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.