The Stanley verdict: Manslaughter and ‘hang fire’

Michael Plaxton is a professor of law at the University of Saskatchewan. He is the author of Implied Consent & Sexual Assault, and the forthcoming Sovereignty, Restraint, & Guidance: Canadian Criminal Law in the 21st Century.

It's easy to explain why the jury acquitted Gerald Stanley of second-degree murder: It concluded that there was no intention to fire his weapon at the occupants inside the SUV. It is trickier to explain why it acquitted the defendant of manslaughter.

First, keep in mind that this was not a case in which the accused claimed that his finger "slipped" while brandishing a weapon in order to keep intruders at bay. At no point did the defence argue that he intentionally pointed his weapon at the youths in order to protect his family or his property. He was holding the gun at the pivotal moment, but in the (he argued, well-founded) belief that it was empty.

According to Mr. Stanley's testimony, he obtained the pistol because he was afraid that the intruders would attack his son, who had just smashed the windshield of the SUV with a hammer. He loaded it with three bullets – but at the time he wasn't sure if it was two or three. He then proceeded to fire two warning shots. He pulled the trigger a third time, but nothing happened. Mr. Stanley checked his pistol carefully, and concluded that the gun was empty. He then ran to the SUV, ostensibly because he was worried that his wife was injured. As he reached to turn off the ignition, the gun discharged, killing Colten Boushie.

The defence case turned on evidence of "hang fire" – a phenomenon in which there is a delay between the pulling of the trigger and the discharge. Without that evidence, it would have been all but impossible for the jury to find that Mr. Stanley's use of the firearm was anything other than careless. A conclusion that Mr. Stanley was waving around a gun that he had good reason to think might be loaded, would have been more than sufficient basis for a manslaughter conviction.

The evidence supporting the hang-fire theory was weak. It amounted to little more than anecdotal evidence to the effect that "hang fires happen." There was no statistical evidence on the incidence rate of hang fires, either among firearms generally or among the particular make and model of pistol used by the defendant. The Crown's firearms expert suggested that hang fires are rare and that such delays in firing are quite short – certainly, much shorter than Mr. Stanley's testimony would indicate.

With this in mind, it makes sense that the Crown, during closing arguments, strongly emphasized the flaws in the hang fire theory. The Crown suggested that Mr. Stanley's evidence was flatly inconsistent with that of expert testimony concerning how his pistol functions. More importantly, the Crown noted a possible inconsistency between Mr. Stanley's evidence and that of his son: whereas Mr. Stanley testified that he "ran" to the SUV to check on his wife, his son testified only that he walked. That doesn't sound like much of a difference, but it goes to just how much of a delay there was between the trigger-pull and the discharge. Clearly, the jury thought this was significant, since they specifically asked to hear the testimony of both Mr. Stanley and his son as to what happened after the warning shots were fired.

Ironically, though, the Crown may have pushed the jury into a corner. If the hang-fire theory was rejected, then Mr. Stanley's story was not just undermined on one discrete detail. It went to the heart of his account. Again, there was no evidence – even by the defence – that his finger simply "slipped." So how did the gun go off, if there was no hang fire? He must have pulled the trigger, which would suggest that the killing was intentional. So it may have seemed to the jury that rejecting the hang-fire theory required it either to convict on second-degree murder, or to acquit.

This is probably not what the Crown intended. If anything, knowing that there were real credibility issues with its own witnesses, the Crown was likely aiming for a manslaughter conviction.

But the Crown might not have done enough to stress just how the jury could reach that conclusion. At the same time, perhaps the jury was not focused on Mr. Stanley's motive to kill – that it was surely a wild coincidence that the gun happened to discharge just as it was pointed at the back of the head of someone who had, on Mr. Stanley's account, posed a threat to his son and wife.

All this is Monday morning quarterbacking. The hang-fire evidence, credibility issues and media glare arguably made this a messy case to prosecute. Looking forward, the Crown may attempt to argue that the evidence of hang fire should not have been admitted in the first place. Or it may claim that the use of peremptory challenges by the defence, at the jury empanelling stage, improperly excluded Indigenous jurors. I am not optimistic about the prospects of success for either argument. They are, however, makeable.

What cannot be argued on appeal is that the jury simply got it wrong. The Crown can only appeal on questions of law, not fact. We will never know precisely how the jury reached its verdict. But I would make this observation: This was not a trial about whether and when it is okay to shoot each other – either to protect ourselves, our families or our property. It was a trial about whether and how, on a remote farm in Saskatchewan, a gun malfunctioned on Aug. 9, 2016. As we reflect on the verdict, we should keep that point squarely in mind.