Racism in the Court

Alikomiak did confess to murder. In December 1921, he and another man were apprehended for killing Pugana, his uncle. The arresting officer, Corporal William Doak, took him to Tree River, then in the northeast Northwest Territories but today part of Nunavut, where he was initially held in an RCMP storage shed. Months went by, and Doak grew increasingly abusive toward the accused, until one morning in early April 1922, Alikomiak got his hands on the officer’s gun and shot him. Afterwards, Alikomiak would offer a full and detailed confession, through an RCMP interpreter, including how he also killed the Hudson’s Bay Company trader Otto Binder, a potential witness.

As bizarre as it sounds — a timid Inuit boy first accused of murdering his uncle and then accused of murdering a police officer and another man likely to find out — no one at the time seemed to question the motivation or confession. To them, it made perfect sense that Alikomiak would commit murders for no real reason. It confirmed the myth of the savage.

The Court of Better Fiction does not have a surprise ending. There’s no mystery to be solved. Yet Debra Komar — a forensic anthropologist and the author of The Bastard of Fort Stikine: The Hudson’s Bay Company and the Murder of John McLoughlin, Jr. (2015) and Black River Road: An Unthinkable Crime, an Unlikely Suspect, and the Question of Character (2016), among other books — does a splendid job of telling a dramatic story. With impeccable wordcraft, she details how the system used Alikomiak to teach all Inuit a lesson. And though her passages are well written and often beautiful, they contain disturbing characters who reflect a deep history of racism and bias —
a history that underlies Indigenous justice throughout Canada, but that many in this country have long ignored.

Senior civil servants wanted to keep expenses for a show trial to a minimum and determined it would cost too much to bring a court party to Tree River, 600 kilometres north of Yellowknife. So they moved the mock proceedings to Herschel Island — some 1,200 kilometres west in Yukon. No one considered how the lesson taught would be transmitted back, or that the people of Herschel Island spoke a different language than Alikomiak’s home community.

Thomas Cory was selected as defence counsel, after sending supervisors his thoughts on the matter: “As kindness has failed in the past I strongly recommend that the law should take its course and those Eskimos found guilty of murder should be hanged in a place where the natives will see and recognize the outcome of taking another’s life.”

The judge, Lucien Dubuc, had experience presiding over northern cases. He was also known to get things done: a previous trial had resulted in the conviction and hanging of a Dene man.

After Irving Howatt was named prosecutor in the case, he communicated with both the Ministry of Justice and Judge Dubuc about the verdict and the execution of “these people” — a blanket phrase other officials used when discussing the case, including prime minister Robert Borden.

Fred A. Hill, known as Special Constable Gill, was selected as hangman because of his carpentry skills. He travelled with the court party, which included white jury members recruited along the way, and brought along plenty of lumber and rope for the gallows. Upon arrival, he dug graves for the accused.

Throughout The Court of Better Fiction, Komar reveals the biases of a wide cast of actors, as well as the legal process itself. The crime had occurred in the Northwest Territories, not Yukon, where the trial was held. Yet jurisdictional issues were never resolved. There were procedural problems (the investigator also conducted the preliminary hearing, no fingerprints had been collected). There was evidence tampering. There was the questionable legitimacy of the confession. And there was Alikomiak, a minor forced to testify against himself. A minor who, under Canadian law, was too young for the death penalty to begin with. No matter: the entire trial was a farce. The verdict, sentence, and denouement were all faits accomplis.

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Kent Roach, a University of Toronto law professor, also considers a predictable formula of racism that, for many Indigenous people, continues to typify the Canadian legal system decades after Judge Dubuc’s kangaroo court. Canadian Justice, Indigenous Injustice: The Gerald Stanley and Colten Boushie Case is a compelling, jargon-­free read for those comfortable with an otherwise academic structure, where the author first tells readers what he intends to say, then says it, then reminds us what he has just said.

As Roach recounts in his opening pages, on August 9, 2016, Gerald Stanley, a white farmer, confronted a group of five young people on his property outside Biggar, Saskatchewan. They were heading back to Red Pheasant First Nation after a day of swimming and drinking. At some point, their Ford Escape developed a flat tire.

Grabbing an old pistol from a shed, Stanley fired two shots into the air — discharging what he thought was all of his ammunition. Having warned the group that they were trespassing, and after some confusion near the SUV, he confronted Colten Boushie, sitting in the driver’s seat. Not empty after all, the pistol fired again — striking Boushie behind the left ear and killing him.

The case made headlines across the country, and Roach takes his reader back to last year’s trial. In great detail, he explains the selection of an all-white jury, including how Stanley’s lawyers used peremptory challenges to exclude anyone who appeared Indigenous. He also questions why the Crown prosecutor, Bill Burge, did not ask potential jurors about racial bias or racially charged social media posts they may have seen.

While Stanley’s legal team did not explicitly rely on a self-­defence strategy, they nonetheless put that notion into the minds of jurors in subtle, deliberate ways. Their stated defence: hang fire. Experts testified that a cartridge could fail to fire initially and discharge later, though delays are extremely rare and take less than half a second when they do happen. Stanley’s lawyers had to persuade the jury that his pistol’s hang fire was between thirty seconds and a full minute.

As in Alikomiak’s case a century before, a lot went wrong procedurally. Investigators, for example, left Boushie’s body out in the rain overnight, which ruined potential evidence. Roach also shows how the four Indigenous witnesses were themselves put on trial: much of what the jury heard involved their afternoon activities and not their brief time on the Stanley property.

Canadians already know the outcome of the trial, but in keeping with Roach’s structure, it’s sometimes good to be reminded of what you’ve already read. As he puts it in the very first sentence of his introduction, “On 9 February 2018, a jury in Battleford, Saskatchewan acquitted Gerald Stanley, a fifty-­six-­year-­old cattle farmer, of the intentional murder and negligent manslaughter of Colten Boushie, a twenty-­two-­year-­old Cree man from the Red Pheasant First Nation.” Of course, even if readers didn’t know the outcome up front, they would be far from surprised by the time they’ve finished this detailed account.

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Canada can be a racist place, and Saskatchewan especially so. Well before the Stanley trial started, Premier Brad Wall issued a public statement on Facebook:

Canadians do not need official statements to know racist commentary can be dangerous. And anyone in this province involved in the actual administration of the law knows that race and hate-­filled remarks are a constant factor. Publicly, we may deny it. Publicly, we may continue the fiction that justice is blind. We might tinker with the Criminal Code, change the way juries are selected. We might even go so far as requiring mixed juries, as Roach recommends. But none of these measures would make a difference. Not until we solve the fundamental issue.

A history of racism and bias — one that preceded and followed the hanging of Alikomiak — is a matter of fact. It’s why so many Indigenous people don’t like or trust the police or courts or educators or social workers or industry representatives or municipal governments or provincial ones.

Whether we’re actively involved in the law or not, we remember the case of Louis Riel and his subsequent hanging in 1885. We remember the Hangings of Battleford, that same year, as a way to instill fear. We remember Leo Lachance — murdered in 1991 by a neo-­Nazi who referred to firearms as “Native birth control.” We remember the starlight tours in 2001 and the Indigenous men found on the outskirts of Saskatoon, left to freeze by the police. We’ve watched the Indigenous incarceration rate climb unabated for fifty years, and we know that rate includes more and more women and children. We remember all of the missing and murdered Indigenous women and girls. We know why Saskatchewan recently issued assault rifles to provincial conservation officers.

Inside and outside of courtrooms, our race is the most fundamental factor of our existence. It determines the jobs we’re likely to get, and the ones we’re likely denied. It determines where we go to school, and the quality of the education we receive. Race does more than determine how the rest of Canada sees us: it determines how we see ourselves. It is the basis of our identity.

Race is who we are, and this racist place is where we are. Neither the racist behaviour detailed by Debra Komar nor the acquittal described by Kent Roach should surprise anyone — though their books should be read by everyone.

For decades, I have maintained that Saskatchewan is a racist place, and I have been assured by well-­meaning people that I’m imagining a problem that does not exist. I don’t hear that as much anymore. Racism is now out in the open. That’s a good thing; it’s good that people post bigotry on Facebook.

Because now more and more of us are talking openly about something Indigenous people have discussed privately for centuries.

Hate-­filled conversations used to take place in private homes, around kitchen tables, at coffee shops frequented by white Canadians, and in hockey arenas and curling rinks when there were no Indians around. Now the conversations are out there — and we can engage with them directly. Even if the conversations remain ugly and hurtful, they are necessary. We might swear at each other and call each other names — or worse — but at last we are talking.

The more we talk to each other — the more we learn about the inequities that have plagued “justice” since well before Confederation — the better the conversations will become. And through them, hard as they may be, we can build a better tomorrow for our children and grandchildren.