Criminal Code: Murder or Manslaughter

The word "Court" intertwined in the fascia above the side entrance to Toronto's Old City Hall from the dayIn online conversations I’ve had regarding the Colten Boushie killing, there seems to be some confusion about the law, but there doesn’t have to be in this Internet age when we can access Canadian law online.

Citizens don’t need to be lawyers to read The Criminal Code of Canada and discover the difference between what we think our laws are and what they actually are.

Although I am not a lawyer, I have highlighted what I think are the pertinent portions of the Criminal Code that are potentially relevant to the Colten Boushie killing.


Culpable homicide (4) Culpable homicide is murder or manslaughter or infanticide. Marginal note:Idem (5) A person commits culpable homicide when he causes the death of a human being, (a) by means of an unlawful act; (b) by criminal negligence; (c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or (d) by wilfully frightening that human being, in the case of a child or sick person.


Murder, Manslaughter and Infanticide Marginal note:Murder 229 Culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; (b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or (c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.


Murder reduced to manslaughter 232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. Marginal note:What is provocation (2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool. Marginal note:Questions of fact (3) For the purposes of this section, the questions (a) whether the conduct of the victim amounted to provocation under subsection (2), and (b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.


Manslaughter 234 Culpable homicide that is not murder or infanticide is manslaughter.


Manslaughter 236 Every person who commits manslaughter is guilty of an indictable offence and liable (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life.


Conviction for infanticide or manslaughter on charge of murder (3) Subject to subsection (4), where a count charges murder and the evidence proves manslaughter or infanticide but does not prove murder, the jury may find the accused not guilty of murder but guilty of manslaughter or infanticide, but shall not on that count find the accused guilty of any other offence. Marginal note:


You are, of course, welcome to check out the law for yourself:

http://laws-lois.justice.gc.ca/eng/acts/C-46/FullText.html


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In the trial of Gerald Stanley, an all-white jury runs from justice

[guest post by Robert Jago]

Last night, a crowded Saskatchewan courtroom heard the verdict of the 12-person jury in the trial of 56-year-old Gerald Stanley, the white farmer charged in the 2016 shooting death of Red Pheasant First Nation member Colten Boushie. The decision to find Stanley ‘not guilty’ of the second-degree murder of 22-year-old Boushie set off a firestorm of reaction across social media, on both sides of the case. Here, Indigenous entrepreneur and commentator Robert Jago shares his perspective on what we should take away from the verdict.


There is a video from outside the courthouse in Battleford, Saskatchewan last night. It shows a screen which is split in four and displaying the courtroom, the jury box, the judge, and the accused in the Gerald Stanley case.

As the verdict is announced, there are gasps and shouts; Colten Boushie’s mother cries out. Bailiffs grab Gerald Stanley and run out of the frame, and to a waiting truck under heavy RCMP protection.

In the jury box, a dark-haired woman in a short dress, and long hooded sweater jumps up as Stanley passes, and runs off camera herself—getting away from the family and the assembled Indians in the courtroom.

I would like to think that she ran because she was ashamed of what she had just done. But the likelier answer is that she ran for the same reason that she and her fellow members of the all-white jury found Gerald Stanley not guilty of killing 22-year-old Colten Boushie. They were afraid of Indians, especially angry Indians.

And let’s dispense, for a moment, with those words “First Nations” and “Indigenous,” because those imply respect, and progress. Today, it is clear that we’re still “Indians.”

“Fights with Native kids were a too-common part of [my friend’s childhood] experience … It’s no overstatement to point out that such kids were, on average, rougher than the white kids, or that they were touchier…”

That is a quote from the best-selling non-fiction book in Canada this week, Jordan Peterson’s 12 Rules for Life. Natives are rougher, touchier. The Indians are restless—run.

Some people in this country are worried about schools engaging in social engineering to manipulate children into holding certain political views. They’re right to be worried. It is school that taught that woman when to run. It was newspapers, TV, films, it was books. It was every comment and joke that taught her to run; it was the Premier of her province urging “calm” after the verdict. It was what her boss told her at her part-time job—’Watch that Indian over there, I think he’s stealing.’ She was taught to run, and to think that Indians, especially young male Indians, are scary—subconsciously, it sunk in, that they’re wild and dangerous animals.

If a fox is stealing chickens, it’s not enough to chase it away, you need to put it down. Gerald Stanley put Colten Boushie down at point-blank range, and because these jurors were raised to see us as scary animals, to think of us as wild “wagon burners”—a slur you hear on the Prairies—it was easy for them to see why he was justified. ‘It could have been me and my family,’ they undoubtedly thought—and who wouldn’t do anything to protect their families?

Gerald Stanley had a family, and one that looked like those of the all-white jury. Colten Boushie didn’t have a family. Indians don’t have “families.” They have braves and squaws, chiefs and papooses, bitches and thugs—but not a mother and father like the Stanleys are.

When you hear the mother of a deceased child wail in agony for the verdict you’ve brought down, you hang your head, and quietly and respectfully leave. On the other hand, when you get between a wild animal and its mother, you run. That woman in the jury reacted like Colten Boushie’s mother was a charging bear, not a grieving mother.

Don’t say that this is about Saskatchewan, or the defence, or those racists over there. And don’t say that Canada failed Indigenous people—Canada just failed. It wasn’t a mob of racists that released a killer onto the streets—it was 12 regular Canadians.

These are Canadians who have lived their entire lives hearing excuses for why they don’t need to care about Indians. Why care about tainted drinking water on reserves? ‘Those greedy chiefs are probably taking the money, those Indians need to sort themselves out first.’ Why care about the crisis in Thunder Bay? ‘It’s Indians killing Indians, Indians drinking too much and falling in the water, what are we supposed to do?’ For every problem that Indians face in this country, there is a ready excuse, a fig leaf, to shield Canada from blame.

The defence presented a case that centered around a magic bullet. It is a hard story to believe, but you don’t have to believe it. You don’t need a hard sell to get an addict to buy your meth. And you don’t need a hard sell to push a fig leaf on people who don’t know how to live without one.

If you don’t know how it is that so many reserves live in poverty, or why the prisons are full of our people, or why there are so many suicides, boil-water advisories, why there are so many Missing and Murdered Indigenous Women, why any of the dysfunction and failure and tragedy that is the “Indian Problem” in this country exists, look for your answer in the Gerald Stanley verdict.

To find Gerald Stanley guilty, would be to find him responsible for his actions—actions which resulted in the death of Colten Boushie, an Indian. But we don’t do that in this country. White Canada is not to be held responsible for what has happened to Indians.

The school that teaches you to run, also teaches you that you’re the good guys in this story, and that everything that has befallen our Indian race was inevitable, it came on us like a force of nature. Who can blame you for a flood or an ice storm? Who can blame you for tainted water, or blame Gerald Stanley for just doing what any of you would do in the same situation? The jury decided that blame, as always, belonged to the Indian, for trespassing on this farm and putting himself in harm’s way. The best of you will shake your head and pity him, the poor animal, for not knowing better—but what can you do?

I feared that the jury would come down with a manslaughter conviction instead of the murder conviction that was due. No part of me thought they would let him go and believe this story. I honestly thought it was hyperbole to think that Stanley could get away with what he did, because as bad as some people say it all is, people claim to have good intentions, and things are better, aren’t they?

But they’re not. That’s what the verdict shows. That’s why she’s running.


This important piece by Robert Jago was originally published on
MEDIA INDIGENA.


post script: Robert Jago gave permission to readers to repost his article on their own sites.  Distributing work in this way can help spread it all over the Internet, making it harder to erase.
And shortly after it was published someone did indeed try to erase it:

Indigenous media site knocked offline following Gerald Stanley critique.

Evidence and Verdict #JusticeForColten

[guest post by Robert Feist]

Evidence

As I have been asked by a couple people, I wanted to provide a few thoughts on the evidence at the Gerald Stanley trial. I have kept on top of the trial, as it is of historic importance to our community; have followed the evidence closely in person, in media, and on Twitter; and attended to watch summations of the Crown and Defence cases this morning.

Before talking about the key issues, it is worth talking about what the key issues aren’t.

First, there is no debate about basic who, what, when, and where questions. Gerald Stanley held the gun that discharged and killed Colten Boushie and the resultant injury was the cause of death. No debate there was a homicide or that Gerald Stanley caused that homicide. All of that is admitted.

Second, the case is not about self-defence. All the internet yapping about “castle law” and “property rights” came to nothing at trial, and Mr. Stanley did not make a self-defence argument – because the Defence lawyer, knowing his job, knew that Gerald Stanley was not under threat when the gun was fired. In Canadian law, lethal force in self-defence is only justified in the face of threat of serious injury or death to you or another person. That threat did not exist in this case, and, wisely, the Defence did not grasp at that straw. This case changes nothing about the right to self-defence, and those nonsense arguments should stop.

The issue the jury is forced to decide on – the defence put to the jury – is limited only to the defence of accident. And here is where the evidence put forward by Gerald Stanley is exceptionally interesting.

To set the scene (and you will likely know much of this, so skip this paragraph if you like) on the day in question, an SUV carrying Colten Boushie and four other young people came on to the Stanley farm, and was located at various points on the Stanley driveway. Gerald Stanley and his son Sheldon formed the opinion that the young people had come to the farm to steal, and Mr. Stanley and Sheldon Stanley decided to give some form of chase or response. Sheldon ran toward the vehicle and smashed the windshield with a hammer he was carrying. Mr. Stanley kicked out the tail light. After the windshield was smashed, the vehicle carrying Boushie took a hard turn into an SUV owned by the Stanleys, and the Stanleys felt the crash was deliberate and potentially a run at Sheldon. Gerald Stanley ran back to his shed and got a Tokarev pistol. Sheldon went to the house, where there were several other firearms. One of the witnesses in the vehicle claimed that Gerald yelled at Sheldon to go to the house to get a firearm, but Sheldon’s evidence was that he went to the house to retrieve his keys. At that point, Boushie’s vehicle appeared to have been immobilized in the Stanleys’ driveway, and two male occupants exited the vehicle. Two female occupants and Boushie, who was likely passed out or asleep, stayed inside.

Now, here is the crux of Mr. Stanley’s evidence on his defence of accident – and where Mr. Stanley’s evidence becomes truly amazing.

Stanley claimed while in the shed, he loaded the Tokarev with three shells. He claimed he thought he loaded two, but later realized there were three – the same number the RCMP found had been discharged.

Stanley then claimed he pointed the semi-automatic Tokarev up in the air, and began pulling the trigger, to fire “warning shots”. He claimed he fired two warning shots, and after that believed the firearm was empty. After the shots were fired, the two males who exited the vehicle ran from the scene, leaving only Boushie and two female occupants in the vehicle.

Gerald Stanley then claimed, even though he believed he had only put two rounds in the Tokarev, that he pulled the trigger several more times after the warning shots to make the firearm safe, and nothing happened. He then claimed he opened the slide and removed the magazine, also to ensure the firearm was made safe.

Gerald Stanley then claimed he saw the riding lawnmower his wife had been driving parked on the lawn, with his wife no longer driving, and somehow formed the belief that she may have been run over by the vehicle containing Boushie.

Gerald Stanley then claimed he ran to the Boushie vehicle, and wanted to look underneath it to ensure his wife was not there. He claimed as he was going to look under the vehicle, the vehicle revved its engine, and he decided he needed to turn the vehicle off.

Gerald Stanley then claimed, holding the Tokarev in his right hand, he reached through the Boushie SUV’s driver side window with his left hand to try to turn off the ignition. (I encourage you to actually try this, on a vehicle, and think about why you would use your left hand to turn off a vehicle as opposed to switching hands and putting the firearm in your left. Motion it out. Using your left hand makes no sense, and is incredibly awkward.)

Gerald Stanley then claimed that, as he was trying to turn the ignition off, the Tokarev was in his right hand pointed at Colten Boushie’s skull. And Stanley claimed at that moment, a hang-fire occurred – there was still a shell in the Chamber, and the firearm discharged spontaneously without a trigger pull, killing Colten. Despite the fact Stanley had opened the action, pulled the magazine out, and repeatedly dry-fired it. And despite the fact hang-fires are extremely rare, and normally last less than half-a-second.

Gerald Stanley’s defence is the defence of accident. If you believe it, his defence explains all of the physical evidence, and most particularly a Tokarev casing found on the SUV dash and Colten’s DNA found on the Tokarev itself. But to believe it completely, you have to accept the following:

A. Gerald Stanley did not know how many rounds he put into the Tokarev;

B. Gerald Stanley, who believed he or his family were under threat, loaded his firearm with two shells, and then fired both shells in the air, leaving his firearm empty and useless for self-defence;

C. Gerald Stanley tried to make the Tokarev safe by repeatedly pulling its trigger into the air;

D. Gerald Stanley took the time, in this situation, to make the Tokarev safe before proceeding to the vehicle he believed had run over his wife;

E. Gerald Stanley believed the Boushie SUV had run over his wife, even though there was no explanation for his belief, other than his wife not being on the lawnmower;

F. Gerald Stanley went to the window of the vehicle to turn the vehicle off to immobilize it, even though the driver had exited the vehicle, and Colten Boushie, the person nearest the steering wheel, was asleep or passed out;

G. Gerald Stanley used his left hand to attempt to turn off the vehicle ignition, keeping the firearm in his right hand, even though he claimed the firearm was made safe, and using your left hand through a driver’s side window to turn off an ignition is incredibly awkward; and

H. Gerald Stanley experienced a hang-fire – an extremely rare occurrence in itself – with a duration of many seconds – an almost impossible length of time for a hang-fire – at the precise second his Tokarev was aimed at close range at Colten Boushie’s skull.

Points A, C, D, E, and F make Mr. Stanley’s story hard to believe. Points B and G simply make no logical sense whatsoever. Point H is beyond reason, and is a submission somewhere along the lines of the magic bullet that shot JFK. While the story raised by Mr. Stanley is not impossible – in the way that suggesting Colten Boushie having died of a heart attack ten seconds before he was shot is not, by way of example, impossible – in my opinion, it is an extreme stretch to suggest that a story of this level of credibility should raise a reasonable doubt as to Mr. Stanley’s intentions.

This is, from what I have reviewed, a fair synopsis of Mr. Stanley’s evidence that the homicide of Colten Boushie was accidental. If you read it, and catch any errors, feel free to point them out, and I may revise.   Here is the link to the CBC synopsis.

I am not sharing this information to tell you that Mr. Stanley is guilty – whether he is guilty beyond a reasonable doubt is for the jury to decide. Rather, I hope it assists folks in understanding what the trial has been about, what it is clearly not about, and the extremely specific chain of unlikely events the jury will have to believe occurred to accept Mr. Stanley’s incredible version of events.

My thoughts continue to be with the mother and family of Colten through this difficult time.

Court of Queen’s Bench, Battleford SK
(photo by Rob Feist)

Verdict

Last night, I went to the Court of Queen’s Bench in Battleford.

And I watched an all-white jury, instructed by a white judge, under counsel from white Crown Prosecutors and white Defence lawyers, supported by a white clerk, surrounded by white sheriffs, acquit a white man who held the gun that killed an Indigenous man.

The people who gathered with me last night, to suspend their disbelief in hopes that justice would be done, were acutely aware that Courts composed entirely by white people are not an unusual thing in our part of Saskatchewan, and regularly try Indigenous defendants. All that was unusual in this case was that the man in the prisoner’s box shared the skin colour of the folks who made decisions on his fate.

I make no comment on the jury’s decision. I have given my thoughts on the evidence elsewhere. I believe in the right to a fair trial, and the presumption of innocence. What I cannot accept is that the colour of my skin makes me superior to anyone – and I reject as gravely wrong the practice that one racial group sits in judgement of another, while members of that group take benefit of the exclusive judgement of their own.

I have heard clear calls for change and justice over the past few days from people I look up to, and for whose strength and wisdom I have the utmost respect – Jade Tootoosis, Eleanore Sunchild, Alvin Baptiste, Kim Jonathan, and Kenny Moccasin, to name a few. If Saskatchewan, in this time and place, wants to be judged by history as righteous, and just, and upright – if we take the word “justice” seriously – we must not let those calls go ignored.

To Colten’s family, friends, and community, if you happen to read this, for the little my words must be worth right now, I am saddened and I am sorry, and I am inspired by your strength.


Robert Feist is a private practice lawyer in North Battleford, SK
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