Cases like Colten Boushie's are handled unjustly, and there's nothing wrong with saying that: Neil Macdonald

For what it's worth, federal Conservative politicians are expressing great concern that Prime Minister Justin Trudeau and his justice minister may have somehow harmed the judicial process by implicitly criticizing the acquittal of an Indigenous man's killer by a Saskatchewan jury last week.

Well, setting aside for a moment that the Conservatives are the official Opposition, and reflexively oppose everything Trudeau does or says, and further setting aside the fact that Trudeau's remarks were his usual dollop of largely meaningless pablum, what exactly would be the problem if he'd had the bottle to actually speak plainly and critically about what happened in that courtroom?

The facts are these: an all-white jury, deliberating under the supervision of a white judge, decided that a white farmer, Gerald Stanley, who killed a young Indigenous man, Colten Boushie, was not guilty of murder. The farmer argued that his gun just went off.

Let us pause here for a moment and flip the telescope. Had an all-Indigenous jury, selected under the supervision of an Indigenous judge, acquitted an Indigenous farmer of murdering a young white man, what would the reaction have been? That scenario is utterly unrealistic, but to ask the question is to answer it.

Peremptory challenges

Let's take it a step further. What if the defence team for an Indigenous accused had, with the Indigenous judge's permission, used a series of peremptory challenges — which allow lawyers to disqualify potential jurors for any reason, or no reason at all — to ensure white people were excluded from the jury? Because that, we are told, is the tactic Stanley's lawyer used.

Stanley's defence counsel doesn't have to explain those actions – peremptories by their nature are entirely discretionary, and cannot be challenged – but racial considerations in exercising the peremptory prerogative are common. Everybody who's covered jury trials for a living knows it.

Actually, former Supreme Court justice Frank Iacobucci spelled it out in a report five years ago. Indigenous people are routinely underrepresented on juries, he said, and it's unjust, and Canada should end the practice of peremptory challenges, just as the United Kingdom has done.

So, given all that, how in heaven's name did Trudeau sin when he tweeted this from Los Angeles on Friday?:

"I can't imagine the grief and sorrow the Boushie family is feeling tonight. Sending love to them from the U.S."

Or when, stating the obvious, he told reporters, "We have come to this point as a country far too many times. I know that Indigenous and non-Indigenous Canadians alike know that we have to do better."

Do better? If anything, in dispensing his habitually empathetic mush, Trudeau didn't say enough. He is after all the prime minister, and he has a department of justice and a justice minister, and some responsibility to ensure that justice is seen to be done. Seen to be done, not just done.

• Ministers say Canada must 'do better' after Boushie verdict

• Hundreds march to Reconciliation Bridge demanding justice for Colten Boushie

And what happened in Saskatchewan sounds more like the sort of thing that happens in Mississippi.

Actually, let me amend that, because the American justice system has had to grapple with the ugliness of all-white juries reliably acquitting white defendants of killing minorities. (Often, when that happens, politicians directly criticize the verdict, and no one seems to think it strange).

In the U.S., the Justice Department has the power to send in a federal prosecutor after such a verdict to re-try the defendant on charges of depriving a person of his or her civil rights. And it does. It happens regularly, and not just in Mississippi. Blacks and Hispanics are grossly over-represented in American prisons, and far more likely to be convicted than whites, just as Indigenous people comprise a staggeringly disproportionate share of Canadian prison populations, particularly in the West.

Fixing our system

The difference is that the Americans, who are just as concerned about maintaining an independent judicial system as we are, have recognized reality, and made at least some effort to remediate it.

Our government, according to Justice Minister Jody Wilson-Raybould, merely intends to keep studying the issue.

As long as peremptories exist, defence lawyers and prosecutors will use them to exclude potential jurors because of their race, class or gender. We all know that. It's wrong.

None of this is to say that the jury that acquitted Stanley was a bunch of racists. They perhaps had justifiable grounds for their verdict.

Farmers often have guns. Boushie was trespassing on Stanley's farm, with a group that had been drinking, in an SUV with at least one weapon, and likely with intent to steal, all of which was pretty stupid. Stanley testified he'd feared for his family, which is not unreasonable.

But had the jury comprised a number of Indigenous people proportionate to the heavy Indigenous population in the region where the killing took place, and Stanley were still acquitted, we would not be having a discussion about blatant unfairness and injustice.

Juries will always bring their biases, racial and otherwise, to the deliberation room. We need to let Indigenous people bring theirs.

This column is part of CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.