each case the aboriginal community was understandably outraged. Even for the rest of us, these cases could hardly fail to call up images of what passed for justice in the Deep South in America in the decades leading up to the civil rights movement. Whether justice was served or not, the optics have been just terrible!

What the Manitoba case especially brought home – though it was hardly news to the aboriginal community – was the vulnerability, to white male predators, of young aboriginal girls when they venture outside the relative safety of the reserve. But both cases are tokens of a shared sub-pattern. Because of the conditions of strict (albeit informal) Apartheid in Canada, red-on-red violence is orders-of-magnitude more frequent than inter-racial violence. But within the latter, white-on-red violence, especially by law enforcement, is orders-of-magnitude more frequent than red-on-white. Hence much of the outrage.

But the lion’s share of the outrage has been reserved for the jury selection process. In Canada, in contrast to many other jurisdictions, the defense is entitled, without call to offer cause, to unlimited preemptive challenges. Hence in a case of white-on-red violence, an all-white jury is pretty much guaranteed. What’s being debated – in bars and coffee houses across the country – is what would have happened if these juries had been mixed. The received reasoning, it seems, has been this:

There must have been a reasonable case for conviction, since otherwise the Crown wouldn’t have brought these cases to trial in the first place. So each juror faced a judgment call. Is it widely believed that such judgment is affected by the races of the victim and the accused? Obviously yes, since otherwise why would the defense have eliminated every potential aboriginal juror, and why would the aboriginal community be outraged by their would-be jurors having been excluded? So the most that could be hoped for from a mixed jury would have been a hung jury, hence a mistrial, but probably not a retrial, since any retrial would likely produce the same result.

If, ex hypothesi, justice was not served – and I’m prepared to concede it might not have been – it would seem the only way it could be served would be if the accused faced an all-aboriginal jury. But surely one’s right to a jury of one’s peers means a jury of his peers, not the peers of his alleged victim. But suppose, however implausibly, we do start down this path. Then what should be the make-up of the jury if the accused is aboriginal and the victim white? Or the victim and the accused white?

We might say that where the violence is red-on-red or white-on-white, no juror, be she racist or not, has any special interest in the outcome, and so her own race shouldn’t matter. But where the violence is red-on-white or white-on-red, what should we do? Only allow the empanelling of an all-black jury? Well, that might make sense. But I’m not sure we’d be happy sending every such ‘asymmetry’ case to be tried in the south side of Chicago.

So therein lies our dilemma. To deny that race plays a role in jury deliberations is myopic. To try to compensate for it is to add, to the informal system of social and economic Apartheid we already have in Canada, a system of judicial Apartheid, reminiscent not of pre-60’s Alabama, but of pre-1989 South Africa. Not, I suspect, the direction too many Canadians would want to go.

So here’s the irony. If what we want in race-asymmetry cases are either convictions or acquittals rather than hung juries, we’re going to have to either a) opt for non-mixed juries or else b) hope like hell that jurors, be they white or aboriginal, can overcome their racism. Were I a social justice warrior that’s something I could look forward to. But as a defense attorney I wouldn’t hang my client’s liberty on it.

What this shows is precisely what those who study post-colonialism have been trying to tell us. Dialectical materialism tells us that colonialism was probably inevitable. But likewise have been its crippling consequences. Apartheid prolongs those consequences. But dismantling Apartheid takes centuries. If we count contact as Year One here in western Canada, we’re still only in Century Two. I suspect we have at least another three or four to go.

Categories: Critical Thinking, Editorials

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