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Boushie’s family - and our justice system - deserves answers. So why no appeal?

David Tanovich is a criminal law professor at the faculty of law, University of Windsor, and a Fellow of the Royal Society of Canada.

The decision to not appeal the Stanley acquittal is perhaps not surprising, given some of the decisions of the prosecution at trial. But it is, nonetheless, very disappointing. The decision has denied the family, the community and Canada itself an opportunity for a second objective look at the process. It also unfortunately serves to reinforce the view among some lawyers and others that this was a fair and unbiased trial.

The threshold for a Crown appeal is a high one given the concerns about fairness and double jeopardy. Indeed, Canada is one of the few countries in the world that allow for an acquittal to be overturned on appeal. The threshold is whether there are errors of law that had a material bearing on the acquittal.

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Based on the judge’s charge to the jury, considerable media reporting and speaking to a lawyer who was present during the entire trial, I respectfully disagree with the Assistant Deputy Attorney-General’s view that “everything was done appropriately” in explaining why no appeal was filed.

With respect to jury selection, there was no vetting of prospective jurors for Indigenous bias. This was done in R v Rogers where each prospective juror was asked whether their ability to judge the evidence without bias would be impacted by the fact that the deceased was Indigenous and the accused white. In allowing that challenge for cause, the trial judge in Rogers observed that “a question directed at revealing those of the panel whose bias renders them partial does not ‘inject’ racism into the trial but seeks to prevent that bias from destroying the impartiality of the jury’s deliberations...”

There was a heightened need for such a challenge in this case.

The defence in this case was accident. Mr. Stanley testified that he didn’t pull the trigger, that his gun just went off while it was pointed at Colten’s head. The credibility of that defence depended on the possibility that the gun experienced a very rare “hangfire” – a delay between the pulling of the trigger and discharge of the bullet – for a significant period of time. Mr. Stanley testified that after he pulled the trigger for the last time, he took out the magazine and ran to the car. The gun fired after he had put his hand in the car, moved a metal object and was reaching across the steering wheel to turn off the ignition.

The defence called two ordinary witnesses who testified about their experiences with hangfire lasting more than five seconds. Both involved different guns and circumstances. One of the witnesses, who contacted the defence during the trial, testified that his hangfire happened 40 years ago while he was gopher hunting. There have been serious concerns expressed about the admissibility of this evidence and, in particular, its relevance and reliability.

Another legal question is whether the expert evidence was sufficient to permit hangfire to be put to the jury as a scientific phenomenon capable of explaining what happened. The Crown expert testified that a hangfire cannot last longer than half a second. The defence expert testified that there was no forensic evidence about whether a hangfire had occurred or not and that he did not know how long one could last. In other words, while Mr. Stanley was entitled to have the jury consider whether the gun went off by itself, it is arguable that he was not entitled to rely on a theory of ballistics in support of that testimony.

Finally, the trial judge failed to provide the jury with any specific instructions on how to assess the hangfire evidence.

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There is no question that the challenge in this case was not just the high standard of review but also the fact that the trial Crown failed to make any objection to the jury selection process, the admissibility of the hangfire evidence or, the charge to the jury. That said, there are cases where an appellate court has set aside an acquittal in these circumstances. To avoid any appearance of conflict and given the significance of the case, the Crown should have erred on the side of caution and appealed.

Moving forward, the decisions of the trial Crown must be part of the discussion of the fairness of the process and whether systemic racism played a role in the investigation and trial. There are simply too many questions raised by their repeated inaction during the trial. Colten Boushie and his family, Indigenous communities and our justice system are all entitled to answers.

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