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Mr. Stanley testified that he took the magazine out of his gun and held it in his left hand. He says that the lawnmower upon which his wife had been riding was a few feet in front of where the grey Escape had come to rest. His wife was not on the riding mower and he became concerned about her whereabouts and wellbeing.

He ran up to the vehicle and was about to look under the car to see if his wife might be under the car. As he was about to do that he heard the car rev up. He noticed the person in the driver’s seat. He was concerned that the vehicle would continue on and cause more problems. He says that he reached into the vehicle with his left hand to attempt to shut off the vehicle. As he did so, he moved what he then thought was a metal bar but which he now believes was the barrel of the damaged .22.

He says that in the process, as he was reaching across the steering wheel to try to shut off the car, the gun went off.

Mr. Stanley testified that his finger was not on the trigger, the clip was out of the gun and he thought it was empty.

In assessing this case, you should also take in consideration the testimony of the two firearms experts. From their testimony it is likely safe to conclude that the weapon that shot the bullet that killed Mr. Boushie was a Tokarev T33 semi-automatic pistol, that was manufactured in 1947. The ammunition used was manufactured in Czechoslovakia in 1953. Both experts confirm that the handgun was a firearm and it was functioning properly and was not prone to misfire even when the magazine was removed.

As you will recall the RCMP meticulously searched the Stanley farm to collect evidence. Of interest were three spent casings. Two of the casings were found between the garage and the blue Escape. A third was found on the passenger side dash of the grey Escape. It is likely safe to conclude, although this is up to you, that the casing on the dash is related to the bullet that struck and killed the deceased.

There has been a lot of attention paid to the casing that was found on the dash of the grey Escape. It had an unusual bulge. Neither expert could say why this casing had an unusual bulge or what may have caused it. A properly seated cartridge would not be expected to create a bulge because it should be surrounded by the embedded pieces of the gun.

One theory offered as to why the piece had bulged was that the pistol was out of battery, i.e. the chamber was not fully closed.

Neither expert could say what would cause the pistol to fire when so far out of battery such that would produce the type of bulge on the casing found on the dash.

Although both experts did not know what caused the bulge both theorized that one possible explanation would be a hang fire or delayed reaction.

A hang fire is described as a perceptible delay between clip and bang. Both experts testified that hang fires are exceedingly rare. (Firearms expert Greg) Mr. Williams testified that the delay in a hang fire would normally be less than one half of a second.

Hang fires are less common with more modern ammunition and more common although still very rare with older ammunition that may have been stored in less than ideal conditions.

The defence called two witnesses who experienced hang fires of several seconds. One gentleman told us his recollection of what happened when he was shooting gophers 40 years ago on the farm with a .22. Another man using army surplus ammunition said he experienced a delay of approximately seven seconds when target shooting with a Soviet-made semi-automatic rifle.

There was also reference made to the fact that government gun safety regulations recommend that after a misfire one should wait 30 to 60 seconds before extracting the bullet. The publication was filed as a court exhibit.

If you have a reasonable doubt that what happened to Mr. Boushie was an unintended, involuntary action, that is an accident, you must find that Mr. Stanley did not voluntarily commit the unlawful act of assault.

You would then need to consider whether his handling of the gun was careless.

If that is your decision, you must not go onto the third element. Rather, you would move directly to the second, alternate element.

If you are satisfied beyond a reasonable doubt that what happened to Mr. Boushie was not an unintended, involuntary action, that is, not an accident, you must go on to the next question, which is whether Mr. Stanley had the state of mind for murder.

Now because this is an important crossroads for your decision, I’m going to read those two paragraphs again….

So moving to the third element, and that is if you get past the second element, move to the third element. Did Gerald Stanley have the state of mind required for murder?

If you have determined that the Crown has proven beyond a reasonable doubt that Mr. Stanley caused the death of Mr. Boushie, the first element, and committed the unlawful act of assault, the second element, you must go on to determine whether Mr. Stanley had the state of mind required for murder, the third element.

The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder the Crown must prove beyond a reasonable doubt one of two things. Either that Mr. Stanley meant to cause Mr. Boushie’s death, or 2) that Mr. Stanley meant to cause Mr. Boushie bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not.

In other words, to prove that Mr. Stanley committed murder the Crown must satisfy you beyond a reasonable doubt either that Mr. Stanley meant to kill Mr. Boushie or that Mr. Stanley meant to cause Mr. Boushie bodily harm that Mr. Stanley knew was so serious and dangerous that it would likely kill Mr. Boushie and proceeded recklessly despite this knowledge that Mr. Boushie would likely die as a result of the bodily harm.

The Crown does not have to prove both. One is enough.

All of you do not have to agree on the same state of mind as long as everyone is sure that one of the required states of mind has been proven beyond a reasonable doubt.

If Mr. Stanley did not mean to do either, Mr. Stanley committed manslaughter.

To determine Mr. Stanley’s state of mind, what he meant to do, you should consider all the evidence. You should consider what he did and did not do. How he did and did not do it and what he said and did not say.

You should look at Mr. Stanley’s words and conduct before, at the time and after the unlawful act that caused Mr. Boushie’s death. All of these things and the circumstances in which they happened might shed light on Mr. Stanley’s state of mind at the time. They may help you decide what he meant or did not mean to do. In considering all the evidence use your good common sense.

To help you determine whether the Crown has proven beyond a reasonable doubt that Mr. Stanley had one of those intents required to make the unlawful killing of Mr. Boushie murder you may conclude as a matter of common sense that a person usually knows what the predictable consequences of his or her conduct are and means to bring them about.

This is a simple, one way for you determine a person’s actual state of mind, what he actually meant to do. You may but are not required to reach that conclusion about Mr. Stanley. Indeed, you must not do so on the evidence as a whole if you have a reasonable doubt about whether Mr. Stanley had one of the intents required to make the unlawful killing murder.

Consider in particular whether this evidence causes you to have a reasonable doubt about whether Mr. Stanley knew that Mr. Boushie would likely die from any bodily harm that he caused. It is for you to decide on all of the evidence.

If you have got to this stage in your deliberations you would have already concluded that Mr. Stanley deliberately fired a gun at Mr. Boushie. Intent can be inferred from actions. Generally speaking, if you point a gun at the head or a significant organ of a person and fire a gun you intend to cause his death.

If you are not satisfied beyond a reasonable doubt that Mr. Stanley had either state of mind required to make his unlawful killing of Mr. Boushie murder, you must find Mr. Stanley not guilty of second-degree murder but guilty of manslaughter.

If you are satisfied beyond a reasonable doubt that Mr. Stanley had the state of mind to make his unlawful killing of Mr. Boushie murder you must find Mr. Stanley guilty of second-degree murder as charged.

So I mention that crossroads at paragraphs 141 and 142, so recapping 141: is that if you have a reasonable doubt that what happened to Mr. Boushie was an unintended, involuntary action, that is an accident, you must find that Mr. Stanley did not voluntarily commit the unlawful act of assault. You would then need to consider whether his handling of the gun was careless. If that is your decision you must not go on to the third element, which is one that I just reviewed. Rather, you would move to the second, alternative element. So that’s where we’re at, is the second, alternative element: Did Gerald Stanley cause the death of Colten Boushie unlawfully by careless use of a firearm?

If you have determined that the Crown has not proven beyond a reasonable doubt that Mr. Stanley did commit the unlawful act of assault, you must go on to decide whether the Crown has proven beyond a reasonable doubt that Mr. Stanley is guilty of manslaughter by committing the unlawful act of careless use of a firearm.

I will now discuss the offence of manslaughter with you so that you may determine whether to return a verdict of not guilty of murder but guilty of manslaughter or not guilty.

The difference between murder and manslaughter is not easy to define. Essentially it is this: an unlawful act is part of the offence of murder just as it is part of the offence of manslaughter. But for murder the Criminal Code requires that the accused must mean to cause death or mean to cause bodily harm that he knows is likely to cause death and to be reckless whether or not death ensues. Those words are not mentioned in the offence of manslaughter. The criminal fault in manslaughter is the commission of an unlawful act which is objectively dangerous in the sense that a reasonable person in the same circumstances as the accused would recognize that the unlawful act would subject another person to the risk of bodily harm which is neither trivial nor transitory.

But in the offence of murder there is in addition to the unlawful act, the ingredient of either the intention to cause death or the intention to cause bodily harm that the accused knows is likely to cause death and is reckless whether death ensues.

These are the statutory differences between the two offences.

The Crown submits that if you are not satisfied beyond a reasonable doubt that Mr. Stanley committed the unlawful act of assault, that he did commit the unlawful act of careless use of a firearm. I tell you as a matter of law that careless use of a firearm is an unlawful act because it is contrary to Section 86 of the Criminal Code. For you to find that Mr. Stanley committed the unlawful act of careless use of a firearm, the Crown must prove each of the following elements beyond a reasonable doubt.

That Gerald Stanley used a firearm and B) that Gerald Stanley used a firearm in a careless manner and C) that Gerald Stanley had no lawful excuse for his use of a firearm.

In the circumstances of this case, it is obvious and not disputed that the handgun used by Mr. Stanley was a firearm. The real question for you to decide is whether Mr. Stanley used a firearm in a careless manner.

The use of firearms is an activity that involves the control over a thing that has the potential to cause serious harm to life and limb. The criminal law pays special attention to persons who have control over things like firearms. We expect those who voluntarily assume control over guns to act in a way that indicates respect for the inherent potential for harm by those firearms.

To answer this question you are not required to decide what was in Mr. Stanley’s mind at the time he used the firearm. Carelessness is the absence of the required state of mind. To determine this question you must look at what Mr. Stanley did and did not do, how Mr. Stanley did and did not do it and what Mr. Stanley said and did not say.

You should consider all the circumstances including any personal characteristics of Mr. Stanley that deprived him of the capacity necessary to have the mental state of care required in the circumstances.

Careless use of a firearm involves conduct that shows a marked departure from the standard of care that a reasonably prudent person would exercise in the same circumstances.

If you have a reasonable doubt that Mr. Stanley’s use of the firearm showed a marked departure from the standard of care that a reasonably prudent person would exercise in the same circumstances or that Mr. Stanley took reasonable precautions to live up to that standard of care this element has not been proven.

I am not going to go through all the evidence again respecting the events leading up to the discharge of the firearm. I am going to direct your mind to the critical few seconds before the discharge occurred.

I have already told you that it is not disputed that Mr. Stanley was legally justified in defence of his property to retrieve his handgun and fire it into the air, if you find that that is what he did, in light of what had gone on in his farmyard. However, you must now closely analyze whether his actions between that point and the shooting of Mr. Boushie amount to careless use of that firearm and whether he had a lawful excuse.

The elements of careless use and lawful excuse are somewhat intertwined. Mr. Stanley says that he thought that there were only two bullets in the magazine. He says that he thought that he had fired all rounds because he had pulled the trigger multiple times. He said that he thought the gun could not fire with the magazine out. He says that he did not pull the trigger around the time that he approached the grey Escape.

On the other hand, the gun did discharge and the bullet from the discharge hit Mr. Boushie. Should Mr. Stanley have taken more care to ensure the gun was not pointed at or in the direction of Mr. Boushie? Guns are dangerous. You can see the care with which everyone treated the handgun in court even though it was always thought to be empty.

You must decide the issue of carelessness and lawful excuse. If you are not satisfied beyond a reasonable doubt that Mr. Stanley used the firearm without lawful excuse in a careless manner you must find him not guilty of manslaughter. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that Mr. Stanley used the firearm without lawful excuse, in a careless manner, you must find that Mr. Stanley is guilty of the lesser included offence of manslaughter. Your deliberations would be over.

You have heard the able submissions of Mr. Burge and Mr. Spencer as to why the accused ought to be convicted or acquitted of second degree murder or convicted or acquitted of the lesser offence of manslaughter. I will now attempt to summarize their points of view as I understand them.

If my summary of their points of view conflicts with what either counsel told you then you should rely on what they said and not on my interpretation of their words. The reason for this is that I may not have completely understood the nature of their submissions.

You should not ignore their comments in preference to mine with regard to why they say the accused should be found guilty or not guilty.

When deciding whether the accused is guilty or not guilty you should not weigh the theory or position of the Crown against the theory or position of the accused since it is always the duty of the Crown to prove the guilt of the accused beyond a reasonable doubt before he can be convicted.

Here is my assessment of the theory or position of the Crown in this case. In a highly charged situation Gerald Stanley fired two shots and approached the driver’s side of the grey Ford Escape. He was within arm’s reach of Colten Boushie and intentionally pulled the trigger of a handgun that was pointed at Colten Boushie’s head. This is the Crown’s theory for second degree murder.

Alternatively, the Crown’s theory is that Gerald Stanley committed the offence of manslaughter based on his careless use of the Tokarev handgun.

The carelessness included the following: that Gerald Stanley was not careful enough to count how many cartridges he loaded into the magazine of the Tokarev handgun;

Gerald Stanley did not know how many times he pulled the trigger of the Tokarev handgun before he approached the grey Ford Escape.

Gerald Stanley was not aware of the safety mechanisms on his own handgun despite owning it for four years. This included his mistaken belief that there was a magazine disconnect that would have prevented the trigger from functioning when the magazine was removed.

Gerald Stanley put himself within arm’s length of people while armed with a handgun that he had made not safe.

Gerald Stanley was careless when he engaged in the physical confrontation with Colten Boushie while holding a loaded handgun close to Mr. Boushie’s head while other individuals were in the back seat.

Gerald Stanley was not aware of what his right hand was doing when he reached into the cabin of the grey Ford Escape.

Gerald Stanley was careless when he pointed a loaded handgun at Colten Boushie’s head.

Gerald Stanley’s careless acts led to the foreseeable injury that caused the death of Colten Boushie.

Here is my assessment of the theory or position of the defence in this case:

The defence position is that without intent there can be no finding of murder. Put simply, the Crown must prove beyond a reasonable doubt that Mr. Stanley intentionally approached the grey Ford Escape, aimed his gun and deliberately chose to pull the trigger thereby making a considered and conscious decision to end a life.

The defence says that the firearm discharged accidentally, that there is no credible evidence of an intentional shooting and that the Crown has fallen far short of proof beyond a reasonable doubt.

On the issue of the lesser included offence alleged by the Crown, careless use of a firearm, the defence says that the jury must determine whether Mr. Stanley acted in a way that was a marked departure from how a reasonable person in the same situation in the heat of the moment would have reacted.

The defence says that if the Crown has not proven beyond a reasonable doubt that Mr. Stanley’s actions were a marked departure from the standard of care a prudent person would exercise when scared and facing a dangerous situation then you must acquit.

The defence says that at the time of the accident Mr. Stanley feared his wife was trapped under the vehicle and before he could determine whether she was the engine revved up considerably, leaving him no time to consider anything other than the need to turn off the vehicle.

The defence submits it is completely unreasonable to expect Mr. Stanley to stop and clear the gun that he believed on reasonable grounds was empty and disarmed.

The defence says that in the circumstances Mr. Stanley acted reasonably. The defence says that Mr. Stanley was not aware of the hang fire and that even if he had been, he did not have the luxury of carefully counting out the recommended 60 seconds in clearing the gun before he knew that his wife was safe.

The defence submits that Mr. Stanley faced a crisis situation, never intending to hurt anyone and that the only reasonable verdict is acquittal.

You are not bound by the theory of the Crown when you consider the evidence and the law. Nor are you bound by the theory of the defence.

The Crown is not bound to prove the theory that it advances in order to secure a conviction. Rather, it must prove the necessary elements of the offence beyond a reasonable doubt.

When you go to your jury room, your duty is to consult with one another and to deliberate with the view to reaching a just verdict. Your verdict must be based on facts as you find them and all the evidence introduced at trial and on the law that I have told you applies in this case.

You will have several things provided for you during your deliberations. Anything that has been made an exhibit during the trial will be sent to the jury room for you to examine to the extent and in the manner you may wish to do so.

When you begin your deliberations you should not start out by emphatically expressing your opinion or declaring your intention to stand for a particular verdict no matter what others may think or say. To proceed like that makes it hard for you to take into account the views and wisdom of your fellow jurors. Keep an open mind but not an empty head. Don’t just talk, listen too. Put forward your own views, listen in a calm and impartial manner to what your fellow jurors have to say.

Jurors are not advocates who have a belief like the lawyers here to argue the case for the Crown or for the defence, as the case may be. Jurors are judges. If you approach your deliberations calmly, putting forth your own views and listening carefully to what others have to say, you will be able to reach a just and proper verdict.”

… “The evidence and the issues raised in this case lead to three verdicts for you to consider: not guilty, not guilty of second-degree murder, but guilty of manslaughter, or guilty of second-degree murder.”

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Before the jury is sworn in to begin their deliberations, the judge cautions them against discussing the case outside the jury room and forbids them from contact with the outside world while they are deliberating.