Gerald Stanley, a Caucasian man, was acquitted on February 9th, 2018, in a case where it was open to the jury to convict for second degree murder and manslaughter in the death of an Indigenous man, Colton Boushie, in Saskatchewan. This verdict has caused a maelstrom across Canada, in the media and has even provoked reaction (in my view, inappropriately) from government leaders, such as the Minister of Justice and the Prime Minister.
Here are the facts, which I have compiled from different reports:1
On August 9, 2016, Boushie and four friends drove an SUV to a swimming hole. They spent the day drinking and swimming. On the drive home, the driver of the group’s vehicle punctured a tire and drove on to a farm, and attempted to steal a truck. When that failed, the group drove their SUV onto the Stanley’s farm, where one of the men attempted to steal an ATV.
Sheldon, Gerald’s son, told the jury that when he saw this he and his father ran to the SUV and Sheldon said he hit the SUV’s windshield with a hammer. The SUV was driven into a parked vehicle and Sheldon said that two people got out of the SUV and ran away and he went into the house to get the truck keys. He testified that he heard three gunshots and then saw his father holding a handgun in one hand and a magazine in his other. Sheldon testified that his father said the gun “just went off” and that he had simply been trying to scare away the trespassers.
Meanwhile, Gerald described a chaotic scene involving a collision and an attempted theft of the ATV.
He loaded two bullets into a handgun and fired two warning shots into the air, the last time pulling the trigger two or three times to make sure the gun was empty. Gerald then noticed his wife was no longer on the lawnmower, and he ran to the vehicle to see if she was underneath it. Then he noted the driver for first time and reached into the SUV to get the keys and his gun, according to him, accidentally shot a bullet into Boushies’ head.
Regarding the bullet, the Crown, in his opening remarks, commented that the jury would hear from a firearms expert who would describe a “strange bulge” in a shell casing in a bullet found in the SUV. The firearm inspector testified that “something unusual happened” when Stanley’s gun fired, although there was nothing wrong with the gun itself. He said one explanation was that if the ammunition was defective it could have caused a hang fire, when there is a perceptible delay between the trigger pull of the gun and the release of the bullet.
The firearms expert said it was exceedingly rare and usually lasted only a second. The evidence was that the ammunition was stored in a shed and it was 1953 military stock from Czechoslovakia. The firearm inspector said that the age and the location of the ammunition could have degraded it.
Obviously, the burden and onus lie with the Crown to prove the allegations beyond a reasonable doubt. The Defence, of course, has no such onus or burden to prove anything: Mr. Stanley was presumed innocent until the Crown proved otherwise. Also, the jury would have been told that if it had a hunch or believed that Stanley might possibly or probably killed Boushie criminally, that it was not enough to prove Stanley guilty.
It is very important to remember that most of the people commenting on this case did not have the benefit of seeing what the jury saw: the jury was able to observe the direct and cross-examination of Gerald Stanley and the firearm experts. In other words, the jury had a chance to look into their eyes when they testified and judge for themselves if they believed the evidence or if they were left in a reasonable doubt as to whether the witnesses were telling the truth.
A second look at the key issues
This case has raised at least four issues.
FIRST: Was the trial unfair because the jury lacked a “true” representation of the community, which would mean the jury included both Aboriginal and non-Aboriginal people?
The right to a jury trial is found in the Charter of Rights and Freedoms at section 11 (d), which guarantees the right to be tried by an independent and impartial trial and subsection 11 (f), which guarantees the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment. (Keeping in mind that only Stanley had the Charter 3 right to a jury of his peers, and that Boushie, according to Canadian law, had no Charter 4 rights to protect him in respect of S.11 Charter guarantees).
Regardless of what community members and their leaders and our highest government officials are saying, the law on this issue has been settled by the Supreme Court of Canada in R v Kokopenace.5 This was a case in which an Aboriginal man was convicted of manslaughter by an all-white jury.
The Supreme Court established that the right to a jury of one’s peers or the right to a representative jury lies only in the method used to create the jury pool and not whether the jury itself had representation of a minority section of the community.
To paraphrase Justice Rothstein speaking for the majority: representativeness focuses on the process in compiling the jury roll which fairly and randomly summons all members of the community, often through the use of Medicare cards. As long as the jury roll is representative of the community, the accused’s Charter6 right to a representative jury and a jury of one’s peers is met.
Justice Rothstein continued, “There is no right to a jury of a particular composition, nor to one that proportionally represents all diverse groups in Canada society. Courts have consistently rejected the idea that an accused is entitled to a particular number of individuals of his or her race on … the jury…”.7
The Court also said, which is relevant to almost detractors of the verdict in the case, including potentially The Justice Minister, The Prime Minister and others: “It is not a mechanism for repairing the damaged relationship between particular societal process of selection ensures the accused’s fairness of groups and our criminal justice system more generally and it should not be tasked with that responsibility.”8
The law could not be clearer. Or more prescient.
Strikingly, a number of leaders including our highest officials, such as the Justice Minister, weighed in expressing their seeming disappointment with the verdict. The comments coming from the Minister of Justice, other MPs and the Prime Minister give rise to three objections. First, their comments cast doubt on the jury system and its impartiality and fairness. Secondly, it is highly inappropriate because the executive branch of the government should never interfere, or be seen to interfere with the administration of justice carried out by the judiciary. All three of the heads of government are supposed to be independent. Thirdly, any comments could jeopardize any future legal action that hypothetically could be forthcoming; for example if on appeal a second trial were ordered, finding untainted jurors would be problematic. (NB. It has now been confirmed that an appeal is not forthcoming at the behest of the Crown)
SECONDLY: There is no indication that the jury roll was unrepresentative of the community; thus, according to Kokopenace,9 Stanley’s Charter10 rights were upheld. There has not been an audit of the jury roll process that would suggest this is the case, and this seems to be confirmed by the Crown’s decision not to appeal. Even if the jury were representative enough to satisfy the most progressive voices calling for jury reform, there is no reason other than conjecture to believe a different verdict would be forthcoming.
THIRDLY: Cries of discontent and assertion of racism are not supported by this case. Those same cries may well be appropriate at the systemic level, but not in this author’s opinion, in this case. The only one who might be considered guilty of a racist act is the defence counsel. He did nothing illegal, but he did excuse five potential Indigenous jurors. Both defence counsel and Crown counsel are given twelve challenges in the Criminal Code.11 Perhaps defence counsel was trying to construct an all-white jury, or maybe he the jurors for some other reason, such as the age, gender, occupation or what the potential juror’s social media revealed about them. But in any case, just as the Crown receives equal number of challenges there is never an obligation on either counsel to justify who they wished or whom they do not wish on the jury. It is entirely secret. In other words, whether the defence counsel exercised his challenges according to race or not, he acted according to the law.
FOURTHLY: If the Stanley case was decided according to the law, then the only solution is that Parliament should change the law. The most obvious, and the most effective way, would be to eliminate peremptory challenges. We would not be the first country to do so: England eliminated peremptory challenges in the Criminal Justice Act in 1988.12 A discussion regarding eliminating peremptory challenges should be held, but on another occasion. For the time being, it would seem that there was nothing particularly unlawful in the trial of Gerald Stanley.
1 Dave Deibert, ‘A summary of the court proceedings in the Gerald Stanley trial’, Saskatoon Star Phoenix (2018), online: <http://thestarphoenix.com/news/crime/gerald-stanley-trial-a-day-by-day-recap>; Kenneth Menz, ‘Timeline: ‘Gerald Stanley investigation and murder trial’, CTV News (2018) online: <http://www.ctvnews.ca/canada/timeline-gerald-stanely-invetigation-and-murder-trial-1.3797837>; Kenneth Menz, ‘From day one: A timeline of Gerald Stanley’s trial’, CTV News (2018) online: <https://www.saskatoonctv.ca/from-day-one-a-timeline-of-gerald-stanley-s--trial-1.3798399>.
2 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982,being Schedule B to the Canada Act 1982 (UK) 1982, c 11.
5 2015 SCC 28.
6 Supra note 2
7 Supra note 5 at para 39.
8 Ibid at para 1.
9 Supra note 5.
10 Supra note 2.
11 Criminal Code, RSC 1985 c C-46, ss 634(b).
12 Criminal Justice Act 1988, c 33, ss 118 (1)(UK).