FSIN, legal experts call for change after charges against driver stayed in death of Baeleigh Maurice
The Federation of Sovereign Indigenous Nations is calling for a change to the Criminal Code of Canada to prioritize child victims of crime, after a Saskatchewan provincial court judge stayed a charge related to the 2021 death of a nine-year-old Saskatoon girl. The decision has sparked outrage from not just the federation, but from the girl’s family and an Indigenous lawyer as well.
On September 9, 2021, Baeleigh Maurice was walking her scooter along a crosswalk in Saskatoon when she was hit and killed by a truck driven by Taylor Kennedy. After the crash, Kennedy told police she vaped marijuana and micro-dosed magic mushrooms the day before. She was charged with impaired driving exceeding the prescribed blood-drug concentration of THC, causing death. However, on December 13, Judge Jane Wootten stayed the charge because she was not tried within a reasonable time, defined by the Supreme Court of Canada in a 2016 decision as 18 months between charge and the actual or anticipated end of a trial in provincial court. Kennedy’s matter took approximately 24 months, the judge said.
A stay of proceedings means the case has been put on hold, but it doesn’t mean it’s been dropped. The court can later lift the stay and continue the proceedings. The FSIN said it has developed a proposal, called “Baeleigh’s Law,” to prevent a repeat of this case. It suggests giving child victims “enhanced consideration” in the courts and introducing protections against procedural delays — including regularly scheduled case management hearings with explanations for any delays. The federation also wants impaired driving laws re-evaluated to keep pace with the risks posed by various substances, and enhanced sentencing for child fatalities involving impairment. It’s also calling for a flat prohibition on charges being stayed in child death cases.
Colton Fehr, an assistant professor at the college of law at the University of Saskatchewan, said he believes possible changes to how these cases are handled should be considered. “In these delay cases, one of the fundamental issues that I think is being overlooked post-Jordan [the 2016 case that established the precedent] is whether a stay of proceedings still should be the automatic remedy,” Fehr said. He noted that Section 11 of the Charter of Rights and Freedoms guarantees the right for a trial to be heard “within a reasonable time.” Even if a fair trial could still be pursued, which he believes would be the case with Kennedy, proceedings must still be stayed if the delay has been too long, Fehr said.
But when it comes to the FSIN’s call for sweeping changes to the Criminal Code around child victims, Fehr said it is a very complicated matter. That’s particularly true “from the perspective of the accused — say if the delay makes the trial fundamentally unfair … and it could do that for any number of reasons. Memories fade, evidence degrades, so on and so forth,” Fehr said. But he said if a trial becomes fundamentally unfair because of delays, and the delays are the fault of the state, it doesn’t strike him as being persuasive to say that the court shouldn’t stay the proceedings simply because of something like the victim’s age.
“If we can’t hold a fair trial, then the state … kind of loses its authority to prosecute the individual.” Furthermore, Fehr said that prohibiting stays of proceedings where there’s a child victim would run into legal issues. “Certainly when there’s a child victim, the seriousness of the case is amped up, and that’s something that can be considered in determining whether a stay ought to be the remedy,” said Fehr. “But preventing any sort of legal recourse to the accused person just because of the nature of the victim, I think would run into some constitutional difficulties.”
In a press release Thursday afternoon, the Saskatchewan Trial Lawyers Association — an association of more than 475 trial lawyers — said the character of the legal professionals involved in Baeleigh Maurice’s case has been “criticized based on limitations and intricacies of proper legal procedures.” “Criminal court judges hold a unique burden of responsibility having to balance the law, Charter, and the evidence. Due to professional limitations, judges are not permitted to defend their rulings. They may only speak through their reasons for the decision during the court process,” the association said. If the Crown believes the judge made an error, it has the right to ask the Court of Appeal to make that determination, it said.
Fehr said Saskatchewan needs more judges to help address delays within the justice system. He believes the Crown can start arguing about whether a stay of proceedings ought to be imposed as a remedy to delays, as opposed to some other sort of lesser remedy. Eleanore Sunchild is a lawyer and member of Thunderchild First Nation who has represented the family of 22-year-old Cree man Colton Boushie. He was shot on the Saskatchewan farm of Gerald Stanley in 2016. Stanley, 56, was charged with second-degree murder in Boushie’s death and pleaded not guilty. His two-week jury trial ended in early 2018 with a not-guilty verdict.
Sunchild said that because of the delays involved in Baeleigh Maurice’s case, and the fact that it took years for the matter to go to trial, the defence lawyer for the accused made an application for a stay of proceedings. Sunchild said it’s likely the COVID-19 pandemic played a part in those delays. Meanwhile, she said she sees similarities between how the deaths of Boushie and Baeleigh, both of whom were Indigenous, have been handled within the Saskatchewan legal system. “We always had to humanize him when we were talking anywhere to media,” Sunchild said of Boushie, a Cree man who was from Red Pheasant First Nation.
“We always had to make sure that we told people who Colton was. He was someone’s son, someone’s brother. And that’s what the media, that’s what society historically has done to Indigenous people. They dehumanize us.” Sunchild said that could be a factor in the case of Baeleigh’s death. “Why is it when there is an Indigenous family involved and an Indigenous victim, why is the delay so substantial that it would cause the court to throw out or stay the matter? Those are the questions that should be asked,” Sunchild said. She said the Crown should take every step possible to present the case within a reasonable time, so that delay is not an issue.
“The family of the victims, they are supposed to be represented by the Crown. They are supposed to be helped to the best ability of the Crown. But often that is not the case.” The Federation of Sovereign Indigenous Nations and Baeleigh’s family are advocating for an appeal. In a statement to the CBC, the province said prosecutors are “reviewing the decision to stay this case to assess whether there are any appropriate legal grounds to file a notice of appeal.” It also says the prosecutions department has recently implemented a number of initiatives to address high caseloads, including a major case assistance unit that focuses on “the most serious and complex prosecutions.” Public Prosecutions also has a case readiness unit to assist Crown prosecutors in assessing cases to ensure they are ready to move forward, the province said.
Meanwhile, Sunchild said the Saskatchewan justice system needs education on what reconciliation means, and people in the system need to consider how they’re “failing Indigenous people and keep failing Indigenous people.” That requires “really hard and frank conversations with the people who are in the system, including the justice minister,” she said. Sunchild said the provincial government is not listening to Indigenous people, which she said is especially problematic due to the high population of Indigenous people both as residents of Saskatchewan generally, and in the justice system. “A bill would be helpful to make sure that Indigenous people have trials within a reasonable time, but honestly, that just should be a normal course of justice. We shouldn’t always have to lobby and seek justice. It should just be there.”
Sunchild said there often isn’t accountability in cases where Indigenous people are killed. “I worry about my children. I worry about, you know, our kids. It’s concerning when someone can be killed and there’s no consequence,” Sunchild said. “It’s like we’re saying their life didn’t even matter. Their life…
