R. vs. Stanley: Saskatchewan Court of Queens Bench

Martel D. Popsecul, Chief Justice
Presiding over the R. vs. Stanley Trial 

The following Charge to the Jury by Chief Justice of the Court of Queen’s Bench for Saskatchewan, the Honourable Martel D. Popescul, is likely the most reliable document yet published providing insight into the R. vs Stanley trial.

(This post outlines my analysis of why I think the Chief Justice led the Jury directly to a finding of not guilty. It was not a directed verdict in the usual sense, but his words had the same effect.)

And, in those words, all 11,000 of them, the Chief Justice attempts to summarize every aspect of the trial as well as the law governing the charges.  It took the Chief Justice just over one and one-half hours to read his document in court with copies then supplied to the Crown and defence as well as to each juror.

In the copy below, those parts which, in my mind, inexorably led the jury to conclude that Gerald Stanley was not guilty on all counts, are highlighted.  There is little doubt the majority of jurors would have found some parts of the summary so complicated as to render them nearly useless in their deliberations.

Having spent thirty years in law enforcement and a further twenty-five reading and writing about various law enforcement issues, I have some degree of understanding of these complex issues, but even at that, I found some sections of the summary tough slogging.

The jury, on the other hand, deliberated a mere fifteen hours before reaching a ‘not guilty’ verdict on all counts.  Fifteen hours is scant time to consider the various pieces of physical and verbal evidence presented over the two-week trial let alone give full consideration to the details provided in the Judge’s Charge to the Jury.

The jury was made up of random citizens selected from the community and while the process was random, many who have experience with law enforcement (police members active and retired, lawyers and judges, as well as a myriad of others involved with the criminal justice system) would have been removed from the jury pool. This is routinely done to remove any suggestion of bias.  Additionally, “pre-emptive” removals can be used to remove others that either the Crown or Defence think may not be impartial. It was by that process Defence Counsel removed all aboriginals from the jury.

As for the those selected, most are unlikely to have had any experience with jury duty and, before selection, will have been exposed to considerable information about the killing which led to the charge. Given the role played by ‘confirmational bias’ in the lead-up to and during the trial, the Judge’s charge seems the best source for an unbiased view of the case. Or was it?

While the Judge read his comments to the jury before handing them a copy, it is hard to rationalize how, in 15 hours of deliberation, the jury could absorb the complicated issues to a degree that would allow them to render an informed decision.  Because jury deliberations are secret, we shall never know exactly how they reached that verdict in such short order.

If you have the time and inclination to read the Judge’s words to the jury, you may or may not come to the same conclusion I have about a clear path being set out for them to render a ‘not-guilty’ verdict on all counts.

In the following copy, I have separated the ‘Charge to the Jury’ into several parts for easy reference and have highlighted some comments in bold (those I consider important) and in yellow, as ‘very important’.  In addition, I have made a few short comments on some numbered sections.

Before presenting the complete text of his remarks, I will submit the thread comments the Honourable Justice, made that I think pushed the jury towards a finding of ‘not guilty’ on all counts.  The fact the jury deliberations took less than two days suggests the Jury had likely made up their minds very early in the process.

Harold McNeill (Det. Sgt. Retired)

Note: Here is a short discussion along with related links regarding the rights and responsibilities of private citizens to use firearms as a means of Protecting Life and Property. 

A  Summary of Justice Popsecul’s comments that pushed the Jury towards a not guilty verdict. The highlighted remarks are left in context.  The following comments are verbatim from the trial transcript.

Section 5

It is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard would be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt.

You must not find Gerald Stanley guilty unless you are sure he is guilty. Even if you believe that Mr. Stanley is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to Mr. Stanley and find him not guilty because the Crown has failed to satisfy you of his guilt beyond a reasonable doubt.

In a few moments I will explain the essential elements that the Crown must prove beyond a reasonable doubt to establish Mr. Stanley’s guilt. For the moment, the important point for you to understand is that the requirement of proof beyond a reasonable doubt applies to each of those essential elements. It does not apply to individual items of evidence. You must decide, looking at the evidence as a whole, whether the Crown has proved Mr. Stanley’s guilt beyond a reasonable doubt.

If you have a reasonable doubt about Mr. Stanley’s guilt arising from the evidence, the absence of the evidence, or the credibility or the reliability of one or more of the witnesses then you must find him not guilty. In short, the presumption of innocence applies at the beginning and continues throughout the trial, unless you are satisfied after considering the whole of the evidence that the Crown has displaced the presumption of innocence by proof of guilt beyond a reasonable doubt.

If, based upon the evidence, you are sure that Mr. Stanley is guilty of the offence with which he is charged that demonstrates that you are satisfied of his guilt beyond a reasonable doubt and you must find him guilty of that offence.

If you have a reasonable doubt whether Mr. Stanley is guilty of the offence with which he is charged, you must give him the benefit of that doubt and find him not guilty.

Section 7

“If you have a reasonable doubt about Mr. Stanley’s guilt arising from the credibility of the witnesses then you must find him not guilty.

You have heard Mr. Stanley testify. When a person charged with an offence testifies you must assess that evidence as you would assess the testimony of any other witness, keeping in mind my instructions to you earlier about the credibility of witnesses.

You may accept all, part or none of Mr. Stanley’s evidence. Of course, if you believe the testimony of Mr. Stanley that he did not commit the offence charged then you must find him not guilty. However, even if you do not believe the testimony of Mr. Stanley, if it leaves you with a reasonable doubt about his guilt or about an essential element of the offence charged you must find him not guilty.

Even if the testimony of Mr. Stanley does not raise a reasonable doubt about his guilt or about an essential element of the offence charged, if after considering all the evidence you are not satisfied beyond a reasonable doubt of his guilt, you must find him not guilty.

Section 10

“You have heard that Eric Meechance and Cassidy Cross have previously been convicted of a number of criminal offences. Copies of their criminal records have been filed as Exhibits B4, B5, B6 and B7 at this trial.

You may use those convictions to help you decide how much or little of their evidence you will believe or rely on. Some convictions, for example ones that involve dishonesty, may be more significant than others. As well, an old conviction may be less important than a more recent one.

A previous conviction does not necessarily make the evidence of Mr. Meechance or Mr. Cross unbelievable or unreliable. It is only one of the many factors you need to consider in assessment of their testimony.

You heard the testimony of Sheldon Stanley and Belinda Jackson, who claim to have heard Gerald Stanley say something. Ms. Jackson testified that she heard a voice say, “Go get a gun.” She says that the voice that said that went into the garage and grabbed his own handgun. Presumably she is suggesting that Gerald Stanley uttered those words.

Sheldon Stanley testified that his father said, “I don’t know what happened. It just went off. I wanted to scare them.”

You have to decide whether you believe that Gerald Stanley made these statements or any part of them. Regardless of who the witness is it is still up to you to decide whether you believe that witness’s evidence.

In deciding whether Gerald Stanley actually said these things or any of them, use your common sense. Take into account, the condition of Gerald Stanley and of Sheldon Stanley and Belinda Jackson at the time the alleged statements were made. Consider the circumstances in which the alleged statements took place. Bear in mind anything else that may make the witness’s evidence more or less reliable.

Unless you decide that Gerald Stanley made a particular remark or statement, you must not use it against him in deciding this case.

Some or all of either of the statements may help Gerald Stanley in his defence. You must consider those remarks that may help Gerald Stanley along with all of the other evidence. Unless you conclude that he did not make them. In other words, you must consider all of the remarks that might help Gerald Stanley even if you’re not sure whether he said them.

Section 12

If the Crown has not satisfied you beyond a reasonable doubt of each of these essential elements you must find Gerald Stanley not guilty of second-degree murder.

If the Crown has satisfied you beyond a reasonable doubt of each of these essential elements you must find Gerald Stanley guilty of second-degree murder.

To intentionally discharge a firearm means to fire it by intentionally pulling the trigger. Intentionally means on purpose. In other words, not by accident.

To decide whether Mr. Stanley applied force intentionally you will have to consider all the circumstances surrounding the application of force. Take into account the nature of the contact and any words or gestures that may have accompanied it along with anything else that indicates Mr. Stanley’s attitude or state of mind at the time he applied the force to Mr. Boushie.

It is the position of (the defence) that what happened to Mr. Boushie was an accident. When I use the term accident in this context I mean an unintentional act rather than an intentional act with unintended consequences.

Mr. Stanley does not have to prove that what happened to Mr. Boushie happened by accident. The Crown must satisfy you beyond a reasonable doubt that what happened to Mr. Boushie was not an accident.

Section 13

In this case there is evidence to establish that five people in a grey Escape entered the Stanley farmyard. Either Eric Meechance or Cassidy Cross or both tried to steal a quad runner.

Mr. Stanley and his son Sheldon were working in the yard. At first they were not concerned about activity in the yard because it was assumed that is was one of Mr. Stanley’s customers attending to one of their own vehicles waiting to be repaired.

When Mr. Stanley and Sheldon heard or saw the quad runner was being started or that someone was attempting to start it they realized something was amiss and ran over to see what was going on. What they saw was a strange vehicle and a person or persons tampering with the quad runner. They hollered at them. Those that were outside the vehicle got back in and the grey Escape, possibly with Mr. Cross driving, began to make a hasty getaway. Sheldon took a hammer out of his tool belt and struck the windshield of the grey Escape, causing damage.

Section 14

NOTE: This entire section is highlighted because, among other things supporting Gerald Stanley, the Judge stated in Section 10  and I quote, In other words, you must consider all of the remarks that might help Gerald Stanley even if you’re not sure whether he said them.

The Judge now continues to speak on behalf of Gerald Stanley:

Gerald Stanley testified at the trial. Mr. Stanley testified that he and his son were constructing a fence that afternoon. His wife was cutting the lawn on a riding mower. Mr. Stanley heard a loud, noisy vehicle drive up into his yard and stop by a gold truck. Initially, he thought nothing of it because customers from his car repair business routinely stop by.

Mr. Stanley says a person got out of the grey Escape and appeared to enter the gold truck. Then the grey Escape moved ahead to the garage. He testified that he heard the quad runner start up. As soon as he heard that, he concluded that something untoward was happening.

He ran over to the area of the quad runner and the grey Escape and saw an individual who he did not know but now believes to be Eric Meechance on the quad runner trying to move it. He saw another person who he believed to be a male coming out of the garage.

The two persons that were outside the grey Escape quickly got back into the vehicle, backed up and headed toward the farm exit. In the meantime he saw Sheldon take out his hammer and hit the front windshield as the vehicle came by him.

As the grey Escape was heading away from Mr. Stanley he saw it veer right and strike his wife’s blue Escape. Mr. Stanley testified that the collision appeared to him to be deliberate. At this point, Sheldon headed in the direction of the house and the grey Escape.

Mr. Stanley, concerned about what had happened and what might happen, quickly retrieved the handgun and some ammunition that was situated in his nearby garage.

He testified that he believed that he put two bullets in the magazine. He then walked toward where the grey Escape had stopped. Mr. Stanley testified that he saw two people get out of the vehicle and was concerned about what they might do given what had just happened.

He says that he fired one shot in the air to scare them away. He says that one of the individuals looked at him and did not flee. He then continued to walk toward them and fired another shot in the air. The two persons then ran away.

NOTE: The next statement will be researched in relation to other cases of citizen involvement.

There is no dispute that Mr. Stanley was lawfully justified in the circumstances of this case to retrieve his handgun and fire it into the air as warning shots, if you find that this is what he did.

Beyond that, it is for you to determine if his actions continued to be lawful.

Mr. Stanley testified that he took the magazine out of his gun and held it in his left hand. He says that the lawnmower upon which his wife had been riding was a few feet in front of where the grey Escape had come to rest. His wife was not on the riding mower and he became concerned about her whereabouts and wellbeing.

He ran up to the vehicle and was about to look under the car to see if his wife might be under the car. As he was about to do that he heard the car rev up. He noticed the person in the driver’s seat. He was concerned that the vehicle would continue on and cause more problems. He says that he reached into the vehicle with his left hand to attempt to shut off the vehicle. As he did so, he moved what he then thought was a metal bar but which he now believes was the barrel of the damaged .22.

He says that in the process, as he was reaching across the steering wheel to try to shut off the car, the gun went off.

Mr. Stanley testified that his finger was not on the trigger, the clip was out of the gun and he thought it was empty.

As you will recall the RCMP meticulously searched the Stanley farm to collect evidence. Of interest were three spent casings. Two of the casings were found between the garage and the blue Escape. A third was found on the passenger side dash of the grey Escape. It is likely safe to conclude, although this is up to you, that the casing on the dash is related to the bullet that struck and killed the deceased.

Section 15

If you have a reasonable doubt that what happened to Mr. Boushie was an unintended, involuntary action, that is an accident, you must find that Mr. Stanley did not voluntarily commit the unlawful act of assault.

Section 16

I have already told you that it is not disputed that Mr. Stanley was legally justified in defence of his property to retrieve his handgun and fire it into the air, if you find that that is what he did, in light of what had gone on in his farmyard. However, you must now closely analyze whether his actions between that point and the shooting of Mr. Boushie amount to careless use of that firearm and whether he had a lawful excuse.

The elements of careless use and lawful excuse are somewhat intertwined. Mr. Stanley says that he thought that there were only two bullets in the magazine. He says that he thought that he had fired all rounds because he had pulled the trigger multiple times. He said that he thought the gun could not fire with the magazine out. He says that he did not pull the trigger around the time that he approached the grey Escape.

Note:  Regarding the last paragraph, you are again reminded of the Judges thoughts about Mr. Stanley’s statements and I quote: “In other words, you must consider all of the remarks that might help Gerald Stanley even if you’re not sure whether he said them. Do you suppose that includes remarks made by the judge about what Mr. Stanley had to say?

Written and Spoken Charge to the Jury by the Chief Justice

1. Setting the stage

“It is time for me to tell you about the law you must follow to make your decision. To assist you in your deliberations I have prepared a written copy of my instructions…. (The jury and the lawyers are given a copy.)

2. The Judges introduces the divisions he will use in his address:

“These instructions will cover a number of topics. Consider them as a whole, do not single out some as more important and pay less or no attention to others. I am giving them to help you make a decision, not to tell you what decision to make.

First, I will explain your duties as jurors and tell you about the general rules of law that apply to all jury cases.

Second, I will advise you of the specific rules of law that govern this case. I will explain how those rules apply to the evidence. Even if I do not refer to all the evidence governed by a specific rule, you must apply each rule to all the evidence to which it relates.

Third, I will explain to you what the Crown must prove beyond a reasonable doubt in order to establish the guilt of Mr. Stanley and tell you about the defences and other issues that arise from the evidence.

Fourth, I will discuss with you the issues that you need to decide and will review for you some of the evidence that you may decide relates to those issues.

Fifth, I will summarize the positions that counsel, (Crown prosecutor Bill) Mr. Burge and (defence lawyer Scott) Mr. Spencer, have put forward in their closing addresses.

The last thing I will explain for you is what verdicts you may return and how you should approach your decision of this case in the jury room.”

3. Who is responsible for what in the trial:

“In this trial, I am the judge of the law. You are the judges of the facts. As a judge of the law, it is my duty to preside over this trial. I am the sole judge of the law and it is your duty to accept the law as I explain it to you.

If I am wrong about the law my error can be corrected by the Court of Appeal because my instructions are recorded and will be available if there is an appeal. However, your deliberations are secret. If you wrongly apply the law there will be no record for the Court of Appeal to review.

Therefore, it is important that you accept the law from me without question. You must not use your own ideas about what the law is or should be. It is your duty to decide whether the Crown has proved Gerald Stanley’s guilt beyond a reasonable doubt. It is not my role to express any view on the guilt or innocence of Mr. Stanley. If I do so inadvertently, you must ignore it.

You have now heard all the evidence that will be called in this case. There will be no more evidence. You must make your decision based on all the evidence presented to you in the courtroom and only on that evidence. I might comment on or express an opinion about the evidence. If I do, you do not have to agree with me.”

4. More in-depth on the process

“You must consider the evidence and make your decision on a rational and fair consideration of all the evidence and not on passion or sympathy or prejudice against the accused, the Crown, or anyone else connected with the case. In addition, you must not be influenced by public opinion. Your duty as jurors is to assess the evidence impartially.

The only information that you may consider is the evidence that has been put before you in this courtroom. You must disregard completely any information from radio, television or newspaper accounts, internet sources: Twitter, Facebook or any other social media that you have heard, seen or read about in respect to this case or about any of the persons or places involved or mentioned in it. Any other information about the case from outside the courtroom is not evidence.

Possible penalties for the offence charged have no place in your discussions or in your decision.

It is your duty to consult with one another and try to reach a just verdict according to the law. Your foreperson will preside and assist you in the orderly discussion of the issues. You should each have the opportunity to express your own points of view without being unnecessarily repetitive.

When you are discussing the issues you should listen attentively to what your fellow jurors have to say. Approach your duties in a rational way and put your points of view forward in a calm and reasonable manner. Avoid taking firm positions too early in your deliberations. Consider the views of your fellow jurors with an open mind before reaching your own decisions.

Any verdict you reach must be unanimous. Unless you are unanimous in finding Gerald Stanley not guilty you cannot acquit him. Nor can you return a verdict of guilty unless you agree unanimously that he is guilty. Each of you must make your own decision whether Mr. Stanley is guilty or not guilty. You should reach your decision only after considering all the evidence with your fellow jurors. Your duty is to try to reach a unanimous verdict. However, you are entitled to disagree if you cannot reach a unanimous verdict after a sincere consideration of the facts and the law and an honest discussion with your fellow jurors.

I will review some parts of the evidence and relate it to the issues that you must decide. I might mention evidence that you think is insignificant or not mention evidence you think is important. Counsel have also referred to evidence in their closing submissions. I remind you that you must consider all of the evidence, not just the parts that have been mentioned. If your recollection of the evidence differs from what counsel or I have said it is your memory and understanding of the evidence that counts in this case, not mine or that of counsel.”

5. Presumptions and Reasonable Doubt

“The first and more important principle of law applicable to every criminal case is the presumption of innocence. Gerald Stanley enters the proceedings presumed to be innocent. And the presumption of innocence remains throughout the case unless the Crown on the evidence put before you satisfies you beyond a reasonable doubt that he is guilty.

Two rules flow from the presumption of innocence. One is that the Crown bears the burden of proving guilt. The other is that guilt must be proven beyond a reasonable doubt. These rules are linked with the presumption of innocence to ensure that no innocent person is convicted.

The burden of proof rests with the Crown and never shifts. There is no burden on Mr. Stanley to prove that he is innocent. He does not have to prove anything.

Now what does the expression beyond a reasonable doubt mean? A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from the absence of evidence.

It is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard would be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt.

You must not find Gerald Stanley guilty unless you are sure he is guilty. Even if you believe that Mr. Stanley is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to Mr. Stanley and find him not guilty because the Crown has failed to satisfy you of his guilt beyond a reasonable doubt.

In a few moments I will explain the essential elements that the Crown must prove beyond a reasonable doubt to establish Mr. Stanley’s guilt. For the moment, the important point for you to understand is that the requirement of proof beyond a reasonable doubt applies to each of those essential elements. It does not apply to individual items of evidence. You must decide, looking at the evidence as a whole, whether the Crown has proved Mr. Stanley’s guilt beyond a reasonable doubt.

If you have a reasonable doubt about Mr. Stanley’s guilt arising from the evidence, the absence of the evidence, or the credibility or the reliability of one or more of the witnesses then you must find him not guilty. In short, the presumption of innocence applies at the beginning and continues throughout the trial, unless you are satisfied after considering the whole of the evidence that the Crown has displaced the presumption of innocence by proof of guilt beyond a reasonable doubt.

If, based upon the evidence, you are sure that Mr. Stanley is guilty of the offence with which he is charged that demonstrates that you are satisfied of his guilt beyond a reasonable doubt and you must find him guilty of that offence.

If you have a reasonable doubt whether Mr. Stanley is guilty of the offence with which he is charged, you must give him the benefit of that doubt and find him not guilty.

To make your decision, you should consider carefully and with an open mind all the evidence presented during the trial. It will be up to you to decide how much or little of the testimony of any witness you will believe or rely on. You may believe some, none, or all of the evidence given by a witness.”

6. Assessing the value of witness testimony: placed in a footer

7. Arriving at decision on Innocence or Guilt

“If you have a reasonable doubt about Mr. Stanley’s guilt arising from the credibility of the witnesses then you must find him not guilty.

You have heard Mr. Stanley testify. When a person charged with an offence testifies you must assess that evidence as you would assess the testimony of any other witness, keeping in mind my instructions to you earlier about the credibility of witnesses.

You may accept all, part or none of Mr. Stanley’s evidence. Of course, if you believe the testimony of Mr. Stanley that he did not commit the offence charged then you must find him not guilty. However, even if you do not believe the testimony of Mr. Stanley, if it leaves you with a reasonable doubt about his guilt or about an essential element of the offence charged you must find him not guilty.

Even if the testimony of Mr. Stanley does not raise a reasonable doubt about his guilt or about an essential element of the offence charged, if after considering all the evidence you are not satisfied beyond a reasonable doubt of his guilt, you must find him not guilty.

You must consider only the evidence presented in the courtroom. Evidence is the testimony of witnesses and things entered as exhibits. It may also consist of admissions. The evidence includes what each witness says in response to questions asked. Only the answers are evidence. The questions are not evidence unless the witness agrees that what is asked is correct.”

8. Admissions made by agreement between the Crown and Defence (in footer)

9. Exhibits and Expert Witnesses (in footer)
10. The checkered past of certain witnesses

“You have heard that Eric Meechance and Cassidy Cross have previously been convicted of a number of criminal offences. Copies of their criminal records have been filed as Exhibits B4, B5, B6 and B7 at this trial.

You may use those convictions to help you decide how much or little of their evidence you will believe or rely on. Some convictions, for example ones that involve dishonesty, may be more significant than others. As well, an old conviction may be less important than a more recent one.

A previous conviction does not necessarily make the evidence of Mr. Meechance or Mr. Cross unbelievable or unreliable. It is only one of the many factors you need to consider in assessment of their testimony.

You heard the testimony of Sheldon Stanley and Belinda Jackson, who claim to have heard Gerald Stanley say something. Ms. Jackson testified that she heard a voice say, “Go get a gun.” She says that the voice that said that went into the garage and grabbed his own handgun. Presumably she is suggesting that Gerald Stanley uttered those words.

Sheldon Stanley testified that his father said, “I don’t know what happened. It just went off. I wanted to scare them.”

You have to decide whether you believe that Gerald Stanley made these statements or any part of them. Regardless of who the witness is it is still up to you to decide whether you believe that witness’s evidence.

In deciding whether Gerald Stanley actually said these things or any of them, use your common sense. Take into account, the condition of Gerald Stanley and of Sheldon Stanley and Belinda Jackson at the time the alleged statements were made. Consider the circumstances in which the alleged statements took place. Bear in mind anything else that may make the witness’s evidence more or less reliable.

Unless you decide that Gerald Stanley made a particular remark or statement, you must not use it against him in deciding this case.

Some or all of either of the statements may help Gerald Stanley in his defence. You must consider those remarks that may help Gerald Stanley along with all of the other evidence. Unless you conclude that he did not make them. In other words, you must consider all of the remarks that might help Gerald Stanley even if you’re not sure whether he said them.

If you find that a witness said one thing in the witness box and something different about the same subject on an earlier occasion this may be a factor in assessing the witness’s credibility. It is for you to determine what effect any differences will have on your overall assessment of the witness’s credibility. It may have a huge impact, or no effect or somewhere in between. Not every difference is important. Consider the extent and nature of any difference. Was it on a central point or something peripheral. Consider any explanation the witness gave. Was the explanation satisfactory?

Generally, the earlier statement made may be used only in assessing the witness’s credibility. However, there is an exception when the witness while testifying at trial accepts all or part of the earlier statement as true. In that event, the earlier statement may also be considered as evidence of what happened. But only to the extent that the witness accepts it as true. It is for you to decide what weight if any to give to part of the earlier statement that the witness accepts as true.

If you conclude that a witness has given significantly different versions of the same story while under oath, you should evaluate that witness’s testimony very carefully as this may suggest that the witness does not take the oath seriously.”

11. Explanation of the charges against Stanley (in footer). This is a complicated read.

12. Coming to an agreement on Guilt or Innocence on each charge.

“For you to find Gerald Stanley guilty of second-degree murder the Crown must prove each of these essential elements beyond a reasonable doubt.

For jurors to find Gerald Stanley guilty of second-degree murder or manslaughter, the Crown had to prove each of these essential elements beyond a reasonable doubt.

No. 1 that Gerald Stanley caused the death of Colten Boushie.

No.2 that Gerald Stanley caused the death of Colten Boushie unlawfully.

And No. 3 that Gerald Stanley had the state of mind required for murder.

If the Crown has not satisfied you beyond a reasonable doubt of each of these essential elements you must find Gerald Stanley not guilty of second-degree murder.

If the Crown has satisfied you beyond a reasonable doubt of each of these essential elements you must find Gerald Stanley guilty of second-degree murder.

Each essential element has been made into a question for you to consider carefully and answer.

The first element: Did Gerald Stanley cause the death of Colten Boushie?

To prove that Gerald Stanley caused the death of Colten Boushie the Crown must prove beyond a reasonable doubt that Mr. Stanley’s conduct contributed significantly to Colten Boushie’s death. You must consider all the evidence concerning the cause of Colten Boushie’s death. This would include the expert evidence of Dr. Shaun Ladham that was presented to you by way of an autopsy report that was agreed to by both Crown and defence. Therefore, the autopsy report is an admitted fact that can be used to determine whether the Crown has proved that Mr. Stanley’s conduct contributed significantly to Mr. Boushie’s death.

In the circumstances of this case, it is not disputed that Mr. Stanley caused the death of Mr. Boushie. You have heard evidence about an incident whereby a gun that was held by Mr. Stanley discharged and that the bullet entered Mr. Boushie’s body and that this caused his death.

Both the Crown and defence agree that this element has been established beyond a reasonable doubt.

Accordingly, the Crown has established beyond a reasonable doubt that Gerald Stanley caused the death of Colten Boushie.

You must then go on to consider the next question.

Second element: Did Gerald Stanley cause the death of Colten Boushie unlawfully by committing an assault?

It is not always a crime to cause another person’s death. It is a crime, however, to cause the death of another person by an unlawful act. The Crown alleges that the unlawful act in this case is assault. Specifically, the Crown alleges that Mr. Stanley voluntarily shot Mr. Boushie in the head with a handgun.

For you to find that Mr. Stanley committed the unlawful act of assault the Crown must prove each of the following essential elements beyond a reasonable doubt.

1. A) That Mr. Stanley intentionally applied force to Mr. Boushie;

1. B) That Mr. Boushie did not consent to the force that Mr. Stanley intentionally applied;

and C) that Mr. Stanley knew that Mr. Boushie did not consent to the force that Mr. Stanley intentionally applied.

In the circumstances of this case it is obvious that Mr. Boushie did not and for that matter could not consent to the force applied, namely a gunshot to the head. The only real question relates to whether Mr. Stanley intentionally applied force. In other words, voluntarily shot Mr. Boushie.

To intentionally discharge a firearm means to fire it by intentionally pulling the trigger. Intentionally means on purpose. In other words, not by accident.

To decide whether Mr. Stanley applied force intentionally you will have to consider all the circumstances surrounding the application of force. Take into account the nature of the contact and any words or gestures that may have accompanied it along with anything else that indicates Mr. Stanley’s attitude or state of mind at the time he applied the force to Mr. Boushie.

It is the position of (the defence) that what happened to Mr. Boushie was an accident. When I use the term accident in this context I mean an unintentional act rather than an intentional act with unintended consequences.

In other words the act in question, in this case the shooting of Mr. Boushie with a handgun must be voluntary. Another way of putting it is a conscious choice. For example, a driver who unavoidably strikes a pedestrian who streaks out on the road from between two parked cars cannot be held criminally responsible for voluntary conduct for fault in the commission of an offence.

Similarly, if three men are in a vehicle and the driver suddenly swerves to avoid hitting a deer on the road and as a result a passenger’s outstretched arm hits another passenger in the nose this action would not be voluntary conduct, it would be classified as an accident.

Mr. Stanley does not have to prove that what happened to Mr. Boushie happened by accident. The Crown must satisfy you beyond a reasonable doubt that what happened to Mr. Boushie was not an accident.

13. The Judge begins to review of Witness Statements , In this case,there is evidence to establish that five people in a grey Escape entered the Stanley farmyard. Either Eric Meechance or Cassidy Cross or both tried to steal a quad runner.

Mr. Stanley and his son Sheldon were working in the yard. At first they were not concerned about activity in the yard because it was assumed that is was one of Mr. Stanley’s customers attending to one of their own vehicles waiting to be repaired.

When Mr. Stanley and Sheldon heard or saw the quad runner was being started or that someone was attempting to start it they realized something was amiss and ran over to see what was going on. What they saw was a strange vehicle and a person or persons tampering with the quad runner. They hollered at them. Those that were outside the vehicle got back in and the grey Escape, possibly with Mr. Cross driving, began to make a hasty getaway. Sheldon took a hammer out of his tool belt and struck the windshield of the grey Escape, causing damage.

Mr. Cross testified that the damage to the windshield obstructed his vision and that in combination with a flat tire and his high level of intoxication caused the vehicle to accidentally veer into Mrs. Stanley’s blue Escape automobile that was parked.

Mr. Cross also said that he was blinded by the glass, although the pictures seem to show that the windshield was damaged, but the windshield glass held together.

Sheldon testified that the grey Escape appeared to him to deliberately turn into the blue Escape. In any event, after the grey Escape hit the blue Escape, the grey Escape travelled a short distance and then came to a stop.

At that point Mr. Meechance and Mr. Cross, according to them, quickly exited the vehicle and ran away. They did not see what happened back at the grey Escape. Mr. Meechance said that he heard two gunshots and then a third as he was running away. He claims that he heard bullets whizzing or whiz by him. Mr. Meechance testified that Mr. Cross was ahead of him. Mr. Cross testified that Mr. Meechance took off first and that Mr. Cross was behind him.

During his testimony Mr. Cross said he heard the sound of a ricochet and bullets passing by him. However, shortly after the incident he told police he heard what he believed to be warning shots.

That left three people in the grey Escape: Kiora Wuttunee, Belinda Jackson and Colten Boushie.

According to Sheldon, he ran into the house to get his car keys in order to follow the grey Escape because he believed that other items may have been stolen.

According to Sheldon, as he was going up the stairs, into the house he heard a gunshot behind him. Then while in the house he heard a second shot. As he was coming back outside, he heard a third shot. He then saw Mr. Stanley walking around the back of the grey Escape with a handgun in one hand and a clip in the other.

Sheldon testified his father “looked at me like he was going to be sick and he said, ‘I don’t know what happened. It just went off. I wanted to scare them.’”

Belinda Jackson, who was in the grey Escape, testified that all were drinking alcohol to excess. She said that earlier in the afternoon, Mr. Cross was driving recklessly, which caused the tire to pop off the rim. She does not recall a firearm in the vehicle and does not recall the incident where Mr. Cross tried to break into a red half-ton by striking it with a .22 calibre rifle.

She does remember ending up on the Stanley farm. She was tired due to her consumption of alcohol and may have fallen asleep, according to her testimony. She said that she wouldn’t say she was aware of what went on but that there are some parts that she remembers.

While at the Stanley farm Ms. Jackson claims that she does not remember anyone tampering with the quad runner. She said that it looked like Mr. Boushie was sleeping. According to her, Mr. Cross was driving. Mr. Boushie was in the passenger seat and she and the other two occupants, Ms. Wuttunee, and Mr. Meechance, were in the back seat.

She testified that someone smashed the windshield and that Mr. Meechance and Mr. Cross ran away. She testified that after Mr. Meechance and Mr. Cross ran away she heard someone say go get a gun. She says that a younger-looking man went inside the house and meanwhile the person that said go get the gun, got a handgun.

She claims that he came out of the garage after about a minute with his own handgun, came around to the passenger side and shot Mr. Boushie in the head. She elaborated by saying that this person shot Mr. Boushie twice and then fired two more times for a total of four shots.

She was quite definite that Mr. Boushie was shot twice while in the front passenger seat. She further denies that there was a rifle in the gray Escape. She testified that the passenger window was open and that Mr. Boushie was looking out to the right.

This testimony, although this is entirely up to you to decide, is at odds with the autopsy report that definitively states that Mr. Boushie died from a single gunshot to the head and that the trajectory of the bullet was rightward, downward and slightly forward.

It also conflicts with the blood spatter expert who determined, in her opinion, that the deceased was in the driver’s seat at the time he was shot.

The pictures of the scene also show the deceased on the ground, just out the driver’s door. Also, in cross-examination it became evident that she initially told police that she did not know who shot Mr. Boushie or why he was shot and that Mr. Boushie was in the back seat.

She denied that she lied to police but admits she did not tell them the whole truth.

After the shooting, she admits to assaulting the woman, presumably Ms. Stanley. She says that Gerald Stanley, who she says had a handgun, and Sheldon Stanley, who she said had a shotgun, stood by and watched her assault Mrs. Stanley. She says that she stopped when Kiora told her to do so. 

Like any other witness it is up to you decide how much or how little of Belinda Jackson’s testimony you choose to rely upon.

Kiora Wuttunee did not testify.

14. Gerald Stanley takes the stand.

NOTE: This entire section is highlighted because, among other things supporting Gerald Stanley, the Judge stated in Section 10  and I quote, In other words, you must consider all of the remarks that might help Gerald Stanley even if you’re not sure whether he said them.

The Judge now continues to speak on behalf of Gerald Stanley:

Gerald Stanley testified at the trial. Mr. Stanley testified that he and his son were constructing a fence that afternoon. His wife was cutting the lawn on a riding mower. Mr. Stanley heard a loud, noisy vehicle drive up into his yard and stop by a gold truck. Initially, he thought nothing of it because customers from his car repair business routinely stop by.

Mr. Stanley says a person got out of the grey Escape and appeared to enter the gold truck. Then the grey Escape moved ahead to the garage. He testified that he heard the quad runner start up. As soon as he heard that, he concluded that something untoward was happening.

He ran over to the area of the quad runner and the grey Escape and saw an individual who he did not know but now believes to be Eric Meechance on the quad runner trying to move it. He saw another person who he believed to be a male coming out of the garage.

The two persons that were outside the grey Escape quickly got back into the vehicle, backed up and headed toward the farm exit. In the meantime he saw Sheldon take out his hammer and hit the front windshield as the vehicle came by him.

As the grey Escape was heading away from Mr. Stanley he saw it veer right and strike his wife’s blue Escape. Mr. Stanley testified that the collision appeared to him to be deliberate. At this point, Sheldon headed in the direction of the house and the grey Escape.

Mr. Stanley, concerned about what had happened and what might happen, quickly retrieved the handgun and some ammunition that was situated in his nearby garage.

He testified that he believed that he put two bullets in the magazine. He then walked toward where the grey Escape had stopped. Mr. Stanley testified that he saw two people get out of the vehicle and was concerned about what they might do given what had just happened.

He says that he fired one shot in the air to scare them away. He says that one of the individuals looked at him and did not flee. He then continued to walk toward them and fired another shot in the air. The two persons then ran away.

He says that he pulled the trigger several more times and the gun did not fire again.

There is no dispute that Mr. Stanley was lawfully justified in the circumstances of this case to retrieve his handgun and fire it into the air as warning shots, if you find that this is what he did.

Beyond that, it is for you to determine if his actions continued to be lawful.

Mr. Stanley testified that he took the magazine out of his gun and held it in his left hand. He says that the lawnmower upon which his wife had been riding was a few feet in front of where the grey Escape had come to rest. His wife was not on the riding mower and he became concerned about her whereabouts and wellbeing.

He ran up to the vehicle and was about to look under the car to see if his wife might be under the car. As he was about to do that he heard the car rev up. He noticed the person in the driver’s seat. He was concerned that the vehicle would continue on and cause more problems. He says that he reached into the vehicle with his left hand to attempt to shut off the vehicle. As he did so, he moved what he then thought was a metal bar but which he now believes was the barrel of the damaged .22.

He says that in the process, as he was reaching across the steering wheel to try to shut off the car, the gun went off.

Mr. Stanley testified that his finger was not on the trigger, the clip was out of the gun and he thought it was empty.

In assessing this case, you should also take in consideration the testimony of the two firearms experts. From their testimony it is likely safe to conclude that the weapon that shot the bullet that killed Mr. Boushie was a Tokarev T33 semi-automatic pistol, that was manufactured in 1947. The ammunition used was manufactured in Czechoslovakia in 1953. Both experts confirm that the handgun was a firearm and it was functioning properly and was not prone to misfire even when the magazine was removed.

As you will recall the RCMP meticulously searched the Stanley farm to collect evidence. Of interest were three spent casings. Two of the casings were found between the garage and the blue Escape. A third was found on the passenger side dash of the grey Escape. It is likely safe to conclude, although this is up to you, that the casing on the dash is related to the bullet that struck and killed the deceased.

15. The HANG FIRE defence

There has been a lot of attention paid to the casing that was found on the dash of the grey Escape. It had an unusual bulge. Neither expert could say why this casing had an unusual bulge or what may have caused it. A properly seated cartridge would not be expected to create a bulge because it should be surrounded by the embedded pieces of the gun.

One theory offered as to why the piece had bulged was that the pistol was out of battery, i.e. the chamber was not fully closed.

Neither expert could say what would cause the pistol to fire when so far out of battery such that would produce the type of bulge on the casing found on the dash.

Although both experts did not know what caused the bulge both theorized that one possible explanation would be a hang fire or delayed reaction.

A hang fire is described as a perceptible delay between clip and bang. Both experts testified that hang fires are exceedingly rare. (Firearms expert Greg) Mr. Williams testified that the delay in a hang fire would normally be less than one half of a second.

Hang fires are less common with more modern ammunition and more common although still very rare with older ammunition that may have been stored in less than ideal conditions.

The defence called two witnesses who experienced hang fires of several seconds. One gentleman told us his recollection of what happened when he was shooting gophers 40 years ago on the farm with a .22. Another man using army surplus ammunition said he experienced a delay of approximately seven seconds when target shooting with a Soviet-made semi-automatic rifle.

There was also reference made to the fact that government gun safety regulations recommend that after a misfire one should wait 30 to 60 seconds before extracting the bullet. The publication was filed as a court exhibit.

If you have a reasonable doubt that what happened to Mr. Boushie was an unintended, involuntary action, that is an accident, you must find that Mr. Stanley did not voluntarily commit the unlawful act of assault.

16. State of Mind of the Gerald Stanley (another long and complicated section)

You would then need to consider whether his handling of the gun was careless.

If that is your decision, you must not go onto the third element. Rather, you would move directly to the second, alternate element.

If you are satisfied beyond a reasonable doubt that what happened to Mr. Boushie was not an unintended, involuntary action, that is, not an accident, you must go on to the next question, which is whether Mr. Stanley had the state of mind for murder.

Now because this is an important crossroads for your decision, I’m going to read those two paragraphs again…

So moving to the third element, and that is if you get past the second element, move to the third element. Did Gerald Stanley have the state of mind required for murder?

If you have determined that the Crown has proven beyond a reasonable doubt that Mr. Stanley caused the death of Mr. Boushie, the first element, and committed the unlawful act of assault, the second element, you must go on to determine whether Mr. Stanley had the state of mind required for murder, the third element.

The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder the Crown must prove beyond a reasonable doubt one of two things. Either that Mr. Stanley meant to cause Mr. Boushie’s death, or 2) that Mr. Stanley meant to cause Mr. Boushie bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not.

In other words, to prove that Mr. Stanley committed murder the Crown must satisfy you beyond a reasonable doubt either that Mr. Stanley meant to kill Mr. Boushie or that Mr. Stanley meant to cause Mr. Boushie bodily harm that Mr. Stanley knew was so serious and dangerous that it would likely kill Mr. Boushie and proceeded recklessly despite this knowledge that Mr. Boushie would likely die as a result of the bodily harm.

The Crown does not have to prove both. One is enough

All of you do not have to agree on the same state of mind as long as everyone is sure that one of the required states of mind has been proven beyond a reasonable doubt.

If Mr. Stanley did not mean to do either, Mr. Stanley committed manslaughter.

To determine Mr. Stanley’s state of mind, what he meant to do, you should consider all the evidence. You should consider what he did and did not do. How he did and did not do it and what he said and did not say.

You should look at Mr. Stanley’s words and conduct before, at the time and after the unlawful act that caused Mr. Boushie’s death. All of these things and the circumstances in which they happened might shed light on Mr. Stanley’s state of mind at the time. They may help you decide what he meant or did not mean to do. In considering all the evidence use your good common sense.

To help you determine whether the Crown has proven beyond a reasonable doubt that Mr. Stanley had one of those intents required to make the unlawful killing of Mr. Boushie murder you may conclude as a matter of common sense that a person usually knows what the predictable consequences of his or her conduct are and means to bring them about.

This is a simple, one way for you determine a person’s actual state of mind, what he actually meant to do. You may but are not required to reach that conclusion about Mr. Stanley. Indeed, you must not do so on the evidence as a whole if you have a reasonable doubt about whether Mr. Stanley had one of the intents required to make the unlawful killing murder.

Consider in particular whether this evidence causes you to have a reasonable doubt about whether Mr. Stanley knew that Mr. Boushie would likely die from any bodily harm that he caused. It is for you to decide on all of the evidence.

If you have got to this stage in your deliberations you would have already concluded that Mr. Stanley deliberately fired a gun at Mr. Boushie. Intent can be inferred from actions. Generally speaking, if you point a gun at the head or a significant organ of a person and fire a gun you intend to cause his death.

If you are not satisfied beyond a reasonable doubt that Mr. Stanley had either state of mind required to make his unlawful killing of Mr. Boushie murder, you must find Mr. Stanley not guilty of second-degree murder but guilty of manslaughter.

If you are satisfied beyond a reasonable doubt that Mr. Stanley had the state of mind to make his unlawful killing of Mr. Boushie murder you must find Mr. Stanley guilty of second-degree murder as charged.

So I mention that crossroads at paragraphs 141 and 142, so recapping 141: is that if you have a reasonable doubt that what happened to Mr. Boushie was an unintended, involuntary action, that is an accident, you must find that Mr. Stanley did not voluntarily commit the unlawful act of assault. You would then need to consider whether his handling of the gun was careless. If that is your decision you must not go on to the third element, which is one that I just reviewed. Rather, you would move to the second, alternative element. So that’s where we’re at, is the second, alternative element: Did Gerald Stanley cause the death of Colten Boushie unlawfully by careless use of a firearm?

If you have determined that the Crown has not proven beyond a reasonable doubt that Mr. Stanley did commit the unlawful act of assault, you must go on to decide whether the Crown has proven beyond a reasonable doubt that Mr. Stanley is guilty of manslaughter by committing the unlawful act of careless use of a firearm.

I will now discuss the offence of manslaughter with you so that you may determine whether to return a verdict of not guilty of murder but guilty of manslaughter or not guilty.

The difference between murder and manslaughter is not easy to define. Essentially it is this: an unlawful act is part of the offence of murder just as it is part of the offence of manslaughter. But for murder the Criminal Code requires that the accused must mean to cause death or mean to cause bodily harm that he knows is likely to cause death and to be reckless whether or not death ensues. Those words are not mentioned in the offence of manslaughter. The criminal fault in manslaughter is the commission of an unlawful act which is objectively dangerous in the sense that a reasonable person in the same circumstances as the accused would recognize that the unlawful act would subject another person to the risk of bodily harm which is neither trivial nor transitory.

But in the offence of murder there is in addition to the unlawful act, the ingredient of either the intention to cause death or the intention to cause bodily harm that the accused knows is likely to cause death and is reckless whether death ensues.

These are the statutory differences between the two offences.

The Crown submits that if you are not satisfied beyond a reasonable doubt that Mr. Stanley committed the unlawful act of assault, that he did commit the unlawful act of careless use of a firearm. I tell you as a matter of law that careless use of a firearm is an unlawful act because it is contrary to Section 86 of the Criminal Code. For you to find that Mr. Stanley committed the unlawful act of careless use of a firearm, the Crown must prove each of the following elements beyond a reasonable doubt.

That Gerald Stanley used a firearm and B) that Gerald Stanley used a firearm in a careless manner and C) that Gerald Stanley had no lawful excuse for his use of a firearm.

In the circumstances of this case, it is obvious and not disputed that the handgun used by Mr. Stanley was a firearm. The real question for you to decide is whether Mr. Stanley used a firearm in a careless manner.

The use of firearms is an activity that involves the control over a thing that has the potential to cause serious harm to life and limb. The criminal law pays special attention to persons who have control over things like firearms. We expect those who voluntarily assume control over guns to act in a way that indicates respect for the inherent potential for harm by those firearms.

To answer this question you are not required to decide what was in Mr. Stanley’s mind at the time he used the firearm. Carelessness is the absence of the required state of mind. To determine this question you must look at what Mr. Stanley did and did not do, how Mr. Stanley did and did not do it and what Mr. Stanley said and did not say.

You should consider all the circumstances including any personal characteristics of Mr. Stanley that deprived him of the capacity necessary to have the mental state of care required in the circumstances.

Careless use of a firearm involves conduct that shows a marked departure from the standard of care that a reasonably prudent person would exercise in the same circumstances.

If you have a reasonable doubt that Mr. Stanley’s use of the firearm showed a marked departure from the standard of care that a reasonably prudent person would exercise in the same circumstances or that Mr. Stanley took reasonable precautions to live up to that standard of care this element has not been proven.

I am not going to go through all the evidence again respecting the events leading up to the discharge of the firearm. I am going to direct your mind to the critical few seconds before the discharge occurred.

I have already told you that it is not disputed that Mr. Stanley was legally justified in defence of his property to retrieve his handgun and fire it into the air, if you find that that is what he did, in light of what had gone on in his farmyard. However, you must now closely analyze whether his actions between that point and the shooting of Mr. Boushie amount to careless use of that firearm and whether he had a lawful excuse.

The elements of careless use and lawful excuse are somewhat intertwined. Mr. Stanley says that he thought that there were only two bullets in the magazine. He says that he thought that he had fired all rounds because he had pulled the trigger multiple times. He said that he thought the gun could not fire with the magazine out. He says that he did not pull the trigger around the time that he approached the grey Escape.

On the other hand, the gun did discharge and the bullet from the discharge hit Mr. Boushie. Should Mr. Stanley have taken more care to ensure the gun was not pointed at or in the direction of Mr. Boushie? Guns are dangerous. You can see the care with which everyone treated the handgun in court even though it was always thought to be empty.

You must decide the issue of carelessness and lawful excuse. If you are not satisfied beyond a reasonable doubt that Mr. Stanley used the firearm without lawful excuse in a careless manner you must find him not guilty of manslaughter. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that Mr. Stanley used the firearm without lawful excuse, in a careless manner, you must find that Mr. Stanley is guilty of the lesser included offence of manslaughter. Your deliberations would be over.

You have heard the able submissions of Mr. Burge and Mr. Spencer as to why the accused ought to be convicted or acquitted of second degree murder or convicted or acquitted of the lesser offence of manslaughter. I will now attempt to summarize their points of view as I understand them.

If my summary of their points of view conflicts with what either counsel told you then you should rely on what they said and not on my interpretation of their words. The reason for this is that I may not have completely understood the nature of their submissions.

You should not ignore their comments in preference to mine with regard to why they say the accused should be found guilty or not guilty.

When deciding whether the accused is guilty or not guilty you should not weigh the theory or position of the Crown against the theory or position of the accused since it is always the duty of the Crown to prove the guilt of the accused beyond a reasonable doubt before he can be convicted.

17. Summary of the Crowns Case

Here is my assessment of the theory or position of the Crown in this case. In a highly charged situation Gerald Stanley fired two shots and approached the driver’s side of the grey Ford Escape. He was within arm’s reach of Colten Boushie and intentionally pulled the trigger of a handgun that was pointed at Colten Boushie’s head. This is the Crown’s theory for second degree murder.

Alternatively, the Crown’s theory is that Gerald Stanley committed the offence of manslaughter based on his careless use of the Tokarev handgun.

The carelessness included the following: that Gerald Stanley was not careful enough to count how many cartridges he loaded into the magazine of the Tokarev handgun;

Gerald Stanley did not know how many times he pulled the trigger of the Tokarev handgun before he approached the grey Ford Escape.

Gerald Stanley was not aware of the safety mechanisms on his own handgun despite owning it for four years. This included his mistaken belief that there was a magazine disconnect that would have prevented the trigger from functioning when the magazine was removed.

Gerald Stanley put himself within arm’s length of people while armed with a handgun that he had made not safe.

Gerald Stanley was careless when he engaged in the physical confrontation with Colten Boushie while holding a loaded handgun close to Mr. Boushie’s head while other individuals were in the back seat.

Gerald Stanley was not aware of what his right hand was doing when he reached into the cabin of the grey Ford Escape.

Gerald Stanley was careless when he pointed a loaded handgun at Colten Boushie’s head.

Gerald Stanley’s careless acts led to the foreseeable injury that caused the death of Colten Boushie.

18. Summary of the Defence Case

Here is my assessment of the theory or position of the defence in this case:

The defence position is that without intent there can be no finding of murder. Put simply, the Crown must prove beyond a reasonable doubt that Mr. Stanley intentionally approached the grey Ford Escape, aimed his gun and deliberately chose to pull the trigger thereby making a considered and conscious decision to end a life.

The defence says that the firearm discharged accidentally, that there is no credible evidence of an intentional shooting and that the Crown has fallen far short of proof beyond a reasonable doubt.

On the issue of the lesser included offence alleged by the Crown, careless use of a firearm, the defence says that the jury must determine whether Mr. Stanley acted in a way that was a marked departure from how a reasonable person in the same situation in the heat of the moment would have reacted.

The defence says that if the Crown has not proven beyond a reasonable doubt that Mr. Stanley’s actions were a marked departure from the standard of care a prudent person would exercise when scared and facing a dangerous situation then you must acquit.

The defence says that at the time of the accident Mr. Stanley feared his wife was trapped under the vehicle and before he could determine whether she was the engine revved up considerably, leaving him no time to consider anything other than the need to turn off the vehicle.

The defence submits it is completely unreasonable to expect Mr. Stanley to stop and clear the gun that he believed on reasonable grounds was empty and disarmed.

The defence says that in the circumstances Mr. Stanley acted reasonably. The defence says that Mr. Stanley was not aware of the hang fire and that even if he had been, he did not have the luxury of carefully counting out the recommended 60 seconds in clearing the gun before he knew that his wife was safe.

The defence submits that Mr. Stanley faced a crisis situation, never intending to hurt anyone and that the only reasonable verdict is acquittal.

You are not bound by the theory of the Crown when you consider the evidence and the law. Nor are you bound by the theory of the defence.

The Crown is not bound to prove the theory that it advances in order to secure a conviction. Rather, it must prove the necessary elements of the offence beyond a reasonable doubt.

When you go to your jury room, your duty is to consult with one another and to deliberate with the view to reaching a just verdict. Your verdict must be based on facts as you find them and all the evidence introduced at trial and on the law that I have told you applies in this case.

You will have several things provided for you during your deliberations. Anything that has been made an exhibit during the trial will be sent to the jury room for you to examine to the extent and in the manner you may wish to do so.

When you begin your deliberations you should not start out by emphatically expressing your opinion or declaring your intention to stand for a particular verdict no matter what others may think or say. To proceed like that makes it hard for you to take into account the views and wisdom of your fellow jurors. Keep an open mind but not an empty head. Don’t just talk, listen too. Put forward your own views, listen in a calm and impartial manner to what your fellow jurors have to say.

Jurors are not advocates who have a belief like the lawyers here to argue the case for the Crown or for the defence, as the case may be. Jurors are judges. If you approach your deliberations calmly, putting forth your own views and listening carefully to what others have to say, you will be able to reach a just and proper verdict.”

… “The evidence and the issues raised in this case lead to three verdicts for you to consider: not guilty, not guilty of second-degree murder, but guilty of manslaughter, or guilty of second-degree murder.”

End of Submission

Chief Justice Martel D. Popescul

SECTIONS REMOVED FROM THE MAIN BODY

6. (Footer). Narrative on how to assessing the value of witness testimony

When you go to the jury room to consider the case use your collective common sense to decide whether the witnesses know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’s testimony or how much to rely on in deciding this case.

But here are a few questions you might keep in mind during your discussions:

Did the witness seem honest? Is there any reason why the witness would not be telling the truth? Does the witness have any reason to give evidence that is more favourable to one side than to the other? Was the witness in a position to make accurate and complete observations about the event? Did he or she have a good opportunity to do so? What were the circumstances in which the observation was made? What was the condition of the witness? Was the event itself unusual or routine? Did the witness seem to have a good memory? Does the witness have any reason to remember the things about which he or she testified? Did any difficulty in which the witness had in remembering events seem genuine or did it seem made up as an excuse to avoid answering questions?

Did the witness seem to be reporting to you what he or she saw and heard or simply putting together an account based on other sources? Did the witness’s testimony seem reasonable and consistent? Is it similar to or different from what other witnesses said about the same events? Did the witness say or do something different on an earlier occasion? Is the inconsistency about something important or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different or because he or she failed to mention something. Is there any explanation for it? Does the explanation make sense? What was the witness’s manner when he or she testified?

However, do not jump to conclusions based entirely on how a witness testified. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different abilities, values and life experiences. There are simply too many variables to make the manner in which a witness testifies the only or most important factor in your decision.

These are only some of the factors that you might keep in mind when you go to your jury room to make your decision. These factors might help you decide how much or little of a witness’s evidence you will believe or rely on. You may consider other factors as well.

The defence claims that the grey Escape should have been maintained by the RCMP until the defence was offered the opportunity to examine it. This did not happen and the vehicle was released before the defence had that opportunity.

In making your decision, do not consider only the testimony of the witnesses, take into account as well the exhibits that have been filed and decide how much or how little you will rely on them to help you decide this case.

I’ve already told you about how to use admissions in making your decision. I’m going to speak to you for just a moment about reasonable doubt and credibility.

Reasonable doubt applies to the issue of credibility. On any given point you may believe a witness, disbelieve a witness or not be able to decide. You need not fully believe or disbelieve one witness or a group of witnesses.

8. About Admissions made by agreement between the Crown and Defence

The Crown and defence have agreed about certain facts. These are called admissions. You may accept those admitted facts without further proof. An agreed statement of facts was filed as Exhibits P11 and D21.

The Crown also filed by agreement of the defence the forensic identification report of Pam Lilly dated Nov. 24, 2016, Exhibit P12. The forensic identification report of Pam Lilly dated March 13, 2017, comparing swabs of stains from the driver’s door and driver’s seat, Exhibit P13. The report from the forensic lab of the RCMP of Dr. Claude Dalpe from trace evidence section dated Feb. 13, 2017, Exhibit P14. The forensic lab report from RCMP forensic lab of Gillian Sayer, toxicology section, dated Dec. 6, 2016, Exhibit P15. And the autopsy report performed on Colten Boushie on Aug. 11, 2016; the report dated Jan. 16, 2017. The contents of which are admitted as proof of its contents. You must accept the admitted facts without further proof.

The indictment that you heard read out when we started this case is not evidence. What the lawyers and I say when we speak to you during the trial is not evidence. When you go to the jury room to decide this case the exhibits will go with you, consider them along with the evidence.

As I explained to you at the beginning of the trial, you may rely on direct evidence and on circumstantial evidence when reaching your verdict. Let me remind you what these terms mean. Usually witnesses tell us what they personally saw or heard. For example, a witness might say that he or she saw it snowing outside. That is called direct evidence.

Sometimes, however, witnesses say things from which you are asked to draw certain inferences. For example, a witness might say that he or she had seen someone enter the courthouse lobby wearing a parka and a fur hat, both covered with fresh snow. If you believe that witness you might infer that it was snowing outside even though the evidence was indirect. Indirect evidence is sometimes called circumstantial evidence.

In reaching your verdict, you can take both kinds of evidence into account. The law treats both kinds of evidence equally. Neither is better or worse than the other. Your job is to decide what conclusions you will reach based on the evidence as a whole, both direct and circumstantial evidence.

However, before basing a verdict of guilty on circumstantial evidence, you must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference that can be drawn from the whole of the evidence.

9. Exhibits and Expert Witnesses

Exhibits also may provide direct or circumstantial evidence.

You heard or were provided with the evidence of several expert witnesses, namely Dr. Shaun Ladham, the pathologist, Pam Lilly, the DNA expert, Sgt. Jennifer Barnes, the blood spatter expert, Greg Williams, the firearms expert called by the Crown, and John Sandy Ervin, the firearms expert called by the defence.

They gave opinions about some matters that you may have to consider in deciding this case. They were qualified by their training, education and experience to give an expert opinion.

As with other witnesses you may give the experts’ testimony as much or as little weight as you think it deserves. Just because an expert has given an opinion does not require you to accept it. You should consider the experts’ education, training and experience, the reasons given for their opinions, the suitability of the methods used and the breadth of the evidence in the case when you decide how much or how little to rely on their opinions.

The experts were asked to assume certain facts. What an expert assumes or relies on as a fact for the purpose of offering his or her opinion may be the same or different from what you find as facts from the evidence introduced in this case. How much or little you rely on the experts’ opinion is up to you. But the closer the facts assumed or relied on by the expert are to the facts as you find them to be, the more helpful the expert’s opinion may be to you.

To the extent that the expert relies on facts that you do not find supported by the evidence, you may find the expert’s opinion less helpful.

11. Explanation of the charges against Stanley

I will now discuss with you the offence of second-degree murder. The case against Gerald Stanley, charging him with second-degree murder comes from the indictment and the provisions of the Criminal Code that define murder.

I intend to proceed as follows: first I will discuss the indictment with you; second, I will read to you the Criminal Code sections dealing with murder; third, I will list the elements or the essential ingredients the Crown must prove before you’re entitled to find Mr. Stanley guilty of murder; finally, I will explain those elements to you and review the evidence that relates to those elements.

The indictment is the foundation of the case of the Crown. It reads as follows: Gerald Stanley of Biggar District in the province of Saskatchewan stands charged that he, the said Gerald Stanley, on or about the 9th day of August, 2016, at or near Biggar in the province of Saskatchewan, unlawfully caused the death of Colten Boushie and thereby committed second-degree murder contrary to section 235, subsection 1 of the Criminal Code.

You will have the indictment with you when you go into the jury room to reach a verdict.

The applicable provisions of the Criminal Code read as follows:

Section 222, subsection 1, a person commits homicide when directly or indirectly by any means he causes the death of a human being. Subsection 2, homicide is culpable or non-culpable. Subsection 3, homicide that is not culpable is not an offence. Subsection 4, culpable homicide is murder, or manslaughter or infanticide. Subsection 5, a person commits culpable homicide when he causes the death of a human being by means of an unlawful act.

Section 229, culpable homicide is murder where the person who causes the death of a human being means to cause his death, or means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not.

Section 231, subsection 1, murder is first-degree murder or second-degree murder.

Section 231, subsection 7, all murder that is not first-degree murder is second-degree murder and subsection 234, culpable homicide that is not murder is manslaughter.

I have not included every part of the provisions because some of them do not apply and may tend to confuse you.

The purpose of me providing this to you is to assist you in better understanding the law that I’m about to discuss with you.

At this point, the law requires that I give you a special warning as to what you should make of these provisions. You should not apply your own interpretation with respect to these provisions because as I have previously stated I am the sole interpreter of the law. You must take the law from me as I relate it to you in these instructions.

I realize that Section 222 of the Criminal Code is a little complicated so I will explain it to you before I discuss the ingredients the Crown must prove. Subsection 1 of Section 222 simply tells us what homicide is. Homicide is causing the death of another human being. Subsection 2 tells us that there are two types of homicide: culpable and not culpable. Culpable simply means blameworthy. I’m sure you can all imagine situations where a person causes the death of another human being but it is not blameworthy.

One situation would be where a person was driving a car down the street in a normal fashion and hit and killed someone who ran out from between two parked trucks. In this case, the person driving the car has committed homicide because he or she has caused the death of another human being but the homicide is not culpable because there is nothing the driver could have done to avoid running over the pedestrian. In other words, the death is a result of an accident. It is a homicide, but it is not a culpable homicide.

To become a culpable homicide subsection 5 requires death to be caused by an unlawful act. Subsection 4 tells us that there are three types of culpable homicide: murder, manslaughter and infanticide. In this case. Mr. Stanley is charged with second-degree murder. Section 231, subsection 7 states that all murder that is not first-degree murder is second-degree murder.

First-degree murder involves such things as a planned and deliberate killing or the killing of a police officer. The Crown is not alleging any of those things in this case. Thus we need only consider the law of second-degree murder.

I will explain the meaning of all of these provisions in greater detail when I discuss with you the ingredients or elements of the offence that must be proven by the Crown.

END

BACKGROUND ON THE JUDGE.  It’s hard to find factual information.  This article contains some information and links to several other articles.
Disturbing background

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