White Privilege and the Making of Canada’s Injustice System: Setting Precedent for Inequitable Treatment in the Courtroom, Vancouver Island, 1860-1873 by Matthew Midolo A Thesis Presented to The University of Guelph In partial fulfilment of requirements for the degree of Masters of Arts in History Guelph, Ontario, Canada © Matthew Midolo, May, 2020 ABSTRACT WHITE PRIVILEGE AND THE MAKING OF CANADA’S INJUSTICE SYSTEM: SETTING PRECEDENT FOR INEQUITABLE TREATMENT IN THE COURTROOM, VANCOUVER ISLAND, 1860-1873 Matthew Midolo Advisor(s): University of Guelph, 2020 Dr. Brittany Luby Dr. Catherine Carstairs Dr. Kim Anderson Canada has a longstanding history of racialized and discriminatory practices against the Indigenous population dating back to the first European invasion. During the establishment of British law on Vancouver Island, “whiteness as right-ness” was woven into the fabric of the developing justice system. Specifically, in the case of murder trials, white assailants were privileged within the courtroom, often evading the death penalty, while Indigenous assailants were hanged for related crimes. Through a careful examination of Chief Justice David Cameron's, Chief Justice Joseph Needham's, and Judge Augustus Frederik Pemberton's records, discriminatory treatment in the courtroom is revealed. These men, in tandem with the juries, oversaw the first courtrooms in Victoria, BC, from 1860-1873, and they treated Indigenous assailants more harshly than white assailants. Their records reveal that discriminatory practices in Canadian courtrooms date back to their formation. iii ACKNOWLEDGEMENTS I would like to extend thanks to those that supported, inspired, and helped me complete this body of work. First, I would like to thank Dr. Brittany Luby (Britt) for all the attentive advising and guidance that she provided me with throughout this master's degree (and in the final year of my undergraduate degree). Britt's incredible ability to synthesize my work and provide a million and one ways to improve it helped both my thesis and me to grow. Not only did she work tirelessly with me to complete this thesis, but she also worked hard to give me a leg up in the professional world. Whether this is offering me opportunities for publication, volunteer opportunities, networking, or editing job applications, Britt was an incredible life and thesis advisor. I would also like to thank my committee members, Dr. Catherine Carstairs and Dr. Kim Anderson for their incredible editing. As well, my U Vic mentor, Dr. John Lutz for being so welcoming and providing so much knowledge and Dr. Hamar Foster for that couple-hour coffee chat that transformed my thesis entirely. They all contributed to the strengthening of my research and writing. Second, I would like to thank my family, who was there the whole time giving me a boost when the going got tough. Mom, Dad, my brother Alex, and all my extended family, your support was instrumental in helping me during this process. Third, I would like to thank the entirety of my second family for listening to me complain, rant, and geek out over my findings. Chris, Christina, Becca, Emma, Acacia, Erin, Tash, and the rest of my Coco’s family, Meg, Jenn, Summer, Emerson, Persephone, Amy, Vena, Jason, Hailey, Holly, and Hannah (in no particular order), thank you for supporting me around the clock. It made the world of a difference. iv TABLE OF CONTENTS Abstract ........................................................................................................................................... ii Acknowledgements ........................................................................................................................ iii Table of Contents ........................................................................................................................... iv Introduction ..................................................................................................................................... 1 Chapter 1: Literature Review ........................................................................................................ 11 Chapter 2: Establishing British Law on Vancouver Island........................................................... 27 2.1 An Early Legal History ................................................................................................. 27 2.2 Nature of Mid-19th Century Trials ................................................................................ 33 Chapter 3: Chief Justice David Cameron ..................................................................................... 37 3.1 Regina vs. Allache ....................................................................................................... 40 3.2 Another Man Stabbed to Death..................................................................................... 44 3.3 Chief Justice David Cameron’s Legal Legacy.............................................................. 48 Chapter 4: Chief Justice Joseph Needham .................................................................................... 50 4.1 The Shooting Affray ..................................................................................................... 51 4.2 The Salt Spring Murder ................................................................................................ 57 4.3 Chief Justice Joseph Needham’s Legal Legacy ............................................................ 63 Chapter 5: Judge Augustus Frederik Pemberton .......................................................................... 65 5.1 The East Coast Tragedy ................................................................................................ 67 5.2 The Protection of White Assailants in the Courtroom .................................................. 72 Chapter 6: White Assailants and Court (In)Justice ....................................................................... 75 Chapter 7: Conclusion .................................................................................................................. 80 7.1 Research Questions Answered ...................................................................................... 80 7.2 The Past is Present: Gerald Stanley’s Murder Trial ...................................................... 83 Afterword ...................................................................................................................................... 91 Bibliography ................................................................................................................................. 95 1 Introduction I began this introduction sitting on a plane heading back to what is now known as Canada from a ten-day vacation in Portugal with my boyfriend. I recognize my privilege in being able to afford to fly to coastal Europe while working towards a graduate degree. These are privileges that are not afforded to everyone. My whiteness has acted as an invisible hand, opening doors that may be closed to visible minorities. My position as a white male within Canadian society has given me more opportunities in economic, social, and political situations while giving me a cultural advantage in colonial spaces like public schools, universities, and courtrooms. At birth, I was guaranteed fundamental human rights that have been framed as privileges for others. From adequate housing, clean drinking water, and access to health care, my whiteness gave me priority over others who did not share my skin colour. This privilege continued to protect me during my formative years as I was given full access to education, accessibility to adequately stocked and reasonably priced grocery stores, and more safety around police officers.1 I have yet to be disadvantaged based on the colour of my skin, my cultural heritage, or the community I grew up in. Although I knew I experienced privilege based on the colour of my skin, I was not truly aware of the extent that white privilege was systematically ingrained into Canadian society until my early twenties. I became aware of systemic privilege (based on perceived race) in August 2018 after the news broke that Gerald Stanley, a white settler, received no judicial punishment 1 Although my safety is generally valued more by police officers because I am white, being an openly queer person, I am statistically more vulnerable to police violence (profiling and entrapment) than white heterosexual males. However, my experience is not nearly as severe as the experiences of queer and trans BIPOC (Black, Indigenous and People of Colour). For more, see: Andrea Ritchie, “Police Violence Against Women and Queer People of Colour: Why We Need to Imagine a World Beyond Police,” accessed 15 May 2020, https://www.kzoo.edu/praxis/beyond-the-state-and-beyond-police/. 2 for the murder of Colten Boushie, a twenty-two-year-old man from Cree Red Pheasant First Nation. Stanley's trials altered the way that I thought about my whiteness. It was blatantly clear that Black, Indigenous, and People of Colour (BIPOC), in this case specifically Indigenous people, were being wronged in Canadian courtrooms. The legal system, which failed to provide justice to Boushie, was managed by primarily white men. When the jury's decision was announced, and Stanley was acquitted, I was shocked and disgusted. How could this happen when Gerald Stanley had admitted to shooting Colten Boushie? The media reported that an all- white jury acquitted Stanley of all charges, even the charge of manslaughter. I realized that