Colten Boushie – The Crown gets it wrong

The not guilty verdict in the Colten Boushie case has managed to elicit wildly inappropriate tweets from our Prime Minster and the Minister of Justice – and thank you for making an appeal all the less likely.

From what I have read this was a huge error on the part of the Crown.

The error began when the Crown charged 2nd degree murder. A charge which requires intent. Proving intent in a melee is next to impossible. A wiser, less political, Crown would have charged manslaughter which does not require intent.

The defense, rather courageously in my view, decided to claim “the gun did it”. This is not a position criminal lawyers tend to take simply because it can be refuted with decent forensic evidence and the sheer implausibility of a gun “hang firing”.

The Crown’s job is to block the exits. One of those exits was the gun firing itself and Stanley having no intent. It appears, and I have not read the transcript, that the Crown was content to prove that the gun in question killed Colten Boushie. Which might have worked in manslaughter but falls short in 2nd degree murder. In 2nd degree murder there has to be an intention on the part of the accused to cause the death of the victim. Absent that intent there is no case to meet.

Lefty friends, as they lament the end of the “reconciliation” effort, are happy to point out that the jury which acquitted was “all white”. They are waving the bloody shirt and convinced that a jury of Saskatchewan peers could not render a fair verdict. Besides being deeply racist, it is a dog which will not hunt.

The Crown was aware of the jury and the likelihood that they would seize any reed, no matter how thin, to acquit a man who was doing nothing more nor less than they would have done if a group of drunk Indians arrived in their yard. Which meant the Crown needed to refute every exonerating theory, no matter how unlikely, for the win. The Crown failed to do that and so Stanley walked.

The “#justiceforcolten” hashtag will loom large for a few days. But the fact is that Colten got the justice the Crown was able to argue for. Is it enough? I don’t think so. Not because the jury got it wrong, rather because the jury understood Colten all too well and managed to find a hole in the Crown’s case. A better Crown would have bolted the “hangfire” door. A better Crown would have understood the jury he was given and the fact that Colten was operating within a context of First Nations crime against farmers. A better Crown would have resisted the political pressure and charged manslaughter.

Every death is a tragedy. But Colten Boushie was a tragedy waiting to happen. The jury understood this without having to be told. They found a way to justice. The Crown let them. It’s done.

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4 thoughts on “Colten Boushie – The Crown gets it wrong

  1. I agree that the Crown could have done better, though based on the evidence as it first presented itself the second degree murder charge wasn’t unreasonable. The cartridge of the bullet that killed Bushie was found on the dash board of the vehicle meaning that the gun had been fired at extremely close range.

    In any event, even with a second degree murder charge the jury had the option of finding Stanley guilty of manslaughter.

    Where the Crown went wrong was in not charging Stanley with any firearms offences. The law is quite strict regarding the storage of firearms and by his own testimony it’s pretty clear that Stanley wasn’t following the law in that regard.

    As for the Defence choosing to go with the hang fire theory, while it is generally implausible, in this case there was evidence to support it. The spent cartridge found in the vehicle was bulged indicating that it had been subject to abnormal stresses during the firing process. The ammunition was 1950s vintage Warsaw Pact army surplus. Stanley testified that misfires (cartridge not firing at all) weren’t uncommon with that ammunition. The Crown’s firearms expert testified that when he fired Stanley’s ammo through Stanley’s gun he experienced one misfire. While hang fires are extremely uncommon there was sufficient circumstantial evidence in this case to suggest that Stanley’s defence was plausible. That hang fires are so unusual, it also made for a good defence to a manslaughter conviction in that it wasn’t foreseeable to the average person.

    Unfortunately, hard cases make bad law and this is the hardest of cases so we can expect plenty of bad laws from the fools in charge in Ottawa.

  2. peterodonnell says:

    I find it difficult to accept that the victim and his friends were there for any good reason, but let’s say they were, the context creates uncertainty in the mind of the accused. So going beyond the technical issues of the case, was this a justifiable shooting? Perhaps not, but calling everyone a racist and a yokel is not likely to defuse the situation. Maybe sometimes the law is inadequate to deal with an understandable reaction that might be technically against the law. I’ve seen that more than once. This time, the law got it more right than wrong. I have not seen that more than once.

  3. peterodonnell says:

    It’s too bad there isn’t a wider discussion of this case away from the overbearing influence of the left, so that sensible people could hash this out. In the discussions that are available, I am put off by the habit of putting rights or property into quotation marks, as if the whole period since the Magna Carta had been nullified by the Unicorn Principle of Law (you’ll have whatever rights we say you have, peons, now shut up). Or as the one poster says to you, well I don’t repeat that sort of thing, not a real Canadian intellectual I guess.

  4. Jay Currie says:

    Canada has a very restricted sense of a right to self defence. One which, most of the time, I am pretty happy with. Just as I am happy with, if there were a few more exceptions, our gun laws.

    As Drew points out above, hard cases make bad law. On the one side there seems to be a push to ensure that juries are “inclusive” as an override to “fair”. On the other side there is a push to make defence of property – rather than life – a thing in Canada.

    My own take on this is that a bunch of drunk Indians arriving in your farm yard and trying to take your stuff and, potentially, threatening your family, is extenuating. Does not mean you can fire at will, does mean that if you use reasonable force, while you may be convicted, you should not go to prison.

    Frankly, the entire thing is a great argument for a baseball bat or a Mag light within easy reach on your farm or in your home. Happily, most Canadian criminals do not have much access to guns (though the FN in this case apparently did). It you imagine Stanley going for his trusty Louisville Slugger, he could have defended his property and his family without much danger of being charged with second-degree murder or manslaughter.

    The defence blamed the gun and so do I. It is damned tough to kill a person with a bat in a car. But you can poke and prod and generally get that person to do what you want him to do. Bats don’t go off by pure accident. Nor, without a hell of a wind up, are you likely to kill someone with a bat. Bring an old gun into the situation and the possibility of death goes way up.

    At my front door I have a selection of three battery Mag Lights. Bought them at garage sales. It is very dark out here. Not quite as good as a baseball bat. But effective if you have a clue what you are doing. And,well, you could kill someone with a single blow, it would be a legitimately, unforeseeable, surprise.

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