Canada is a backwater. This is an important point to keep in mind when considering how or why an all-settler Saskatchewan jury would shrug off a Cree man’s life, or that the ordinary functioning of the justice system could produce an outcome so seemingly unjust.
Reconciliation is easy at a sunny photo-op or a Toronto cocktail fundraiser. It’s harder in those places where the bleeding edge of the colonial state cuts into Treaty land.
Justin Trudeau and his government were elected, in part, on a promise to take the work of reconciliation between Canadian settlers and Indigenous peoples seriously. Whether or not this has been happening so far is up for dispute. But it’s not especially shocking or unreasonable that the prime minister and some cabinet colleagues would make an oblique reference to the plight of Indigenous peoples on Twitter in the wake of the Gerald Stanley verdict.
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The trial focused national attention on an issue in the government’s wheelhouse. The Liberals were already looking at making changes to the jury selection process prior to Colten Boushie’s death, but the aftermath of the Stanley trial has put that on the fast track.
(There is also the off-chance that Trudeau and Justice Minister Jody Wilson-Raybould may have “tainted” the appeals process by their responses to the Stanley verdict. It’s unlikely Wilson-Raybould’s tweet will torpedo a speculative appeal, but you have to admit there’d be no better metaphor for the Justin Trudeau Presents: Reconciliation!™ project.)
Anyway, because this is Canada, a number of people, including at least one columnist at the Globe and Mail and Her Majesty’s Loyal Opposition, have suggested that it’s inappropriate for the prime mInister to politicize the justice system, or critique its procedure and outcomes. It is especially heinous for the Justice Minister to do this, because it suggests there’s a problem with the justice system—and Justice is right in the job name, for God’s sakes! The judiciary is a sovereign kingdom and [gutturally] politicians must never interfere.
This line of argument is unproductive, and also broadly wrong. Parliamentarians are there as democratic representatives—they have an obligation to voice the concerns of their constituents. Cabinet ministers have an additional obligation to act as “Ministers of the Crown,” that is, to represent the interests of the thing we call the Crown—a legal fiction meant to embody the sovereign authority of the Canadian state. It is possible to interpret this role as essentially conservative, an obligation for Cabinet to dispassionately dispense Her Majesty’s justice, however distasteful.
It is also possible to see Cabinet’s obligations of the Crown as demanding a deeper fidelity to the “principles of fundamental justice” alluded to in the Charter—one that obligates them to give voice to deeper and broader national concerns about the operation of the state. The ordinary operation of Crown institutions, as they were initially designed, is meant to address Indigenous peoples as more-or-less conquered colonial subjects; there are deep and longstanding procedural issues that predate Colten Boushie and that, without government action, will persist for a long time. They may need to avoid mentioning the specifics of the case for legal reasons, but it’s more than appropriate for the sitting prime minister to discuss these problems in both his capacity as a democratic representative elected on a reconciliation mandate, and in his capacity as the executor of that Crown which is the thing we are trying to reconcile with Indigenous nations.
We did not inherit a flawless justice system, and we didn’t inherit a political system requiring that those with the power to change things see, hear, and speak no evil out of some transcendent obligation to the Queen. This difference in agency and representation and agitation is why elected ministers have unelected deputy ministers.
It’s absurd to bemoan the impropriety of a Cabinet minister publicly commenting on systemic problems in the judiciary. The Stanley case may be a flashpoint in the public consciousness, but the issues at stake are long-standing it is far to suggest the trial may be symptomatic of deeper structural problems in Canadian institutions. That’s not “politicizing” anything – an especially meaningless charge in the current context. For one, it pretends that the judiciary is somehow apolitical, which is incorrect both in principle (legal regimes reflect the power imbalances in the societies in which they are established, and which they come to shape in turn), and in practice—the criminal code is an act of Parliament, Supreme Court Justices are appointed, and the constitution they enforce is an unfinished political document drawn up less than 40 years ago.
But it’s one thing to pledge the federal government’s commitment to fixing systemic racism in the justice system, and it’s another to actually fix it. The feds can adjust the criminal code and tweak parts of the jury selection process, but most of the real work has to be done by the provinces. The Liberals run the risk of writing cheques their provincial partners can’t (or won’t) cash. As per usual, the biggest problem with Trudeau’s platitudes after the Stanley case is that they risk hanging in the air and putrefying into another empty promise.
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