Monday, 19 February 2018

GERALD STANLEY’S SO-CALLED MAGIC BULLET

Back in that late 1960s and earlier 1970s, I studied criminal law for two years and forensic sciences for one year in the University of Toronto.  I represented clients in criminal courts beginning in 1964 and I solved several crimes as an investigator using what I learned when I was studying forensic sciences. This doesn’t make me an expert in these two professions but it makes it easier for me to write articles like this one I have just written for you.  

When the late President Kennedy was assassinated in Dallas in 1963, one of the bullets fired at him from behind his car; appeared to be a magic bullet for it was alleged to have shifted from one direction to another direction in mid-air or at least that was the theory that was believed by many people at that time in history.

Now we have another mysterious magic bullet to ponder about only it wasn’t about the bullet shifting its direction in mid-air. It was about the bullet that was shot out of the barrel of the gun seconds after the trigger was allegedly pulled. Can that really happen? Apparently it can but it is a very rare occurrence.

I remember when I was in the navy in my late teens during the mid-1950s and being trained on how to load a 4-inch gun.  We were told that on rare occasions, when the trigger is pulled and the trigger pin hits the back-end of the shell, it doesn’t always fire. The custom in the navy then was whoever pushed the shell into the gun’s breach, had to pull out the unfired shell and carry it to the side of the ship and dump it overboard. We all had visions of it exploding while it was in our arms as we would be carrying it to the side of the ship.

When I was 13 and was working on a farm, it was my turn to light the fuse of a stick of dynamite and then walk away to the shelter of a large rock. We waited and waited and nothing happen. The custom in those days was that whoever lit the fuse had to go to the fuse and pull it out of the stick of dynamite. Because I was only a kid, one of the men pulled the fuse out of the stick of dynamite. Apparently, the fuse was defective and stopped burning. It could have gone off just as the man was about to pull the fuse from the dynamite.

It is obvious that in both of the two scenarios I have just described to you—there was a delay that was inadvertently caused by the flammable sparks that didn’t reach their destinations on the specified times. This is referred to as a hang fire. I presume that the term refers to the ignition of fuses and shells and bullets before they eventually set off the explosions that invariably follows.  I will deal with the issue of hang fires later in this article.

Now I will give you my own theory as to what I really believed happened that fateful day when 56-year-old Gerald Stanley shot 22-year-old Coultin Bouchie to death.

After a verbal confrontation with an SUV filled with Native Indian trespassers on his Saskatchewan farm who intended to steal one of his vehicles, Stanley testified that he then retrieved his Russian-made Tokarev semi-automatic handgun from a shed, loaded it with three cartridges and then stepped outside to fire the bullets into the air to scare the criminals away.  He said he pulled the trigger three or four times. 

If he loaded the gun with only three cartridges, why did he then pull the trigger four times when he fired the gun into the air? If so, then that would mean that there were no bullets left in the cartridge when he approached the car that Bouchie was in. This doesn’t make any sense at all since Bouchie was then shot when Stanley was standing right next to the car. Where did that bullet come from if it wasn`t in the barrel of the gun or in the cartridge that holds unfired bullets?

His lawyer’s argument was that while two bullets were shot into the air above him, the third bullet did not immediately fire. Instead, after Stanley had approached the stationary SUV containing Boushie, the round suddenly discharged, striking Boushie in the head which was the shot that killed him instantly.  “Boom, the thing just went off,” Stanley told the court.

Now you need to think about this. If there was a bullet already in the barrel of the gun when Stanley went into the shed to retrieve his gun and he then placed three bullets in the cartridge that would mean that four bullets were actually fired from that gun.

When he fired three shots into the air, the bullet in the barrel would have been shot out of the barrel first. That would leave the three remaining bullets left still in the gun’s cartridge unfired at that precise moment. When the bullet that was already in the barrel was fired, the next bullet that was in the cartridge holder then automatically slipped into the barrel. That is why the gun is a semi-automatic weapon.   

Stanley pulled the trigger a second time and that second bullet left the barrel and the third bullet then slipped into the barrel ready to be fired as soon as he pulled the trigger again.  When the third bullet left the barrel, it left one remaining bullet in the barrel that was still unfired. That was the bullet that was soon after shot into Bouchie’s head either deliberately or accidentally. It was his lawyer’s position that the gun was fired accidentally and the jury and I also both accept that theory.

The issue of course was; why was that particular bullet fired in the first place. There are only two possible reasons.

The first one is that while he tried to pull the ignition key out of the SUV while the criminals were attempting to escape, he had his gun in one hand when he deliberately tried to shoot the driver and the bullet instead struck Biuchie. Of course, we have no way of determining that he deliberately pulled the trigger to kill or wound the driver.

I believe that what really happened was that when Stanley reached into the car to grab the key from the ignition with one hand, his gun was in his other hand while he was attempting to push the driver out of the way and the gun accidentally fired and killed Bouchie.

If I am right, then the charge against him should have been manslaughter because if he did what I suspect he did, his actions would have been extremely careless which under those circumstances would have amounted to an act of manslaughter. If he was charged with manslaughter, he would have been convicted. As it turned out, the prosecutor foolishly charged Stanley with second degree murder in which he obviously wasn’t guilty of such a charge and the jury arrived at the same conclusion as I have.

I can appreciate why so many people are upset with the jury because of the jury’s verdict but their verdict was the correct one considering the fact that Stanley was charged with the wrong crime.

They should be angry at Stanley for having the gun in his same hand when he was trying to push the driver away from the ignition key while his other hand was reaching for the ignition key. They should also be angry at the prosecutor for not charging Stanley with the proper charge of manslaughter, Of course, they are also angry at the prosecutor and the defence lawyer because the Indians from the Reservation were excluded from sitting on the jury for no justifiable reason. I dealt with that matter in the previous article that I wrote about this shooting of Boushie.

And now, I will deal with the issue of the defence of hang fire.

A hang fire event is when the trigger is pulled and the bullet isn’t immediately fired out of the gun’s barrel. Is that what really happened when the bullet in Stanley’s semi-automatic handgun fired and the bullet struck Coltin Bouchie’s head and instantly killed him? 

For Gerald Stanley’s strange version of events to make sense, two improbable things had to occur simultaneously.

First, no firearms expert has been able to fully explain or even repeat this hang fire “freak accident” that Gerald Stanley claims caused his gun to fire a bullet unexpectedly into the head of Colten Boushie.

The result is what David Tanovich, the co-editor of Canadian Bar Review, said was a case of a “magical gun.”  It was not the gun that was magical since it did its’ job. It was the bullet that appeared to be magical since it supposedly didn’t fire immediately after the trigger was pulled by Stanley when he supposedly fired his bullets into the air.

Hang fire is the reason why the mandatory Canadian Firearms Safety Course instructs shooters to always wait 60 seconds after encountering a misfired round. Even among habitual shooters, although, hang fires are a phenomenon that will typically only occur once or twice in a lifetime of constant firing of guns, if at all. Additionally, the typical hang fire episode only lasts a split second. There is simply no way in which gunpowder will slowly burn in such a confined apace of a shell.

Eric Hung, founder of the U.S. firearms blog Pew Pew Tactical, told the National Post newspaper that he was recently attending an advanced National Rifle Association course when the instructor asked attendees whether they had ever experienced a hang fire. He said, “Only two out of the dozen or so present raised their hands. And these are people that shoot a lot,”


Wayne Bush, a veteran U.S. firearms instructor in southern Pennsylvania, similarly told the National  Post that throughout a long police and military career that has included shooting tens of thousands of rounds (and being present around the firing of tens of thousands more), he has never experienced a hang fire.


On CanLii.org, a searchable database of thousands of Canadian legal decisions, there is only one mention of the term hang fire. Contained in a 1989 negligence case against the Remington Arms Company, it involved a .22 cartridge that exploded roughly ten seconds after being fired.

When Stanley’s lawyer was calling up witnesses to prove the existence of long-delayed hang fires, the defence team relied heavily on the testimony of a citizen who approached them with a hunting story.

The citizen, Wayne Popowich called up Stanley’s legal team after reading about the trial in the media, and was soon placed on the stand to describe an event from 40 years ago in which he fired an unmaintained rifle and had it behave exactly the same as the Tokarev in Stanley’s testimony.

However, a clear point in Stanley’s favour is that he was using ammunition that was particularly prone to hang fires. The Tokarev was loaded with 64-year-old cartridges originally manufactured in communist Czechoslovakia and had been later stored in an uninsulated shed subject to the extremes of the Saskatchewan climate.

Tom Givens, co-founder of Tennessee’s Rangemaster Firearms Training Services, told the National Post. “Hangfires are most common among old military surplus ammunition such as that used in this case,”

Nevertheless, even with a hang fire, one more unlikely event needed to occur to ensure Stanley’s version of events.

Before approaching the vehicle containing Boushie, Stanley testified that the slide on the Tokarev was pushed back, indicating that the gun was out of ammunition.

Under normal conditions, the slide of a Tokarev will definitely  snap back into a locked position once the gun is out of ammunition. The video by YouTuber Hickok45 illustrated that after a shooter has fired all nine rounds of a magazine, the Tokarev snaps open as a signal to the shooter to reload the gun’s magazine.

However, the slide cannot snap open if the last round fired was malfunctioning, as Stanley’s testimony claims it was.

The slide needs the recoil of a fired round to snap into a locked position. Thus, even if he was out of ammunition, the only way the slide of the Tokarev could have been in a locked position would be if Stanley had done it manually.

Here’s the important thing to remember.  Doing that should have safely cleared the gun’s barrel of the misfired round. In other words, it would have popped out of the chamber at the back of the barrel.

A properly functioning Tokarev would have ejected the malfunctioning round when Stanley pulled back the slide. Then, when the round suddenly discharged, it would have done so relatively harmlessly on its way to the ground or on the ground, instead of into Boushie’s head. 

This then means that if Stanley’s account of the shooting event is credible, his gun loaded with malfunctioning ammunition also had to be malfunctioning itself. The Tokarev would have needed to have a faulty extractor that failed to expel the cartridge, allowing the round to sit unnoticed in the gun’s chamber.

Notably, this would have needed to happen just once, as tests conducted after the shooting found the hand gun Stanley used  had to be in perfect working order when he fired it. So the problem wasn’t with the gun. That leaves us with the problem being that specific bullet. However, since the last bullet was extracted when it was fired, it couldn’t have been the one that killed Bouchie.

John Ervin, an RCMP, (Federal Police in Canada) Chief Firearms Officer called by the defence testified, “I simply don’t know what caused that firearm to discharge.”

Greg Williams, an RCMP firearm specialist called by the Crown, was similarly baffled, offering at one point that the strange series of events described were caused by an “obstruction” in the barrel, even though no obstruction was later found. 

While there is no physical evidence for Stanley’s ammunition experiencing a hangfire, the casing from the bullet that killed Boushie was found to have an unusual bulge when it was located by RCMP investigators.

During the trial, Ervin offered the explanation that the round could have discharged “out-of-battery,” a firearms term for when a cartridge detonates in the wrong place within a gun.

When a cartridge goes off “out-of-battery,” it’s simply exploding, rather than undergoing a controlled discharge within a chamber.

An “out-of-battery” firing would be consistent with Stanley’s testimony, but even then, it’s still not a given that the cartridge would have been able to propel a bullet down the gun barrel with enough velocity to kill Boushie.

If a cartridge is floating freely in a gun’s chamber and isn’t braced against anything, it could just as easily expel its explosive force out the rear of the gun, leaving a bullet harmless rattling around inside the gun.

Ron Flowers, with the Pennsylvania-based Citizens Defense Training, told the National Post that when bullets discharge in irregular circumstances, they often become far less lethal. He added, “I’ve ejected live rounds out of a gun and let them fall to the ground and they’ve hit a rock and gone ‘bang’. It scared the snot out of me, but it didn’t do anything else.”

Quite frankly, I find it hard to believe that dropping a shell filled with gunpowder would automatically explode if it hit a hard object. For the gunpowder to explode, it needs heat.

David Dyson, a firearms consultant based in the U.K., raised similar questions. “If a round was somehow in the chamber when the slide was ‘back’, then there would be no support. If that is correct, then it would be (fired) with much reduced energy. ” That is why gun barrels have been rifled for decades.

In a widely shared summary of the trial, Saskatchewan lawyer Rob Feist pointed out the “hard to believe” logic of Gerald Stanley fetching a gun to protect itself, only to immediately fire all of its ammunition into the air rendering the “firearm empty and useless for self-defence.”

He also called it an “extreme stretch” that the hang fired round exploded at the “precise second his Tokarev was aimed at close range at Colten Boushie’s skull.”

Alan Voth is a retired RCMP gunshot-residue expert who lives in the Edmonton area and works as an expert witness. He said the events Stanley described “could happen,” but he offered an alternative theory.

When Stanley fired his gun into the air, it could have ignited the round’s primer without immediately igniting the gunpowder. The force of the primer would have been just enough to kick the bullet out of its casing and lodge it in the gun’s barrel. Then, when the round detonated due to a hangfire, the explosion would have blown the lodged bullet outwards.

Voth’s theory notably only requires the malfunction of the ammunition, rather than the simultaneous malfunction of the firearm as well. It also carries the added feature that the primer explosion could have jostled the slide, making it appear to Stanley that his gun was empty.

No matter how the gun was fired, it was in Stanley’s hand when he was trying to push the driver of the SUV away from the ignition key when the gun fired and that was definitely a careless move on his part which would have justified the arresting police officer and the prosecutor to charge him with manslaughter.

Instead, those two fools chose to charge Stanley with second degree murder. That charge is only applied when the person charged was committing a criminal act when the shot was fired at the victim.

Stanley was not committing a criminal act just before he accidentally shot Bouchie. He was trying to prevent criminals who had attempted to steal one of his vehicles from leaving the scene of their crime so that he could make a citizen’s arrest and hold them until the police arrived.

Alas, the shooting of the gun that killed Bouchie was the direct result of a stupid move on Stanley’s part which would have justified a charge of manslaughter being laid against him. If that was the charge he was facing, there is no doubt in my mind that his jury would have found him guilty of that charge.

  I would be amiss in this article if I didn’t mention that the outrage felt by native Indians had less to do with the merits of the verdict than a jury without an Indigenous member sitting on the jury. I dealt with this issue in the first article I wrote about this case.


Incidentally, Stanley has been charged with failing to properly store his guns. He stored them in his shed without them being locked in a steel cabinet. Further, ammunition must be stored separately from the guns. The charges are tied to seven of the ten firearms found by the RCMP during a search of the Stanley farmhouse and shed two days after Boushie was shot. The RCMP found both the Tokarev and a Ruger Blackhawk revolver inside a black case in a farmhouse closet. As per the law, his guns would have been seized by the police. The penalty is a non-jail sentence which is anything from a discharge to a suspended sentence or a fine. The court can also order that the guns and ammunition be destroyed. Improperly stored guns have been stolen by criminals and used in murders and robberies. 

Friday, 16 February 2018

THE JUDGE’S INSTRUCTIONS TO THE STANLEY /BOUCHIE JURY

Anyone who is familiar with the trial of the shooting of 22-year-old Colten Boushie, an Indian Cree man by 56 year-old farmer Gerald Stanley and is upset at the verdict of not guilty of second-degree murder, should read what the trial judge said to the jury just before the jury went to the jury room to decide on their verdict. The purpose of a judge’s instructions to a jury is to give them a summary of what was said by the witnesses, the prosecutor and the defence lawyer and explain what the law is. The law is quite clear. The jury had to obey the judge’s instructions to the letter. You may not have liked the jury’s decision but they followed the judge’s instructions.  And now, his instructions    

                                                       
“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, the prosecutor and defence lawyer were each given a copy.) 
“These instructions will cover a number of topics. Consider them as a whole, do not single out some as being 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. 

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. 

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.

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 (prosecution) 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.

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 was 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 (vehicle) 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 (lawyer) 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.

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.

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 jury was given a copy)

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.

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.

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.

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.

 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.  

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


That was the end of his instructions.  I am convinced that the judge quoted paragraphs from previous Supreme Court rulings. Having practiced law for a great many years, I am convinced that this was an extremely proper set of instructions given to the jury by the judge.  The jury followed his instructions and found Stanley not guilty of second degree murder. In my respectful opinion, it was the right verdict.


Prosecutors and defence lawyers sometimes file appeals because they have found fault with a judge’s instructions to the juries. I cannot think of any reason why the prosecutor in this particular case would be able to justify any appeal because of what the judge said to the jury in his instructions if that later becomes the prosecutor’s  intention to do so.