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
Follow Robert on Facebook or Twitter

Waiting for a verdict

The back entrance, steps away from where the Occupy Toronto protesters were brutalized by the police

I hadn’t planned on blogging about Byron Sonne again until after Judge Nancy Spies gave a verdict. I thought I’d just check the #freeByron hashtag today to find out the status of the verdict. Still scheduled for tomorrow at 10:00 am Ontario Superior Court (361 University Ave., Toronto)

I’m actually hopeful, because Judge Spies seems to be a very good judge. Although she wasn’t particularly conversant with the technology involved with Byron’s case, she has clearly made it her business to come to terms with it. Even better, she has clearly not accepted everything the Crown Attorney has put forth as gospel. I’ve come to that conclusion from out here in the cheap seats because she’s been asking good questions.

A few days after the court had adjourned for the Judge’s deliberations, the Toronto Police staged an absurd production of security theatre. News reports indicated that Detective Bui was instrumental in the latest mammoth waste of taxpayer dollars, wherein:

As Mostly Water points out in Tickling the Dragon: Byron Sonne and the Crown’s Prosecution:

The question is: why did police wait so long to excavate the backyard? They had the chat log evidence that they used to justify the search in their possession for years. It is suspicious timing that the chat ‘came to their attention’ only after the trial was done and the judge was deliberating.

The role of the Defence is to obtain the best possible outcome for the defendant. Although ours is an adversarial system, the Crown’s role is not to win at any cost, but to obtain the best possible outcome for the public good. The Crown’s duty is to safeguard the public, which means allowing the innocent to walk free. The presumption of innocence means that the Crown must prove the guilt of the accused.

And I don’t think they did that. Not even close.

The defence case provided far more than reasonable doubt. Even though I’m not a lawyer, I think the reason for staging the security theatre was an attempt to muddy the water because the Crown doesn’t actually have a case.

In a perfect world, the justice system should seek justice. But in the real world, egos and reputation are part of the mix. Perhaps Detective Bui thought injecting a little drama might increase public fear and pressure the judge into convicting Byron in spite of his innocence. In practice the publicity stunt may have backfired since the judge seemed singularly unimpressed.

profile

The entire case has had surreal elements. As far back as 2008, comic novelist Janet Evanovich knew a potato gun wasn’t a serious weapon, but in Canada a potato gun resulted in a weapons charge against Byron.   The Internet isn’t some mystical place, but part of the real world. The rules of hearsay must apply to conversation on Twitter the same way they apply to people having a face to face verbal conversation.

fireworks

A great deal of the morass of “circumstantial evidence” that Crown Attorney Elizabeth Nadeau offered the court was meaningless. It was almost painful listening to discussion of every digital photograph, every file, every bookmark. In short, every scrap of Byron Sonne’s digital life that was found on his computer. I expect that there would be more chance of finding evidence of wrong doing on the average teenager’s computer.

There has been speculation suggesting Byron’s denial of bail and subsequent incarceration for nearly a year was purely political. But I have to wonder, how much of the whole fiasco is because Detective Bui is determined to come out of it a hero rather than a heel? And how much is because the Crown Attorney simply doesn’t understand that explosions are neat?