COVID-19 has brought certain criminal justice system inequities to the forefront. Advocates across Canada, have demanded, for example, the release of prisoners in provincial and federal jails. Since Indigenous peoples are over-represented among incarcerated people, Senator Kim Pate and others have highlighted their disproportionate susceptibility to this particularly virulent human coronavirus strain while in confinement.
At the other end of the spectrum, Indigenous victims are also impacted by the adverse effects of the corona pandemic. Efforts to address the violence towards Indigenous women and girls – described as a genocide – are ongoing at the community level as recent actions across Canada in May demonstrated. The implementation of a national coordinated strategy has lost impetus in the pandemic response.
Various research reports confirm that Indigenous people are disproportionately represented as victims of crime in Canada. Sadly, Canada’s justice system is often an inadequate mechanism for addressing these tragedies. Advocates argue that crime against Indigenous people is not taken seriously and that investigations often lack diligence. Overall, the pressing need to attend to the human rights of Indigenous peoples to security and safety is likely to be minimized in the current public health crisis.
A recent case in New Brunswick involving the tragic death of a 22-year-old Indigenous man, Brady Francis, brings the concerns about the treatment of Indigenous victims to the forefront. Francis was found dead two years ago on February 24, 2018 on a road in Saint-Charles. He was standing by the roadside waiting for his parents to arrive when he was struck and killed by a motor vehicle.
While the victim’s community of Elsipogtog was reported to be on edge in the aftermath of the tragedy, Brady’s family was credited with encouraging cooperation with law enforcement and the justice system. Brady’s family and supporters were heartened when Maurice Johnson was charged in June 2018. Johnson faced a single a charge under section 252 of the Criminal Code which criminalizes the failure to stop at scene of accident. In cases where death results, the crime is a more serious or indictable offence that may be subject to a life penalty.
The family and community’s relief changed to outrage when the accused selected to have the trial proceed in French, a language not spoken or understood by the Francis family. When the trial finally began in January 2020, almost two years after the event, volunteers attempted to provide translation for the family and community in a separate courtroom.
Doubts about the likelihood of justice were reinforced when the New Brunswick Court of Queen’s Bench issued a ruling on April 27, 2020. Madam Justice Denise A. LeBlanc found Maurice Johnson not guilty of the charge. The 70-page decision [R v Johnson, 2020 NBQB 67 (CanLII)] largely summarizes the facts and case law, as well as setting out the evidence, most notably competing interpretations by Crown and defence forensic expert witnesses.
Describing the Crown’s case as “circumstantial,” the presiding Justice maintained that the evidence did not establish that Johnson struck Francis. Therefore, an acquittal was justified in the court’s assessment.
It was determined that the Crown failed to establish criminal behavior or the actus reus of the offence beyond the required standard of reasonable doubt, a puzzling finding. Security cameras place Johnson’s truck near the scene. Debris collected after the collision included insignia from a GMC truck, the make of Johnson’s vehicle. Upon reading Facebook reports, the Johnsons self-identified as potential suspects in the fatal hit and run.
Furthermore, Johnson admitted to hitting what he thought was a deer in his warned statement to the RCMP. The April 2020 court decision summarizes Johnson’s statement that he was “chatting” with his wife when “suddenly, something about four feet tall appeared in the middle of the lane.” By his own admission, he yelled out “deer!” Johnson stated he had attempted to “step on the brakes.” He stopped his truck about fifteen feet away “to look around,” yet did not see anything.
The accused’s wife, Jacinthe Johnson, testified the couple was heading home when Maurice Johnson made a sudden movement to the left, forcing her to hold onto their small dog. According to her testimony, Maurice Johnson screamed that he had hit a deer. Furthermore, in the court’s summary, the Justice commented that the accused had consistently “maintained and insisted that he hit or believed he hit a deer.”
Given these statements, the finding against the commission of the actus reus is curious: it appears to deny the evidence by both Johnson and his wife that their truck struck a figure on the road, which the Johnson’s alleged to be a deer.
While the Justice held that the criminal act was not committed, she made extensive references to Francis’ level of intoxication throughout her decision. For example, she stressed the importance of testimony that “Francis was staggering when he was walking on Saint Charles Sud Road.” If no impact occurred, then the references to the victim’s state appear unwarranted. There was no claim by the defence that erratic behavior by the victim contributed to the accident. In fact, the court seems to conclude that a fatality of a human being involving the Johnson’s truck never happened, at the standard of reasonable doubt.
In her decision, Justice LeBlanc went on to rule that Johnson also lacked the required mental element or mens rea. She determined it was “quite plausible” that, if the accused hit Francis, “he might have thought that he had struck a deer.”
News outlets reported that Madam Justice LeBlanc addressed the former accused at the end of her ruling, expressing her hope that Johnson would be “able to put this tragedy behind [him]” and that he would be “able to move on” from the incident.
Showing a lack of concern for Indigenous victims, it appears that similar assurances or condolences were not extended to the Francis’ family, irrespective of their extreme grief on the loss of their much loved, youthful son. In her evidence, Jessica Perley reported her horror at arriving at the agreed upon pick-up point to find her young, once vibrant, son that she had spoken to just shortly before, dead on the road. “That’s my son, that’s my son,” she recalled yelling.
Due to COVID-19 restrictions, members of the public, including Francis family members, were precluded from sitting in the courtroom for the verdict. In a ruling on a fatality, these restrictions appear particularly excessive given that grocery stores, pharmacies and other essential services have remained open while achieving appropriate social distancing.
An appeal of the decision is under consideration; it may provide direction on the correctness of the application of Western criminal law. A prior case, R. v. Prad, 2017 BCPC 168 (CanLII), also resulted in an acquittal when a driver claimed to have hit a deer rather than a cyclist on a rainy, foggy night. Prad consistently maintained the absence of any knowledge he had struck a cyclist, even under vigorous interrogation. In his emotional testimony at the trial, Prad stated he stopped at the scene to look for the injured deer, overlooking the human body in the pitch black darkness. The case turned on the mens rea, the absence of willful blindness, rather than the denial of criminal behavior that grounds the April 2020 Johnson ruling.
While not present in the courtroom, the family of Brady Francis and community supporters expressed sadness, shock and outrage at the decision. On Facebook, like many, Brady’s mother Jessica Perley shared her disappointment stating she felt “angry, hurt, lost … let down.” In a statement delivered in front of the Courthouse on May 1, 2020, Elsipogtog Chief Aaron Sock also expressed disappointment arguing that justice was non-existent for First Nations people in Canada. Sqotewisq Judie Acquin-Miksovsky expressed a commonly held view when she stated on Facebook: “I am fully and completely aware that I can be killed and there will be no consequences and repercussions because I’m First Nation in Canada.”
Dr. Pam Palmater, a lawyer, Mi’kmaw citizen and member of the Eel River Bar First Nation, commented on the case calling for acknowledgment of the biases against Indigenous people in Canadian law and for greater attentiveness to Indigenous law. The acquittals following the deaths of Indigenous youths, Colton Boushie in Saskatchewan and Tina Fontaine in Manitoba, were cited by commentators as proof of the criminal justice system’s indifference to Indigenous lives.
A further acquittal of Bradley Barton in relation to the homicide of an Indigenous mother of three, Cindy Gladue, is also worth remembering as part of the track record of repeated failures of the justice system in its treatment of Indigenous people. Gladue was found dead due to injuries in the bathroom of Barton’s Edmonton hotel room. Barton was charged with first degree murder but acquitted of that charge as well as the lesser included offence of manslaughter. The Alberta Court of Appeal ordered a new trial for murder and manslaughter.
Barton appealed to the Supreme Court of Canada which upheld the decision for a new trial yet only for the lesser offence of manslaughter [(R. v. Barton, 2019 SCC 33 (CanLII)]. While disappointing on the new trial directives, the Supreme Court asserted that the justice system is overrun by discrimination. Canada’s highest, most influential court shared the view that many hold regarding the trial concerning Brady Francis’ tragic death. The court stated: “Trials do not take place in a historical, cultural, or social vacuum. Indigenous persons have suffered a long history of colonialism, the effects of which continue to be felt.”
In the efforts to find justice for Cindy Gladue, the Supreme Court reminded readers of its prior rulings that “acknowledged . . . the detrimental effects of widespread racism against Indigenous people within our criminal justice system.” The Supreme Court justices affirmed the view held by the family and supporters of Brady Francis when they stated: “when it comes to truth and reconciliation from a criminal justice system perspective, much-needed work remains to be done.” The criminal justice system’s promise that “everyone is equally entitled to the law’s full protection and to be treated with dignity, humanity, and respect” was violated in the prosecution for Gladue’s death and other trials.
In conclusion, the Supreme Court of Canada made the following important ruling: “While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can — and must — do better.”
When Brady’s father, Dana Francis, testified at the trial, he told the court that he sang two verses of a Mi’kmaq song for his son at the side of the road, upon learning that Brady had passed away. Dana Francis planned to sing the last two verses after the trial ended as a prayer for everyone involved, even the offender.
In news reports, there is no information that Dana Francis shared the final verses of the song. His silence, this silence, this inability to bring closure to the proceedings through music, seems to speak loudly on the ways the criminal justice system failed Brady’s memory, the Francis family and Elsipogtog community. It also makes it clear that this time of reconsideration, of concern for medicine and public health, is also a time for a new song for a sick and failing criminal justice system in Canada. After numerous disappointing trials and decades of let-down, Indigenous peoples are waiting to hear and perform this music, this clear sound of justice.
Josephine L. Savarese is a professor in the Department of Criminology and Criminal Justice at St. Thomas University and justice advocate.
To support an online auction to raise funds for the Justice for Brady legal fund, go here.
To donate to the Justice for Brady fund, go here.
To sign a petition in support of Brady’s Bill that would make it mandatory for people to report the striking of wildlife with their motor vehicles, go here.